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EXHIBIT 10(n)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 10, 1992, (the "Agreement") by and
between XXXXXXXX INTERNATIONAL, INC., a Delaware corporation (the "Company")
and a subsidiary of MANVILLE CORPORATION, a Delaware corporation ("Manville")
and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS the Company desires to continue to employ Executive and to enter
into an agreement embodying the terms of such employment (the "Agreement"); and
WHEREAS Executive desires to continue such employment and enter into such
an Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. The Executive shall be employed by the Company for
a period commencing on April 10, 1992 and, except as otherwise provided herein,
ending three years from such date. At the end of each year of employment
hereunder, the Board of Directors of the Company and the Chief Executive
Officer of the Company shall review this Agreement and the Executive's
performance hereunder and shall determine, in their sole discretion, whether or
not to extend the period of Executive's employment pursuant to this Agreement
by one year. The period of Executive's employment hereunder, including any
extension or extensions pursuant to the
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foregoing sentence, is referred to hereinafter as the "Employment Term". A
failure to renew this Agreement shall not constitutes termination of
Executive's employment.
2. Position. Executive shall serve as Vice President Finance &
Administration, Xxxxxxxx International, Inc. Executive shall devote
substantially all of his business time and energies to the business of the
Company. Notwithstanding the foregoing, Executive may (a) continue to serve on
the board of directors of any business corporation on which he is serving as of
the date of this Agreement (as shown on Schedule A), (b) serve on the boards of
directors or committees of non-profit organizations and (c) with the prior
approval of the Chief Executive Officer of the Company or of the Board of
Directors of the Company, serve on the boards of directors of other business
corporations, provided that in the Company's sole reasonable discretion none of
the foregoing activities materially interferes with the performance of
Executive's duties hereunder.
3. Base Salary. Company shall pay Executive a base salary at the rate of
not less than $135,000 per year, as the same may from time to time be increased
at the sole discretion of the Board of Directors of the Company or, prior to a
Change in Control, decreased in the event of across the board salary reductions
within the corporate staff group or the business division in which Executive is
employed, whichever is applicable ("Base Salary").
4. Incentive Compensation. Executive shall participate in the Manville
executive incentive compensation plans, as in effect from time to time during
the Employment Term, for which he is eligible. (References herein to "Manville
executive
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incentive compensation plans" whether annual or long-term, shall include such
plans maintained by Manville and/or the Company, as the case may be, from time
to time.) The Manville executive incentive compensation plans in effect on the
date hereof in which Executive participates are listed on Schedule B.
5. Employee Benefits. Executive shall be eligible to participate in such
other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term.
6. Business Expenses. Necessary and reasonable business expenses incurred
by Executive during the Employment Term shall be reimbursed in accordance with
Company policies.
7. Termination Prior to a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement, as defined hereafter. For purposes of this Agreement,
"Retirement" means termination of Executive's employment initiated by
Executive, other than for Good Reason as defined in Section 7(e) or Section
8(e) hereof, whichever is applicable, whereby Executive is entitled to receive
an immediately payable benefit, including an early retirement benefit, under
the Company's retirement plan generally applicable to its salaried employees or
under any retirement arrangement established with respect to Executive with his
consent, in either case, whether or not Executive commences to receive such
benefit at the time of such termination. Upon termination of Executive's
employment by reason of Retirement prior to a Change in Control,
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Executive shall be entitled to benefits determined in accordance with the
Company's retirement, benefit and insurance programs in effect at such time.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be terminated
by the Company if Executive becomes physically or mentally incapacitated and is
therefore unable for a period of six (6) consecutive months to perform his
duties (such incapacity is hereinafter referred to as "Disability"). Any
question as to the existence of the Disability of the Executive as to which the
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to the Executive and the
Company. Upon any such termination for Disability prior to a Change in Control,
Executive shall be entitled to receive his Base Salary through the date on
which the Executive is first eligible to receive payment of disability benefits
in lieu of salary under the Company's employee benefit plans as then in effect.
(ii) Death. Upon termination for death prior to a Change in
Control, Executive shall be entitled to his Base Salary at the rate in effect
at the time of Executive's death through the end of the month in which his
death occurs.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled following Executive's termination for death or
Disability prior to a Change in Control shall be determined in accordance with
the plans, policies and practices of the Company.
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(c) For Cause by the Company; Voluntary Termination by Executive.
Executive's employment hereunder may be terminated by the Company for "Cause".
For purposes of this Agreement, prior to a Change in Control, "Cause" shall
mean (i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 7(e) below), (ii) Executive's dishonesty in the
performance of his duties hereunder or (iii) Executive's conviction of a felony
under the laws of the United States or any state thereof. If Executive is
terminated for Cause, or if Executive voluntarily terminates employment
hereunder other than for Good Reason, in either case, prior to a Change in
Control, he shall be entitled to receive his Base Salary through the date of
termination. All other benefits, if any, payable to Executive following such
termination of Executive's employment shall be determined in accordance with
the plans, policies and practices of the Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
prior to a Change in Control Executive's employment hereunder is terminated by
the Company without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (as defined in Section 7(e) below), Executive
shall be entitled to receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times his Base Salary in effect at the
time of such termination or, in the event of termination by the Executive on
account
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of an event described in Section 7(e)(iv) below, the Base Salary as in effect
prior to the reduction or reductions referred to therein plus the bonus the
Executive would have earned in respect of the year of termination under the
Manville annual incentive compensation plan, if any, in effect at the date of
termination or, in the event of a termination by Executive by reason of an
event described in Section 7(e)(vi), the plan in effect prior to the
elimination referred to therein, determined as if the Executive had been
employed by the Company for the full year and without regard to any right
reserved by the Company to decrease or eliminate such bonus, and assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan.
(ii) For a 24-month period after such termination, the Company
shall cause Executive to be provided with life, accident, medical, dental and
prescription insurance benefits substantially similar to, and on the same terms
as, those benefits elected and received by Executive under the Company's "Flex
Benefit" program immediately prior to such termination; provided that,
Executive shall be charged an amount equal to any monthly payroll deduction
charged for similar benefits to executives in positions similar to that which
Executive held before his termination; and provided further that, if Executive
receives medical benefits under the Manville Retiree Comprehensive Health Care
Plan and post-retirement life insurance benefits (collectively, "Retiree
Medical and Life Insurance Benefits"), at any time during the 24-month period
referred to above, once such benefits begin Executive shall be entitled only to
Retiree Medical and Life Insurance Benefits.
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(iii) For a period of 24 months after such termination, the Company
shall provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto, as may be amended by the Company from time to time
without Executive's consent prior to such termination (provided that nothing
herein shall be deemed to permit such an amendment without Executive's consent
following a Change in Control), on the same terms and conditions on which such
perquisites were provided prior to Executive's termination.
(iv) In addition to all other amounts payable to Executive under
this Section 7(d), Executive shall be entitled to receive all benefits payable
to Executive under any other plan, policy or agreement relating to retirement
or other benefits in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 7(d)
shall be in lieu of any payments under any Manville separation policy.
(v) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to exceed the
lesser of (A) 20% of Executive's Base Salary in effect at the time of
Executive's termination of employment with the Company or (B) $25,000.
(e) Good Reason. For purposes of this Agreement, prior to a Change in
Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities,
authorities or duties, all as contemplated by Section 2 hereof; provided,
however, that
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such reduction by reason of a termination for Cause or Disability shall not
constitute Good Reason;
(ii) Executive's job is eliminated other than by reason of
promotion or termination for Cause or Disability.
(iii) the Company fails to pay Executive any amount otherwise
vested and due hereunder or under any plan or policy of the Company;
(iv) a reduction in Executive's Base Salary except in the event of
an across the board salary reduction within the corporate staff group or the
business division in which Executive is employed, whichever is applicable;
(v) a reduction in Executive's aggregate level of benefits under the
Company's pension, life insurance, medical, health and accident, disability,
deferred compensation or savings or similar plans, except in the event of an
across the board reduction in such benefits within the corporate staff group or
the business division in which Executive is employed, whichever is applicable;
(vi) the elimination of an annual incentive compensation plan; or
(vii) the Executive's office is relocated outside of a 00-xxxx
xxxxxx xx Xxxxxx, Xxxxxxxx without his written consent.
If Executive provides to the Company a Notice of Termination, as defined
in Section 13(f), in connection with an event described in clauses (i) through
(vii) of this Section 7(e), the Company shall have ten (10) business days from
the date of receipt of such notice to effect a cure of the event described
therein, and upon cure thereof by
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the Company to Executive's reasonable satisfaction, such event shall no longer
constitute Good Reason for purposes of this Agreement.
(f) Mitigation. In the event of termination of Executive's employment
hereunder by the Company without Cause or by Executive with Good Reason prior
to a Change in Control, benefits otherwise receivable by Executive pursuant to
subsection 7(d)(ii) shall be reduced to the extent comparable benefits are
received by Executive during the 24-month period following such termination.
Executive shall report to the Company any such benefits actually received by
Executive.
8. Termination Following a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement. Upon a termination of Executive's employment by reason
of Retirement following a Change in Control, Executive shall be entitled to
benefits determined in accordance with the Company's retirement, benefit and
insurance programs in effect immediately prior to the Change in Control or, if
more generous, such programs in effect at the time of such Retirement.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be terminated
by reason of Executive's Disability, subject to the procedure for determining
such Disability outlined in Section 7(b)(i). Upon any termination for
Disability following a Change in Control, Executive shall be entitled to
receive his Base Salary for a two-year period ending on the second anniversary
of Executive's date of termination. Such Base Salary shall be paid in equal
monthly installments and shall be reduced by any
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amounts received as disability benefits in lieu of salary under the Company's
employee benefit plans.
(ii) Death. Upon termination for death following a Change in
Control, Executive shall be entitled to (x) his Base Salary at the rate in
effect at the time of Executive's death through the end of the month in which
his death occurs and (y) if and to the extent the death benefits provided
Executive by the Company are less than would have been paid immediately prior
to a Change in Control, a lump sum payment of cash in an amount equal to the
value of such shortfall. Any such lump sum payment shall be made within ten
(10) business days following Executive's death.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled upon Executive's termination for death or Disability
following a Change in Control shall be determined in accordance with the plans,
policies and practices of the Company in effect immediately prior to the Change
in Control or, if more generous, such plans, policies and practices as in
effect at any time following the Change in Control; provided that, nothing in
this Section 8(b)(iii) shall be interpreted so as to result in the duplication
of the benefits provided under Section 8(b)(i) or (ii).
(c) For Cause by the Company; Voluntary Termination by Executive. For
purposes of this Agreement, following a Change in Control, "Cause" shall mean
(i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 8(e) below) after a written demand for substantial
performance is delivered to Executive personally
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and Executive shall have failed during the sixty-day period following such
written demand to have corrected such failure, (ii) Executive's dishonesty in
the performance of his duties hereunder or (iii) Executive's conviction of a
felony under the laws of the United States or any state thereof. For purposes
of this Section 8(c) no act or failure to act on Executive's part shall be
deemed willful unless done or omitted to be done by Executive not in good faith
and without reasonable belief that Executive's action or omission was in the
best interest of the Company.
If Executive is terminated for Cause, or if Executive voluntarily
terminates his employment with the Company other than for Good Reason, in
either case, following a Change in Control, he shall be entitled to receive his
Base Salary through the date of termination. All other benefits, if any,
payable to Executive following such termination of Executive's employment shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
Executive's employment is terminated by the Company following a Change in
Control without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (which following a Change in Control shall have
the meaning set forth in Section 8(e) below), Executive shall be entitled to
receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times the sum of (A) his Base Salary
in effect at the time of such termination or, in the event of termination by
the
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Executive by reason of an event described in Section 8(e)(iv) below, the Base
Salary as in effect prior to the reduction or reductions referred to therein
plus (B) the bonus the Executive would have earned in respect of the year of
termination under the Manville annual incentive compensation plan, if any, in
effect at the date of termination or in the event of a termination by Executive
by reason of an event described in Section 8(e)(v), the plan in effect
immediately prior to the reduction or reductions referred to therein,
determined as if the Executive had been employed by the Company for the full
year and without regard to any right reserved by the Company to decrease or
eliminate such bonus, and assuming actual performance had equaled 100% of the
performance objective established for such year pursuant to the terms of such
plan.
(ii) The Company shall pay Executive in a lump sum a cash amount
equal to a fraction of the annual bonus which (absent such termination and
without regard to any right reserved by the Company to decrease or eliminate
such bonus) Executive would have earned with respect to the year of termination
under the Manville annual executive incentive compensation plan, if any, in
effect at the date of termination or, in the event of a termination by
Executive by reason of an event described in Section 8(e)(v), the plan in
effect prior to the reduction or reductions referred to therein, assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan, the numerator of which
fraction is the number of days in such year during which the Executive was
employed by the Company and the denominator of which is 365. Such payment shall
be made at the time of Executive's termination.
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(iii) The Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units (and other similar interests) granted to Executive under the
1991 Long Term Cash Incentive Compensation Plan (or any other Manville
long-term cash incentive plan adopted after the date hereof) assuming Executive
remained employed through the applicable expiration or final payment date of
such Performance Units or other interests, less any amount paid to Executive in
respect of such Performance Units and other interests prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value, as determined by the Company (without reduction
or deferral). Such payment shall be made at the time of Executive's
termination.
(iv) Executive shall receive credit under the Supplemental Plan for
Participants in the Manville Salaried Retirement Plan for two additional years
of service for purposes of both vesting and accrual of benefits.
(v) For a 36-month period following Executive's termination, the
Company shall pay Executive in monthly installments the sum of the monthly
costs to Executive of purchasing life, accident, medical, dental and
prescription insurance benefits substantially similar to such benefits elected
and received by Executive under the Company's "Flex Benefit" program
immediately prior to Executive's termination or, if
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more generous, immediately prior to the Change in Control ("Continued
Benefits") less the monthly payroll deduction, if any, charged to Executive
immediately prior to Executive's termination, or, if applicable, immediately
prior to the Change in Control, for any of such Continued Benefits;
notwithstanding the foregoing, if Executive begins to receive Retiree Medical
and Life Insurance Benefits at any time during the 36-month period referred to
above, once such benefits begin, the monthly payment due Executive under the
preceding clause shall equal the monthly costs to Executive of purchasing
Continued Benefits not provided by the Company to Executive as Retiree Medical
and Life Insurance Benefits.
(vi) For a 24-month period after such termination, the Company shall
provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto (which the Company may amend from time to time
prior to a Change in Control, without Executive's consent), on the same terms
and conditions on which such perquisites were provided at the time of
Executive's termination or, if more generous, immediately prior to such
termination.
(vii) In addition to all other amounts payable to Executive under this
Section 8(d), Executive shall be entitled to receive all benefits payable to
Executive under any other plan, policy or agreement relating to retirement or
other benefits, in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 8(d)
shall be in lieu of any payments under any Manville separation policy.
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(viii) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to exceed 20%
of Executive's Base Salary in effect at the time of such termination or, in the
event of termination by Executive by reason of an event described in Section
8(e)(iv) below, the Base Salary as in effect prior to the reduction or
reductions referred to therein.
(e) Good Reason Following a Change in Control. For purposes of this
Agreement, following a Change in Control, "Good Reason" shall mean:
(i) a material adverse change in the nature or scope of Executive's
responsibilities, authorities, duties and/or position (including by reason of a
substantial reduction in the size of the Company or other substantial change in
the character or scope of the Company's operations);
(ii) Executive no longer serves in the position described in Section
2, other than by reason of a promotion or a termination for Cause or
Disability;
(iii) the Company fails to pay Executive any amounts otherwise vested
and due hereunder or under any plan or policy of the Company;
(iv) a reduction in the Executive's Base Salary in effect immediately
prior to the Change in Control or as the same may be increased from time to
time;
(v) a reduction in the Executive's incentive compensation opportunity,
as defined below, under the Manville executive incentive compensation plans as
in effect immediately prior to the Change in Control or as the same may be
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increased from time to time (absent, in the case of any such reduction relative
to Executive's annual bonus, a corresponding increase in his Base Salary);
(vi) the failure of the Company, to continue to provide Executive with
benefits and perquisites which are substantially similar in the aggregate to
those enjoyed by Executive under the Company's pension, life insurance,
medical, health and accident, disability, deferred compensation or savings or
similar plans and fringe benefit programs (including vacation) in which
Executive was participating immediately prior to the Change in Control; or the
failure by the Company to continue to provide Executive with directors' or
officers' insurance, as applicable, at the level maintained immediately prior
to the Change in Control;
(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxx, Xxxxxxxx without his written consent;
(viii) the failure of the Company to obtain an agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 13(e) hereof; or
(ix) any purported termination of Executive's employment by the
Company which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 13(f) and, if applicable, following the written
demand described in Section 8(c) and the relevant cure period.
If Executive provides a Notice of Termination, as defined in Section 13(f),
in connection with an event described in clauses (i) through (vii) of this
Section 8(e), to the Company, the Company shall have ten (10) business days
from the date of receipt
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of such notice to effect a cure of the event described therein, and upon cure
thereof by the Company to Executive's reasonable satisfaction, such event shall
no longer constitute Good Reason for purposes of this Agreement.
(f) Reduction in Incentive Compensation Opportunity. For purposes of this
Agreement, a "reduction in the Executive's incentive compensation opportunity"
under the Manville executive incentive compensation plans shall include
(i) the failure to maintain both an annual and a long-term incentive
plan;
(ii) any reduction or elimination by the Company of Executive's annual
or long-term incentive compensation pursuant to any reserved right under any
such plan to decrease or eliminate such bonus or award;
(iii) any reduction in Executive's participation level under any such
plan; and
(iv) any adverse change in the payout schedule or its equivalent or
in the manner of assessing actual performance under any such plan and/or any
extraordinary change in the applicable performance criteria thereunder.
(g) Change in Control. For purposes of this Agreement, the phrase "Change
in Control" shall mean the following and shall be deemed to have occurred if
any of the following events shall have occurred:
(i) except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting as trustee)
sponsored or maintained by Manville or any subsidiary thereof or the Manville
Personal Injury
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Settlement Trust (the "Trust"), any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended from time to
time, and any successor act (the "Exchange Act") is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of Manville representing 30% or more of the combined
voting power of Manville's then outstanding securities;
(ii) at least 40% of the directors of Manville constitute persons who
were not, at the time of their first election to the Board, candidates proposed
by a majority of the Board in office prior to the time of such first election,
(iii) (A) the dissolution of Manville; (B) a sale or other disposition
or the last sale or other disposition to occur in a series of sales and/or
other dispositions within any 18-month period ("Serial Sales") by Manville
and/or one or more subsidiaries of Manville of assets (including any sale
through a public offering of shares of voting stock of a Manville subsidiary by
Manville or by any subsidiary thereof) which, in the case of Serial Sales, as
of the beginning of such 18-month period, account for (or, in the case of stock
sold through a public offering, which represents indirect ownership on a
proportionate basis of assets accounting for) more than 40% of the consolidated
revenues of Manville and its subsidiaries, as determined in accordance with
generally accepted accounting principles; provided, however, that no sale or
disposition of assets or stock shall be taken into account to the extent that
the proceeds of such sale or disposition (whether in cash or in-kind) are
reinvested or are, in the case of proceeds received in-kind, used in the
ongoing conduct by Manville or one or more of its
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subsidiaries of the business of Manville and/or such subsidiary or
subsidiaries, provided further that such a reinvestment shall not be deemed to
have occurred unless made within 18 months of such sale or disposition and
provided further that, the term reinvestment shall exclude, inter alia, the use
of proceeds (x) to repay debt owed to the Trust or debt incurred in connection
with the operation of the business in which the assets sold or disposed of were
used or (y) to pay dividends; (C) a transaction to which Manville is a party
pursuant to which the holders of all of the shares of Manville outstanding
prior to such transaction do not hold, directly or indirectly, shares
outstanding of the surviving corporation in substantially the same proportions
as those in which they held the outstanding shares of Manville prior to the
transaction; or (D) any other event which the Board determines, in its
discretion, would materially alter the structure of Manville or its ownership;
(iv) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Manville as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Manville;
or
(v) a reduction in workforce, or the last to occur in a series of
reductions in workforce within any 24-month period, of the Company, if
Executive is employed by the Company at the time of such reduction or last
reduction, or Riverwood International Corporation ("Riverwood"), if Executive
is employed by Riverwood at the time of such reduction or last reduction, as a
result of which 80% of such workforce measured as of the date 24 months prior
to the last such reduction is no longer
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employed by the Company or Riverwood, whichever is applicable, excluding for
these purposes any reduction in the workforce of either the Company or
Riverwood attributable to transfers of employees to Manville.
In the event of a Change in Control by reason of an event described in
Section 8(g)(iv) the Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units granted to Executive under the 1991 Long Term Cash Incentive
Compensation Plan assuming Executive remained employed through the applicable
expiration or final payment date of such Performance Units, less any amount
paid to Executive in respect of such Performance Units prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value as determined by the Company (without reduction
or deferral). Such payment shall be made in the event of a Change in Control
described in Section 8(g)(iv) at the time of such Change in Control and the
Performance Units and all rights related thereto shall be extinguished upon
such payment.
9. Reduction of Payments. If any payment to or for the benefit of
Executive under this Agreement either alone or together with other payments to
or for the benefit of Executive would constitute a "parachute payment" (as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code")), the payments under this
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Agreement shall be reduced to the largest amount that will minimize or
eliminate both the imposition of the excise tax imposed by Section 4999 of the
Code and the disallowance of deductions to the Company under Section 280G of
the Code of any such payments. The determination of any reduction in the
payments under this Agreement pursuant to this Section shall be made by the
Company's independent accountants.
10. Indemnification. The Company will indemnify the Executive (and his
legal representatives or other successors) to the fullest extent permitted
(including payment of expenses in advance of final disposition of a proceeding)
by the laws of the jurisdiction of incorporation of the Company, as in effect
at the time of the subject act or omission, or by the Restated Certificate of
Incorporation and By-Laws of the Company, as in effect at such time or on the
effective date of this Agreement, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords or afforded
greatest protection to the Executive, and the Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, the Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives at the time such costs, charges
and expenses are incurred or sustained, in connection with any action, suit or
proceeding to which he (or his legal representatives or other
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successors) may be made a party by reason of his being or having been a
director, officer or employee of the Company, Manville or any subsidiary of
either of them, or his serving or having served any other enterprise as a
director, officer or employee at the request of the Company or Manville.
