Exhibit 4.9
ABB
EMPLOYMENT AGREEMENT
This Employment Agreement is made as of the 1st day of January, 2003 between ABB
Inc. (who, together with its parent companies, are hereinafter referred to as
the "Company") and Xxxxxx Xxxxxxx (hereinafter referred to as "Executive").
WHEREAS, the Executive has been serving as a senior executive for the Company
and;
WHEREAS, the Company desires to continue to retain the services of the Executive
and the Executive desires to continue to perform services for the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and the Executive agree as follows:
1. EMPLOYMENT
1.1 The Company agrees to employ the Executive and the Executive agrees to
undertake employment with the Company upon the terms and conditions
herein set forth for a period of two (2) years commencing on January
1, 2003 and expiring on December 31, 2004, subject to earlier
expiration upon the Executive's termination under Section 5 of this
Agreement. Following this initial term, this Agreement and the
employment of the Executive will be automatically renewed, subject to
Section 5, for successive two (2) year periods, unless either party to
this Agreement gives the other party written notice of such party's
intention to terminate this Agreement at least three months prior to
the end of the initial or any extended term.
1.2 The Executive represents and warrants that his execution of this
Agreement and the performance by Executive of his obligations under
this Agreement will not (i) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to
the Executive; or (ii) conflict with, result in the breach of any
provision of or the termination of, or constitute a default under, any
agreement to which Executive is a party or by which Executive is or
may be bound.
2. POSITION, DUTIES AND LOCATION
2.1 The Executive shall be a full-time employee of the Company and shall
serve the Company in the position of Executive Vice President,
Automation Technologies Division and in such position will report to
Xxxxxx Xxxxxxx, Chairman and Chief Executive Officer.
2.2 During the term of his employment, the Executive shall, (i) faithfully
and diligently perform such duties and exercise such powers consistent
with his position, perform such other related duties and
responsibilities, and serve in such other regular positions as may be
assigned to him/her from time to time
by the Company; (ii) devote the whole of his business time and
attention and skill to his duties and not engage in, participate in,
render any service to, or undertake any employment, either directly or
indirectly, with respect to any other business or for any other entity
(including, but not limited to, acting in an advisory or consulting
capacity and/or serving as a director of any entity) if such activity
would, in the sole discretion of the Company, interfere with the
Executive's performance of, or conflict with, his duties and
responsibilities to the Company, without the prior written consent of
the Company, provided, however, that the executive agrees that he/she
will not serve as a member of the Board of Directors of any
non-affiliated corporation without the express written consent of the
Chief Executive Officer of the ABB Group; (iii) use his best efforts
to promote the interests of the Company and (iv) adhere to all
applicable laws, and all policies, standards, rules and regulations of
the Company in effect from time to time.
2.3 The Executive's principal office and location of employment will be
determined by the Company it being understood, however, that the
responsibilities of the Executive's position will require normal
business travel.
3. COMPENSATION AND BENEFITS - The Company shall provide and the Executive
shall accept as full consideration for the services to be rendered
compensation and benefits consisting of the following:
3.1 BASE SALARY - The Executive's base salary as of the date of this
Agreement is at the annual rate of $550,000, payable in accordance
with the Company's payroll practices as currently in effect from time
to time. The Executive's performance shall be reviewed annually during
his term of employment, and his salary may be adjusted based upon the
Executive's performance and the Company's executive compensation
policies then in effect.
3.2 INCENTIVE COMPENSATION - The Executive shall be entitled to
participate in the Company's Management Incentive Plan (if the Company
determines in its sole discretion to maintain the Plan) in accordance
with the terms and conditions of the Plan including, but not limited
to, the right by the Company to amend, suspend, discontinue or
terminate the Plan. The Executive's incentive target for 2003 will be
up to a maximum of 100% of base salary. The Executive's incentive
target shall be reviewed and may be adjusted at the discretion of the
Company each year for the term of this Agreement.
