Exhibit 10(j)
EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
The parties to this Employment Agreement (this "Agreement") are CRANE
CO., a Delaware corporation (the "Company"), and XXXX X. FAST ("Mr. Fast"). Mr.
Fast is currently employed as President and Chief Operating Officer of the
Company under the terms of an employment agreement dated September 8, 1999 (the
"Original Employment Agreement"). The Company desires to ensure itself of the
services of Mr. Fast as Chief Executive Officer as of and following the
resignation of X. X. Xxxxx from such position and Mr. Fast desires to accept
such employment on the terms and conditions set forth below.
Accordingly, the parties, intending to be legally bound, agree as
follows:
1. Employment and Term. The Company offers to employ Mr. Fast as the
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President and Chief Executive Officer ("CEO") of the Company, and Mr. Fast
accepts such employment with the Company, for the Term set forth below. The term
of Mr. Fast's employment under this Agreement (the "Term") shall commence upon
the date of the Company's 2001 annual shareholders meeting, provided that X. X.
Xxxxx resigns as CEO as of such date, or such other date agreed upon by the
parties in writing (the "Effective Date"). The Term shall end on the second
anniversary of that date, subject to extension of the Term as set forth in the
immediately following sentence or earlier expiration of the Term as provided in
Section 7. The Term shall be automatically extended for one (1) additional year
as of each annual anniversary of the Effective Date unless either the Company or
Mr. Fast provides written notice to the other of non-renewal not later than
ninety (90) days prior to any such anniversary date. In the event that the Term
shall not commence as stated above, then this Agreement shall be of no force or
effect and the Original Employment Agreement shall continue in full force and
effect. During the Term, the Board of Directors of the Company (the "Board")
shall nominate Mr. Fast to serve on the Board, and Mr. Fast agrees that, if
elected as a director by the Company's stockholders, he shall serve as such.
2. Duties. During the Term, Mr. Fast shall serve as President and Chief
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Executive Officer of the Company, and shall perform the duties, services and
responsibilities and have the authority commensurate to such position. Mr. Fast
shall report to the Board. Mr. Fast shall perform his duties at the Company's
executive offices, reasonable periods of travel for business purposes excepted.
Mr. Fast shall devote his best efforts to promote the Company's interests, and
he shall perform his duties and responsibilities faithfully, diligently and to
the best of his ability, consistent with sound business practices. Mr. Fast
shall devote his full working time to the business and affairs of the Company.
Nothing in this Agreement shall preclude Mr. Fast from devoting reasonable
periods required for engaging in charitable and community activities, serving as
a director of other companies and managing his personal investments; provided,
that such activities do not, in the good faith determination of the Board,
interfere in any material respect with the regular performance of his duties and
responsibilities under this Agreement.
3. Base Salary. During the Term, the Company shall pay Mr. Fast a base
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salary (the "Base Salary") at an annual rate of no less than $650,000. Such Base
Salary shall be subject to increase from time to time during the Term at the
discretion of the Board. The Base Salary shall be payable in accordance with the
Company's regular payroll practices, but no less frequently than monthly.
EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
4. Incentive Compensation. During the Term, Mr. Fast shall be
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entitled to participate in the Company's EVA Incentive Compensation Plan (the
"EVA Plan") with a participation percentage of 30% for the period from the
commencement of the Term through December 31, 2001, and thereafter as fixed by
the Board from time to time, subject to the terms and conditions of such Plan.
5. Other Benefits
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(a) Participation in Plans. During the Term, Mr. Fast shall be
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entitled to participate in and receive benefits as a senior executive under and
subject to the terms and conditions of all of the Company's employee benefit
plans, programs and arrangements, as they may be duly amended, approved or
adopted by the Board from time to time, including any retirement plan, savings
plan, life insurance plan, health insurance plan, accident or disability
insurance plan and any vacation policy.