11. Legal Fees. In the event of a dispute between the Executive and the
Company with respect to any of the Executive's rights under this Agreement, the
Company shall reimburse the Executive for any and all legal fees and related
expenses incurred by him in connection with enforcing such rights, at the time
such fees and related expenses are incurred; provided that, if Executive's
claim is found by a court of competent jurisdiction to have been frivolous,
Executive shall reimburse the Company for all amounts paid by it under this
Section.
12. Confidentiality; Specific Performance. Executive will not at any time
(whether during or after his employment with the Company) disclose or use for
his own benefit or purposes, or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or
affiliate of the Company, provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public
22
23
other than as a result of Executive's breach of this covenant. Executive agrees
that upon termination of his employment with the Company for any reason, he
will return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in
any way relating to the business of the Company and its affiliates, except that
he may retain personal notes, notebooks and diaries. Executive further agrees
that he will not retain or use for his account at any time any trade names,
trademark or other proprietary business designation used or owned in connection
with the business of the Company or its affiliates.
Executive acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may then be available.
13. Miscellaneous.
(a) Governing Law; Liability of the Executive.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. The Executive shall not be subject to liability for
breach of this Agreement by reason of his termination of his employment
hereunder.
(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
23
24
agreements between Executive and the Company or any of its affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. THIS
AGREEMENT AND ANY AMENDMENT HERETO SHALL NOT BE EFFECTIVE UNLESS AND UNTIL
SIGNED BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY AND ATTESTED TO BY THE
GENERAL COUNSEL OF THE COMPANY.
(c) No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(e) Successors; Binding Agreement. (i) In the event of a Change in
Control, the Company will require the successor to the Company as Executive's
employer (whether such succession is direct or indirect, by purchase, merger,
consolidation or otherwise, to any portion of the business and/or assets of
Manville or the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no
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25
such succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by operation of law, or otherwise. Prior to a Change in Control, the term
"Company" shall also mean any affiliate of the Company to which Executive may
be transferred and the Company shall cause such successor employer to be
considered the "Company" bound by the terms of this Agreement and this
Agreement shall be amended so to provide. Following a Change in Control the
term "Company" shall not mean any affiliate of the Company to which Executive
may be transferred unless Executive shall have previously approved of such
transfer in writing, in which case the Company shall cause such successor
employer to be considered the "Company" bound by the terms of this Agreement
and this Agreement shall be amended so to provide.
(ii) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee or, if there is no
such designee, to Executive's estate. This Agreement shall not be assignable by
Executive.
(f) Notice; Notice of Termination. (i) For the purpose of this
Agreement, notices and all other communications provided for in the Agreement
shall
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26
be in writing and, except as otherwise provided in paragraph (ii) below, shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the signature page of this Agreement;
provided that all notices to the Company shall be directed to the attention of
the General Counsel of Manville, 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 receipt,
(ii) Any purported termination of Executive's employment by the
Company or by Executive shall not be effective unless communicated by written
Notice of Termination to the other party hereto in accordance with paragraph
(i) above. For purposes of this Agreement, a "Notice of Termination" in the
case of a termination for Cause following a Change in Control shall mean a
notice given within ten (10) business days of the Company's having actual
knowledge of the events giving rise to such termination and in all cases shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(iii) The date of termination of Executive's employment shall be the
date of receipt of the Notice of Termination, except in the case of (A)
Executive's death, in which case the date of termination of employment shall be
the date of death or (B) Executive's termination for Cause following a Change
in Control, in which case the date of termination shall be ten (10) business
days after actual receipt by Executive of
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27
the Notice of Termination; provided that, if within thirty (30) days after any
Notice of Termination following a Change in Control is received, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the date of termination of Executive's
employment shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction
(which is not appealable or the time for appeal therefrom has expired and no
appeal has been perfected); and provided further that the date of termination
of Executive's employment shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay Executive his
full compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, Base Salary and incentive compensation)
or, if higher, the compensation in effect immediately prior to the Change in
Control, and continue Executive as a participant in all compensation, benefits
(including fringe benefits and perquisites) and insurance plans in which
Executive was participating when the notice giving rise to the dispute was
given, until the dispute is finally resolved in accordance with this paragraph
(iii). Amounts paid under this paragraph are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
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(g) Arbitration. The parties hereby agree to submit all controversies,
claims and matters of difference in any way related to this Agreement or the
performance or breach of the whole or any part hereof, to arbitration in
Denver, Colorado, according to the rules and practices of the American
Arbitration Association from time to time in force. If such rules and
practices shall conflict with the Colorado Rules of Civil Procedure or any
other provisions of Colorado law then in force, such Colorado rules and
provisions shall govern. Arbitration of any such controversy, claim or matter
of difference shall be a condition precedent to any legal action thereon. This
submission and agreement to arbitration shall be specifically enforceable.
Awards shall be final and binding on all parties to the extent and in the
manner provided by Colorado law; provided that an arbitration award shall not
be binding on the Company to the extent such award exceeds the maximum amount
the Company would be required to pay Executive pursuant to the express terms of
this Agreement. All awards may be filed by any party with the Clerk of the
District Court in the County of Denver, Colorado and an appropriate judgment
entered thereon and execution issued therefor. At the election of any party,
said award may also be filed, and judgment entered thereon and execution issued
therefor, with the clerk of one or more other courts, state or federal, having
jurisdiction over the party against whom such award is rendered or its
property.
(h) Counterparts. This Agreement may be signed in several counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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29
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
------------------------
Chief Executive Officer
ATTEST:
/s/ X. X. Xxx Xxxx
------------------
General Counsel
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Xxxxxxx X. Xxxxxx
Schedule A
Outside Directorships Held
None.
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31
Xxxxxxx X. Xxxxxx
Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan.
Manville Corporation Stock Incentive Plan.
1991 Long-Term Cash Incentive Compensation Plan for Manville Corporation.
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx International
Group, Inc.
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32
Xxxxxxx X. Xxxxxx
Schedule C
Fringe Benefit Arrangements and Perquisites in Effect
Club Initiation Fees & Dues
The Company will pay the initiation fee and dues for one country
club of the officer's choice. The initiation fee and first year's
dues will be "grossed up" for tax purposes.
Financial & Estate Planning
The Company will pay the reasonable cost of periodic financial and
estate planning.
Annual Executive Physical Exam Program
Income Tax Return Preparation
The Company will pay annual income tax return preparation fees up
to $1,000 plus additional fees if incurred on account of
job-related circumstances including the cost of representation by
return preparer during an audit.
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July 8, 1993
X.X. Xxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Xxx:
Recently, the Board of Directors of Manville Corporation approved the extension
of your Employment Agreement for an additional year. This letter serves as
notice of the extension and, subject to execution by you and attestation by the
Company's General Counsel, an amendment to your Employment Agreement extending
the "Employment Term" (as defined in the Employment Agreement) for one year.
If you agree with this amendment, please sign both copies of this letter below
and return them to Xxx Xxxxx in the Denver Legal Department, P.O. Box 5108,
Denver, Colorado 8021 7-5108 at your earliest convenience. If you have
questions about this, please contact Xxxx Xxx Xxxx at 950-4911 or Xxx Xxxxx at
950-2266.
Very truly yours,
/s/ X. X. Xxxxxxxx
-----------------------
X. X. Xxxxxxxx
Chief Executive Officer
This amendment is accepted this 3rd day of August, 1993.
/s/ Xxxxxxx X. Xxxxxx
---------------------
(Executive)
Attest: /s/ X. X. Xxx Xxxx
---------------------
General Counsel
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34
AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXXXX X. XXXXXX
This AMENDMENT dated as of February 4, 1994 is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxx (the "Executive"), and amends the EMPLOYMENT AGREEMENT dated April 10,
1992 by and between the Company and the Executive as previously extended on
August 3, 1993 (as so extended, the "Agreement').
WHEREAS, effective as of the date hereof, the Company and the Executive
agreed to change the Executive's position and annual base salary in accordance
with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
A. The first sentence of paragraph 2 of the Agreement is hereby amended to
read as follows:
Executive shall serve as the Senior Vice President - Finance.
B. The first sentence of paragraph 3 of the Agreement is hereby amended to
read as follows:
Company shall pay Executive a base salary at the rate of not less than
$165,000 per year, as the same may from time to time be increased at
the sole discretion of the Board of Directors of the Company, or, prior
to a Change in Control, decreased in the event of across the board
salary reductions within the corporate staff group or the business
division in which Executive is employed, whichever is applicable ("Base
Salary").
C. The "Employment Term" (as defined in the Agreement) is hereby extended
for one year to April 10, 1997.
D. Except as provided by this Amendment to the Agreement, the Agreement
shall remain in full force and effect.
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35
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement to be effective as of February 4, 1 994.
/s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
--------------------------
X. X. Xxxxxxxx
Chairman of the Board
ATTEST
/s/ Xxxxxxx X. Xxx Xxxx
----------------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President,
General Counsel and Secretary
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April 26, 1995
X. X. Xxxxxx
RE: EMPLOYMENT AGREEMENT EXTENSION AND AMENDMENT
Dear Xxx:
Recently, the Board of Directors of Manville Corporation approved an extension
and amendment of your Employment Agreement with Xxxxxxxx International, Inc.
(the "Company"), dated April 10, 1992 (as previously amended, the "Employment
Agreement"). The extension and amendment, as set forth below, extends the term
of the Employment Agreement to April 10, 1998 and modifies the Change in
Control definition, all as set forth below:
Paragraph 1 of the Employment Agreement shall be amended to extend the
"Employment Term" (as defined therein) until April 10, 1998.
Paragraph 8(g)(i) shall be amended to read as follows:
except for Manville, a subsidiary or an affiliate
thereof, an employee benefit plan (including any
trustee of such plan, acting as trustee) sponsored or
maintained by Manville or any subsidiary thereof or
Manville Personal Injury Settlement Trust (the
"Trust"), any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended from time to time, and any
successor act (the "Exchange Act")) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities
of Manville or Xxxxxxxx International Group, Inc.
("Xxxxxxxx") representing 30% or more of the combined
voting power of Manville's or Xxxxxxxx'x, as
applicable, then outstanding securities;
Paragraph 8(g)(iii)(B) shall be amended to read as follows:
a sale or other disposition or the last sale or other
disposition to occur in a series of sales and/or other
dispositions within any 18-month period ("Serial
Sales") by Xxxxxxxx and/or one or more subsidiaries of
Xxxxxxxx of assets which, in the case of Serial Sales,
as of the beginning of such 18-month period, account
for more than 40% of the consolidated revenues of
Xxxxxxxx and its subsidiaries, as determined in
accordance with generally accepted accounting
principles; provided,
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X. X. Xxxxxx
April 26, 1995
Page Two
be taken into account to the extent that the proceeds
of such sale or disposition (whether in cash or
in-kind) are reinvested or are, in the case of
proceeds received in kind, used in the ongoing conduct
by Xxxxxxxx or one or more of its subsidiaries of the
business of Xxxxxxxx and/or such subsidiary or
subsidiaries, provided further that such a
reinvestment shall not be deemed to have occurred
unless made within 18 months of such sale or
disposition and provided further that, the term
reinvestment shall exclude, inter alia, the use of
proceeds (x) to repay debt owed to the Trust or debt
incurred in connection with the operation of the
business in which the assets sold or disposed of were
used or (y) to pay dividends;
From and after the date of execution of this extension and amendment by you and
attestation of this extension and amendment by the Company's General Counsel,
the extension and amendment shall be effective and the Employment Agreement
shall be deemed amended in the manner set forth above.
Please sign and date two copies of this Amendment and Extension and return them
to Xxxxx Xxxxxx, Manager of Compensation in Denver, Mail Code 2-01, at your
earliest convenience.
If you have questions about the extension, please call Xxxx Xxxxxxx at
950-3422.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
Manville Corporation
This amendment and extension is accepted this 8th day of May, 1995.
/s/ X. X. Xxxxxx
-----------------
X. X. Xxxxxx
Attest:
/s/ Xxxxxxx X. Xxx Xxxx
-------------------------
Xxxxxxx X. Xxx Xxxx
General Counsel
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March 14, 1996
Xxxxxxx X. Xxxxxx - 12-05
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Xxx:
Recently, the Board of Directors of Manville Corporation approved an
extension of your employment agreement with Xxxxxxxx International, Inc. (the
"Company"), dated April 10, 1992 (as previously amended and extended, the
"Employment Agreement"). This letter serves as notice of the extension and,
subject to execution by you and attestation by Manville Corporation's General
Counsel, an amendment to the Employment Agreement extending the "Employment
Term" (as defined in the Employment Agreement) to April 10, 1999.
To evidence your agreement to so extend the Employment Term, please sign
and date both copies of this letter where indicated and return them to Xxxx
Xxxxxxx (Denver 11-01) at your earliest convenience. A fully executed copy
will be returned to you for your files. If you have any questions about the
extension, please call Xxxx Xxxxxxx at 000-000-0000.
Very truly yours,
/s/ X. X. Xxxxxxxx
X.X. Xxxxxxxx
Chairman of the Board, President
and Chief Executive Officer
This amendment is accepted this 18th day of March, 1996.
/s/ X. X. Xxxxxx
--------------------
Xxxxxxx X. Xxxxxx
Attest:
/s/ Xxxxxxx X. Xxx Xxxx
------------------------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President, General Counsel
& Secretary
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39
AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXXXX X. XXXXXX
This AMENDMENT, dated as of June 7, 1996, is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxx (the "Executive") and amends the EMPLOYMENT AGREEMENT, dated April 10,
1992, between the Company and the Executive (as previously amended and
extended, the "Employment Agreement").
WHEREAS, the Company and the Executive have agreed to amend the Employment
Agreement in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. The first sentence of Section 2 of the Employment Agreement is hereby
amended to read as follows:
Executive shall serve as Senior Vice President and Chief Financial Officer
of the Company.
2. Section 8(g) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) any Person (as defined below) (other than Xxxxxxxx Corporation
("Xxxxxxxx")), any trustee or other fiduciary holding securities under any
employee benefit plan of Xxxxxxxx, or any company owned, directly or
indirectly, by the stockholders of Xxxxxxxx in substantially the same
proportions as their ownership of the common stock of Xxxxxxxx) becomes the
Beneficial Owner (as defined below) (except that a Person shall be deemed to be
the Beneficial Owner of all shares that any such Person has the right to
acquire pursuant to any agreement or arrangement or upon exercise of conversion
rights, warrants or options or otherwise, without regard to the sixty day
period referred to in Rule 13d-3 under the Exchange Act (as defined below)),
directly or indirectly, of securities of Xxxxxxxx or any Significant Subsidiary
(as defined below), representing 30 percent or more of the combined voting
power of Xxxxxxxx'x or such subsidiary's then outstanding securities; provided,
however, that
39
40
such event shall not constitute a Change in Control unless or until the
percentage of such securities owned beneficially, directly or indirectly, by
such Person is equal to or more than all such securities owned beneficially,
directly or indirectly, by Manville Personal Injury Settlement Trust (the
"Trust");
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of Xxxxxxxx (the
"Board"), and any new director (other than a director designated by a person
who has entered into an agreement with Xxxxxxxx to effect a transaction
described in clause (i), (iii), or (iv) of this paragraph) whose election by
the Board or nomination for election by Xxxxxxxx'x stockholders was approved by
a vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of the two-year period or whose election or
nomination for election was previously so approved but excluding for this
purpose any such new director whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of an individual, corporation, partnership, group, associate or other entity or
Person other than the Board, cease for any reason to constitute at least a
majority of the Board; provided, however, that such event shall not constitute
a Change in Control unless or until the percentage of voting securities of
Xxxxxxxx owned beneficially, directly or indirectly, by the Trust is less than
50 percent of all such outstanding securities;
(iii) the consummation of a merger or consolidation of Xxxxxxxx or
any subsidiary owning directly or indirectly all or substantially all of the
consolidated assets of Xxxxxxxx (a "Significant Subsidiary") with any other
corporation, other than a merger or consolidation which would result in the
voting securities of Xxxxxxxx or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 50 percent of the combined voting power of the
surviving or resulting entity outstanding immediately after such merger or
consolidation;
(iv) the stockholders of Xxxxxxxx or any affiliate approve a plan or
agreement for the sale or disposition of all or substantially all of the
consolidated assets of Xxxxxxxx (other than such a sale or disposition
immediately after which such assets will be owned directly or indirectly by the
stockholders of Xxxxxxxx in substantially the same proportions as their
ownership of the common stock of Xxxxxxxx immediately prior to such sale or
disposition) in which case the Board shall determine the effective date of the
Change in Control resulting therefrom;
(v) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Xxxxxxxx, as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Xxxxxxxx;
or
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41
(vi) any other event occurs which the Board determines, in its
discretion, would materially alter the structure of Xxxxxxxx or its ownership.
(vii) Defined terms.
(A) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(B) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor provisions
and rules thereto.
(C) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, and shall include a "group" as defined in Section 13(d) thereof.
3. Section 9 of the Employment Agreement is hereby amended in its entirety
to read as follows:
9. [Reserved]
4. Attached hereto is a revised Schedule B to the Employment Agreement,
which shall supersede and replace any previously existing Schedule B to the
Employment Agreement.
5. Except as provided by this Amendment, the Employment Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of June 7, 1996.
/s/ X. X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
/s/ X. X. Xxxxxxxx
----------------------------------------
W. Xxxxxx Xxxxxxxx
Chief Executive Officer and President
ATTEST:
/s/ Xxxxxxx X. Xxx Xxxx
----------------------------------
Xxxxxxx X. Xxx Xxxx
Executive Vice President,
General Counsel and Secretary
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42
Schedule B
Incentive Compensation Plan in Effect
Annual Incentive Compensation Plan for Xxxxxxxx Corporation
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx
International Group, Inc.
Xxxxxxxx Corporation 1996 Stock Award Plan
Xxxxxxxx Corporation 1996 Deferred Compensation Plan
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43
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of June 3, 1992, (the "Agreement") by and
between XXXXXXXX INTERNATIONAL, INC., a Delaware corporation (the "Company")
and a subsidiary of MANVILLE CORPORATION, a Delaware corporation ("Manville")
and XXXXXX X. XXXXX, XX. (the "Executive").
WHEREAS the Company desires to continue to employ Executive and to enter
into an agreement embodying the terms of such employment (the "Agreement"); and
WHEREAS Executive desires to continue such employment and enter into such
an Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. The Executive shall be employed by the Company for
a period commencing on June 3, 1992 and, except as otherwise provided herein,
ending three years from such date. At the April meeting of Manville's Board of
Directors or at the next meeting thereafter at which the extension of
employment agreements of executives of the Company is considered, the Board of
Directors of Manville and the Chief Executive Officer of the Company shall
review this Agreement and the Executive's performance hereunder and shall
determine, in their sole discretion, whether or not to extend the period of
Executive's employment pursuant to this Agreement by one year. The period of
Executive's employment hereunder, including
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44
any extension or extensions pursuant to the foregoing sentence, is referred to
hereinafter as the "Employment Term". A failure to renew this Agreement shall
not constitutes termination of Executive's employment.
2. Position. Executive shall serve as Vice President - Manufacturing.
Executive shall devote substantially all of his business time and energies to
the business of the Company. Notwithstanding the foregoing, Executive may (a)
continue to serve on the board of directors of any business corporation on
which he is serving as of the date of this Agreement (as shown on Schedule A),
(b) serve on the boards of directors or committees of non-profit organizations
and (c) with the prior approval of the Chief Executive Officer of the Company
or of the Board of Directors of the Company, serve on the boards of directors
of other business corporations, provided that in the Company's sole reasonable
discretion none of the foregoing activities materially interferes with the
performance of Executive's duties hereunder.
3. Base Salary. Company shall pay Executive a base salary at the rate of
not less than $110,000 per year, as the same may from time to time be increased
at the sole discretion of the Board of Directors of the Company or, prior to a
Change in Control, decreased in the event of across the board salary reductions
within the corporate staff group or the business division in which Executive is
employed, whichever is applicable ("Base Salary").
4. Incentive Compensation. Executive shall participate in the Manville
executive incentive compensation plans, as in effect from time to time during
the Employment Term, for which he is eligible. (References herein to "Manville
executive
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45
incentive compensation plans" whether annual or long-term, shall include such
plans maintained by Manville and/or the Company, as the case may be, from time
to time.) The Manville executive incentive compensation plans in effect on the
date hereof in which Executive participates are listed on Schedule B.
5. Employee Benefits. Executive shall be eligible to participate in such
other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term.
6. Business Expenses. Necessary and reasonable business expenses incurred
by Executive during the Employment Term shall be reimbursed in accordance with
Company policies.
7. Termination Prior to a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement, as defined hereafter. For purposes of this Agreement,
"Retirement" means termination of Executive's employment initiated by
Executive, other than for Good Reason as defined in Section 7(e) or Section
8(e) hereof, whichever is applicable, whereby Executive is entitled to receive
an immediately payable benefit, including an early retirement benefit, under
the Company's retirement plan generally applicable to its salaried employees or
under any retirement arrangement established with respect to Executive with his
consent, in either case, whether or not Executive commences to receive such
benefit at the time of such termination. Upon termination of Executive's
employment by reason of Retirement prior to a Change in Control,
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Executive shall be entitled to benefits determined in accordance with the
Company's retirement, benefit and insurance programs in effect at such time.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be terminated
by the Company if Executive becomes physically or mentally incapacitated and is
therefore unable for a period of six (6) consecutive months to perform his
duties (such incapacity is hereinafter referred to as "Disability"). Any
question as to the existence of the Disability of the Executive as to which the
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to the Executive and the
Company. Upon any such termination for Disability prior to a Change in Control,
Executive shall be entitled to receive his Base Salary through the date on
which the Executive is first eligible to receive payment of disability benefits
in lieu of salary under the Company's employee benefit plans as then in effect.
(ii) Death. Upon termination for death prior to a Change in
Control, Executive shall be entitled to his Base Salary at the rate in effect
at the time of Executive's death through the end of the month in which his
death occurs.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled following Executive's termination for death or
Disability prior to a Change in Control shall be determined in accordance with
the plans, policies and practices of the Company.
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(c) For Cause by the Company; Voluntary Termination by Executive.
Executive's employment hereunder may be terminated by the Company for "Cause".