3.3 BENEFITS - The Executive (and to the extent eligible, Executive's
dependents) shall be entitled to participate in the general employee
benefit plans, policies and programs sponsored by the Company from
time to time, including without limitation, retirement, health,
disability, life, accidental death, vacation, holiday and severance
benefits, at a level that is commensurate with the Executive's
participation in such plans immediately prior to the effective date of
this Agreement, or at a level made available to the Executive at any
time hereafter. Participation by the Executive and/or his dependents
in these benefits shall be in accordance with the terms and conditions
of the respective plans, policies, and programs including, but not
limited to, the eligibility rules and the Company's right to amend,
suspend, discontinue or terminate any such plan, policy or program,
and the same are incorporated herein by reference.
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3.4 OTHER FORMS OF COMPENSATION AND BENEFITS - In addition to the above
compensation and benefits, the Company will provide the Executive with
the supplemental compensation and/or benefits listed below, pursuant
to the terms and conditions of the respective plans, policies or
programs:
(i) A car allowance of $2,000 per month;
(ii) Participation in the Company's financial counseling program, at
the "Senior Executive" level. The Senior Executive level
provides for comprehensive estate and tax planning, retirement
planning, cash flow planning, investment planning, and tax
preparation as provided by The Ayco Company, L.P. ("Ayco"). As
an alternative to the Ayco program, the Executive may elect
reimbursement of up to $10,000 per year for similar expenses
incurred with a provider or providers other than Ayco;
(iii) Elective participation in the Company's Deferred Compensation
Plan;
(iv) Participation in the Company's Supplemental Executive Retirement
Plan ("SERP");
(v) Such vacation time, sick leave, perquisites of office, fringe
benefits, insurance coverage, participation in pension plans,
profit sharing plans, other employee benefit and welfare plans
and other terms and conditions of employment as the Company
generally provides to its executives having rank and seniority
at the Company comparable to the Executive.
(vi) Such other perquisites and terms and conditions of employment as
the Company may provide from time to time to its executives
having rank and seniority at the Company comparable to that of
the Executive.
(vii) The retention incentive outlined in a letter dated January 25,
2002 addressed to Xxxxxx Xxxxxxx and signed by Jorgen Centerman
and Xxxx Xxxxxx.
4. REIMBURSEMENT OF EXPENSES - The Company shall reimburse the Executive for
all reasonable travel and other business-related expenses incurred by
him/her in the performance of his duties under this Agreement, in
accordance with the Company's policies and practices in effect from time to
time.
5. TERMINATION OF EMPLOYMENT - The Executive's employment may be terminated in
accordance with the following:
5.1 The Executive's employment shall terminate automatically upon the
death of the Executive.
5.2 The Company may remove the Executive from his duties if the Executive
suffers from a physical or mental disability to an extent that such
disability renders the Executive incapable of performing substantially
his duties for a period of 180 consecutive days. In this regard, the
Executive agrees to submit,
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at the request of the Company, to a physical and/or mental examination
by a physician selected by the Company. In such situation, the
Executive shall be regarded as being on disability leave and shall
continue in such status, and will be eligible to receive Company
benefits provided to an employee in such status, subject to the terms
and conditions of the Company's applicable disability benefit plans,
programs, and related practices.
5.3 The Company may terminate the Executive's employment for any reason or
no reason upon giving four weeks written notice of termination to the
Executive. Notwithstanding, the Company may, at its discretion, choose
to immediately terminate the Executive and pay the Executive in lieu
of notice for the full notice period or any remaining part thereof.
5.4 The Executive may terminate his employment for any reason or no reason
upon giving four (4) weeks written notice of termination to the
Company.
5.5 The Company may terminate the Executive's employment at any time for
cause. "Cause" shall include, but not be limited to, actions which are
intended to seriously damage the Company's or an affiliate's business
or reputation; significant violations of any material policy,
standard, rule, or practice of the Company; actions in violation of
the Executive's fiduciary duties to the Company or its affiliates;
failure or neglect by the Executive to substantially perform his
duties; or a material breach of any provision of this Agreement.
5.6 Upon termination of the employment for any reason, Executive shall, as
requested by the Company, immediately resign any position he/she holds
as an officer and/or director of the Company or any affiliated
company.
5.7 All documents and objects made, compiled, received, held or used by
the Executive while employed by the Company in connection with the
business of the Company or any of its affiliates shall be and remain
the property of the Company or the affiliate, and shall be delivered
by the Executive to the Company or affiliate upon the termination of
the Executive's employment or at any earlier time requested by the
Company or affiliate.