(b) Stock Option Awards. As of the date of the Board meeting in April
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2001, Mr. Fast shall be granted non-qualified stock options to purchase 200,000
shares of Crane Common Stock. As of the date of the Board meeting in January
2002, Mr. Fast shall be granted non-qualified stock options to purchase 300,000
shares of Crane Common Stock. The foregoing share amounts are subject to
appropriate adjustments to take account of the effect of any change in the
number of issued shares of Crane Common Stock in connection with a stock
dividend, stock split, recapitalization or similar event that occurs prior to
the applicable grant date. The exercise price per share of each such stock
option shall be equal to the fair market value per share of the Common Stock on
the date of grant of such option. For this purpose, the "fair market value"
shall be determined by the average of the high and low prices of the Common
Stock on the New York Stock Exchange on the ten consecutive trading days ending
on the date of grant. Each option shall vest and become exercisable 50% one year
after the grant date, 75% two years after the grant date and 100% three years
after the grant date. All of the terms and conditions of each such option shall
be governed by and set forth in a written stock option agreement containing such
terms and conditions, consistent with this letter and the applicable stock
option plan, as are customary for such grants by the Company.
(c) Restricted Stock Award. As of the April 2001 Board meeting, Mr.
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Fast shall also be granted 65,000 shares of Crane Common Stock (the "Restricted
Stock") under the Crane Co. Restricted Stock Award Plan or other applicable
stock incentive plan (the "Restricted Stock Plan"). The Restricted Stock shall
be subject to transfer and forfeiture restrictions that shall lapse with respect
to 16,250 shares on each of the second, third, fourth and fifth anniversaries of
the date of grant. The foregoing share amounts are subject to appropriate
adjustments to take account of the effect of any change in the number of issued
shares of Crane Common Stock in connection with a stock dividend, stock split,
recapitalization or similar event that occurs prior to the date of grant of such
Restricted Stock. All of the terms and conditions of the Restricted Stock shall
be governed by the Restricted Stock Plan and set forth in a written restricted
stock agreement containing such terms and conditions, consistent with this
Agreement and the Restricted Stock Plan, as are customary for such grants by the
Company.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
(d) Expense Reimbursement. During the Term, Mr. Fast shall be
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entitled to receive prompt reimbursement for all reasonable expenses incurred by
Mr. Fast in performing services under this Agreement, provided that such
expenses are properly accounted for and are in accordance with the policies and
practices for senior executives in effect from time to time as established by
the Company.
6. Covenants. In order to induce the Company to enter into this
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Agreement, Mr. Fast hereby covenants as follows:
(a) Confidentiality. Mr. Fast agrees and understands that in his
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current and former position with the Company, Mr. Fast has been and will be
exposed to and receive information relating to the confidential affairs of the
Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. Mr. Fast
agrees that during the Term and thereafter, Mr. Fast shall keep such information
confidential and shall not disclose such information, either directly or
indirectly, to any third person or entity without the prior written consent of
the Company; provided, however, that (i) Mr. Fast shall have no such obligation
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to the extent such information is or becomes publicly known or generally known
in the Company's industry other than as a result of Mr. Fast's breach of his
obligations hereunder, and (ii) Mr. Fast may, after giving prior notice to the
Company to the extent practicable under the circumstances, disclose such
information to the extent required by applicable laws or governmental
regulations or judicial or regulatory process. This confidentiality covenant has
no temporal or territorial restriction. Upon expiration of the Term, Mr. Fast
shall promptly return to the Company all property, keys, notes, memoranda,
writings, lists, files, reports, customer lists, correspondence, tapes, disks,
cards, surveys, maps, logs, machines, technical data or any other tangible
product or document which has been produced by, received by or otherwise
submitted to Mr. Fast in the course or otherwise as a result of Mr. Fast's
position with the Company during or prior to the Term, provided that the Company
shall retain such materials and make them available to Mr. Fast if requested by
him in connection with any litigation against Mr. Fast under circumstances in
which (i) Mr. Fast demonstrates to the reasonable satisfaction of the Company
that the materials are necessary to his defense in the litigation, and (ii) the
confidentiality of the materials is preserved to the reasonable satisfaction of
the Company.
