Exhibit 10.5
TRANSITION AGREEMENT
This Agreement (the "Agreement") dated as of July 19, 1995, is entered into
by and between Keystone International, Inc., a Texas corporation ("Company") and
Xxxxxxx X. XxXxxxx ("Executive").
W I T N E S S E T H:
Whereas, Executive is presently serving the Company as its chairman of the
board and chief executive officer; and
Whereas, Executive will cease to serve the Company in such capacities on
July 31, 1995 (the "Effective Date"), and absent this Agreement his employment
with the Company would then terminate; and
Whereas, the parties are desirous of providing for the continued employment
of Executive beyond the Effective Date and desire to formalize such continuing
employment relationship;
Now, Therefore, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereby agree as follows:
1. Board Approval. This Agreement is subject to approval of the board of
directors of the Company (the "Board"). If the Board has not approved this
Agreement by July 20, 1995, then this Agreement shall be null and void.
2. If this Agreement is approved by the Board as contemplated in paragraph
1, the Company agrees it will employ the Executive and the Executive agrees to
serve the Company for a period beginning on the Effective Date and ending at the
earlier of (i) Executive's death or (ii) unless sooner terminated in accordance
with paragraph 5, July 31, 2001 (with the earliest of such events to occur being
hereinafter referred to as the "Expiration Date").
3. Nature of Duties.
(a) Active Period. Until 60 days from the Effective Date (the "Active
Period"), the Executive shall serve the Company in an executive capacity and, if
so requested by the Company's chief executive officer, shall devote
substantially his full time during normal business hours to insuring an orderly
management transition at the Company and shall undertake such additional
executive duties during the Active Period (of a stature and dignity appropriate
to a former chief executive officer of the Company) as shall be assigned to
Executive by the chief executive officer of the Company.
(b) Transition Period. Commencing upon expiration of the Active Period
and ending on the Expiration Date (the "Transition Period"), Executive shall
consult with the Company's chief executive officer on an "as requested" basis,
but such services shall not be required during more than two days in any week.
In addition, such services will be required only at such times and such places
as will result in the least inconvenience to Executive, having regard for other
business commitments during such period which may obligate him to meet such
other commitments prior to
performing services requested hereunder. To the end that there shall be a
minimum interference with Executive's other commitments, his Transition Period
services shall be rendered by personal consultation at his residence or office,
wherever maintained, or by correspondence through the mails, telephone, or
telegraph, including weekends and evenings, as may be most convenient to
Executive. During the Transition Period, Executive shall not be obligated (i) to
act as a member of the board of directors of the Company or any of its
subsidiaries, (ii) to occupy any office of the Company or any of its
subsidiaries, or (iii) to render any services whatsoever to the Company or any
of its subsidiaries other than those specified in this paragraph 3(b). During
the Transition Period, Executive may accept employment with any employer other
than an employer which is prohibited by paragraph 5(a) of this Agreement.
4. (a) Compensation. As compensation for the Executive's services, the
Company agrees to pay the Executive from the Effective Date through the
Expiration Date, basic compensation at a rate of $18,375 per month (the "Base
Salary"), payable on a current basis not less frequently than monthly in
accordance with the Company's established policy, subject only to such payroll
and withholding deductions as may be required by law.
(b) In addition to the Base Salary payable during the remainder of 1995,
the Executive shall be awarded 7/12ths of the bonus, if any, which he would have
otherwise earned in respect of the 1995 year had he continued to serve as
chairman of the board and chief executive officer of the Company throughout the
remainder of 1995, such bonus to be calculated in the manner and payable (in
cash only) at the time bonuses are calculated and paid in respect of the 1995
year for senior executive officers generally. Other than as provided for in this
paragraph 4(b), the Executive shall not be eligible for any bonus compensation
which is calculable or payable for any accounting period ending subsequent to
July 31, 1995.
(c) Expense Reimbursement. The Company shall reimburse the Executive for
all direct out-of-pocket expenses incurred by him in the performance of services
through the Expiration Date at the specific request of the Company's chief
executive officer, to the extent such expenses are consistent with the Company's
normal expense reimbursement policies.