For purposes of this Agreement, prior to a Change in Control, "Cause" shall
mean (i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 7(e) below), (ii) Executive's dishonesty in the
performance of his duties hereunder or (iii) Executive's conviction of a felony
under the laws of the United States or any state thereof. If Executive is
terminated for Cause, or if Executive voluntarily terminates employment
hereunder other than for Good Reason, in either case, prior to a Change in
Control, he shall be entitled to receive his Base Salary through the date of
termination. All other benefits, if any, payable to Executive following such
termination of Executive's employment shall be determined in accordance with
the plans, policies and practices of the Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
prior to a Change in Control Executive's employment hereunder is terminated by
the Company without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (as defined in Section 7(e) below), Executive
shall be entitled to receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times his Base Salary in effect at the
time of such termination or, in the event of termination by the Executive on
account
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of an event described in Section 7(e)(iv) below, the Base Salary as in effect
prior to the reduction or reductions referred to therein plus the bonus the
Executive would have earned in respect of the year of termination under the
Manville annual incentive compensation plan, if any, in effect at the date of
termination or, in the event of a termination by Executive by reason of an
event described in Section 7(e)(vi), the plan in effect prior to the
elimination referred to therein, determined as if the Executive had been
employed by the Company for the full year and without regard to any right
reserved by the Company to decrease or eliminate such bonus, and assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan.
(ii) For a 24-month period after such termination, the Company shall
cause Executive to be provided with life, accident, medical, dental and
prescription insurance benefits substantially similar to, and on the same terms
as, those benefits elected and received by Executive under the Company's "Flex
Benefit" program immediately prior to such termination; provided that,
Executive shall be charged an amount equal to any monthly payroll deduction
charged for similar benefits to executives in positions similar to that which
Executive held before his termination; and provided further that, if Executive
receives medical benefits under the Manville Retiree Comprehensive Health Care
Plan and post-retirement life insurance benefits (collectively, "Retiree
Medical and Life Insurance Benefits"), at any time during the 24-month period
referred to above, once such benefits begin Executive shall be entitled only to
Retiree Medical and Life Insurance Benefits.
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(iii) For a period of 24 months after such termination, the Company
shall provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto, as may be amended by the Company from time to time
without Executive's consent prior to such termination (provided that nothing
herein shall be deemed to permit such an amendment without Executive's consent
following a Change in Control), on the same terms and conditions on which such
perquisites were provided prior to Executive's termination.
(iv) In addition to all other amounts payable to Executive under
this Section 7(d), Executive shall be entitled to receive all benefits payable
to Executive under any other plan, policy or agreement relating to retirement
or other benefits in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 7(d)
shall be in lieu of any payments under any Manville separation policy.
(v) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to exceed the
lesser of (A) 20% of Executive's Base Salary in effect at the time of
Executive's termination of employment with the Company or (B) $25,000.
(e) Good Reason. For purposes of this Agreement, prior to a Change in
Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities,
authorities or duties, all as contemplated by Section 2 hereof; provided,
however, that
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such reduction by reason of a termination for Cause or Disability shall not
constitute Good Reason;
(ii) Executive's job is eliminated other than by reason of promotion
or termination for Cause or Disability.
(iii) the Company fails to pay Executive any amount otherwise vested
and due hereunder or under any plan or policy of the Company;
(iv) a reduction in Executive's Base Salary except in the event of an
across the board salary reduction within the corporate staff group or the
business division in which Executive is employed, whichever is applicable;
(v) a reduction in Executive's aggregate level of benefits under the
Company's pension, life insurance, medical, health and accident, disability,
deferred compensation or savings or similar plans, except in the event of an
across the board reduction in such benefits within the corporate staff group or
the business division in which Executive is employed, whichever is applicable;
(vi) the elimination of an annual incentive compensation plan; or
(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxxxxxx, Xxxx without his written consent.
If Executive provides to the Company a Notice of Termination, as defined
in Section 13(f), in connection with an event described in clauses (i) through
(vii) of this Section 7(e), the Company shall have ten (10) business days from
the date of receipt of such notice to effect a cure of the event described
therein, and upon cure thereof by the
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Company to Executive's reasonable satisfaction, such event shall no longer
constitute Good Reason for purposes of this Agreement.
(f) Mitigation. In the event of termination of Executive's employment
hereunder by the Company without Cause or by Executive with Good Reason prior
to a Change in Control, benefits otherwise receivable by Executive pursuant to
subsection 7(d)(ii) shall be reduced to the extent comparable benefits are
received by Executive during the 24-month period following such termination.
Executive shall report to the Company any such benefits actually received by
Executive.
8. Termination Following a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement. Upon a termination of Executive's employment by reason
of Retirement following a Change in Control, Executive shall be entitled to
benefits determined in accordance with the Company's retirement, benefit and
insurance programs in effect immediately prior to the Change in Control or, if
more generous, such programs in effect at the time of such Retirement.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be terminated
by reason of Executive's Disability, subject to the procedure for determining
such Disability outlined in Section 7(b)(i). Upon any termination for
Disability following a Change in Control, Executive shall be entitled to
receive his Base Salary for a two-year period ending on the second anniversary
of Executive's date of termination. Such Base Salary shall be paid in equal
monthly installments and shall be reduced by any amounts
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received as disability benefits in lieu of salary under the Company's
employee benefit plans.
(ii) Death. Upon termination for death following a Change in Control,
Executive shall be entitled to (x) his Base Salary at the rate in effect at the
time of Executive's death through the end of the month in which his death
occurs and (y) if and to the extent the death benefits provided Executive by
the Company are less than would have been paid immediately prior to a Change in
Control, a lump sum payment of cash in an amount equal to the value of such
shortfall. Any such lump sum payment shall be made within ten (10) business
days following Executive's death.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled upon Executive's termination for death or Disability
following a Change in Control shall be determined in accordance with the plans,
policies and practices of the Company in effect immediately prior to the Change
in Control or, if more generous, such plans, policies and practices as in
effect at any time following the Change in Control; provided that, nothing in
this Section 8(b)(iii) shall be interpreted so as to result in the duplication
of the benefits provided under Section 8(b)(i) or (ii).
(c) For Cause by the Company; Voluntary Termination by Executive. For
purposes of this Agreement, following a Change in Control, "Cause" shall mean
(i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 8(e) below) after a written demand for substantial
performance is delivered to Executive personally
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and Executive shall have failed during the 60-day period following such written
demand to have corrected such failure, (ii) Executive's dishonesty in the
performance of his duties hereunder or (iii) Executive's conviction of a felony
under the laws of the United States or any state thereof. For purposes of this
Section 8(c) no act or failure to act on Executive's part shall be deemed
willful unless done or omitted to be done by Executive not in good faith and
without reasonable belief that Executive's action or omission was in the best
interest of the Company.
If Executive is terminated for Cause, or if Executive voluntarily
terminates his employment with the Company other than for Good Reason, in
either case, following a Change in Control, he shall be entitled to receive his
Base Salary through the date of termination. All other benefits, if any,
payable to Executive following such termination of Executive's employment shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
Executive's employment is terminated by the Company following a Change in
Control without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (which following a Change in Control shall have
the meaning set forth in Section 8(e) below), Executive shall be entitled to
receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times the sum of (A) his Base Salary
in effect at the time of such termination or, in the event of termination by
the
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Executive by reason of an event described in Section 8(e)(iv) below, the Base
Salary as in effect prior to the reduction or reductions referred to therein
plus (B) the bonus the Executive would have earned in respect of the year of
termination under the Manville annual incentive compensation plan, if any, in
effect at the date of termination or in the event of a termination by Executive
by reason of an event described in Section 8(e)(v), the plan in effect
immediately prior to the reduction or reductions referred to therein,
determined as if the Executive had been employed by the Company for the full
year and without regard to any right reserved by the Company to decrease or
eliminate such bonus, and assuming actual performance had equaled 100% of the
performance objective established for such year pursuant to the terms of such
plan.
(ii) The Company shall pay Executive in a lump sum a cash amount equal
to a fraction of the annual bonus which (absent such termination and without
regard to any right reserved by the Company to decrease or eliminate such
bonus) Executive would have earned with respect to the year of termination
under the Manville annual executive incentive compensation plan, if any, in
effect at the date of termination or, in the event of a termination by
Executive by reason of an event described in Section 8(e)(v), the plan in
effect prior to the reduction or reductions referred to therein, assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan, the numerator of which
fraction is the number of days in such year during which the Executive was
employed by the Company and the denominator of which is 365. Such payment shall
be made at the time of Executive's termination.
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(iii) The Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units (and other similar interests) granted to Executive under the
1991 Long Term Cash Incentive Compensation Plan (or any other Manville
long-term cash incentive plan adopted after the date hereof) assuming Executive
remained employed through the applicable expiration or final payment date of
such Performance Units or other interests, less any amount paid to Executive in
respect of such Performance Units and other interests prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value, as determined by the Company (without reduction
or deferral). Such payment shall be made at the time of Executive's
termination.
(iv) Executive shall receive credit under the Supplemental Plan for
Participants in the Manville Salaried Retirement Plan for two additional years
of service for purposes of both vesting and accrual of benefits.
(v) For a 36-month period following Executive's termination, the
Company shall pay Executive in monthly installments the sum of the monthly
costs to Executive of purchasing life, accident, medical, dental and
prescription insurance benefits substantially similar to such benefits elected
and received by Executive under the Company's "Flex Benefit" program
immediately prior to Executive's termination or, if
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more generous, immediately prior to the Change in Control ("Continued
Benefits") less the monthly payroll deduction, if any, charged to Executive
immediately prior to Executive's termination, or, if applicable, immediately
prior to the Change in Control, for any of such Continued Benefits;
notwithstanding the foregoing, if Executive begins to receive Retiree Medical
and Life Insurance Benefits at any time during the 36-month period referred to
above, once such benefits begin, the monthly payment due Executive under the
preceding clause shall equal the monthly costs to Executive of purchasing
Continued Benefits not provided by the Company to Executive as Retiree Medical
and Life Insurance Benefits.
(vi) For a 24-month period after such termination, the Company shall
provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto (which the Company may amend from time to time
prior to a Change in Control, without Executive's consent), on the same terms
and conditions on which such perquisites were provided at the time of
Executive's termination or, if more generous, immediately prior to such
termination.
(vii) In addition to all other amounts payable to Executive under this
Section 8(d), Executive shall be entitled to receive all benefits payable to
Executive under any other plan, policy or agreement relating to retirement or
other benefits, in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 8(d)
shall be in lieu of any payments under any Manville separation policy.
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(viii) The Company shall provide Executive with outplacement
services from the firm of Executive's choice at a cost to the Company not to
exceed 20% of Executive's Base Salary in effect at the time of such termination
or, in the event of termination by Executive by reason of an event described in
Section 8(e)(iv) below, the Base Salary as in effect prior to the reduction or
reductions referred to therein.
(e) Good Reason Following a Change in Control. For purposes of this
Agreement, following a Change in Control, "Good Reason" shall mean:
(i) a material adverse change in the nature or scope of Executive's
responsibilities, authorities, duties and/or position (including by reason of a
substantial reduction in the size of the Company or other substantial change in
the character or scope of the Company's operations);
(ii) Executive no longer serves in the position described in Section
2, other than by reason of a promotion or a termination for Cause or
Disability;
(iii) the Company fails to pay Executive any amounts otherwise
vested and due hereunder or under any plan or policy of the Company;
(iv) a reduction in the Executive's Base Salary in effect
immediately prior to the Change in Control or as the same may be increased from
time to time;
(v) a reduction in the Executive's incentive compensation
opportunity, as defined below, under the Manville executive incentive
compensation plans as in effect immediately prior to the Change in Control or
as the same may be
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increased from time to time (absent, in the case of any such reduction relative
to Executive's annual bonus, a corresponding increase in his Base Salary);
(vi) the failure of the Company, to continue to provide Executive with
benefits and perquisites which are substantially similar in the aggregate to
those enjoyed by Executive under the Company's pension, life insurance,
medical, health and accident, disability, deferred compensation or savings or
similar plans and fringe benefit programs (including vacation) in which
Executive was participating immediately prior to the Change in Control; or the
failure by the Company to continue to provide Executive with directors' or
officers' insurance, as applicable, at the level maintained immediately prior
to the Change in Control;
(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxxxxxx, Xxxx without his written consent;
(viii) the failure of the Company to obtain an agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 13(e) hereof; or
(ix) any purported termination of Executive's employment by the
Company which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 13(f) and, if applicable, following the written
demand described in Section 8(c) and the relevant cure period.
If Executive provides a Notice of Termination, as defined in Section
13(f), in connection with an event described in clauses (i) through (vii) of
this Section 8(e), to the Company, the Company shall have ten (10) business
days from the date of receipt
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of such notice to effect a cure of the event described therein, and upon cure
thereof by the Company to Executive's reasonable satisfaction, such event shall
no longer constitute Good Reason for purposes of this Agreement.
(f) Reduction in Incentive Compensation Opportunity. For purposes of this
Agreement, a "reduction in the Executive's incentive compensation opportunity"
under the Manville executive incentive compensation plans shall include
(i) the failure to maintain both an annual and a long-term incentive
plan;
(ii) any reduction or elimination by the Company of Executive's annual
or long-term incentive compensation pursuant to any reserved right under any
such plan to decrease or eliminate such bonus or award;
(iii) any reduction in Executive's participation level under any such
plan; and
(iv) any adverse change in the payout schedule or its equivalent or
in the manner of assessing actual performance under any such plan and/or any
extraordinary change in the applicable performance criteria thereunder.
(g) Change in Control. For purposes of this Agreement, the phrase "Change
in Control" shall mean the following and shall be deemed to have occurred if
any of the following events shall have occurred:
(i) except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting as trustee)
sponsored or maintained by Manville or any subsidiary thereof or the Manville
Personal Injury
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Settlement Trust (the "Trust"), any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended from time to
time, and any successor act (the "Exchange Act") is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of Manville representing 30% or more of the combined
voting power of Manville's then outstanding securities;
(ii) at least 40% of the directors of Manville constitute persons who
were not, at the time of their first election to the Board, candidates proposed
by a majority of the Board in office prior to the time of such first election,
(iii) (A) the dissolution of Manville; (B) a sale or other disposition
or the last sale or other disposition to occur in a series of sales and/or
other dispositions within any 18-month period ("Serial Sales") by Manville
and/or one or more subsidiaries of Manville of assets (including any sale
through a public offering of shares of voting stock of a Manville subsidiary by
Manville or by any subsidiary thereof) which, in the case of Serial Sales, as
of the beginning of such 18-month period, account for (or, in the case of stock
sold through a public offering, which represents indirect ownership on a
proportionate basis of assets accounting for) more than 40% of the consolidated
revenues of Manville and its subsidiaries, as determined in accordance with
generally accepted accounting principles; provided, however, that no sale or
disposition of assets or stock shall be taken into account to the extent that
the proceeds of such sale or disposition (whether in cash or in-kind) are
reinvested or are, in the case of proceeds received in-kind, used in the
ongoing conduct by Manville or one or more of its
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subsidiaries of the business of Manville and/or such subsidiary or
subsidiaries, provided further that such a reinvestment shall not be deemed to
have occurred unless made within 18 months of such sale or disposition and
provided further that, the term reinvestment shall exclude, inter alia, the use
of proceeds (x) to repay debt owed to the Trust or debt incurred in connection
with the operation of the business in which the assets sold or disposed of were
used or (y) to pay dividends; (C) a transaction to which Manville is a party
pursuant to which the holders of all of the shares of Manville outstanding
prior to such transaction do not hold, directly or indirectly, shares
outstanding of the surviving corporation in substantially the same proportions
as those in which they held the outstanding shares of Manville prior to the
transaction; or (D) any other event which the Board determines, in its
discretion, would materially alter the structure of Manville or its ownership;
(iv) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Manville as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Manville;
or
(v) a reduction in workforce, or the last to occur in a series of
reductions in workforce within any 24-month period, of the Company, if
Executive is employed by the Company at the time of such reduction or last
reduction, or Riverwood International Corporation ("Riverwood"), if Executive
is employed by Riverwood at the time of such reduction or last reduction, as a
result of which 80% of such workforce measured as of the date 24 months prior
to the last such reduction is no longer
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employed by the Company or Riverwood, whichever is applicable, excluding for
these purposes any reduction in the workforce of either the Company or
Riverwood attributable to transfers of employees to Manville.
In the event of a Change in Control by reason of an event described in
Section 8(g)(iv) the Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units granted to Executive under the 1991 Long Term Cash Incentive
Compensation Plan assuming Executive remained employed through the applicable
expiration or final payment date of such Performance Units, less any amount
paid to Executive in respect of such Performance Units prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value as determined by the Company (without reduction
or deferral). Such payment shall be made in the event of a Change in Control
described in Section 8(g)(iv) at the time of such Change in Control and the
Performance Units and all rights related thereto shall be extinguished upon
such payment.
9. Reduction of Payments. If any payment to or for the benefit of
Executive under this Agreement either alone or together with other payments to
or for the benefit of Executive would constitute a "parachute payment" (as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code")), the payments under this
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Agreement shall be reduced to the largest amount that will minimize or
eliminate both the imposition of the excise tax imposed by Section 4999 of the
Code and the disallowance of deductions to the Company under Section 280G of
the Code of any such payments. The determination of any reduction in the
payments under this Agreement pursuant to this Section shall be made by the
Company's independent accountants.
10. Indemnification. The Company will indemnify Executive (and his legal
representatives or other successors) to the fullest extent permitted (including
payment of expenses in advance of final disposition of a proceeding) by the
laws of the jurisdiction of incorporation of the Company, as in effect at the
time of the subject act or omission, or by the Restated Certificate of
Incorporation and By-Laws of the Company, as in effect at such time or on the
effective date of this Agreement, or by the terms of any indemnification
agreement between the Company and Executive, whichever affords or afforded
greatest protection to Executive, and Executive shall be entitled to the
protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives at the time such costs, charges
and expenses are incurred or sustained, in connection with any action, suit or
proceeding to which he (or his legal representatives or other successors) may
be
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made a party by reason of his being or having been a director, officer or
employee of the Company, Manville or any subsidiary of either of them, or his
serving or having served any other enterprise as a director, officer or
employee at the request of the Company or Manville.
11. Legal Fees. In the event of a dispute between Executive and the
Company with respect to any of Executive's rights under this Agreement, the
Company shall reimburse Executive for any and all legal fees and related
expenses incurred by him in connection with enforcing such rights, at the time
such fees and related expenses are incurred; provided that, if Executive's
claim is found by a court of competent jurisdiction to have been frivolous,
Executive shall reimburse the Company for all amounts paid by it under this
Section.
12. Confidentiality; Specific Performance. Executive will not at any time
(whether during or after his employment with the Company) disclose or use for
his own benefit or purposes, or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or
affiliate of the Company, provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public
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other than as a result of Executive's breach of this covenant. Executive agrees
that upon termination of his employment with the Company for any reason, he
will return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in
any way relating to the business of the Company and its affiliates, except that
he may retain personal notes, notebooks and diaries. Executive further agrees
that he will not retain or use for his account at any time any trade names,
trademark or other proprietary business designation used or owned in connection
with the business of the Company or its affiliates.
Executive acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may then be available.
13. Miscellaneous.
(a) Governing Law; Liability of the Executive.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. Executive shall not be subject to liability for
breach of this Agreement by reason of his termination of his employment
hereunder.
(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
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agreements between Executive and the Company or any of its affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. This
agreement and any amendment hereto shall not be effective unless and until
signed by the Chief Executive Officer of the Company and attested to by the
General Counsel of the Company.
(c) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) Successors; Binding Agreement. (i) In the event of a Change in
Control, the Company will require the successor to the Company as Executive's
employer (whether such succession is direct or indirect, by purchase, merger,
consolidation or otherwise, to any portion of the business and/or assets of
Manville or the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean
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the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise. Prior to a Change in Control, the
term "Company" shall also mean any affiliate of the Company to which Executive
may be transferred and the Company shall cause such successor employer to be
considered the "Company" bound by the terms of this Agreement and this
Agreement shall be amended so to provide. Following a Change in Control the
term "Company" shall not mean any affiliate of the Company to which Executive
may be transferred unless Executive shall have previously approved of such
transfer in writing, in which case the Company shall cause such successor
employer to be considered the "Company" bound by the terms of this Agreement
and this Agreement shall be amended so to provide.
(ii) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to Executive hereunder if Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Executive's devisee,
legatee or other designee or, if there is no such designee, to Executive's
estate. This Agreement shall not be assignable by Executive.
(f) Notice; Notice of Termination. (i) For the purpose of this Agreement,
notices and all other communications provided for in the Agreement shall be in
writing and, except as otherwise provided in paragraph (iii) below, shall be
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deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the signature page of this Agreement;
provided that all notices to the Company shall be directed to the attention of
the General Counsel of Manville, 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 receipt,
(ii) Any purported termination of Executive's employment by the
Company or by Executive shall not be effective unless communicated by written
Notice of Termination to the other party hereto in accordance with paragraph
(i) above. For purposes of this Agreement, a "Notice of Termination" in the
case of a termination for Cause following a Change in Control shall mean a
notice given within ten (10) business days of the Company's having actual
knowledge of the events giving rise to such termination and in all cases shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(iii) The date of termination of Executive's employment shall be the
date of receipt of the Notice of Termination, except in the case of (A)
Executive's death, in which case the date of termination of employment shall be
the date of death or (B) Executive's termination for Cause following a Change
in Control, in which case the date of termination shall be ten (10) business
days after actual receipt by Executive of
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the Notice of Termination; provided that, if within thirty (30) days after any
Notice of Termination following a Change in Control is received, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the date of termination of Executive's
employment shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction
(which is not appealable or the time for appeal therefrom has expired and no
appeal has been perfected); and provided further that the date of termination
of Executive's employment shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay Executive his
full compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, Base Salary and incentive compensation)
or, if higher, the compensation in effect immediately prior to the Change in
Control, and continue Executive as a participant in all compensation, benefits
(including fringe benefits and perquisites) and insurance plans in which
Executive was participating when the notice giving rise to the dispute was
given, until the dispute is finally resolved in accordance with this paragraph
(iii). Amounts paid under this paragraph are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
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(g) Arbitration. The parties hereby agree to submit all controversies,
claims and matters of difference in any way related to this Agreement or the
performance or breach of the whole or any part hereof, to arbitration in
Denver, Colorado, according to the rules and practices of the American
Arbitration Association from time to time in force. If such rules and
practices shall conflict with the Colorado Rules of Civil Procedure or any
other provisions of Colorado law then in force, such Colorado rules and
provisions shall govern. Arbitration of any such controversy, claim or matter
of difference shall be a condition precedent to any legal action thereon. This
submission and agreement to arbitration shall be specifically enforceable.
Awards shall be final and binding on all parties to the extent and in the
manner provided by Colorado law; provided that an arbitration award shall not
be binding on the Company to the extent such award exceeds the maximum amount
the Company would be required to pay Executive pursuant to the express terms of
this Agreement. All awards may be filed by any party with the Clerk of the
District Court in the County of Denver, Colorado and an appropriate judgment
entered thereon and execution issued therefor. At the election of any party,
said award may also be filed, and judgment entered thereon and execution issued
therefor, with the clerk of one or more other courts, state or federal, having
jurisdiction over the party against whom such award is rendered or its
property.