(b) Records. All papers, books and records of every kind and
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description relating to the business and affairs of the Company, or any of its
affiliates, whether or not prepared by Mr. Fast, other than personal notes
prepared by or at the direction of Mr. Fast, shall be the sole and exclusive
property of the Company, and Mr. Fast shall surrender them to the Company
immediately upon expiration of the Term and at any time upon request by the
Board.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
(c) Non-Competition. By and in consideration of payments and benefits
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to be provided to Mr. Fast by the Company hereunder, Mr. Fast's exposure to the
proprietary information of the Company and as an inducement to the Company to
enter into this Agreement with Mr. Fast, Mr. Fast agrees that for a period of
two (2) years after Mr. Fast's employment with the Company terminates for any
reason (the "Non-Competition Period"), Mr. Fast shall not, directly or
indirectly, own, manage, operate or control, whether as officer, director,
employee, partner or investor, any Competing Enterprise. For purposes of this
paragraph, the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity (or any of their respective subsidiaries) which
competes anywhere in the world with any business of the Company or any of its
subsidiaries from which the Company derived more than five (5) percent of its
sales or income during the most recently completed fiscal year. Notwithstanding
anything contained in this Section 6(c) to the contrary, Mr. Fast shall not be
prohibited from (i) owning less than five percent (5%) of any class of
securities or debt of any corporation or other entity, whether publicly traded
or privately held, (ii) serving as a general or limited partner or having a
similar ownership interest in any partnership or investment company that owns or
controls a Competing Enterprise so long as Mr. Fast is not actively engaged in
the management of such Competing Enterprise or (iii) serving as a director of
any entity which derives less than 10 percent of its sales and income from
competing businesses. The Board shall consider any written request from Mr. Fast
to waive this covenant as to any particular circumstance, and such waiver shall
not be unreasonably withheld.
(d) Non-Solicitation. During the Non-Competition Period, Mr. Fast
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shall not directly or indirectly solicit for employment on his own behalf, or on
behalf of any other enterprise, any individual who is an employee of the Company
during the Term or the Non-Competition Period.
(e) Assignment. Mr. Fast irrevocably assigns to the Company, or to
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any party designated by the Company, his entire right, title and interest in all
Developments that are made, conceived, or developed by Mr. Fast, in whole or in
part, alone or jointly with others, within the scope of his affiliation with the
Company. Such assignment shall include, without limitation, all Intellectual
Property Rights in such Developments. "Developments" shall mean all discoveries,
inventions, designs, improvements, enhancements, ideas, concepts, techniques,
know-how, software, documentation or other works of authorship, whether or not
copyrightable or patentable, related to any business or technology that has been
developed or is under development by the Company. "Intellectual Property Rights"
shall mean all forms of intellectual property rights and protections that may be
obtained for, or may pertain to, the confidential information (described in
Section 6(a)) and Developments and may include without limitation all right,
title and interest in and to (i) all Letters Patent and all filed, pending or
potential applications for Letters Patent, including any reissue, reexamination,
division, continuation or continuation-in-part applications throughout the world
now or hereafter filed; (ii) all trade secrets, and all trade secret rights and
equivalent rights arising under the common law, state law, Federal law and laws
of foreign countries; (iii) all mask works, copyrights other literary property
or author's rights, whether or not protected by copyright or as a mask work,
under common law, state law, Federal law and laws of foreign countries; and (iv)
all proprietary indicia, trademarks, tradenames, symbols, logos and/or brand
names under common law, state law, Federal law and laws of foreign countries.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
(f) Blue Pencil. The provisions contained in this Section 6 as to the
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time periods, geographic area and scope of activities restricted shall be deemed
divisible, so that if any provision contained in this Section 6 is determined to
be invalid or unenforceable, that provision shall be deemed modified so as to be
valid and enforceable to the full extent lawfully permitted.