6. Obligations of the Company Upon Termination
6.1 Upon termination of employment by either the Executive or the Company
for any reason, the Executive shall receive any base salary earned and
unpaid; reimbursement for business expenses incurred up to the date of
termination; all amounts and/or benefits due under the Company's
compensation and benefit plans and programs identified in Section 3
above as may be applicable to the Executive's termination, all in
accordance with the respective terms of those applicable plans and
programs; and any other applicable legal benefits (e.g. COBRA).
6.2 Upon termination of employment initiated by the Company for any reason
other than cause and in consideration for the Confidentiality and
Non-Disclosure (Paragraph 8), Non-Competition (Paragraph 9) and
Non-Solicitation (Paragraph 10) provisions of this Agreement, the
Executive will be paid an amount equal to two year's base salary plus
an amount equal to two
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times the average of the amount of the last two incentive compensation
payments (determined by adding such two last incentive compensation
payments and dividing the total so obtained by two), if any, paid to
the Executive (or, if any amount of any such incentive payment is
earned by the Executive but deferred under the Company's Deferred
Compensation Plan, the amount of any such incentive payment which is
deferred) prior to the termination of the Executive's employment or
the termination of this Agreement by the Company under the Management
Incentive Plan. The amounts payable under this Paragraph 6.2, will be
paid to the Executive as a lump sum payment at the time of termination
of employment and/or this Agreement by the Company. In the event
severance payments are payable to Executive pursuant to this Paragraph
6.2, no severance benefits shall be payable to the Executive under the
ABB Inc. Severance Benefit Plan. Except as specified in the prior
sentence, the amounts and benefits identified in this Paragraph 6.2
are in addition to any amounts and/or benefits provided to the
Executive pursuant to Paragraph 6.1.
6.3 Upon termination, any outstanding funds advanced by the Company or its
affiliates to or on behalf of the Executive shall become immediately
due and payable by the Executive, and may be deducted from monies due
the Executive upon termination, to the extent allowed by applicable
law.
7. DEDUCTIONS AND WITHHOLDING - Executive agrees that the Company shall
withhold from any and all payments required to be made to Executive in
accordance with this Agreement all federal, state, local, and other taxes
that the Company determines are required to be withheld in accordance with
applicable statutes and regulations in effect from time to time.
8. CONFIDENTIALITY AND NON-DISCLOSURE - The Executive shall not, either during
or after his employment by the Company, divulge or communicate to any
person (except in performing his duties under this Agreement) or use for
his own purposes, trade secrets, confidential commercial information, or
any other information, knowledge, or data of the Company or of any of its
affiliates which is not generally known to the public, and shall use his
best efforts to prevent the publication or disclosure by any other person
of any such secrets, information, knowledge, or data. Confidential
information includes, without limitation, information relating to the
Company's or its affiliates' business plans, financial matters, customers,
employees, contracts, and all other secrets and information of a
confidential or proprietary nature. The confidentiality and non-disclosure
obligations imposed by this Section 8 will cease if such confidential or
proprietary information will have become, through no fault of the
Executive, generally known to the public or the Executive is required by
law to make disclosure (after giving the Company notice and an opportunity
to contest such requirement). The terms of this Section 8 shall be in
addition to the terms of any confidentiality agreement that may previously
have been executed by the Executive, which will continue in effect and be
made a part of this Agreement, and shall not be read or interpreted to
limit, diminish, circumscribe or conflict with the terms or requirements of
any such confidentiality agreement.
9. NON-COMPETITION - NON-COMPETE
The Executive agrees that during his employment by the Company, and for a
period
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of one year after termination of his employment for any reason, he will not
directly or indirectly, whether or not for compensation and whether or not
as an employee, be engaged in any work or activity for or with, or have any
financial interest in, any business materially in competition with, or
which may materially compete with the business of the Company (or with the
business of any affiliate for which the Executive performed services
hereunder) within any country, state, region, or locality in which the
Company or such affiliate is then doing business or marketing its products,
as the business of the Company or such affiliate may then be constituted.
For purposes of this Agreement, the Executive shall be deemed to be engaged
in or to have financial interest in such a business if he is a principal,
agent, consultant, employee, officer, director, or partner, of any person,
partnership, corporation, trust or other entity which is engaged in such a
business, or has an equity interest, or interest convertible into equity,
in any such entity; provided, however, that the foregoing shall not
prohibit the Executive from owning, for the purpose of passive investment,
less than 5% of any class of securities of a publicly held corporation.