(d) Insurance and Defined Contribution Plan Benefits Through the
Transition Period. To the extent permitted by applicable plan provisions, the
Executive and his spouse shall be permitted to continue participation through
the Expiration Date in all medical, health, Exec-U-Care, life, accidental death
and disability insurance programs and non-contributory defined contribution
plans (i.e., the base and supplemental profit sharing and ESOP plans) maintained
by the Company for the benefit of its executive officers, with all premium and
medical reimbursement expense of insurance plans to be borne by the Company to
the same extent applicable to executive officers generally.
(e) Office and Auto Allowance. The Executive will maintain an office
from and after the Effective Date at his home or in other premises of his choice
at a location other than Company owned or leased premises, and in lieu of any
other expense reimbursement for the costs of such office facilities and
secretarial support and any business automobile used by Executive, the
2
Company will pay to Executive a monthly automobile and office allowance of
$2,000, payable monthly in arrears, from the Effective Date through the
Expiration Date.
(f) Club Dues and Expenses. Executive agrees to accept sole
responsibility for all dues and usage charges incurred after the date of this
Agreement for country club and luncheon club memberships held by him in his
individual name or owned by the Company for Executive's designated use. The
Company hereby relinquishes any interest it may have in such individually-owned
memberships and agrees to cooperate with Executive in converting (at no
out-of-pocket cost to the Company) any Company-owned corporate club memberships
on which Executive is the designated user into individual memberships in the
name of Executive. If Executive is unable to so convert any Company-owned
membership into an individual membership by December 31, 1995, the Executive
agrees to cooperate with the Company in effecting a transfer of the use
privilege to one or more Company-designated successor users.
(g) Tax and Financial Planning Services. In lieu of continuing to
reimburse Executive's cost of tax and financial consulting services, the Company
will pay to Executive a non-accountable annual stipend of $5,000 through the
Expiration Date.
(h) Business Automobiles. The Company agrees to sell to Executive and
Executive agrees to purchase from the Company as of the Effective Date, the
Company-owned business automobile presently used by Executive on an as-is basis,
at a cash price equal to its depreciated book carrying value.
(i) Business Furniture and Equipment. The Company agrees to transfer to
Executive at no cost the furniture located in Executive's personal office at
0000 Xxxx Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx and the Company-owned office equipment
presently located at Executive's residence.
(j) No Other Benefits. In view of the part-time character of Executive's
duties hereunder, Executive hereby irrevocably declines, waives and rejects
participation at all times after the Effective Date in any Company benefit plan
in which participation is at the option of employees; provided, however, that
this provision shall not affect the terms of any outstanding stock options or
stock grants held by Executive.
5. Noncompetition/Nonsolicitation; No Detrimental Conduct.
(a) Noncompetition. From and after the date hereof, Executive agrees
that all times through the Expiration Date, he will refrain from serving as an
owner, financier, director, officer, agent, representative or employee of, or
consultant to, any "Competing Business". For purposes of this Agreement, the
term "Competing Business" means any corporation, partnership, joint venture,
unincorporated business association, business trust, proprietorship or any other
form of business enterprise wherever located which at any time during such
period engages, directly or indirectly, in the design, manufacture, assembly,
marketing, sale, lease, distribution, or service of valves, actuators, steam
traps or any other device or contrivance (i) used for controlling the flow of
3
liquids, solids or gases, and (ii) competitive with any product manufactured,
marketed, distributed and/or sold by the Company or any of its direct or
indirect subsidiaries now or through the Expiration Date.
(b) Nonsolicitation. From and after the date hereof, Executive further
agrees that at all times through the Expiration Date, he will not, in any way,
directly or indirectly (i) solicit, divert, or take away, or attempt to solicit,
divert, or take away, from the Company the business of any customer for any
product or service of the Company or any of its direct or indirect subsidiaries
sold or offered for sale prior to the Expiration Date or (ii) attempt to seek to
cause any such customer to refrain, in any respect, from acquiring from or
through the Company or any of its direct or indirect subsidiaries any product or
service of the Company sold or offered for sale prior to the Expiration Date.
(c) No Detrimental Conduct. From and after the date hereof, Executive
agrees that at all times hereafter he will not engage in any conduct detrimental
to the Company (including any conduct in violation of paragraph 7 hereof), such
determination to be made by the Company's Committee as provided in paragraph
5(d) hereof.