(h) Counterparts. This Agreement may be signed in several counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxx, Xx.
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
----------------------------
Chief Executive Officer
ATTEST:
/s/ X. X. Xxx Xxxx
------------------
General Counsel
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Xxxxxx X. Xxxxx, Xx.
Schedule A
Outside Directorships Held
None.
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Xxxxxx X. Xxxxx, Xx.
Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan.
Manville Corporation Stock Incentive Plan.
1991 Long-Term Cash Incentive Compensation Plan for Manville Corporation.
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx
International Group, Inc.
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Xxxxxx X. Xxxxx, Xx.
Schedule C
Fringe Benefit Arrangements and Perquisites in Effect
Club Initiation Fees & Dues
The Company will pay the initiation fee and dues for one country
club of the officer's choice. The initiation fee and first year's
dues will be "grossed up" for tax purposes.
Financial & Estate Planning
The Company will pay the reasonable cost of periodic financial and
estate planning.
Annual Executive Physical Exam Program
Income Tax Return Preparation
The Company will pay annual income tax return preparation fees up
to $1,000 plus additional fees if incurred on account of
job-related circumstances including the cost of representation by
return preparer during an audit.
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July 8, 1993
X. X. Xxxxx, Xx.
3 Xxxxxxx
Xxxxxxxxx, XX 00000
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Xxxxxx:
Recently, the Board of Directors of Manville Corporation approved the extension
of your Employment Agreement for an additional year. This letter serves as
notice of the extension and, subject to execution by you and attestation by the
Company's General Counsel, an amendment to your Employment Agreement extending
the "Employment Term" (as defined in the Employment Agreement) for one year.
If you agree with this amendment, please sign both copies of this letter below
and return them to Xxx Xxxxx in the Denver Legal Department, P.O. Box 5108,
Denver, Colorado 8021 7-5108 at your earliest convenience. If you have
questions about this, please contact Xxxx Xxx Xxxx at 950-4911 or Xxx Xxxxx at
950-2266.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chief Executive Officer
This amendment is accepted this 6th day of August, 1993.
/s/ X. X. Xxxxx, Xx.
-------------------------
(Executive)
Attest: /s/ X. X. Xxx Xxxx
---------------------
General Counsel
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AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXXX X. XXXXX, XX.
This AMENDMENT dated as of April 1, 1994 is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxxx X.
xxxxx, Xx. (the "Executive"), and amends the EMPLOYMENT AGREEMENT dated June 3,
1992 by and between the Company and the Executive as previously extended on
August 3, 1993 (as so extended, the "Agreement').
WHEREAS, effective as of the date hereof, the Company and the Executive
agreed to change the Executive's position and annual base salary in accordance
with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
A. The first sentence of paragraph 2 of the Agreement is hereby amended to
read as follows:
Executive shall serve as the Vice President & General Manager -
Filtration & Manufacturing.
B. The first sentence of paragraph 3 of the Agreement is hereby amended to
read as follows:
Company shall pay Executive a base salary at the rate of not less
than $150,000 per year, as the same may from time to time be
increased at the sole discretion of the Board of Directors of the
Company, or, prior to a Change in Control, decreased in the event
of across the board salary reductions within the corporate staff
group or the business division in which Executive is employed,
whichever is applicable ("Base Salary").
C. The "Employment Term" (as defined in the Agreement) is hereby extended
for one year to June 3, 1997.
D. Except as provided by this Amendment to the Agreement, the Agreement
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement to be effective as of April 1, 1994.
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxx, Xx.
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
-----------------------
X. X. Xxxxxxxx
Chairman of the Board
ATTEST
/s/ Xxxxxxx X. Xxx Xxxx
----------------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President,
General Counsel and Secretary
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AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXXX X. XXXXX, XX.
THIS AMENDMENT dated as of April 26, 1995 is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxx, Xx. (the "Executive"), and amends the Employment Agreement dated as of
June 3, 1992 by and between the Company and the Executive (as previously
amended and extended, the "Agreement").
WHEREAS, the Company and the Executive have agreed to amend the
Agreement as set forth herein; and
WHEREAS, the Board of Directors of Manville Corporation has approved
an extension of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
A. Paragraph 1 of the Agreement is hereby amended to extend the
"Employment Term" (as defined in the Agreement) until April 10, 1998.
B. The first sentence of Paragraph 2 of the Agreement is hereby amended,
effective as of April 1, 1995, to read as follows:
Executive shall serve as Vice President & General Manager of the
Performance Materials Division.
C. The first sentence of Paragraph 3 of the Agreement is hereby amended
to read as follows:
Company shall pay Executive a base salary at the rate of not less
than $175,000 per year, as the same may from time to time be
increased at the sole discretion of the Board of Directors of the
Company or, prior to a Change in Control, decreased in the event of
across the board salary reductions within the corporate staff group
or the business division in which Executive is employed, whichever
is applicable ("Base Salary").
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D. Paragraph 7(f)(i) is hereby amended to read as follows:
except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting
as trustee) sponsored or maintained by Manville or any subsidiary
thereof or Manville Personal Injury Trust (the "Trust"), any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended from time to time, and
any successor act (the "Exchange Act")) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of Manville or Xxxxxxxx
International Group, Inc. ("Xxxxxxxx") representing 30% or more of
the combined voting power of Manville's or Xxxxxxxx'x, as
applicable, then outstanding securities;
E. Paragraph 7(f)(iii)(B) shall be amended to read as follows:
a sale or other disposition or the last sale or other disposition
to occur in a series of sales and/or other dispositions within any
18-month period ("Serial Sales") by Xxxxxxxx and/or one or more
subsidiaries of Xxxxxxxx of assets which, in the case of Serial
Sales, as of the beginning of such 18-month period, account for
more than 40% of the consolidated revenues of Xxxxxxxx and its
subsidiaries, as determined in accordance with generally accepted
accounting principles; provided, however, that no sale or
disposition of assets or stock shall be taken into account to the
extent that the proceeds of such sale or disposition (whether in
cash or in-kind) are reinvested or are, in the case of proceeds
received in kind, used in the ongoing conduct by Xxxxxxxx or one or
more of its subsidiaries of the business of Xxxxxxxx and/or such
subsidiary or subsidiaries, provided further that such a
reinvestment shall not be deemed to have occurred unless made
within 18 months of such sale or disposition and provided further
that, the term reinvestment shall exclude, inter alia, the use of
proceeds (x) to repay debt owed to the Trust or debt incurred in
connection with the operation of the business in which the assets
sold or disposed of were used or (y) to pay dividends.
F. Except as provided by this Amendment to the Agreement, the Agreement
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date set forth above.
/s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxx, Xx.
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
--------------------------
W. Xxxxxx Xxxxxxxx
Chairman of the Board
ATTEST:
/s/ Xxxxxxx X. Xxx Xxxx
-----------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President,
General Counsel and Secretary
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March 14, 1996
Xxxxxx X. Xxxxx, Xx. - R-17
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Harv:
Recently, the Board of Directors of Manville Corporation approved an
extension of your employment agreement with Xxxxxxxx International, Inc. (the
"Company"), dated June 3, 1992 (as previously amended and extended, the
"Employment Agreement"). This letter serves as notice of the extension and,
subject to execution by you and attestation by Manville Corporation's General
Counsel, an amendment to the Employment Agreement extending the "Employment
Term" (as defined in the Employment Agreement) to April 10, 1999.
To evidence your agreement to so extend the Employment Term, please sign
and date both copies of this letter where indicated and return them to Xxxx
Xxxxxxx (Denver 11-01) at your earliest convenience. A fully executed copy
will be returned to you for your files. If you have any questions about the
extension, please call Xxxx Xxxxxxx at 000-000-0000.
Very truly yours,
/s/ X. X. Xxxxxxxx
X.X. Xxxxxxxx
Chairman of the Board, President
and Chief Executive Officer
This amendment is accepted this 18th day of March, 1996.
/s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxx, Xx.
Attest:
/s/ Xxxxxxx X. Xxx Xxxx
--------------------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President, General Counsel
& Secretary
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AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXXX X. XXXXX, XX.
This AMENDMENT, dated as of June 7, 1996, is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxx, Xx. (the "Executive") and amends the EMPLOYMENT AGREEMENT, dated June 3,
1992, between the Company and the Executive (as previously amended and
extended, the "Employment Agreement").
WHEREAS, the Company and the Executive have agreed to amend the Employment
Agreement in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. The first sentence of Section 2 of the Employment Agreement is hereby
amended to read as follows:
Executive shall serve as Senior Vice President and General Manager,
Performance Materials of the Company.
2. Section 8(g) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) any Person (as defined below) (other than Xxxxxxxx
Corporation ("Xxxxxxxx")), any trustee or other fiduciary holding securities
under any employee benefit plan of Xxxxxxxx, or any company owned, directly or
indirectly, by the stockholders of Xxxxxxxx in substantially the same
proportions as their ownership of the common stock of Xxxxxxxx) becomes the
Beneficial Owner (as defined below) (except that a Person shall be deemed to be
the Beneficial Owner of all shares that any such Person has the right to
acquire pursuant to any agreement or arrangement or upon exercise of conversion
rights, warrants or options or otherwise, without regard to the sixty day
period referred to in Rule 13d-3 under the Exchange Act (as defined below)),
directly or indirectly, of securities of Xxxxxxxx or any Significant Subsidiary
(as defined below), representing 30 percent or more of the combined voting
power of Xxxxxxxx'x or such subsidiary's then outstanding securities; provided,
however, that
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such event shall not constitute a Change in Control unless or until the
percentage of such securities owned beneficially, directly or indirectly, by
such Person is equal to or more than all such securities owned beneficially,
directly or indirectly, by Manville Personal Injury Settlement Trust (the
"Trust");
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of Xxxxxxxx
(the "Board"), and any new director (other than a director designated by a
person who has entered into an agreement with Xxxxxxxx to effect a transaction
described in clause (i), (iii), or (iv) of this paragraph) whose election by
the Board or nomination for election by Xxxxxxxx'x stockholders was approved by
a vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of the two-year period or whose election or
nomination for election was previously so approved but excluding for this
purpose any such new director whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of an individual, corporation, partnership, group, associate or other entity or
Person other than the Board, cease for any reason to constitute at least a
majority of the Board; provided, however, that such event shall not constitute
a Change in Control unless or until the percentage of voting securities of
Xxxxxxxx owned beneficially, directly or indirectly, by the Trust is less than
50 percent of all such outstanding securities;
(iii) the consummation of a merger or consolidation of Xxxxxxxx
or any subsidiary owning directly or indirectly all or substantially all of the
consolidated assets of Xxxxxxxx (a "Significant Subsidiary") with any other
corporation, other than a merger or consolidation which would result in the
voting securities of Xxxxxxxx or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 50 percent of the combined voting power of the
surviving or resulting entity outstanding immediately after such merger or
consolidation;
(iv) the stockholders of Xxxxxxxx or any affiliate approve a plan
or agreement for the sale or disposition of all or substantially all of the
consolidated assets of Xxxxxxxx (other than such a sale or disposition
immediately after which such assets will be owned directly or indirectly by the
stockholders of Xxxxxxxx in substantially the same proportions as their
ownership of the common stock of Xxxxxxxx immediately prior to such sale or
disposition) in which case the Board shall determine the effective date of the
Change in Control resulting therefrom;
(v) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Xxxxxxxx, as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Xxxxxxxx;
or
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(vi) any other event occurs which the Board determines, in its
discretion, would materially alter the structure of Xxxxxxxx or its ownership.
(vii) Defined terms.
(A) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(B) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(C) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, and shall include a "group" as defined in Section 13(d) thereof.
3. Section 9 of the Employment Agreement is hereby amended in its entirety
to read as follows:
9. [Reserved]
4. Attached hereto is a revised Schedule B to the Employment Agreement,
which shall supersede and replace any previously existing Schedule B to the
Employment Agreement.
5. Except as provided by this Amendment, the Employment Agreement shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of June 7, 1996.
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx, Xx.
XXXXXXXX INTERNATIONAL, INC.
/s/ X. X. Xxxxxxxx
------------------------------
W. Xxxxxx Xxxxxxxx
Chief Executive Officer and President
ATTEST:
/s/ Xxxxxxx X. Xxx Xxxx
-----------------------------
Xxxxxxx X. Xxx Xxxx
Executive Vice President,
General Counsel and Secretary
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Schedule B
Incentive Compensation Plan in Effect
Annual Incentive Compensation Plan for Xxxxxxxx Corporation
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx
International Group, Inc.
Xxxxxxxx Corporation 1996 Stock Award Plan
Xxxxxxxx Corporation 1996 Deferred Compensation Plan
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 10, 1992, by and between MANVILLE
CORPORATION, a Delaware corporation ("Manville" or the "Company") and Xxxxxxx
X. Xxx Xxxx, (the "Executive").
WHEREAS the Company desires to continue to employ Executive and to enter
into an agreement embodying the terms of such employment (the "Agreement"); and
WHEREAS Executive desires to continue such employment and enter into such
an Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. The Executive shall be employed by the Company for
a period commencing on April 10, 1992 and, except as otherwise provided herein,
ending three years from such date. At the end of each year of employment
hereunder, the Board of Directors of the Company and the Chief Executive
Officer of the Company shall review this Agreement and the Executive's
performance hereunder and shall determine, in their sole discretion, whether or
not to extend the period of Executive's employment pursuant to this Agreement
by one year. The period of Executive's employment hereunder, including any
extension or extensions pursuant to the foregoing sentence, is referred to
hereinafter as the "Employment Term". A failure to renew this Agreement shall
not constitutes termination of Executive's employment.
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2. Position. Executive shall serve as Senior Vice President and General
Counsel & Secretary, Manville. Executive shall devote substantially all of his
business time and energies to the business of the Company. Notwithstanding the
foregoing, Executive may (a) continue to serve on the board of directors of any
business corporation on which he is serving as of the date of this Agreement
(as shown on Schedule A), (b) serve on the boards of directors or committees of
non-profit organizations and (c) with the prior approval of the Chief Executive
Officer of the Company or of the Board of Directors of the Company, serve on
the boards of directors of other business corporations, provided that in the
Company's sole reasonable discretion none of the foregoing activities
materially interferes with the performance of Executive's duties hereunder.
3. Base Salary. Company shall pay Executive a base salary at the rate of
not less than $225,000 per year, as the same may from time to time be increased
at the sole discretion of the Board of Directors of the Company or, prior to a
Change in Control, decreased in the event of across the board salary reductions
within the corporate staff group or the business division in which Executive is
employed, whichever is applicable ("Base Salary").
4. Incentive Compensation. Executive shall participate in the Manville
executive incentive compensation plans, as in effect from time to time during
the Employment Term, for which he is eligible. (References herein to "Manville
executive incentive compensation plans" whether annual or long-term, shall
include such plans maintained by Manville, from time to time.) The Manville
executive incentive
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compensation plans in effect on the date hereof in which Executive participates
are listed on Schedule B.
5. Employee Benefits. Executive shall be eligible to participate in such
other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term.
6. Business Expenses. Necessary and reasonable business expenses incurred
by Executive during the Employment Term shall be reimbursed in accordance with
Company policies.
7. Termination Prior to a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement, as defined hereafter. For purposes of this Agreement,
"Retirement" means termination of Executive's employment initiated by
Executive, other than for Good Reason as defined in Section 7(e) or Section
8(e) hereof, whichever is applicable, whereby Executive is entitled to receive
an immediately payable benefit, including an early retirement benefit, under
the Company's retirement plan generally applicable to its salaried employees or
under any retirement arrangement established with respect to Executive with his
consent, in either case, whether or not Executive commences to receive such
benefit at the time of such termination. Upon termination of Executive's
employment by reason of Retirement prior to a Change in Control, Executive
shall be entitled to benefits determined in accordance with the Company's
retirement, benefit and insurance programs in effect at such time.
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(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be
terminated by the Company if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive
months to perform his duties (such incapacity is hereinafter referred to as
"Disability"). Any question as to the existence of the Disability of the
Executive as to which the Executive and the Company cannot agree shall be
determined in writing by a qualified independent physician mutually acceptable
to the Executive and the Company. Upon any such termination for Disability
prior to a Change in Control, Executive shall be entitled to receive his Base
Salary through the date on which the Executive is first eligible to receive
payment of disability benefits in lieu of salary under the Company's employee
benefit plans as then in effect.
(ii) Death. Upon termination for death prior to a Change in
Control, Executive shall be entitled to his Base Salary at the rate in effect
at the time of Executive's death through the end of the month in which his
death occurs.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled following Executive's termination for death or
Disability prior to a Change in Control shall be determined in accordance with
the plans, policies and practices of the Company.
(c) For Cause by the Company; Voluntary Termination by Executive.
Executive's employment hereunder may be terminated by the Company for "Cause".
For purposes of this Agreement, prior to a Change in Control, "Cause" shall
mean (i)
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Executive's willful and continued failure substantially to perform his duties
hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 7(e) below), (ii) Executive's dishonesty in the
performance of his duties hereunder or (iii) Executive's conviction of a felony
under the laws of the United States or any state thereof. If Executive is
terminated for Cause, or if Executive voluntarily terminates employment
hereunder other than for Good Reason, in either case, prior to a Change in
Control, he shall be entitled to receive his Base Salary through the date of
termination. All other benefits, if any, payable to Executive following such
termination of Executive's employment shall be determined in accordance with
the plans, policies and practices of the Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
prior to a Change in Control Executive's employment hereunder is terminated by
the Company without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (as defined in Section 7(e) below), Executive
shall be entitled to receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times his Base Salary in effect at the
time of such termination or, in the event of termination by the Executive on
account of an event described in Section 7(e)(iv) below, the Base Salary as in
effect prior to the reduction or reductions referred to therein plus the bonus
the Executive would have earned in respect of the year of termination under the
Manville annual incentive
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compensation plan, if any, in effect at the date of termination or, in the
event of a termination by Executive by reason of an event described in Section
7(e)(vi), the plan in effect prior to the elimination referred to therein,
determined as if the Executive had been employed by the Company for the full
year and without regard to any right reserved by the Company to decrease or
eliminate such bonus, and assuming actual performance had equaled 100% of the
performance objective established for such year pursuant to the terms of such
plan.
(ii) For a 24-month period after such termination, the Company shall
cause Executive to be provided with life, accident, medical, dental and
prescription insurance benefits substantially similar to, and on the same terms
as, those benefits elected and received by Executive under the Company's "Flex
Benefit" program immediately prior to such termination; provided that,
Executive shall be charged an amount equal to any monthly payroll deduction
charged for similar benefits to executives in positions similar to that which
Executive held before his termination; and provided further that, if Executive
receives medical benefits under the Manville Retiree Comprehensive Health Care
Plan and post-retirement life insurance benefits (collectively, "Retiree
Medical and Life Insurance Benefits"), at any time during the 24-month period
referred to above, once such benefits begin Executive shall be entitled only to
Retiree Medical and Life Insurance Benefits.
(iii) For a period of 24 months after such termination, the
Company shall provide or cause Executive to be provided with the perquisites
listed on Schedule C, attached hereto, as may be amended by the Company from
time to time
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without Executive's consent prior to such termination (provided that nothing
herein shall be deemed to permit such an amendment without Executive's consent
following a Change in Control), on the same terms and conditions on which such
perquisites were provided prior to Executive's termination.
(iv) In addition to all other amounts payable to Executive under this
Section 7(d), Executive shall be entitled to receive all benefits payable to
Executive under any other plan, policy or agreement relating to retirement or
other benefits in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 7(d)
shall be in lieu of any payments under any Manville separation policy.
(v) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to exceed the
lesser of (A) 20% of Executive's Base Salary in effect at the time of
Executive's termination of employment with the Company or (B) $50,000.
(e) Good Reason. For purposes of this Agreement, prior to a Change in
Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities, authorities
or duties, all as contemplated by Section 2 hereof; provided, however, that
such reduction by reason of a termination for Cause or Disability shall not
constitute Good Reason;
(ii) Executive's job is eliminated other than by reason of promotion
or termination for Cause or Disability.
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(iii) the Company fails to pay Executive any amount otherwise vested
and due hereunder or under any plan or policy of the Company;
(iv) a reduction in Executive's Base Salary except in the event of an
across the board salary reduction within the corporate staff group or the
business division in which Executive is employed, whichever is applicable;
(v) a reduction in Executive's aggregate level of benefits under the
Company's pension, life insurance, medical, health and accident, disability,
deferred compensation or savings or similar plans, except in the event of an
across the board reduction in such benefits within the corporate staff group or
the business division in which Executive is employed, whichever is applicable;
(vi) the elimination of an annual incentive compensation plan; or
(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxx, Xxxxxxxx without his written consent.
If Executive provides to the Company a Notice of Termination, as defined
in Section 13(f), in connection with an event described in clauses (i) through
(vii) of this Section 7(e), the Company shall have ten (10) business days from
the date of receipt of such notice to effect a cure of the event described
therein, and upon cure thereof by the Company to Executive's reasonable
satisfaction, such event shall no longer constitute Good Reason for purposes of
this Agreement.
(f) Mitigation. In the event of termination of Executive's employment
hereunder by the Company without Cause or by Executive with Good Reason prior
to a Change in Control, benefits otherwise receivable by Executive pursuant to
subsection
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7(d)(ii) shall be reduced to the extent comparable benefits are received by
Executive during the 24-month period following such termination. Executive
shall report to the Company any such benefits actually received by Executive.
8. Termination Following a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement. Upon a termination of Executive's employment by reason
of Retirement following a Change in Control, Executive shall be entitled to
benefits determined in accordance with the Company's retirement, benefit and
insurance programs in effect immediately prior to the Change in Control or, if
more generous, such programs in effect at the time of such Retirement.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be
terminated by reason of Executive's Disability, subject to the procedure for
determining such Disability outlined in Section 7(b)(i). Upon any termination
for Disability following a Change in Control, Executive shall be entitled to
receive his Base Salary for a two-year period ending on the second anniversary
of Executive's date of termination. Such Base Salary shall be paid in equal
monthly installments and shall be reduced by any amounts received as disability
benefits in lieu of salary under the Company's employee benefit plans.