(g) Enforcement. Mr. Fast agrees and warrants that the covenants
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contained herein are reasonable, that valid consideration has been and shall be
received therefor and that the agreements set forth herein are the result of
arms-length negotiations between the parties hereto. Mr. Fast recognizes that
the provisions of this Section 6 are vitally important to the continuing welfare
of the Company, and its affiliates, and that money damages constitute a totally
inadequate remedy for any violation thereof. Accordingly, in the event of any
such violation by Mr. Fast, the Company, and its affiliates, in addition to any
other remedies they may have, shall have the right to institute and maintain a
proceeding to compel specific performance thereof or to issue an injunction
restraining any action by Mr. Fast in violation of this Section 6.
7. Termination of Employment.
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(a) Death or Disability. Mr. Fast's employment under this Agreement
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shall terminate upon his death or disability. Mr. Fast shall be deemed to be
disabled at the end of any period of 180 consecutive days during which, by
reason of physical or mental injury or disease, Mr. Fast has, in the good faith
determination of the Board, been unable to perform substantially his usual and
customary duties under this Agreement. At any time and from time to time, upon
reasonable request therefor by the Company, Mr. Fast shall submit to reasonable
medical examination for the purpose of determining the existence, nature and
extent of any such disability. The Company shall promptly give Mr. Fast notice
of any such determination of Mr. Fast's disability and of the decision of the
Company to terminate Mr. Fast's employment by reason thereof.
(b) Termination by the Company. The Company may terminate Mr. Fast's
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employment under this Agreement with or without Cause (as defined below) by
giving written notice to Mr. Fast of such termination. For purposes of this
Agreement, the Company shall have "Cause" to terminate Mr. Fast's employment
under this Agreement if (i) Mr. Fast commits any intentional act or acts of
disloyalty, misconduct, or moral turpitude or is convicted of a felony, (ii) Mr.
Fast commits an intentional act of fraud, embezzlement or theft in connection
with his duties or in the course of his employment with the Company or (iii) Mr.
Fast intentionally violates any of the provisions of Section 6.
(c) Termination by Mr. Fast. Mr. Fast may resign from his employment
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with the Company by giving at least sixty (60) days prior written notice to the
Company.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
8. Compensation Upon Termination.
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(a) As a Result of Death, Disability, Cause or Resignation. If Mr.
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Fast's employment under this Agreement is terminated prior to the scheduled
expiration of the Term by reason of his death or disability, termination by the
Company for Cause or resignation by Mr. Fast, then Mr. Fast (or in the case of
his death, his personal representative) shall be entitled to receive the
following benefits (collectively, the "Pre-Termination Benefits"): (i) the
amount of his Accrued Obligations (as defined below), such amount to be paid in
a single lump sum cash payment within thirty (30) days of the date of
termination, and (ii) any payments which Mr. Fast, his spouse, beneficiaries or
estate may be entitled to receive pursuant to any employee benefits plan or
program of the Company. As used in this Agreement, "Accrued Obligations" means,
as of the date of termination, (A) any accrued but unpaid Base Salary and (B)
any accrued and unpaid expense reimbursements.
(b) By the Company other than for Cause.