(d) Committee. All determinations with respect to compliance or
noncompliance by Executive with the provisions of clauses (a), (b) and (c) of
this paragraph 5 shall be within the reasonable discretion of the compensation
committee of the board of directors of the Company ("Committee"), acting in its
official capacity. Absent manifest error, bad faith, or arbitrary or capricious
exercise of discretion, any such determination by the Committee shall be final
and binding upon both parties. In making any such determination, the Committee
shall be obligated to use only ordinary care and to make reasonable inquiry with
respect to factual matters. Promptly following any determination that Executive
is in breach of clauses (a), (b) or (c) of this paragraph 5 or of paragraph 7,
the Committee shall give Executive written notice stating in reasonable detail
the basis for such determinations. Such notice shall give Executive five days to
remedy violations of any clause of this paragraph 5. Any payments due Executive
under this Agreement shall be stayed for said five day period and shall not be
restored unless such violations are corrected within said five day period. If
violations of this paragraph 5 are not corrected, or if Executive violates
paragraph 7 hereof, then Executive shall forfeit all remaining payments and
benefits which would otherwise be made available to him pursuant to this
Agreement.
(e) Petition. In the event that Executive desires to engage in any
activity which might constitute a breach of paragraphs 5(a), (b) or (c), he may
petition the Committee for an interpretation in advance of undertaking the
proposed activity for a determination whether the proposed activity would
constitute a breach or request a written waiver from the Committee. The
Committee will consider any such petition within five business days after
receipt and will respond promptly in writing.
(f) Binding Arbitration. Should any disputes arise between the parties
regarding any determination made by the Committee, each of the parties hereby
irrevocably agrees that the exclusive remedy of each of them shall be to
commence binding arbitration proceedings under the
4
rules of the American Arbitration Association, with any such arbitration
proceeding to be conducted in Houston, Texas, applying the substantive law of
the State of Texas. Each party agrees to deposit with the neutral arbitrator, an
amount equal to 50% of the arbitrator's preliminary estimate of the costs of
arbitration (excluding counsel fees) as security for costs. Actual costs of
arbitration (including counsel fees of both parties) shall be apportioned by the
arbitrator in such manner as he shall deem equitable in light of any final
arbitration award.
6. Contemporaneous with the execution of this Agreement, Executive has
executed and delivered the letter of resignation attached to this Agreement as
Exhibit A.
7. Confidentiality. Executive agrees and acknowledges that he is currently
bound by, and after the date of this Agreement will continue to be bound by, the
Company's "Employee Invention and Confidential Disclosure Agreement." Executive
agrees and acknowledges that agreement restricts him from disclosing any
proprietary information (including, without limitation, customer lists, price
discounts, sales information, company methods of doing business, accounting
procedures, production methods, engineering designs, and any other items that
are not published for general distribution to the public) in an unauthorized
manner. Executive agrees to keep the terms and conditions of this Agreement
confidential; provided, however, that Executive may disclose the terms of this
agreement to his spouse, attorney and accountant and to any prospective
employer, if he obtains the prior agreement of such person to hold such
information in confidence. Without limiting any other remedy available under
this Agreement or under applicable law, a violation of this paragraph 7 shall
constitute an irreparable breach of this Agreement and shall result in (i) a
forfeiture of all unpaid amounts to which Executive would otherwise be entitled
hereunder and (ii) the immediate termination of any then existing employment
relationship.
8. Supplemental Retirement Benefits. Subject to any prior termination of
this Agreement pursuant to paragraph 5, during the period commencing on the
Expiration Date and ending on the later of (i) Executive's death or (ii) the
death of his spouse (the "Retirement Period"), the Company shall:
(x) pay to Executive or his estate, as the case may be, a monthly
stipend of $5,000; plus
(y) provide to Executive and his spouse the same medical benefits to
which the Company's executive officers (and their spouses) are
entitled to receive.
During the Retirement Period, Executive shall not be entitled to any
compensation or other benefits except as set forth in this paragraph 8, shall
not be required to perform any services for the Company, shall not be an
employee of the Company, and may accept employment with any other employer or
participate in any other business venture without limitation.