(ii) Death. Upon termination for death following a Change in
Control, Executive shall be entitled to (x) his Base Salary at the rate in
effect at the time of Executive's death through the end of the month in which
his death occurs and (y) if and
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to the extent the death benefits provided Executive by the Company are less
than would have been paid immediately prior to a Change in Control, a lump sum
payment of cash in an amount equal to the value of such shortfall. Any such
lump sum payment shall be made within ten (10) business days following
Executive's death.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled upon Executive's termination for death or Disability
following a Change in Control shall be determined in accordance with the plans,
policies and practices of the Company in effect immediately prior to the Change
in Control or, if more generous, such plans, policies and practices as in
effect at any time following the Change in Control; provided that, nothing in
this Section 8(b)(iii) shall be interpreted so as to result in the duplication
of the benefits provided under Section 8(b)(i) or (ii).
(c) For Cause by the Company; Voluntary Termination by Executive. For
purposes of this Agreement, following a Change in Control, "Cause" shall mean
(i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 8(e) below) after a written demand for substantial
performance is delivered to Executive personally and Executive shall have
failed during the sixty-day period following such written demand to have
corrected such failure, (ii) Executive's dishonesty in the performance of his
duties hereunder or (iii) Executive's conviction of a felony under the laws of
the United States or any state thereof. For purposes of this Section 8(c) no
act or failure to act on Executive's part shall be deemed willful unless done
or omitted to be done by
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Executive not in good faith and without reasonable belief that Executive's
action or omission was in the best interest of the Company.
If Executive is terminated for Cause, or if Executive voluntarily
terminates his employment with the Company other than for Good Reason, in
either case, following a Change in Control, he shall be entitled to receive his
Base Salary through the date of termination. All other benefits, if any,
payable to Executive following such termination of Executive's employment shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
Executive's employment is terminated by the Company following a Change in
Control without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (which following a Change in Control shall have
the meaning set forth in Section 8(e) below), Executive shall be entitled to
receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times the sum of (A) his Base Salary
in effect at the time of such termination or, in the event of termination by
the Executive by reason of an event described in Section 8(e)(iv) below, the
Base Salary as in effect prior to the reduction or reductions referred to
therein plus (B) the bonus the Executive would have earned in respect of the
year of termination under the Manville annual incentive compensation plan, if
any, in effect at the date of termination or in the event of a termination by
Executive by reason of an event described in Section 8(e)(v),
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the plan in effect immediately prior to the reduction or reductions
referred to therein, determined as if the Executive had been employed by the
Company for the full year and without regard to any right reserved by the
Company to decrease or eliminate such bonus, and assuming actual performance
had equaled 100% of the performance objective established for such year
pursuant to the terms of such plan.
(ii) The Company shall pay Executive in a lump sum a cash amount equal
to a fraction of the annual bonus which (absent such termination and without
regard to any right reserved by the Company to decrease or eliminate such
bonus) Executive would have earned with respect to the year of termination
under the Manville annual executive incentive compensation plan, if any, in
effect at the date of termination or, in the event of a termination by
Executive by reason of an event described in Section 8(e)(v), the plan in
effect prior to the reduction or reductions referred to therein, assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan, the numerator of which
fraction is the number of days in such year during which the Executive was
employed by the Company and the denominator of which is 365. Such payment shall
be made at the time of Executive's termination.
(iii) The Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units (and other similar interests) granted to Executive under the
1991 Long Term Cash Incentive Compensation Plan (or any other Manville
long-term cash incentive plan adopted after the date hereof) assuming Executive
remained employed
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through the applicable expiration or final payment date of such Performance
Units or other interests, less any amount paid to Executive in respect of such
Performance Units and other interests prior to termination of his employment.
For purposes of calculating the sum to which Executive is entitled it shall be
assumed that all "Scheduled Dividend Payments" (as such term is defined in the
1991 Long Term Cash Incentive Compensation Plan) not paid at or prior to
Executive's termination of employment will be paid in full at their then
estimated value, as determined by the Company (without reduction or deferral).
Such payment shall be made at the time of Executive's termination.
(iv) If Executive is age 55 or older at the time of such termination,
Executive shall receive credit under the Supplemental Plan for Participants in
the Manville Salaried Retirement Plan for two additional years of service for
purposes of both vesting and accrual of benefits.
(v) For a 36-month period following Executive's termination, the
Company shall pay Executive in monthly installments the sum of the monthly
costs to Executive of purchasing life, accident, medical, dental and
prescription insurance benefits substantially similar to such benefits elected
and received by Executive under the Company's "Flex Benefit" program
immediately prior to Executive's termination or, if more generous, immediately
prior to the Change in Control ("Continued Benefits") less the monthly payroll
deduction, if any, charged to Executive immediately prior to Executive's
termination, or, if applicable, immediately prior to the Change in Control, for
any of such Continued Benefits; notwithstanding the foregoing, if Executive
begins to
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receive Retiree Medical and Life Insurance Benefits at any time during the
36-month period referred to above, once such benefits begin, the monthly
payment due Executive under the preceding clause shall equal the monthly costs
to Executive of purchasing Continued Benefits not provided by the Company to
Executive as Retiree Medical and Life Insurance Benefits.
(vi) For a 24-month period after such termination, the Company shall
provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto (which the Company may amend from time to time
prior to a Change in Control, without Executive's consent), on the same terms
and conditions on which such perquisites were provided at the time of
Executive's termination or, if more generous, immediately prior to such
termination.
(vii) In addition to all other amounts payable to Executive under this
Section 8(d), Executive shall be entitled to receive all benefits payable to
Executive under any other plan, policy or agreement relating to retirement or
other benefits, in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 8(d)
shall be in lieu of any payments under any Manville separation policy.
(viii) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to exceed 20%
of Executive's Base Salary in effect at the time of such termination or, in the
event of termination by Executive by reason of an event described in Section
8(e)(iv) below, the Base Salary as in effect prior to the reduction or
reductions referred to therein.
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(e) Good Reason Following a Change in Control. For purposes of this
Agreement, following a Change in Control, "Good Reason" shall mean:
(i) a material adverse change in the nature or scope of Executive's
responsibilities, authorities, duties and/or position (including by reason of a
substantial reduction in the size of the Company or other substantial change in
the character or scope of the Company's operations);
(ii) Executive no longer serves in the position described in
Section 2, other than by reason of a promotion or a termination for Cause or
Disability;
(iii) the Company fails to pay Executive any amounts otherwise
vested and due hereunder or under any plan or policy of the Company;
(iv) a reduction in the Executive's Base Salary in effect
immediately prior to the Change in Control or as the same may be increased from
time to time;
(v) a reduction in the Executive's incentive compensation
opportunity, as defined below, under the Manville executive incentive
compensation plans as in effect immediately prior to the Change in Control or
as the same may be increased from time to time (absent, in the case of any such
reduction relative to Executive's annual bonus, a corresponding increase in his
Base Salary);
(vi) the failure of the Company, to continue to provide Executive
with benefits and perquisites which are substantially similar in the aggregate
to those enjoyed by Executive under the Company's pension, life insurance,
medical, health and accident, disability, deferred compensation or savings or
similar plans and fringe benefit
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programs (including vacation) in which Executive was participating immediately
prior to the Change in Control; or the failure by the Company to continue to
provide Executive with directors' or officers' insurance, as applicable, at the
level maintained immediately prior to the Change in Control;
(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx
xx Xxxxxx, Xxxxxxxx without his written consent;
(viii) the failure of the Company to obtain an agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 13(e) hereof; or
(ix) any purported termination of Executive's employment by the
Company which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 13(f) and, if applicable, following the written
demand described in Section 8(c) and the relevant cure period.
If Executive provides a Notice of Termination, as defined in Section
13(f), in connection with an event described in clauses (i) through (vii) of
this Section 8(e), to the Company, the Company shall have ten (10) business
days from the date of receipt of such notice to effect a cure of the event
described therein, and upon cure thereof by the Company to Executive's
reasonable satisfaction, such event shall no longer constitute Good Reason for
purposes of this Agreement.
(f) Reduction in Incentive Compensation Opportunity. For purposes of this
Agreement, a "reduction in the Executive's incentive compensation opportunity"
under the Manville executive incentive compensation plans shall include
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(i) the failure to maintain both an annual and a long-term incentive
plan;
(ii) any reduction or elimination by the Company of Executive's annual
or long-term incentive compensation pursuant to any reserved right under any
such plan to decrease or eliminate such bonus or award;
(iii) any reduction in Executive's participation level under any such
plan; and
(iv) any adverse change in the payout schedule or its equivalent or in
the manner of assessing actual performance under any such plan and/or any
extraordinary change in the applicable performance criteria thereunder.
(g) Change in Control. For purposes of this Agreement, the phrase "Change
in Control" shall mean the following and shall be deemed to have occurred if
any of the following events shall have occurred:
(i) except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting as trustee)
sponsored or maintained by Manville or any subsidiary thereof or the Manville
Personal Injury Settlement Trust (the "Trust"), any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended from time to time, and any successor act (the "Exchange Act") is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of Manville representing 30% or more
of the combined voting power of Manville's then outstanding securities;
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(ii) at least 40% of the directors of Manville constitute persons who
were not members of the Board on the date hereof;
(iii) (A) the dissolution of Manville; (B) a sale or other disposition
or the last sale or other disposition to occur in a series of sales and/or
other dispositions within any 18-month period ("Serial Sales") by Manville
and/or one or more subsidiaries of Manville of assets (including any sale
through a public offering of shares of voting stock of a Manville subsidiary by
Manville or by any subsidiary thereof) which, in the case of Serial Sales, as
of the beginning of such 18-month period, account for (or, in the case of stock
sold through a public offering, which represents indirect ownership on a
proportionate basis of assets accounting for) more than 40% of the consolidated
revenues of Manville and its subsidiaries, as determined in accordance with
generally accepted accounting principles; provided, however, that no sale or
disposition of assets or stock shall be taken into account to the extent that
the proceeds of such sale or disposition (whether in cash or in-kind) are
reinvested or are, in the case of proceeds received in-kind, used in the
ongoing conduct by Manville or one or more of its subsidiaries of the business
of Manville and/or such subsidiary or subsidiaries, provided further that such
a reinvestment shall not be deemed to have occurred unless made within 18
months of such sale or disposition and provided further that, the term
reinvestment shall exclude, inter alia, the use of proceeds (x) to repay debt
owed to the Trust or debt incurred in connection with the operation of the
business in which the assets sold or disposed of were used or (y) to pay
dividends; (C) a transaction to which Manville is a party pursuant to which the
holders of all of the shares of Manville
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outstanding prior to such transaction do not hold, directly or indirectly,
shares outstanding of the surviving corporation in substantially the same
proportions as those in which they held the outstanding shares of Manville
prior to the transaction; or (D) any other event which the Board determines, in
its discretion, would materially alter the structure of Manville or its
ownership;
(iv) a reduction in workforce, or the last to occur in a series of
reductions in workforce within any 24-month period, of Manville, Xxxxxxxx
International, Inc. ("Xxxxxxxx") or Riverwood International Corporation
("Riverwood"), as a result of which 80% of the workforce of Manville, Xxxxxxxx
or Riverwood, measured as the date 24 months prior to the last such reduction,
is no longer employed by Manville, Xxxxxxxx or Riverwood, whichever is
applicable, excluding for these purposes any reduction in the workforce or
Manville attributable to transfers of employees to either Xxxxxxxx or Riverwood
or any reduction in the workforce of either Xxxxxxxx or Riverwood attributable
to transfers of employees to Manville.
9. Reduction of Payments. If any payment to or for the benefit of
Executive under this Agreement either alone or together with other payments to
or for the benefit of Executive would constitute a "parachute payment" (as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code")), the payments under this Agreement shall be reduced to the largest
amount that will minimize or eliminate both the imposition of the excise tax
imposed by Section 4999 of the Code and the disallowance of deductions to the
Company under Section 280G of the Code of any such payments. The determination
of any reduction in the payments under this
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Agreement pursuant to this Section shall be made by the Company's independent
accountants.
10. Indemnification. The Company will indemnify the Executive (and his
legal representatives or other successors) to the fullest extent permitted
(including payment of expenses in advance of final disposition of a proceeding)
by the laws of the jurisdiction of incorporation of the Company, as in effect
at the time of the subject act or omission, or by the Restated Certificate of
Incorporation and By-Laws of the Company, as in effect at such time or on the
effective date of this Agreement, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords or afforded
greatest protection to the Executive, and the Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, the Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives at the time such costs, charges
and expenses are incurred or sustained, in connection with any action, suit or
proceeding to which he (or his legal representatives or other successors) may
be made a party by reason of his being or having been a director, officer or
employee of the Company or any subsidiary or his serving or having served any
other enterprise as a director, officer or employee at the request of the
Company.
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11. Legal Fees. In the event of a dispute between the Executive and the
Company with respect to any of the Executive's rights under this Agreement, the
Company shall reimburse the Executive for any and all legal fees and related
expenses incurred by him in connection with enforcing such rights, at the time
such fees and related expenses are incurred; provided that, if Executive's
claim is found by a court of competent jurisdiction to have been frivolous,
Executive shall reimburse the Company for all amounts paid by it under this
Section.
12. Confidentiality; Specific Performance. Executive will not at any time
(whether during or after his employment with the Company) disclose or use for
his own benefit or purposes, or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or
affiliate of the Company, provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public other than as a result of Executive's breach of this
covenant. Executive agrees that upon termination of his employment with the
Company for any reason, he will return to the Company immediately all
memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom, in any way relating to the business
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of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
Executive acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may then be available.
13. Miscellaneous.
(a) Governing Law; Liability of the Executive.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. The Executive shall not be subject to liability for
breach of this Agreement by reason of his termination of his employment
hereunder.
(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
agreements between Executive and the Company or any of its affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than
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those expressly set forth herein. THIS AGREEMENT AND ANY AMENDMENT HERETO SHALL
NOT BE EFFECTIVE UNLESS AND UNTIL SIGNED BY THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY AND ATTESTED TO BY THE GENERAL COUNSEL OF THE COMPANY.
(c) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) Successors; Binding Agreement. (i) In the event of a Change in
Control, the Company will require the successor to the Company as Executive's
employer (whether such succession is direct or indirect, by purchase, merger,
consolidation or otherwise, to any portion of the business and/or assets of the
Company) to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise. Prior to a Change in Control, the
term "Company" shall also mean any
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affiliate of the Company to which Executive may be transferred and the
Company shall cause such successor employer to be considered the "Company"
bound by the terms of this Agreement and this Agreement shall be amended so to
provide. Following a Change in Control the term "Company" shall not mean any
affiliate of the Company to which Executive may be transferred unless Executive
shall have previously approved of such transfer in writing, in which case the
Company shall cause such successor employer to be considered the "Company"
bound by the terms of this Agreement and this Agreement shall be amended so to
provide.
(ii) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to Executive hereunder if Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Executive's devisee,
legatee or other designee or, if there is no such designee, to Executive's
estate. This Agreement shall not be assignable by Executive.
(f) Notice; Notice of Termination. (i) For the purpose of this Agreement,
notices and all other communications provided for in the Agreement shall be in
writing and, except as otherwise provided in paragraph (ii) below, shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the signature page of this Agreement;
provided that all notices to the Company
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shall be directed to the attention of the General Counsel of Manville, 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 receipt,
(ii) Any purported termination of Executive's employment by the
Company or by Executive shall not be effective unless communicated by written
Notice of Termination to the other party hereto in accordance with paragraph
(i) above. For purposes of this Agreement, a "Notice of Termination" in the
case of a termination for Cause following a Change in Control shall mean a
notice given within ten (10) business days of the Company's having actual
knowledge of the events giving rise to such termination and in all cases shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(iii) The date of termination of Executive's employment shall be the
date of receipt of the Notice of Termination, except in the case of (A)
Executive's death, in which case the date of termination of employment shall be
the date of death or (B) Executive's termination for Cause following a Change
in Control, in which case the date of termination shall be ten (10) business
days after actual receipt by Executive of the Notice of Termination; provided
that, if within thirty (30) days after any Notice of Termination following a
Change in Control is received, the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
date of termination of Executive's employment shall be the date on which the
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dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or
decree of a court of competent jurisdiction (which is not appealable or the
time for appeal therefrom has expired and no appeal has been perfected); and
provided further that the date of termination of Executive's employment shall
be extended by a notice of dispute only if such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
Company will continue to pay Executive his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary and incentive compensation) or, if higher, the compensation in
effect immediately prior to the Change in Control, and continue Executive as a
participant in all compensation, benefits (including fringe benefits and
perquisites) and insurance plans in which Executive was participating when the
notice giving rise to the dispute was given, until the dispute is finally
resolved in accordance with this paragraph (iii). Amounts paid under this
paragraph are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
(g) Arbitration. The parties hereby agree to submit all controversies,
claims and matters of difference in any way related to this Agreement or the
performance or breach of the whole or any part hereof, to arbitration in
Denver, Colorado, according to the rules and practices of the American
Arbitration Association from time to time in force. If such rules and practices
shall conflict with the Colorado
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Rules of Civil Procedure or any other provisions of Colorado law then in force,
such Colorado rules and provisions shall govern. Arbitration of any such
controversy, claim or matter of difference shall be a condition precedent to
any legal action thereon. This submission and agreement to arbitration shall be
specifically enforceable.
Awards shall be final and binding on all parties to the extent and in the
manner provided by Colorado law; provided that an arbitration award shall not
be binding on the Company to the extent such award exceeds the maximum amount
the Company would be required to pay Executive pursuant to the express terms of
this Agreement. All awards may be filed by any party with the Clerk of the
District Court in the County of Denver, Colorado and an appropriate judgment
entered thereon and execution issued therefor. At the election of any party,
said award may also be filed, and judgment entered thereon and execution issued
therefor, with the clerk of one or more other courts, state or federal, having
jurisdiction over the party against whom such award is rendered or its
property.
(h) Counterparts. This Agreement may be signed in several counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ Xxxxxxx X. Xxx Xxxx
----------------------------
Xxxxxxx X. Xxx Xxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
--------------------------
Chief Executive Officer
ATTEST:
/s/ X. X. Xxx Xxxx
------------------
General Counsel
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Xxxxxxx X. Xxx Xxxx
Level II
Schedule A
Outside Directorships Held
None.
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Xxxxxxx X. Xxx Xxxx
Level II
Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan for Manville Corporation.
1991 Long-Term Cash Incentive Compensation Plan for Manville Corporation.
Manville Corporation Stock Incentive Plan.
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Xxxxxxx X. Xxx Xxxx
Level II
Schedule C
Fringe Benefit Arrangements and Perquisites in Effect
Club Initiation Fees & Dues
The Company will pay the initiation fee and dues for one country
club and one luncheon or city club of the officer's choice. The
initiation fee and first year's dues will be "grossed up" for tax
purposes.
Financial & Estate Planning
The Company will pay the reasonable cost of periodic financial and
estate planning.
Annual Executive Physical Exam Program
Income Tax Return Preparation
The Company will pay annually up to $1,100 plus additional fees if
incurred on account of job-related circumstances and the cost of
representation by return preparer during an audit.
Executive Alarm System
The Company pays the cost of the installation and maintenance of a
24 hour fire, smoke and security monitoring system for the
Executive's residence.
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July 21, 1993
X. X. Xxx Xxxx
0 Xxxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Dick:
Recently, the Board of Directors of Manville Corporation approved the extension
of your Employment Agreement for an additional year. This letter serves as
notice of the extension and, subject to execution by you and attestation by the
Company's General Counsel, an amendment to your Employment Agreement extending
the "Employment Term" (as defined in the Employment Agreement) for one year.
If you agree with this amendment, please sign both copies of this letter below
and return them to Xxx Xxxxx in the Denver Legal Department, P.O. Box 5108,
Denver, Colorado 8021 7-5108 at your earliest convenience. If you have
questions about this, please contact Xxxx Xxx Xxxx at 950-4911 or Xxx Xxxxx at
950-2266.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chief Executive Officer
This amendment is accepted this 1st day of October, 1993.
/s/ X. X. Xxx Xxxx
--------------------
(Executive)
Attest: /s/ X. X. Xxx Xxxx
-------------------
General Counsel
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Amendment No. 1
to the Employment Agreement dated April 10, 1992
by and between Manville Corporation (the "Company")
and Xxxxxxx X. Xxx Xxxx (the "Executive")
WHEREAS, the Company and Executive have entered into the Supplemental
Retirement Agreement between Xxxxxxx X. Xxx Xxxx and Manville Corporation,
dated as of November 4, 1994 (the "Supplemental Retirement Agreement");
WHEREAS, a condition to the effectiveness of the Supplemental Retirement
Agreement is the amendment of the above-referenced employment agreement (the
"Employment Agreement") as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. Section 7(e)(iii) of the Employment Agreement is hereby amended and
restated in its entirety to read as follows:
"(iii) the Company fails to pay Executive any amount otherwise vested and
due hereunder or under any plan or policy of the Company (including without
limitation any amount due under the Supplemental Retirement Agreement between
Xxxxxxx X. Xxx Xxxx and the Company, dated as of November 4, 1994 (the
"Supplemental Retirement Agreement"));".
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2. Section 8(d) of the Employment Agreement is hereby amended and restated
in its entirety to read as follows:
"(d) Without Cause by the Company or with Good Reason by Executive. If
Executive's employment is terminated by the Company following a Change in
Control without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (which following a Change in Control shall have
the meaning set forth in Section 8(e) below), Executive shall be entitled to
receive the following benefits:
(i) The Company shall pay Executive at the time of such termination in
a lump sum a cash amount equal to two times the sum of (A) his Base
Salary in effect at the time of such termination or, in the event
of termination by the Executive by reason of an event described in
Section 8(e)(iv) below, the Base Salary as in effect prior to the
reduction or reductions referred to therein plus (B) the bonus the
Executive would have earned in respect of the year of termination
under the Manville annual incentive compensation plan, if any, in
effect at the date of termination or in the event of a termination
by Executive by reason of an event described in Section 8(e)(v),
the plan in effect immediately prior to the reduction or reductions
referred to therein, determined as if the Executive had been
employed by the Company for the full year and without regard to any
right reserved by the Company to decrease or eliminate such bonus,
and assuming actual performance had equaled 100% of the performance
objective established for such year pursuant to the terms of such
plan.
(ii) The Company shall pay Executive in a lump sum a cash amount equal to
a fraction of the annual bonus which (absent such termination and
without regard to any right reserved by the Company to decrease or
eliminate such bonus) Executive would have earned with respect to
the year of termination under the Manville annual executive
incentive compensation plan, if any, in effect at the date of
termination or, in the event of a termination by Executive by
reason of an event described in Section 8(e)(v), the plan in effect
prior to the reduction or reductions referred to therein, assuming
actual performance had equaled 100% of the performance objective
established for such year pursuant to the terms of such plan, the
numerator of which fraction is the number of days in such year
during which the Executive was employed by the Company and the
denominator of which is 365. Such payment shall be made at the time
of Executive's termination.