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(i) Payments and Benefits. If, prior to scheduled expiration of
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the Term, the Company terminates Mr. Fast's employment without Cause, or if the
Company notifies Mr. Fast that it does not intend to extend the Term as
contemplated by Section 1 hereof, Mr. Fast shall be entitled to receive the Pre-
Termination Benefits and, subject to Section 8(b)(ii), he shall be entitled to
the following (the "Post-Termination Benefits"): (1) he shall receive a lump sum
in cash within thirty (30) days after the date of termination equal to the sum
of (A) two (2) times his annual base salary at the then current rate and (B) the
greater of (I) the amount then credited to Mr. Fast's bank account under the EVA
Plan or (II) two (2) times the highest annual bonus Mr. Fast received from the
Company for any of the five most recent fiscal years completed prior to the date
of termination, (2) Mr. Fast and/or his family shall remain eligible for a
period of two (2) years after the date of termination to receive benefits under
all welfare plans maintained by the Company, provided that Mr. Fast shall bear
any portion of the cost of such benefits as is required to be borne by similarly
situated employees, and provided further, that such benefits shall be
discontinued prior to the end of such two (2)-year period to the extent, but
only to the extent, that Mr. Fast receives substantially similar benefits from a
subsequent employer and (iii) all stock options granted to Mr. Fast by the
Company shall become fully vested and shall remain exercisable for a period of
two (2) years after the date of termination (but not after the original
expiration date of such options), and all restricted stock granted to Mr. Fast
by the Company shall become fully vested and non-forfeitable.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
(ii) Conditions to Receipt of Post-Termination Benefits under
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Section 8(b)(i). As a condition to receiving any Post-Termination Benefits (but
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not Pre-Termination Benefits) to which Mr. Fast would otherwise be entitled
under Section 8(b)(i), Mr. Fast shall execute a release (the "Release"), in
substantially the form of Annex A hereto, of any claims, whether arising under
Federal, state or local statute, common law or otherwise, against the Company
and its direct or indirect subsidiaries, and their respective officers,
directors and stockholders which arise or may have arisen on or before the date
of the Release, other than any claims under this Agreement or any rights to
indemnification from the Company and its direct or indirect subsidiaries
pursuant to any provisions of the Company's (or any of its subsidiaries')
certificate of incorporation or by-laws, any written indemnification agreement
between the Company and Mr. Fast or any directors and officers liability
insurance policies maintained by the Company. If Mr. Fast fails or otherwise
refuses to execute a Release within a reasonable time after the Company's
request to do so, Mr. Fast will not be entitled to any Post-Termination
Benefits. In addition, if, following a termination of employment that gives Mr.
Fast a right to the payment of Post-Termination Benefits, Mr. Fast engages in
any activities that violate any of the covenants in Section 6, Mr. Fast shall
have no further right or claim to any Post-Termination Benefits and shall
promptly repay any Post-Termination Benefits previously received (such repayment
to be in addition to any other rights or remedies available to the Company in
respect of such violation).
(iii) Payment Obligation. Except as otherwise provided in Section
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8(b)(i)(2) or Section 8(b)(ii), (1) the Company's obligation to make the
payments and the arrangements provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances, including,
without limitation, any offset, counterclaim, recoupment, defense, or other
right which the Company may have against Mr. Fast or any other party, (2) all
amounts payable by the Company hereunder shall be paid without notice or demand,
(3) Mr. Fast shall not be obligated to seek other employment in mitigation of
the amounts payable or arrangements made under any provision of this Agreement,
and (4) the obtaining of any such other employment shall in no event effect any
reduction of the Company's obligations to make the payments and arrangements
required to be made under this Agreement.
9. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the heirs and representatives of Mr. Fast and the
successors and assigns of the Company.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
(b) Notices. Any notice or other communication under this
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Agreement shall be in writing and shall be considered given when mailed by
registered, return receipt requested mail, to the parties at the following
addresses (or at such other address as a party may specify by notice to the
others):
(i) to the Board or the Company, to:
Crane Co.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
(ii) to Mr. Fast:
Xx. Xxxx X. Fast
000 Xxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
(c) Execution in Counterparts. This Agreement may be executed in
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two or more counterparts, each of which shall constitute an original, but all of
which together shall constitute but a single instrument.
(d) Jurisdiction and Governing Law. This Agreement shall be
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governed by and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed in Delaware.
(e) Severability. If any provision of this Agreement, or the
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application of any provision to any person or circumstance, shall for any reason
and to any extent be invalid or unenforceable, the remainder of this Agreement
and the application of that provision to other persons or circumstances shall
not be affected but shall be enforced to the full extent permitted by law.