9. Severability. If any provision of this Agreement shall be adjudged by a
court of competent jurisdiction to be void or unenforceable, that finding shall
in no way affect any other provision of this Agreement or the validity or
enforceability of this Agreement. However, if any court
5
having jurisdiction over the parties shall issue any order (i) holding the
provisions of paragraphs 5(a), 5(b), 5(c) or 7 to be void or unenforceable, then
any obligation of Keystone to make further payments hereunder shall be deemed to
have been extinguished in full, or (ii) reforming the provisions of paragraph
5(a) so as to restrict or reduce its duration, geographic scope or the
activities prohibited, then the Company's ongoing payment obligations shall be
deemed to have been correspondingly reduced in amount or value, determined in
the Company's sole discretion by such equitable method as shall reasonably
reflect the lessened value of Executive's covenant not to compete for such
shorter period, in such lesser territory, or in such more restricted scope of
activity, as the case may be.
10. Notices. All notices under this Agreement shall be in writing and given
either in person or mailed first class mail, postage prepaid, to the address of
the party to this Agreement set forth below his or its signature to such other
address as a party to this Agreement may furnish to the other as provided in
this sentence.
11. Binding Agreement; Captions. This Agreement is binding upon the parties
to this Agreement and their respective legal representatives, heirs, devisees,
legatees or other successors and assigns. Titles and captions of or in this
Agreement are inserted only as a matter of convenience and for reference and in
no way affect the scope of this Agreement or the intent of its provisions.
12.Entire Agreement. This Agreement constitutes the entire agreement of the
parties to this Agreement with respect to its subject matter, supersedes all
prior agreements, if any, of the parties to this Agreement with respect to its
subject matter, and may not be amended except in writing signed by the party to
this Agreement against whom the change is being asserted.
13. Release. Executive hereby unconditionally and irrevocably forever
releases and discharges the Company, its officers, employees, shareholders,
agents and assigns, and all other persons, firms or corporations in control of,
under the direction of, or associated with the Company (for purposes of this
paragraph 13, collectively the "Employer") from all claims, charges,complaints,
obligations, liabilities, promises, agreements, contracts, damages, causes of
action, suits, accrued benefits or other liabilities of any kind or character,
whether known or hereafter discovered, arising from or in any way connected with
or related to Executive's employment with Employer or the terms under which such
employment is to be continued and terminated in the future or the terms of any
supplemental retirement benefit herein provided for; provided, however, that
such release shall not affect (i) the Company's future obligations to Executive
under this Agreement, under the Company's Articles of Incorporation, Bylaws or
any preexisting contractual indemnity agreement, or (ii) its indemnity
obligations to Executive with respect to any litigation against the Company, its
subsidiaries or corporate affiliates, or against Executive by third parties.
Executive voluntarily accepts the consideration described in this Agreement as
sufficient payment for the foregoing release and agrees that no other promises
or representations have been made to him by the Company or any other person
purporting to act on the behalf of the Company, except as expressly stated
herein.
14. Survival. Anything else in this Agreement to the contrary
notwithstanding, the representations, warranties, covenants and agreements
herein contained shall survive the termination of Executive's employment with
the Company.
6
15. Miscellaneous. The failure of any party to this Agreement at any time
or times to require the performance of any provisions of this Agreement shall in
no manner affect the right to enforce the same; and no waiver by any party to
this Agreement of any provision (or of a breach of any provision) of this
Agreement, whether by conduct or otherwise, shall be deemed or construed either
as a further or continuing waiver of any such provision or breach or as a waiver
of any other provision (or of a breach of any other provision) of this
Agreement. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Texas. This Agreement may be executed
in two or more copies, each of which shall be deemed an original, and it shall
not be necessary in making proof of this Agreement or its terms to produce or
account for more than one of such copies.
In Witness Whereof, the undersigned have executed this Agreement effective
as of the date first above written, subject to approval of the Board of
Directors of the Company.
The Company: KEYSTONE INTERNATIONAL, INC.
By: /s/ F. O. Xxxxxxx
---------------------------
Address:
0000 Xxxx Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Executive: /s/ X. X. XxXxxxx
---------------------------
X. X. XxXxxxx
Address:
0 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
7
Exhibit A
July 19, 1995
The Board of Directors
Keystone International, Inc.
0000 Xxxx Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Gentlemen:
I hereby resign from my position as chairman of the board of directors,
chief executive officer and a director of Keystone International, Inc.
("Keystone") but not as an employee of Keystone, and I also resign from any and
all directorships, officerships and other positions that I hold with each
directly and indirectly held subsidiary and corporate affiliate of Keystone,
effective July 31, 1995.
Very truly yours,
/s/ X. X. XxXxxxx
X. X. XxXxxxx