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(iii) The Company shall pay Executive in a lump sum a cash amount equal
to the sum of the amounts Executive would have received in respect
of 11 Performance Units (and other similar interests) granted to
Executive under the 1991 Long Term Cash Incentive Compensation Plan
(or any other Manville long-term cash incentive plan adopted after
the date hereof) assuming Executive remained employed through the
applicable expiration or final payment date of such Performance
Units or other interests, less any amount paid to Executive in
respect of such Performance Units and other interests prior to
termination of his employment. For purposes of calculating the sum
to which Executive is entitled it shall be assumed that all
"Scheduled Dividend Payments" (as such term is defined in the 1991
Long Term Cash Incentive Compensation Plan) not paid at or prior to
Executive's termination of employment will be paid in full at their
then estimated value, as determined by the Company (without
reduction or deferral). Such payment shall be made at the time of
Executive's termination.
(iv) For a 36-month period following Executive's termination, the
Company shall pay Executive in monthly installments the sum of the
monthly costs to Executive of purchasing life, accident, medical,
dental and prescription insurance benefits substantially similar to
such benefits elected and received by Executive under the Company's
"Flex Benefit" program immediately prior to Executive's termination
or, if more generous, immediately prior to the Change in Control
("Continued Benefits") less the monthly payroll deduction, if any,
charged to Executive immediately prior to Executive's termination,
or, if applicable, immediately prior to the Change in Control, for
any of such Continued Benefits; notwithstanding the foregoing, if
Executive begins to receive Retiree Medical and Life Insurance
Benefits at any time during the 36-month period referred to above,
once such benefits begin, the monthly payment due Executive under
the preceding clause shall equal the monthly costs to Executive of
purchasing Continued Benefits not provided by the Company to
Executive as Retiree Medical and Life Insurance Benefits.
(v) For a 24-month period after such termination, the Company shall
provide or cause Executive to be provided with the perquisites
listed on Schedule C, attached hereto (which the Company may amend
from time to time prior to a Change in Control, without Executive's
consent), on the same terms and conditions on which such
perquisites were provided at the time of Executive's termination
or, if more generous, immediately prior to such termination.
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122
(vi) In addition to all other amounts payable to Executive under this
Section 8(d), Executive shall be entitled to receive all benefits
payable to Executive under any other plan, policy or agreement
relating to retirement or other benefits, in accordance with the
terms of such plans, policies or agreements; provided, however
that, amounts paid pursuant to this Section 8(d) shall be in lieu
of any payments under any Manville separation policy.
(vii) The Company shall provide Executive with outplacement services
from the firm of Executive's choice at a cost to the Company not to
exceed 20% of Executive's Base Salary in effect at the time of such
termination or, in the event of termination by Executive by reason
of an event described in Section S(e)(iv) below, the Base Salary as
in effect prior to the reduction or reductions referred to
therein."
3. Section 8(e)(iii) of the Employment Agreement is hereby amended and
restated in its entirety to read as follows:
"(iii) the Company fails to pay Executive any amounts otherwise vested and
due hereunder or under any plan or policy of the Company (including without
limitation any amount due under the Supplemental Retirement Agreement);".
4. Section 8(g) of the Employment Agreement is hereby amended and restated
in its entirety to read as follows:
"(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting
as trustee) sponsored or maintained by Manville or any subsidiary
thereof or the Manville Personal Injury Settlement Trust (the
"Trust"), any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended from time
to time, and any successor act (the "Exchange Act") is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of Manville representing
30% or more of the combined voting power of Manville's then
outstanding securities;
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(ii) at least 40% of the directors of Manville constitute persons who
were not at the time of their first election to the board,
candidates proposed by a majority of the Board in office prior to
the time of such first election,
(iii) (A) the dissolution of Manville; (B) a sale or other disposition
or the last sale or other disposition to occur in a series of sales
and/or other dispositions within any 18-month period ("Serial
Sales") by Manville and/or one or more subsidiaries of Manville of
assets (including any sale through a public offering of shares of
voting stock of a Manville subsidiary by Manville or by any
subsidiary thereof) which, in the case of Serial Sales, as of the
beginning of such 18 month period, account for (or, in the case of
stock sold through a public offering, which represents indirect
ownership on a proportionate basis of assets accounting for) more
than 40% of the consolidated revenues of Manville and its
subsidiaries, as determined in accordance with generally accepted
accounting principles; provided, however, that no sale or
disposition of assets or stock shall be taken into account to the
extent that the proceeds of such sale or disposition (whether in
cash or in-kind) are reinvested or are, in the case of proceeds
received in-kind, used in the ongoing conduct by Manville or one or
more of its subsidiaries of the business of Manville and/or such
subsidiary or subsidiaries, provided further that such a
reinvestment shall not be deemed to have occurred unless made
within 18 months of such sale or disposition and provided further
that, the term reinvestment shall exclude, inter alia, the use of
proceeds (x) to repay debt owed to the Trust or debt incurred in
connection with the operation of the business in which the assets
sold or disposed of were used or (y) to pay dividends; (C) a
transaction to which Manville is a party pursuant to which the
holders of all of the shares of Manville outstanding prior to such
transaction do not hold, directly or indirectly, shares outstanding
of the surviving corporation in substantially the same proportions
as those in which they held the outstanding shares of Manville
prior to the transaction; or (D) any other event which the Board
determines, in its discretion, would materially alter the structure
of Manville or its ownership; or
(iv) a reduction in workforce, or the last to occur in a series of
reductions in workforce within any 24-month period, of Manville,
Xxxxxxxx International Group, Inc. ("Xxxxxxxx") or Riverwood
International Corporation ("Riverwood"), as a result of which 80%
of the consolidated workforce of Manville, Xxxxxxxx or Riverwood,
measured as of the date 24 months prior to the last such reduction,
is no longer employed by Manville, Xxxxxxxx or Riverwood,
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124
whichever is applicable, excluding for these purposes any reduction
in the workforce of Manville attributable to transfers of employees
to either Xxxxxxxx or Riverwood or any reduction in the workforce
of either Xxxxxxxx or Riverwood attributable to transfers of
employees to Manville."
5. Section 9 of the Employment Agreement is hereby amended and restated in
its entirety to read as follows:
"9. Reduction in Payments.
(a) Notwithstanding anything to the contrary in this Agreement, if, as
of the date of Executive's termination of employment, the Offset under the
Supplemental Retirement Agreement exceeds the benefit to which Executive is
entitled under Section 2 of the Supplemental Retirement Agreement prior to any
offset, as defined therein, then the aggregate payments (including perquisites
and benefits) due to Executive, if any, under this Agreement shall be reduced
by such excess, except to the extent that such excess shall otherwise be
satisfied by the Company's canceling other compensation or other amounts or
property due to Executive.
(b) Notwithstanding any other provision of this Agreement or any other
agreement between Executive and the Company or any affiliate, if a reduction in
the aggregate amount of payments Executive otherwise would be entitled to
receive from the Company or any affiliate, which payments are deemed contingent
on a change described in Section 280G(b)(2)(A)(i) of the Internal Revenue Code
of 1986, as amended (the "Code"), (the "Contingent Payments") would result in a
greater "Net After-Tax Amount", as such term is defined below, then such
payments, as Executive shall designate, shall be reduced to provide the
greatest Net After-Tax Amount. For these purposes, the term "Net After-Tax
Amount" shall mean the net amount of the Contingent Payments after giving
effect to all taxes which would be applicable to such payments, including, but
not limited to, any tax under Section 4999 of the Code. The determination of
whether any such payment reduction shall be effected shall be made by a
nationally recognized accounting firm acceptable to Executive and the Company
and such determination shall be binding upon Executive and the Company."
6. Section 13(b) of the Employment Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
agreements between Executive and the Company or any of it affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or
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undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. THIS AGREEMENT AND ANY AMENDMENT
HERETO SHALL NOT BE EFFECTIVE UNLESS AND UNTIL SIGNED BY THE CHAIRMAN OF THE
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF THE COMPANY AND ATTESTED TO
BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY."
7. Counterparts. This Amendment may be signed in counterpart, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the 4th day of November, 1994.
/s/ Xxxxxxx X. Xxx Xxxx
------------------------
Xxxxxxx X. Xxx Xxxx
MANVILLE CORPORATION
/s/ Xxxxx X. Xxxxxxxx
------------------------
By: Xxxxx X. Xxxxxxxx
Chairman of the
Compensation Committee
of the Board of Directors
/s/ X. X. Xxxxxxxx
------------------------
Chief Executive Officer
ATTEST: /s/ X. X. Xxxxxxxx
--------------------------
Chief Executive Officer
ATTEST: /s/ X. X. Xxx Xxxx
--------------------------
General Counsel
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May 15, 1995
X. X. Xxx Xxxx
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Dick:
Recently, the Board of Directors of Manville Corporation (the "Company")
approved the extension of your employment agreement with the Company, dated
April 10, 1992 (as previously amended and extendded, the "Employment
Agreement"). This letter serves as notice of the extension and, subject to
execution by you and attestation by the Company's General Counsel, an amendment
to your Employment Agreement extending the "Employment Term" (as defined in the
Employment Agreement) to April 10, 1998.
To evidence your agreement to so exten the Employment Term, please sign and
date both copies of this letter where indicated and return them to Xxxx Xxx
Xxxx (Denver, Mail Code 11-01) at your earliest convenience. A fully executed
copy will be returned to you for your files. If you have any questions about
the extension, please call Xxxx Xxx Xxxx at 950-4911 or Xxxx Xxxxxxx at
950-3422.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chairman of the Board, President
and Chief Executive Officer
This amendment is accepted this 17th day of May, 1995.
/s/ X. X. Xxx Xxxx
------------------
X. X. Xxx Xxxx
Attest: /s/ Xxxxxxx X. Xxx Xxxx
-------------------------
Xxxxxxx X. Xxx Xxxx
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Amendment No. 2
to the Employment Agreement dated April 10, 1992
by and between Manville Corporation (the "Company")
and Xxxxxxx X. Xxx Xxxx (the "Executive")
WHEREAS, the Company and Executive amended Section 13(b) of the
above-referenced employment agreement (the "Employment Agreement") on November
4, 1994;
WHEREAS, the Company and Executive wish to clarify that amendment;
NOW THEREFORE, the parties agree as follows:
1. Section 13(b) of the Employment Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
agreements between Executive and the Company or any of it affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. THIS
AGREEMENT SHALL NOT BE EFFECTIVE UNLESS SIGNED BY THE CHIEF EXECUTIVE OFFICER
OF THE COMPANY AND ATTESTED TO BY THE ASSISTANT SECRETARY OF THE COMPANY. ANY
AMENDMENT HERETO SHALL NOT BE EFFECTIVE UNLESS AND UNTIL SIGNED BY THE CHAIRMAN
OF THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF THE COMPANY AND
ATTESTED TO BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY."
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2. This Amendment may be signed in counterpart, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the 6th day of September, 1995.
/s/ Xxxxxxx X. Xxx Xxxx
-------------------------
Xxxxxxx X. Xxx Xxxx
MANVILLE CORPORATION
/s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
Chairman of the
Compensation Committee
of the Board of Directors
ATTEST: /s/ X. X. Xxxxxxxx
---------------------------------
Chief Executive Officer
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Amendment No. 3 to the Employment Agreement
dated April 10, 1992, as amended November 4, 1994,
by and between Xxxxxxxx Corporation (formerly
Manville Corporation) (the "Company") and
Xxxxxxx X. Xxx Xxxx (the "Executive").
W I T N E S S E T H
WHEREAS, Executive currently serves as General Counsel of the Company;
WHEREAS, in consideration of Executive's continued employment with the
Company the parties wish to amend the Employment Agreement;
WHEREAS, in all other respects the Employment Agreement shall remain in
full force and effect;
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Section 9 of the Employment Agreement is hereby amended and restated in
its entirety to read as follows:
"9. Golden Parachute Tax. (a) Anything in this agreement to the contrary
notwithstanding, in the event Executive's employment hereunder is terminated
other than for Cause or is terminated for Good Reason within the meaning of
Section 8(e) occurring after March 27, 1996 other than merely by reason of the
closing of the transaction contemplated by the Agreement and Plan of Merger,
dated as of October 25, 1995, by and among Riverwood International Corporation,
RIC Holding, Inc., formerly named CDRO Holding Corporation ("Parent") , and
CDRO Acquisition Corporation, a wholly owned subsidiary of Parent, or in the
event of a Change in Control occurring after March 27, 1996, then:
(i) If it is determined that any payment by the Company to or for the
benefit of Executive, whether paid or payable pursuant to the terms of this
agreement or otherwise, (such payment, excluding any payment pursuant to this
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Section 9, a "Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended, (the "Code") or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled to receive
from the Company, within 15 days following the determination described in
Section 9(a)(ii) below, an additional payment ("Excise Tax Adjustment Payment")
in an amount such that after payment by Executive of all applicable Federal,
state and local taxes (computed at the maximum marginal rates and including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Excise Tax Adjustment Payment, Executive retains an amount
of the Excise Tax Adjustment Payment equal to the Excise Tax imposed upon the
Payments.
(ii) Subject to the provisions of Section 9(a)(iii), all
determinations required to be made under this Section 9(a), including whether
an Excise Tax Adjustment Payment is required and the amount of such Excise Tax
Adjustment Payment, shall be made by a nationally recognized accounting firm
acceptable to Executive and the Company (the "Accounting Firm"), which shall
provide detailed supporting calculations to the Company and Executive within 15
business days of the date of termination of Executive's employment. Except as
hereinafter provided, any determination by the Accounting Firm shall be binding
upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination hereunder, it is possible that (x) certain Excise Tax Adjustment
Payments will not have been made by the Company which should have been made (an
"Underpayment"). In the event that the Company exhausts its remedies pursuant
to Section 9(a)(iii) and Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of Executive.
(iii) Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Excise Tax Adjustment Payment. Such notification shall be
given as soon as practicable but no later than ten business days after
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(A) give the Company any information reasonably requested by
the Company relating to such claim,
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(B) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
(C) cooperate with the Company in good faith in order effectively to
contest such claim, and
(D) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of
this Section 9 (a) (iii) , the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such
payment to Executive, on an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of Executive with respect to
which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which an Excise Tax Adjustment Payment would
be payable hereunder and the Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(iv) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 9(a)(iii), Executive becomes entitled to receive
any refund with respect to such claim, Executive shall (subject to the
Company's complying with the requirements of Section 9(a)(iii)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company pursuant to Section 9(a)(iii), a
determination is made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify Executive in
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writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Excise Tax Adjustment Payment required to
be paid.
(b) In the event of any other termination of Executive's employment
hereunder, notwithstanding any other provision of this Agreement or any other
agreement between Executive and the company or any affiliate, if a reduction in
the aggregate amount of payments Executive otherwise would be entitled to
receive from the Company or any affiliate, which payments are deemed contingent
on a change described in Section 280G(b)(2)(A)(i) of the Code, (the "Contingent
Payments") would result in a greater "Net After-Tax Amount", as such term is
defined below, then such payments, as Executive shall designate, shall be
reduced to provide the greatest Net After-Tax Amount. For these purposes, the
term "Net After-Tax Amount" shall mean the net amount of the Contingent
Payments after giving effect to all taxes which would be applicable to such
payments, including, but not limited to, any tax under Section 4999 of the
Code. The determination of whether any such payment reduction shall be
effected shall be made by a nationally recognized accounting firm acceptable to
Executive and the Company and such determination shall be binding upon
Executive and the Company.
(c) Notwithstanding anything to the contrary in this Agreement, if, as
of the date of Executive's termination of employment, the offset under the
Supplemental Retirement Agreement exceeds the benefit to which Executive is
entitled under Section 2 of the Supplemental Retirement Agreement prior to any
offset, as defined therein, then the aggregate payments (including perquisites
and benefits) due to Executive, if any, under this Agreement shall be reduced
by such excess, except to the extent that such excess shall otherwise be
satisfied by the Company's canceling other compensation or other amounts or
property due to Executive."
2. No Waiver of Existing Rights. Executive's continued employment by the
Company and the execution of this agreement by Executive shall in no way
constitute a waiver by Executive of any right Executive has or may have under
his Employment Agreement as of the date hereof.
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3. Counterparts. This agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
4. Headings. The headings of the sections contained in this agreement are
for convenience only and shall not be deemed to control or affect the meaning
or construction of any provision of this agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the 12th day of April, 1996.
/s/ Xxxxxxx X. Xxx Xxxx
--------------------------
Xxxxxxx X. Xxx Xxxx
Address:
XXXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxxx
----------------------
Chairman of the
Compensation Committee
Attest:/s/ X. X. Xxxxxxxx
-----------------------
Chief Executive Officer
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AMENDMENT NO. 4 TO THE EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX CORPORATION
AND XXXXXXX X. XXX XXXX
This AMENDMENT, dated as of June 7, 1996, is by and between XXXXXXXX
CORPORATION, a Delaware corporation (the "Company"), and Xxxxxxx X. Xxx Xxxx
(the "Executive") and amends the EMPLOYMENT AGREEMENT dated April 10, 1992,
between the Company (f/k/a Manville Corporation) and the Executive (as
previously amended on November 4, 1994, September 6, 1995 and April 12, 1996
and as previously extended, the "Employment Agreement").
WHEREAS, on March 14, 1996, the Company delivered to the Executive a
letter attached as Attachment I hereto acknowledging the existence of a "Change
in Control" and "Good Reason" for purposes of all of the Executive's
compensation arrangements with the Company, including, without limitation, the
Employment Agreement (the "March 14 Letter").
WHEREAS, the Company and the Executive have agreed to amend the Employment
Agreement in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. The first sentence of Section 2 of the Employment Agreement is hereby
amended to read as follows:
Executive shall serve as Executive Vice President, General Counsel and
Secretary of the Company.
2. Section 8(g) of the Employment Agreement is hereby amended in its
entirety to read as follows from and after the date hereof; provided, however,
that for the entire term of the Employment Agreement, a "Change in Control" and
"Good Reason" shall be deemed to have occurred for all purposes of the
Employment Agreement pursuant to the March 14 Letter:
(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) any Person (as defined below) (other than the Company), any
trustee or other fiduciary holding securities under any employee benefit plan
of the Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the common stock
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of the Company) becomes the Beneficial Owner (as defined below) (except that a
Person shall be deemed to be the Beneficial Owner of all shares that any such
Person has the right to acquire pursuant to any agreement or arrangement or
upon exercise of conversion rights, warrants or options or otherwise, without
regard to the sixty day period referred to in Rule 13d-3 under the Exchange Act
(as defined below)), directly or indirectly, of securities of the Company or
any Significant Subsidiary (as defined below), representing 30 percent or more
of the combined voting power of the Company's or such subsidiary's then
outstanding securities; provided, however, that such event shall not constitute
a Change in Control unless or until the percentage of such securities owned
beneficially, directly or indirectly, by such Person is equal to or more than
all such securities owned beneficially, directly or indirectly, by Manville
Personal Injury Settlement Trust (the "Trust");
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company
(the "Board"), and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this paragraph) whose
election by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so approved but
excluding for this purpose any such new director whose initial assumption of
office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of an individual, corporation, partnership, group, associate or
other entity or Person other than the Board, cease for any reason to constitute
at least a majority of the Board; provided, however, that such event shall not
constitute a Change in Control unless or until the percentage of voting
securities of the Company owned beneficially, directly or indirectly, by the
Trust is less than 50 percent of all such outstanding securities;
(iii) the consummation of a merger or consolidation of the Company or
any subsidiary owning directly or indirectly all or substantially all of the
consolidated assets of the Company (a "Significant Subsidiary") with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 50 percent of the combined voting power of the
surviving or resulting entity outstanding immediately after such merger or
consolidation;
(iv) the stockholders of the Company or any affiliate approve a plan
or agreement for the sale or disposition of all or substantially all of the
consolidated assets of the Company (other than such a sale or disposition
immediately after which such assets will be owned directly or indirectly by the
stockholders of the Company in
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substantially the same proportions as their ownership of the common stock of
the Company immediately prior to such sale or disposition) in which case the
Board shall determine the effective date of the Change in Control resulting
therefrom; or
(v) any other event occurs which the Board determines, in its
discretion, would materially alter the structure of the Company or its
ownership.
(vi) Defined terms.
(A) "Beneficial Owner" shall have the meaning ascribed to such
term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(B) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor provisions
and rules thereto.
(C) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, and shall include a "group" as defined in Section 13(d) thereof.
3. Attached hereto is a revised Schedule B to the Employment Agreement,
which shall supersede and replace any previously existing Schedule B to the
Employment Agreement.
4. Except as provided by this Amendment, the Employment Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of June 7, 1996.
/s/ Xxxxxxx X. Xxx Xxxx
-------------------------------
Xxxxxxx X. Xxx Xxxx
XXXXXXXX CORPORATION
/s/ Xxxx Xxxxxxx
-------------------------------
Xxxx Xxxxxxx
Chairman of the Compensation
Committee
ATTEST:
/s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
Assistant Secretary
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Attachment I
March 14, 1996
Xxxxxxx X. Xxx Xxxx, Esq.
Senior Vice President, General Counsel and Secretary
Manville Corporation
000 00xx Xxxxxx
Xxxxxx, XX 00000-0000
Dear Dick:
Recently the Board of Directors of Manville Corporation (the "Company")
approved the extension of your employment agreement with the Company dated as
of April 10, 1992 (as previously amended and extended, the "Employment
Agreement"). The Employment Agreement is hereby extended and Paragraph 1 of
the Employment Agreement is amended to extend the Employment Term" as defined
therein until April 10, 1999.
In addition, the Company hereby acknowledges and agrees that the closing
of the transaction contemplated by the Agreement and Plan of Merger, dated as
of October 25, 1995, by and among Riverwood International Corporation, RIC
Holding, Inc., formerly named CDRO Holding Corporation ("Parent"), and CDRO
Acquisition Corporation, a wholly owned subsidiary of Parent, will constitute
both a "Change in Control" and an event of "Good Reason" with respect to you
for purposes of all of your compensation arrangements with the Company,
including without limitation the Employment Agreement, the Supplemental
Retirement Agreement between you and the Company dated as of November 4, 1994,
as amended as of September 30, 1995
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and the Restricted Stock Agreement between you and the Company dated November 4,
1994. The Company further acknowledges and agrees that it does not currently
have "Cause" to terminate your employment within the meaning of, or for
purposes of, any such compensation arrangement.