(f) Prior Understandings. Except as otherwise expressly provided
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in Section 1 with respect to the Original Employment Agreement, this Agreement
embodies the entire understanding of the parties hereof, and supersedes all
other oral or written agreements or understandings between them regarding the
subject matter hereof. No change, alteration or modification hereof may be made
except in a writing, signed by each of the parties hereto. Notwithstanding any
provision of this Agreement to the contrary, Mr. Fast's Employment/Severance
Agreement, dated as of September 27, 1999 (the "Change in Control Agreement"),
shall remain in effect, and upon the occurrence of a Change in Control (as
defined in the Change in Control Agreement), this Agreement shall terminate and
Mr. Fast's rights shall be governed by the Change in Control Agreement. If Mr.
Fast becomes eligible to receive severance payments and benefits under the
Change in Control Agreement, he shall not be eligible for any severance payments
and benefits under this Agreement.
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EMPLOYMENT AGREEMENT WITH XXXX X. FAST - January 22, 2001
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
CRANE CO.
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Title: Chairman and Chief Executive Officer
/s/ E. C. Fast
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Xxxx X. Fast
EMPLOYMENT AGREEMENT With Xxxx x. fast - January 22, 2001
Annex A
FORM OF RELEASE
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The undersigned individual and Crane Co., a Delaware corporation (the
"Company"), are parties to an Employment Agreement, dated as of January 22, 2001
(the Agreement"). Under Section 8(b)(ii) of the Agreement, the undersigned's
right to receive certain Post-Termination Benefits (as defined in the Agreement)
is subject to, among other things, the undersigned's execution and delivery of
this Release. The undersigned acknowledges that, by signing this Release and
accepting the Post-Termination Benefits, the undersigned is giving up forever
the right to seek any further monetary or other relief from the Company as a
result of the undersigned's employment or termination of employment.
Pursuant to that understanding and as a consideration for the
Post-Termination Benefits, the undersigned, intending to be legally bound,
irrevocably and unconditionally releases, acquits and discharges the Company and
any of its affiliated companies, its past and present officers, directors,
trustees, representatives, shareholders, agents, servants, employees, successors
and assigns (separately and collectively, "releasees") jointly and individually
from any and all claims, known or unknown, which the undersigned, his heirs,
executors, administrators, successors or assigns have, shall or may have against
releasees and any and all liability which the releasees may have to the
undersigned whether called claims, demands, causes of action, judgments, debts,
accounts, obligations, damages, or liabilities, arising from any and all bases,
however called, including but not limited to, claims of discrimination,
contract, tort, conversion, interference with contract, wrongful discharge,
conspiracy, fiduciary breach or whistleblower under any federal, state or local
law, rule, ordinance, or regulation. This Release relates to claims arising from
and during employment or as a result of the undersigned's termination of
employment and the facts and events related thereto, whether those claims are
past or present, whether they rise from common law or statute, order or
ordinance. The Undersigned specifically acknowledges that this Release is
applicable to any claim under the Age Discrimination in Employment Act of 1967,
as amended, (or any similar state or local law). This Release is for any relief
no matter how called, including, but not limited to, wages, back pay, front pay,
compensatory damages, liquidated damages, punitive damages, damages for pain or
suffering, claims for non-vested benefits costs or attorneys' fees, or to be
continued in the employ of the Company or reinstated to employment with the
Company. Further, the undersigned agrees that the undersigned will not be
entitled to any benefit from any claim or proceedings filed by the undersigned
or on his behalf with any agency or court.
Notwithstanding the foregoing, this Release shall not extinguish the
undersigned's rights as expressly set forth in the Agreement. Finally, nothing
contained in this Release is intended to or constitutes a waiver of any rights
the undersigned may have to indemnification under applicable Company policies or
any individual indemnification agreement with respect to any claim brought by
third parties against the undersigned in connection with his Company employment.
The undersigned states that he knows and understands the contents of this
Release, that he executes this document knowingly and voluntarily as his own
free act and deed, and that this document was freely negotiated and entered into
without fraud, duress or coercion. The undersigned acknowledges that he was
given at least twenty-one (21) days in which to consider whether to execute this
Release before being required to make a decision and that he may revoke the
Release for a period of seven (7) days from the date that he executed the
Release, in which event he shall not be entitled to the Post-Termination
Benefits.
__________________________ Date:______________
[Employee]