To evidence your agreement to the extension of the Employment Term, please
sign below as indicated.
Very truly yours,
MANVILLE CORPORATION
/s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx, Chairman of the
Compensation Committee
This extension is accepted this 21st day of March, 1996.
/s/ Xxxxxxx X. Xxx Xxxx
-------------------------
Xxxxxxx X. Xxx Xxxx
Attest: /s/ X. X. Xxxxxxxx
-------------------
X. X. Xxxxxxxx
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Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan for Xxxxxxxx Corporation
Xxxxxxxx Corporation 1996 Executive Incentive Compensation Plan
Xxxxxxxx Corporation 1996 Deferred Compensation Plan
Manville Corporation Stock Incentive Plan
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 10, 1992, (the "Agreement") by and
between XXXXXXXX INTERNATIONAL, INC., a Delaware corporation (the "Company")
and a subsidiary of MANVILLE CORPORATION, a Delaware corporation ("Manville")
and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS the Company desires to continue to employ Executive and to enter
into an agreement embodying the terms of such employment (the "Agreement"); and
WHEREAS Executive desires to continue such employment and enter into such
an Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term of Employment. The Executive shall be employed by the Company for
a period commencing on April 10, 1992 and, except as otherwise provided herein,
ending three years from such date. At the end of each year of employment
hereunder, the Board of Directors of the Company and the Chief Executive
Officer of the Company shall review this Agreement and the Executive's
performance hereunder and shall determine, in their sole discretion, whether or
not to extend the period of Executive's employment pursuant to this Agreement
by one year. The period of Executive's employment hereunder, including any
extension or extensions pursuant to the
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foregoing sentence, is referred to hereinafter as the "Employment Term". A
failure to renew this Agreement shall not constitute termination of
Executive's employment.
2. Position. Executive shall serve as Vice President and General Manager
of Roofing Systems Division, Xxxxxxxx International, Inc. Executive shall
devote substantially all of his business time and energies to the business of
the Company. Notwithstanding the foregoing, Executive may (a) continue to
serve on the board of directors of any business corporation on which he is
serving as of the date of this Agreement (as shown on Schedule A), (b) serve on
the boards of directors or committees of non-profit organizations and (c) with
the prior approval of the Chief Executive Officer of the Company or of the
Board of Directors of the Company, serve on the boards of directors of other
business corporations, provided that in the Company's sole reasonable
discretion none of the foregoing activities materially interferes with the
performance of Executive's duties hereunder.
3. Base Salary. Company shall pay Executive a base salary at the rate of
not less than $150,000 per year, as the same may from time to time be increased
at the sole discretion of the Board of Directors of the Company or, prior to a
Change in Control, decreased in the event of across the board salary reductions
within the corporate staff group or the business division in which Executive is
employed, whichever is applicable ("Base Salary").
4. Incentive Compensation. Executive shall participate in the Manville
executive incentive compensation plans, as in effect from time to time during
the Employment Term, for which he is eligible. (References herein to "Manville
executive
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incentive compensation plans" whether annual or long-term, shall include such
plans maintained by Manville and/or the Company, as the case may be, from time
to time.) The Manville executive incentive compensation plans in effect on the
date hereof in which Executive participates are listed on Schedule B.
5. Employee Benefits. Executive shall be eligible to participate in such
other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term.
6. Business Expenses. Necessary and reasonable business expenses incurred
by Executive during the Employment Term shall be reimbursed in accordance with
Company policies.
7. Termination Prior to a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement, as defined hereafter. For purposes of this Agreement,
"Retirement" means termination of Executive's employment initiated by
Executive, other than for Good Reason as defined in Section 7(e) or Section
8(e) hereof, whichever is applicable, whereby Executive is entitled to receive
an immediately payable benefit, including an early retirement benefit, under
the Company's retirement plan generally applicable to its salaried employees or
under any retirement arrangement established with respect to Executive with his
consent, in either case, whether or not Executive commences to receive such
benefit at the time of such termination. Upon termination of Executive's
employment by reason of Retirement prior to a Change in Control,
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Executive shall be entitled to benefits determined in accordance with the
Company's retirement, benefit and insurance programs in effect at such time.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be
terminated by the Company if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive
months to perform his duties (such incapacity is hereinafter referred to as
"Disability"). Any question as to the existence of the Disability of the
Executive as to which the Executive and the Company cannot agree shall be
determined in writing by a qualified independent physician mutually acceptable
to the Executive and the Company. Upon any such termination for Disability
prior to a Change in Control, Executive shall be entitled to receive his Base
Salary through the date on which the Executive is first eligible to receive
payment of disability benefits in lieu of salary under the Company's employee
benefit plans as then in effect.
(ii) Death. Upon termination for death prior to a Change in
Control, Executive shall be entitled to his Base Salary at the rate in effect
at the time of Executive's death through the end of the month in which his
death occurs.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled following Executive's termination for death or
Disability prior to a Change in Control shall be determined in accordance with
the plans, policies and practices of the Company.
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(c) For Cause by the Company; Voluntary Termination by Executive.
Executive's employment hereunder may be terminated by the Company for "Cause".
For purposes of this Agreement, prior to a Change in Control, "Cause" shall
mean (i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 7(e) below), (ii) Executive's dishonesty in the
performance of his duties hereunder or (iii) Executive's conviction of a felony
under the laws of the United States or any state thereof. If Executive is
terminated for Cause, or if Executive voluntarily terminates employment
hereunder other than for Good Reason, in either case, prior to a Change in
Control, he shall be entitled to receive his Base Salary through the date of
termination. All other benefits, if any, payable to Executive following such
termination of Executive's employment shall be determined in accordance with
the plans, policies and practices of the Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
prior to a Change in Control Executive's employment hereunder is terminated by
the Company without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (as defined in Section 7(e) below), Executive
shall be entitled to receive the following benefits:
(i) The Company shall pay Executive at the time of such
termination in a lump sum a cash amount equal to two times his Base Salary in
effect at the time of such termination or, in the event of termination by the
Executive on account
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of an event described in Section 7(e)(iv) below, the Base Salary as in effect
prior to the reduction or reductions referred to therein plus the bonus the
Executive would have earned in respect of the year of termination under the
Manville annual incentive compensation plan, if any, in effect at the date of
termination or, in the event of a termination by Executive by reason of an
event described in Section 7(e)(vi), the plan in effect prior to the
elimination referred to therein, determined as if the Executive had been
employed by the Company for the full year and without regard to any right
reserved by the Company to decrease or eliminate such bonus, and assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan.
(ii) For a 24-month period after such termination, the Company
shall cause Executive to be provided with life, accident, medical, dental and
prescription insurance benefits substantially similar to, and on the same terms
as, those benefits elected and received by Executive under the Company's "Flex
Benefit" program immediately prior to such termination; provided that,
Executive shall be charged an amount equal to any monthly payroll deduction
charged for similar benefits to executives in positions similar to that which
Executive held before his termination; and provided further that, if Executive
receives medical benefits under the Manville Retiree Comprehensive Health Care
Plan and post-retirement life insurance benefits (collectively, "Retiree
Medical and Life Insurance Benefits"), at any time during the 24-month period
referred to above, once such benefits begin Executive shall be entitled only to
Retiree Medical and Life Insurance Benefits.
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(iii) For a period of 24 months after such termination, the
Company shall provide or cause Executive to be provided with the perquisites
listed on Schedule C, attached hereto, as may be amended by the Company from
time to time without Executive's consent prior to such termination (provided
that nothing herein shall be deemed to permit such an amendment without
Executive's consent following a Change in Control), on the same terms and
conditions on which such perquisites were provided prior to Executive's
termination.
(iv) In addition to all other amounts payable to Executive under
this Section 7(d), Executive shall be entitled to receive all benefits payable
to Executive under any other plan, policy or agreement relating to retirement
or other benefits in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 7(d)
shall be in lieu of any payments under any Manville separation policy.
(v) The Company shall provide Executive with outplacement
services from the firm of Executive's choice at a cost to the Company not to
exceed the lesser of (A) 20% of Executive's Base Salary in effect at the time
of Executive's termination of employment with the Company or (B) $25,000.
(e) Good Reason. For purposes of this Agreement, prior to a Change in
Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities,
authorities or duties, all as contemplated by Section 2 hereof; provided,
however, that
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such reduction by reason of a termination for Cause or Disability shall not
constitute Good Reason;
(ii) Executive's job is eliminated other than by reason of
promotion or termination for Cause or Disability.
(iii) the Company fails to pay Executive any amount otherwise
vested and due hereunder or under any plan or policy of the Company;
(iv) a reduction in Executive's Base Salary except in the event
of an across the board salary reduction within the corporate staff group or the
business division in which Executive is employed, whichever is applicable;
(v) a reduction in Executive's aggregate level of benefits under
the Company's pension, life insurance, medical, health and accident,
disability, deferred compensation or savings or similar plans, except in the
event of an across the board reduction in such benefits within the corporate
staff group or the business division in which Executive is employed, whichever
is applicable;
(vi) the elimination of an annual incentive compensation plan; or
(vii) the Executive's office is relocated outside of a 00-xxxx
xxxxxx xx Xxxxxx, Xxxxxxxx without his written consent.
If Executive provides to the Company a Notice of Termination, as defined in
Section 13(f), in connection with an event described in clauses (i) through
(vii) of this Section 7(e), the Company shall have ten (10) business days from
the date of receipt of such notice to effect a cure of the event described
therein, and upon cure thereof by
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the Company to Executive's reasonable satisfaction, such event shall no longer
constitute Good Reason for purposes of this Agreement.
(f) Mitigation. In the event of termination of Executive's employment
hereunder by the Company without Cause or by Executive with Good Reason prior
to a Change in Control, benefits otherwise receivable by Executive pursuant to
subsection 7(d)(ii) shall be reduced to the extent comparable benefits are
received by Executive during the 24-month period following such termination.
Executive shall report to the Company any such benefits actually received by
Executive.
8. Termination Following a Change in Control.
(a) Retirement. This Agreement shall terminate automatically upon
Executive's Retirement. Upon a termination of Executive's employment by reason
of Retirement following a Change in Control, Executive shall be entitled to
benefits determined in accordance with the Company's retirement, benefit and
insurance programs in effect immediately prior to the Change in Control or, if
more generous, such programs in effect at the time of such Retirement.
(b) Death or Disability.
(i) Disability. Executive's employment hereunder may be
terminated by reason of Executive's Disability, subject to the procedure for
determining such Disability outlined in Section 7(b)(i). Upon any termination
for Disability following a Change in Control, Executive shall be entitled to
receive his Base Salary for a two-year period ending on the second anniversary
of Executive's date of termination. Such Base Salary shall be paid in equal
monthly installments and shall be reduced by any amounts
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received as disability benefits in lieu of salary under the Company's employee
benefit plans.
(ii) Death. Upon termination for death following a Change in
Control, Executive shall be entitled to (x) his Base Salary at the rate in
effect at the time of Executive's death through the end of the month in which
his death occurs and (y) if and to the extent the death benefits provided
Executive by the Company are less than would have been paid immediately prior
to a Change in Control, a lump sum payment of cash in an amount equal to the
value of such shortfall. Any such lump sum payment shall be made within ten
(10) business days following Executive's death.
(iii) Death or Disability Benefits. All other benefits to which
Executive may be entitled upon Executive's termination for death or Disability
following a Change in Control shall be determined in accordance with the plans,
policies and practices of the Company in effect immediately prior to the Change
in Control or, if more generous, such plans, policies and practices as in
effect at any time following the Change in Control; provided that, nothing in
this Section 8(b)(iii) shall be interpreted so as to result in the duplication
of the benefits provided under Section 8(b)(i) or (ii).
(c) For Cause by the Company; Voluntary Termination by Executive.
For purposes of this Agreement, following a Change in Control, "Cause" shall
mean (i) Executive's willful and continued failure substantially to perform his
duties hereunder (other than as a result of total or partial incapacity due to
physical or mental illness or as a result of termination by Executive for Good
Reason as defined in Section 8(e) below) after a written demand for substantial
performance is delivered to Executive personally
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and Executive shall have failed during the sixty-day period following such
written demand to have corrected such failure, (ii) Executive's dishonesty in
the performance of his duties hereunder or (iii) Executive's conviction of a
felony under the laws of the United States or any state thereof. For purposes
of this Section 8(c) no act or failure to act on Executive's part shall be
deemed willful unless done or omitted to be done by Executive not in good faith
and without reasonable belief that Executive's action or omission was in the
best interest of the Company.
If Executive is terminated for Cause, or if Executive voluntarily
terminates his employment with the Company other than for Good Reason, in
either case, following a Change in Control, he shall be entitled to receive his
Base Salary through the date of termination. All other benefits, if any,
payable to Executive following such termination of Executive's employment shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) Without Cause by the Company or with Good Reason by Executive. If
Executive's employment is terminated by the Company following a Change in
Control without Cause (other than by reason of death or Disability) or by
Executive with "Good Reason" (which following a Change in Control shall have
the meaning set forth in Section 8(e) below), Executive shall be entitled to
receive the following benefits:
(i) The Company shall pay Executive at the time of such termination
in a lump sum a cash amount equal to two times the sum of (A) his Base Salary
in effect at the time of such termination or, in the event of termination by
the
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Executive by reason of an event described in Section 8(e)(iv) below, the Base
Salary as in effect prior to the reduction or reductions referred to therein
plus (B) the bonus the Executive would have earned in respect of the year of
termination under the Manville annual incentive compensation plan, if any, in
effect at the date of termination or in the event of a termination by Executive
by reason of an event described in Section 8(e)(v), the plan in effect
immediately prior to the reduction or reductions referred to therein,
determined as if the Executive had been employed by the Company for the full
year and without regard to any right reserved by the Company to decrease or
eliminate such bonus, and assuming actual performance had equaled 100% of the
performance objective established for such year pursuant to the terms of such
plan.
(ii) The Company shall pay Executive in a lump sum a cash amount
equal to a fraction of the annual bonus which (absent such termination and
without regard to any right reserved by the Company to decrease or eliminate
such bonus) Executive would have earned with respect to the year of termination
under the Manville annual executive incentive compensation plan, if any, in
effect at the date of termination or, in the event of a termination by
Executive by reason of an event described in Section 8(e)(v), the plan in
effect prior to the reduction or reductions referred to therein, assuming
actual performance had equaled 100% of the performance objective established
for such year pursuant to the terms of such plan, the numerator of which
fraction is the number of days in such year during which the Executive was
employed by the Company and the denominator of which is 365. Such payment shall
be made at the time of Executive's termination.
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(iii) The Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units (and other similar interests) granted to Executive under the
1991 Long Term Cash Incentive Compensation Plan (or any other Manville
long-term cash incentive plan adopted after the date hereof) assuming Executive
remained employed through the applicable expiration or final payment date of
such Performance Units or other interests, less any amount paid to Executive in
respect of such Performance Units and other interests prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value, as determined by the Company (without reduction
or deferral). Such payment shall be made at the time of Executive's
termination.
(iv) Executive shall receive credit under the Supplemental Plan
for Participants in the Manville Salaried Retirement Plan for two additional
years of service for purposes of both vesting and accrual of benefits.
(v) For a 36-month period following Executive's termination, the
Company shall pay Executive in monthly installments the sum of the monthly
costs to Executive of purchasing life, accident, medical, dental and
prescription insurance benefits substantially similar to such benefits elected
and received by Executive under the Company's "Flex Benefit" program
immediately prior to Executive's termination or, if
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more generous, immediately prior to the Change in Control ("Continued
Benefits") less the monthly payroll deduction, if any, charged to Executive
immediately prior to Executive's termination, or, if applicable, immediately
prior to the Change in Control, for any of such Continued Benefits;
notwithstanding the foregoing, if Executive begins to receive Retiree Medical
and Life Insurance Benefits at any time during the 36-month period referred to
above, once such benefits begin, the monthly payment due Executive under the
preceding clause shall equal the monthly costs to Executive of purchasing
Continued Benefits not provided by the Company to Executive as Retiree Medical
and Life Insurance Benefits.
(vi) For a 24-month period after such termination, the Company
shall provide or cause Executive to be provided with the perquisites listed on
Schedule C, attached hereto (which the Company may amend from time to time
prior to a Change in Control, without Executive's consent), on the same terms
and conditions on which such perquisites were provided at the time of
Executive's termination or, if more generous, immediately prior to such
termination.
(vii) In addition to all other amounts payable to Executive under
this Section 8(d), Executive shall be entitled to receive all benefits payable
to Executive under any other plan, policy or agreement relating to retirement
or other benefits, in accordance with the terms of such plans, policies or
agreements; provided, however that, amounts paid pursuant to this Section 8(d)
shall be in lieu of any payments under any Manville separation policy.
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(viii) The Company shall provide Executive with outplacement
services from the firm of Executive's choice at a cost to the Company not to
exceed 20% of Executive's Base Salary in effect at the time of such termination
or, in the event of termination by Executive by reason of an event described in
Section 8(e)(iv) below, the Base Salary as in effect prior to the reduction or
reductions referred to therein.
(e) Good Reason Following a Change in Control. For purposes of this
Agreement, following a Change in Control, "Good Reason" shall mean:
(i) a material adverse change in the nature or scope of
Executive's responsibilities, authorities, duties and/or position (including by
reason of a substantial reduction in the size of the Company or other
substantial change in the character or scope of the Company's operations);
(ii) Executive no longer serves in the position described in
Section 2, other than by reason of a promotion or a termination for Cause or
Disability;
(iii) the Company fails to pay Executive any amounts otherwise
vested and due hereunder or under any plan or policy of the Company;
(iv) a reduction in the Executive's Base Salary in effect
immediately prior to the Change in Control or as the same may be increased from
time to time;
(v) a reduction in the Executive's incentive compensation
opportunity, as defined below, under the Manville executive incentive
compensation plans as in effect immediately prior to the Change in Control or
as the same may be
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increased from time to time (absent, in the case of any such reduction relative
to Executive's annual bonus, a corresponding increase in his Base Salary);
(vi) the failure of the Company, to continue to provide Executive
with benefits and perquisites which are substantially similar in the aggregate
to those enjoyed by Executive under the Company's pension, life insurance,
medical, health and accident, disability, deferred compensation or savings or
similar plans and fringe benefit programs (including vacation) in which
Executive was participating immediately prior to the Change in Control; or the
failure by the Company to continue to provide Executive with directors' or
officers' insurance, as applicable, at the level maintained immediately prior
to the Change in Control;
(vii) the Executive's office is relocated outside of a 00-xxxx
xxxxxx xx Xxxxxx, Xxxxxxxx without his written consent;
(viii) the failure of the Company to obtain an agreement from any
successor to assume and agree to perform this Agreement, as contemplated in
Section 13(e) hereof; or
(ix) any purported termination of Executive's employment by the
Company which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 13(f) and, if applicable, following the written
demand described in Section 8(c) and the relevant cure period.
If Executive provides a Notice of Termination, as defined in Section
13(f), in connection with an event described in clauses (i) through (vii) of
this Section 8(e), to the Company, the Company shall have ten (10) business
days from the date of receipt
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of such notice to effect a cure of the event described therein, and upon cure
thereof by the Company to Executive's reasonable satisfaction, such event shall
no longer constitute Good Reason for purposes of this Agreement.
(f) Reduction in Incentive Compensation Opportunity. For purposes of
this Agreement, a "reduction in the Executive's incentive compensation
opportunity" under the Manville executive incentive compensation plans shall
include
(i) the failure to maintain both an annual and a long-term
incentive plan;
(ii) any reduction or elimination by the Company of Executive's
annual or long-term incentive compensation pursuant to any reserved right under
any such plan to decrease or eliminate such bonus or award;
(iii) any reduction in Executive's participation level under any
such plan; and
(iv) any adverse change in the payout schedule or its equivalent
or in the manner of assessing actual performance under any such plan and/or any
extraordinary change in the applicable performance criteria thereunder.
(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) except for Manville, a subsidiary or an affiliate thereof, an
employee benefit plan (including any trustee of such plan, acting as trustee)
sponsored or maintained by Manville or any subsidiary thereof or the Manville
Personal Injury
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Settlement Trust (the "Trust"), any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended from time to
time, and any successor act (the "Exchange Act") is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of Manville representing 30% or more of the combined
voting power of Manville's then outstanding securities;
(ii) at least 40% of the directors of Manville constitute persons
who were not, at the time of their first election to the Board, candidates
proposed by a majority of the Board in office prior to the time of such first
election,
(iii) (A) the dissolution of Manville; (B) a sale or other
disposition or the last sale or other disposition to occur in a series of sales
and/or other dispositions within any 18-month period ("Serial Sales") by
Manville and/or one or more subsidiaries of Manville of assets (including any
sale through a public offering of shares of voting stock of a Manville
subsidiary by Manville or by any subsidiary thereof) which, in the case of
Serial Sales, as of the beginning of such 18-month period, account for (or, in
the case of stock sold through a public offering, which represents indirect
ownership on a proportionate basis of assets accounting for) more than 40% of
the consolidated revenues of Manville and its subsidiaries, as determined in
accordance with generally accepted accounting principles; provided, however,
that no sale or disposition of assets or stock shall be taken into account to
the extent that the proceeds of such sale or disposition (whether in cash or
in-kind) are reinvested or are, in the case of proceeds received in-kind, used
in the ongoing conduct by Manville or one or more of its
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subsidiaries of the business of Manville and/or such subsidiary or
subsidiaries, provided further that such a reinvestment shall not be deemed to
have occurred unless made within 18 months of such sale or disposition and
provided further that, the term reinvestment shall exclude, inter alia, the use
of proceeds (x) to repay debt owed to the Trust or debt incurred in connection
with the operation of the business in which the assets sold or disposed of were
used or (y) to pay dividends; (C) a transaction to which Manville is a party
pursuant to which the holders of all of the shares of Manville outstanding
prior to such transaction do not hold, directly or indirectly, shares
outstanding of the surviving corporation in substantially the same proportions
as those in which they held the outstanding shares of Manville prior to the
transaction; or (D) any other event which the Board determines, in its
discretion, would materially alter the structure of Manville or its ownership;
(iv) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Manville as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Manville;
or
(v) a reduction in workforce, or the last to occur in a series of
reductions in workforce within any 24-month period, of the Company, if
Executive is employed by the Company at the time of such reduction or last
reduction, or Riverwood International Corporation ("Riverwood"), if Executive
is employed by Riverwood at the time of such reduction or last reduction, as a
result of which 80% of such workforce measured as of the date 24 months prior
to the last such reduction is no longer
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employed by the Company or Riverwood, whichever is applicable, excluding for
these purposes any reduction in the workforce of either the Company or
Riverwood attributable to transfers of employees to Manville.
In the event of a Change in Control by reason of an event described in
Section 8(g)(iv) the Company shall pay Executive in a lump sum a cash amount
equal to the sum of the amounts Executive would have received in respect of all
Performance Units granted to Executive under the 1991 Long Term Cash Incentive
Compensation Plan assuming Executive remained employed through the applicable
expiration or final payment date of such Performance Units, less any amount
paid to Executive in respect of such Performance Units prior to termination of
his employment. For purposes of calculating the sum to which Executive is
entitled it shall be assumed that all "Scheduled Dividend Payments" (as such
term is defined in the 1991 Long Term Cash Incentive Compensation Plan) not
paid at or prior to Executive's termination of employment will be paid in full
at their then estimated value as determined by the Company (without reduction
or deferral). Such payment shall be made in the event of a Change in Control
described in Section 8(g)(iv) at the time of such Change in Control and the
Performance Units and all rights related thereto shall be extinguished upon
such payment.
9. Reduction of Payments. If any payment to or for the benefit of
Executive under this Agreement either alone or together with other payments to
or for the benefit of Executive would constitute a "parachute payment" (as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code")), the payments under this
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Agreement shall be reduced to the largest amount that will minimize or
eliminate both the imposition of the excise tax imposed by Section 4999 of the
Code and the disallowance of deductions to the Company under Section 280G of
the Code of any such payments. The determination of any reduction in the
payments under this Agreement pursuant to this Section shall be made by the
Company's independent accountants.
10. Indemnification. The Company will indemnify the Executive (and his
legal representatives or other successors) to the fullest extent permitted
(including payment of expenses in advance of final disposition of a proceeding)
by the laws of the jurisdiction of incorporation of the Company, as in effect
at the time of the subject act or omission, or by the Restated Certificate of
Incorporation and By-Laws of the Company, as in effect at such time or on the
effective date of this Agreement, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords or afforded
greatest protection to the Executive, and the Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, the Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by him or his legal representatives at the time such costs, charges
and expenses are incurred or sustained, in connection with any action, suit or
proceeding to which he (or his legal representatives or other
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successors) may be made a party by reason of his being or having been a
director, officer or employee of the Company, Manville or any subsidiary of
either of them, or his serving or having served any other enterprise as a
director, officer or employee at the request of the Company or Manville.
11. Legal Fees. In the event of a dispute between the Executive and the
Company with respect to any of the Executive's rights under this Agreement, the
Company shall reimburse the Executive for any and all legal fees and related
expenses incurred by him in connection with enforcing such rights, at the time
such fees and related expenses are incurred; provided that, if Executive's
claim is found by a court of competent jurisdiction to have been frivolous,
Executive shall reimburse the Company for all amounts paid by it under this
Section.
12. Confidentiality; Specific Performance. Executive will not at any time
(whether during or after his employment with the Company) disclose or use for
his own benefit or purposes, or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or
affiliate of the Company, provided that the foregoing shall not apply to
information which is not unique to the Company or which is generally known to
the industry or the public
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other than as a result of Executive's breach of this covenant. Executive agrees
that upon termination of his employment with the Company for any reason, he
will return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in
any way relating to the business of the Company and its affiliates, except that
he may retain personal notes, notebooks and diaries. Executive further agrees
that he will not retain or use for his account at any time any trade names,
trademark or other proprietary business designation used or owned in connection
with the business of the Company or its affiliates.
Executive acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which
may then be available.
13. Miscellaneous.
(a) Governing Law; Liability of the Executive.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado. The Executive shall not be subject to liability for
breach of this Agreement by reason of his termination of his employment
hereunder.
(b) Entire Agreement/Amendments/Effectiveness. This Agreement shall
supersede any and all existing employment, change-in-control or severance
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agreements between Executive and the Company or any of its affiliates and
contains the entire understanding of the parties with respect to the employment
of Executive by the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. THIS
AGREEMENT AND ANY AMENDMENT HERETO SHALL NOT BE EFFECTIVE UNLESS AND UNTIL
SIGNED BY THE CHIEF EXECUTIVE OFFICER OF THE COMPANY AND ATTESTED TO BY THE
GENERAL COUNSEL OF THE COMPANY.
(c) No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the provisions
of this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) Successors; Binding Agreement. (i) In the event of a Change in
Control, the Company will require the successor to the Company as Executive's
employer (whether such succession is direct or indirect, by purchase, merger,
consolidation or otherwise, to any portion of the business and/or assets of
Manville or the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no
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such succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by operation of law, or otherwise. Prior to a Change in Control, the term
"Company" shall also mean any affiliate of the Company to which Executive may
be transferred and the Company shall cause such successor employer to be
considered the "Company" bound by the terms of this Agreement and this
Agreement shall be amended so to provide. Following a Change in Control the
term "Company" shall not mean any affiliate of the Company to which Executive
may be transferred unless Executive shall have previously approved of such
transfer in writing, in which case the Company shall cause such successor
employer to be considered the "Company" bound by the terms of this Agreement
and this Agreement shall be amended so to provide.
(ii) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amount would still be payable to Executive
hereunder if Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee or, if there is no
such designee, to Executive's estate. This Agreement shall not be assignable by
Executive.
(f) Notice; Notice of Termination. (i) For the purpose of this
Agreement, notices and all other communications provided for in the Agreement
shall
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be in writing and, except as otherwise provided in paragraph (ii) below, shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the signature page of this Agreement;
provided that all notices to the Company shall be directed to the attention of
the General Counsel of Manville, 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 receipt,
(ii) Any purported termination of Executive's employment by the
Company or by Executive shall not be effective unless communicated by written
Notice of Termination to the other party hereto in accordance with paragraph
(i) above. For purposes of this Agreement, a "Notice of Termination" in the
case of a termination for Cause following a Change in Control shall mean a
notice given within ten (10) business days of the Company's having actual
knowledge of the events giving rise to such termination and in all cases shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(iii) The date of termination of Executive's employment shall be
the date of receipt of the Notice of Termination, except in the case of (A)
Executive's death, in which case the date of termination of employment shall be
the date of death or (B) Executive's termination for Cause following a Change
in Control, in which case the date of termination shall be ten (10) business
days after actual receipt by Executive of
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the Notice of Termination; provided that, if within thirty (30) days after any
Notice of Termination following a Change in Control is received, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the date of termination of Executive's
employment shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction
(which is not appealable or the time for appeal therefrom has expired and no
appeal has been perfected); and provided further that the date of termination
of Executive's employment shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay Executive his
full compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, Base Salary and incentive compensation)
or, if higher, the compensation in effect immediately prior to the Change in
Control, and continue Executive as a participant in all compensation, benefits
(including fringe benefits and perquisites) and insurance plans in which
Executive was participating when the notice giving rise to the dispute was
given, until the dispute is finally resolved in accordance with this paragraph
(iii). Amounts paid under this paragraph are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
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(g) Arbitration. The parties hereby agree to submit all controversies,
claims and matters of difference in any way related to this Agreement or the
performance or breach of the whole or any part hereof, to arbitration in
Denver, Colorado, according to the rules and practices of the American
Arbitration Association from time to time in force. If such rules and practices
shall conflict with the Colorado Rules of Civil Procedure or any other
provisions of Colorado law then in force, such Colorado rules and provisions
shall govern. Arbitration of any such controversy, claim or matter of
difference shall be a condition precedent to any legal action thereon. This
submission and agreement to arbitration shall be specifically enforceable.
Awards shall be final and binding on all parties to the extent and in the
manner provided by Colorado law; provided that an arbitration award shall not
be binding on the Company to the extent such award exceeds the maximum amount
the Company would be required to pay Executive pursuant to the express terms of
this Agreement. All awards may be filed by any party with the Clerk of the
District Court in the County of Denver, Colorado and an appropriate judgment
entered thereon and execution issued therefor. At the election of any party,
said award may also be filed, and judgment entered thereon and execution issued
therefor, with the clerk of one or more other courts, state or federal, having
jurisdiction over the party against whom such award is rendered or its
property.
(h) Counterparts. This Agreement may be signed in several counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
-------------------------
Chief Executive Officer
ATTEST:
/s/ X. X. Xxx Xxxx
------------------
General Counsel
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Xxxxx X. Xxxxxx
Schedule A
Outside Directorships Held
None.
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Xxxxx X. Xxxxxx
Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan.
Manville Corporation Stock Incentive Plan.
1991 Long-Term Cash Incentive Compensation Plan for Manville Corporation.
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx International
Group, Inc.
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Xxxxx X. Xxxxxx
Schedule C
Fringe Benefit Arrangements and Perquisites in Effect
Club Initiation Fees & Dues
The Company will pay the initiation fee and dues for one country
club of the officer's choice. The initiation fee and first year's
dues will be "grossed up" for tax purposes.
Financial & Estate Planning
The Company will pay the reasonable cost of periodic financial and
estate planning.
Annual Executive Physical Exam Program
Income Tax Return Preparation
The Company will pay annual income tax return preparation fees up
to $2,000 plus additional fees if incurred on account of
job-related circumstances including the cost of representation by
return preparer during an audit.
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXX X. XXXXXX
This AMENDMENT dated March 5, 1993, is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company") and a subsidiary of
MANVILLE CORPORATION, a Delaware corporation ("Manville") and XXXXX X. XXXXXX,
(the "Executive"), who are parties to an EMPLOYMENT AGREEMENT dated April 10,
1992 (the "Agreement").
I. The Company and the Executive desire to amend the Agreement on the
terms set forth below.
In consideration of the premises and mutual covenants contained herein and
for other good and valuable consideration, the parties agree as follows:
A. The first sentence of paragraph 2. of the Agreement is amended to
read as follows:
2. Position. Executive shall serve as Senior Vice President -
Roofing Systems, Mats and Reinforcements.
B. The first sentence of paragraph 3. of the Agreement is amended to
read as follows:
3. Base Salary. Company shall pay Executive a base salary at the
rate of not less than $180,000 per year, as the same may from time to time be
increased at the sole discretion of the Board of Directors of the Company, or,
prior to a
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Change in Control, decreased in the event of across the board salary reductions
within the corporate staff or the business division in which Executive is
employed, whichever is applicable ("Base Salary").
Except as provided by this First Amendment to the Agreement, the Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment to be
effective as of March 5, 1993.
/s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
-------------------------
Chief Executive Officer
ATTEST:
/s/ X. X. Xxx Xxxx
--------------------
General Counsel
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July 8, 1993
X. X. Xxxxxx
10 Mourning Dove
Xxxxxxxxx, XX 00000
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Xxxxx:
Recently, the Board of Directors of Manville Corporation approved the extension
of your Employment Agreement for an additional year. This letter serves as
notice of the extension and, subject to execution by you and attestation by the
Company's General Counsel, an amendment to your Employment Agreement extending
the "Employment Term" (as defined in the Employment Agreement) for one year.
If you agree with this amendment, please sign both copies of this letter below
and return them to Xxx Xxxxx in the Denver Legal Department, P.O. Box 5108,
Denver, Colorado 8021 7-5108 at your earliest convenience. If you have
questions about this, please contact Xxxx Xxx Xxxx at 950-4911 or Xxx Xxxxx at
950-2266.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chief Executive Officer
This amendment is accepted this 3rd day of August, 1993.
/s/ Xxxxx X. Xxxxxx
---------------------
(Executive)
Attest: /s/ X. X. Xxx Xxxx
-------------------
General Counsel
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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXX X. XXXXXX
This SECOND AMENDMENT dated as of June 2, 1994 is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and XXXXX X.
XXXXXX (the "Executive"), and amends the EMPLOYMENT AGREEMENT dated April 10,
1992 by and between the Company and the Executive as amended on March 5, 1993
and extended on August 3, 1993 (as so amended and extended, the "Agreement').
WHEREAS, effective February 4, 1994, the Company and the Executive agreed
that the Executive's position would be Senior Vice President - Roofing Systems,
Mats & Reinforcements and Information Technology and the Executive's base
annual salary would be $200,000; and
WHEREAS, effective as of the date hereof, the Company and the Executive
agreed to further change the Executive's position and annual base salary in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
A. The first sentence of paragraph 2 of the Agreement is hereby amended to
read as follows:
Executive shall serve as the Senior Vice President - Roofing
Systems, Building Insulations and Information Technology.
B. The first sentence of paragraph 3 of the Agreement is hereby amended to
read as follows:
Company shall pay Executive a base salary at the rate of not less
than $225,000 per year, as the same may from time to time be
increased at the sole discretion of the Board of Directors of the
Company, or, prior to a Change in Control, decreased in the event
of across the board salary reductions within the corporate staff
group or the business division in which Executive is employed,
whichever is applicable ("Base Salary").
C. The "Employment Term" (as defined in the Agreement) is hereby extended
for one year to April 10, 1997.
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D. Except as provided by this Second Amendment to the Agreement, the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to the
Agreement to be effective as of June 2, 1994.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxxx
--------------------------
X. X. Xxxxxxxx
Chairman of the Board
ATTEST
/s/ Xxxxxxx X. Xxx Xxxx
-----------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President,
General Counsel and Secretary
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April 26, 1995
X. X. Xxxxxx
RE: EMPLOYMENT AGREEMENT EXTENSION AND AMENDMENT
Dear Xxxxx:
Recently, the Board of Directors of Manville Corporation approved an extension
and amendment of your Employment Agreement with Xxxxxxxx International, Inc.
(the "Company"), dated April 10, 1992 (as previously amended, the "Employment
Agreement"). The extension and amendment, as set forth below, extends the term
of the Employment Agreement to April 10, 1998 and modifies the Change in
Control definition, all as set forth below:
Paragraph 1 of the Employment Agreement shall be amended to extend the
"Employment Term" (as defined therein) until April 10, 1998.
Paragraph 8(g)(i) shall be amended to read as follows:
except for Manville, a subsidiary or an affiliate
thereof, an employee benefit plan (including any
trustee of such plan, acting as trustee) sponsored or
maintained by Manville or any subsidiary thereof or
Manville Personal Injury Settlement Trust (the
"Trust"), any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended from time to time, and any
successor act (the "Exchange Act")) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities
of Manville or Xxxxxxxx International Group, Inc.
("Xxxxxxxx") representing 30% or more of the combined
voting power of Manville's or Xxxxxxxx'x, as
applicable, then outstanding securities;
Paragraph 8(g)(iii)(B) shall be amended to read as follows:
a sale or other disposition or the last sale or other
disposition to occur in a series of sales and/or other
dispositions within any 18-month period ("Serial
Sales") by Xxxxxxxx and/or one or more subsidiaries of
Xxxxxxxx of assets which, in the case of Serial Sales,
as of the beginning of such 18-month period, account
for more than 40% of the consolidated revenues of
Xxxxxxxx and its subsidiaries, as determined in
accordance with generally accepted accounting
principles; provided,
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X. X. Xxxxxx
April 26, 1995
Page Two
however, that no sale or disposition of assets or
stock shall be taken into account to the extent that
the proceeds of such sale or disposition (whether in
cash or in-kind) are reinvested or are, in the case of
proceeds received in kind, used in the ongoing conduct
by Xxxxxxxx or one or more of its subsidiaries of the
business of Xxxxxxxx and/or such subsidiary or
subsidiaries, provided further that such a
reinvestment shall not be deemed to have occurred
unless made within 18 months of such sale or
disposition and provided further that, the term
reinvestment shall exclude, inter alia, the use of
proceeds (x) to repay debt owed to the Trust or debt
incurred in connection with the operation of the
business in which the assets sold or disposed of were
used or (y) to pay dividends;
From and after the date of execution of this extension and amendment by you and
attestation of this extension and amendment by the Company's General Counsel,
the extension and amendment shall be effective and the Employment Agreement
shall be deemed amended in the manner set forth above.
Please sign and date two copies of this Amendment and Extension and return them
to Xxxxx Xxxxxx, Manager of Compensation in Denver, Mail Code 2-01, at your
earliest convenience.
If you have questions about the extension, please call Xxxx Xxxxxxx at
950-3422.
Very truly yours,
/s/ X. X. Xxxxxxxx
X. X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
Manville Corporation
This amendment and extension is accepted this 27th day of April, 1995.
/s/ X. X. Xxxxxx
-----------------------
X. X. Xxxxxx
Attest: /s/ Xxxxxxx X. Xxx Xxxx
------------------------
Xxxxxxx X. Xxx Xxxx
General Counsel
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March 14, 1996
Xxxxx X. Xxxxxx - 12-03
RE: EMPLOYMENT AGREEMENT EXTENSION
Dear Xxxxx:
Recently, the Board of Directors of Manville Corporation approved an
extension of your employment agreement with Xxxxxxxx International, Inc. (the
"Company"), dated April 10, 1992 (as previously amended and extended, the
"Employment Agreement"). This letter serves as notice of the extension and,
subject to execution by you and attestation by Manville Corporation's General
Counsel, an amendment to the Employment Agreement extending the "Employment
Term" (as defined in the Employment Agreement) to April 10, 1999.
To evidence your agreement to so extend the Employment Term, please sign
and date both copies of this letter where indicated and return them to Xxxx
Xxxxxxx (Denver 11-01) at your earliest convenience. A fully executed copy
will be returned to you for your files. If you have any questions about the
extension, please call Xxxx Xxxxxxx at 000-000-0000.
Very truly yours,
/s/ X. X. Xxxxxxxx
X.X. Xxxxxxxx
Chairman of the Board, President
and Chief Executive Officer
This amendment is accepted this 20th day of March, 1996.
/s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
Attest:
/s/ Xxxxxxx X. Xxx Xxxx
--------------------------------------
Xxxxxxx X. Xxx Xxxx
Senior Vice President, General Counsel
& Secretary
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AMENDMENT TO EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXX INTERNATIONAL, INC.
AND XXXXX X. XXXXXX
This AMENDMENT, dated as of June 7, 1996, is by and between XXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxx (the "Executive") and amends the EMPLOYMENT AGREEMENT, dated April 10,
1992, between the Company and the Executive (as previously amended and
extended, the "Employment Agreement").
WHEREAS, the Company and the Executive have agreed to amend the Employment
Agreement in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 8(g) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(g) Change in Control. For purposes of this Agreement, the phrase
"Change in Control" shall mean the following and shall be deemed to have
occurred if any of the following events shall have occurred:
(i) any Person (as defined below) (other than Xxxxxxxx Corporation
("Xxxxxxxx")), any trustee or other fiduciary holding securities under any
employee benefit plan of Xxxxxxxx, or any company owned, directly or
indirectly, by the stockholders of Xxxxxxxx in substantially the same
proportions as their ownership of the common stock of Xxxxxxxx) becomes the
Beneficial Owner (as defined below) (except that a Person shall be deemed to be
the Beneficial Owner of all shares that any such Person has the right to
acquire pursuant to any agreement or arrangement or upon exercise of conversion
rights, warrants or options or otherwise, without regard to the sixty day
period referred to in Rule 13d-3 under the Exchange Act (as defined below)),
directly or indirectly, of securities of Xxxxxxxx or any Significant Subsidiary
(as defined below), representing 30 percent or more of the combined voting
power of Xxxxxxxx'x or such subsidiary's then outstanding securities; provided,
however, that such event shall not constitute a Change in Control unless or
until the percentage of such securities owned beneficially, directly or
indirectly, by such Person is equal to or more than all such securities owned
beneficially, directly or indirectly, by Manville Personal Injury Settlement
Trust (the "Trust");
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of Xxxxxxxx
(the "Board"), and any new director (other than a director designated by a
person who has entered into an agreement with Xxxxxxxx to effect a transaction
described in clause (i),
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(iii), or (iv) of this paragraph) whose election by the Board or nomination for
election by Xxxxxxxx'x stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the two-year period or whose election or nomination for
election was previously so approved but excluding for this purpose any such new
director whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of an
individual, corporation, partnership, group, associate or other entity or
Person other than the Board, cease for any reason to constitute at least a
majority of the Board; provided, however, that such event shall not constitute
a Change in Control unless or until the percentage of voting securities of
Xxxxxxxx owned beneficially, directly or indirectly, by the Trust is less than
50 percent of all such outstanding securities;
(iii) the consummation of a merger or consolidation of Xxxxxxxx
or any subsidiary owning directly or indirectly all or substantially all of the
consolidated assets of Xxxxxxxx (a "Significant Subsidiary") with any other
corporation, other than a merger or consolidation which would result in the
voting securities of Xxxxxxxx or a Significant Subsidiary outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 50 percent of the combined voting power of the
surviving or resulting entity outstanding immediately after such merger or
consolidation;
(iv) the stockholders of Xxxxxxxx or any affiliate approve a plan
or agreement for the sale or disposition of all or substantially all of the
consolidated assets of Xxxxxxxx (other than such a sale or disposition
immediately after which such assets will be owned directly or indirectly by the
stockholders of Xxxxxxxx in substantially the same proportions as their
ownership of the common stock of Xxxxxxxx immediately prior to such sale or
disposition) in which case the Board shall determine the effective date of the
Change in Control resulting therefrom;
(v) a sale of the business unit, division or group within which
Executive is employed, other than to another entity which is directly or
indirectly controlled by Xxxxxxxx, as a result of which Executive is no longer
employed by an entity which is directly or indirectly controlled by Xxxxxxxx;
or
(vi) any other event occurs which the Board determines, in its
discretion, would materially alter the structure of Xxxxxxxx or its ownership.
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(vii) Defined terms.
(A) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(B) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, including rules thereunder and successor
provisions and rules thereto.
(C) "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, and shall include a "group" as defined in Section 13(d) thereof.
2. Section 9 of the Employment Agreement is hereby amended in its entirety
to read as follows:
9. [Reserved]
3. Attached hereto is a revised Schedule B to the Employment Agreement,
which shall supersede and replace any previously existing Schedule B to the
Employment Agreement.
4. Except as provided by this Amendment, the Employment Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of June 7, 1996.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
XXXXXXXX INTERNATIONAL, INC.
/s/ X. X. Xxxxxxxx
-------------------------------------
W. Xxxxxx Xxxxxxxx
Chief Executive Officer and President
ATTEST:
/s/ Xxxxxxx X. Xxx Xxxx
----------------------------------
Xxxxxxx X. Xxx Xxxx
Executive Vice President,
General Counsel and Secretary
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Schedule B
Incentive Compensation Plans in Effect
Annual Incentive Compensation Plan for Xxxxxxxx Corporation
1994 Long-Term Cash Incentive Compensation Plan for Xxxxxxxx
International Group, Inc.
Xxxxxxxx Corporation 1996 Stock Award Plan
Xxxxxxxx Corporation 1996 Deferred Compensation Plan
183