10. NON-SOLICITATION - The Executive agrees that for a period of one year after
the termination of his employment for any reason he/she will not, on behalf
of himself/herself or on behalf of any person, firm, or corporation
intentionally induce, solicit, or participate in the inducement or
solicitation, either directly or through a third party, of any person who
is an officer, director, employee, principal or agent of the Company or any
affiliate to leave his or her employment, agency, directorship or office
with the Company or any affiliate, or to induce or solicit any person to
not commence an employment or business relationship with the Company or any
affiliate.
11. COMPANY OWNERSHIP - The Executive hereby agrees that any and all
improvements, inventions, discoveries, formulae, processes, methods,
know-how, confidential data, trade secrets and other proprietary
information (collectively, "Work Product") within the scope of any business
of the Company or any affiliate which the Executive may conceive or make,
or have conceived or made, during his employment with the Company shall be
and are the sole and exclusive property of the Company or its affiliate.
The Executive shall, whenever requested to do so by the Company or its
affiliate, and without any obligation on the part of the Company or its
affiliate to pay any royalty or other compensation to the Executive, at the
Company's or affiliate's expense, execute and sign any and all
applications, assignments or other instruments and do all other things
which the Company or its affiliate may deem necessary or appropriate (i) in
order to apply for, obtain, maintain, enforce or defend letters patent in
the United States or in any foreign country for any Work Product, and/or
(ii) in order to assign, transfer, convey or otherwise make available to
the Company or its affiliate the sole and exclusive right, title, and
interest in and to any Work Product.
12. INJUNCTIVE RELIEF - The Executive acknowledges and agrees that the remedy
at law available to the Company for breach of any of his obligations under
Sections 8, 9, 10 and 11 would be inadequate and that damages flowing from
such breach may not readily be susceptible to being measured in monetary
terms. Accordingly, the Executive acknowledges and agrees that, in addition
to any other rights or remedies which the Company may have at law, in
equity or under this Agreement, upon adequate proof of his violation of any
such provision of this Agreement, the Company will be entitled to immediate
injunctive relief, and may obtain a temporary order restraining any
threatened or further breach, without the necessity of proof of actual
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damage.
13. POST-TERMINATION ASSISTANCE - The Executive agrees that after his
employment with the Company has terminated he/she will provide, upon
reasonable notice, such cooperation, information and assistance to the
Company as may reasonably be requested by the Company in connection with
any audit, governmental investigation or litigation in which it or any of
its affiliates is or may become a party; provided, however, that (i) the
Company agrees to reimburse the Executive for any related out-of-pocket
expenses, including travel expenses, and to pay the Executive reasonable
compensation for his time based on his rate of annual salary at the time of
termination and (ii) any such assistance may not unreasonably interfere
with the then current employment of the Executive. It's the Company's
expectation that any cooperation, assistance or information provided
pursuant to this Section be truthful.
14. SURVIVAL - The termination of the Executive's employment will not impair
the rights or obligations of a party that accrue prior to such termination,
except to the extent specifically stated herein. In addition, the
Executive's covenants contained in Sections 8, 9, 10 and 11 and the
Company's obligations under Section 6 will survive the termination of the
Executive's employment.
15. NOTICE-Notice or other communication required or permitted under this
Agreement shall be effective only if it is in writing and delivered
personally, or sent by registered or certified mail, postage prepaid,
addressed as follows:
If to the Company: If to the Executive:
Xxxx Xxxxxx Xxxxxx Xxxxxxx
Senior Vice President, HR 0 Xxx Xxxx Xxxx
XXX Inc. Xxxxxx, XX 00000
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or to such other address as either party may designate by notice to the
other, and shall be deemed to have been given upon receipt.
16. AMENDMENTS AND NO WAIVER - Only an instrument in writing signed by the
parties may amend this Agreement, and any provision hereof may be waived
only by an instrument in writing signed by the party against whom
enforcement of such waiver is sought. The failure of either party at any
time to require the performance by the other party of any provision hereof
shall in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party of a breach of a
provision hereof be taken or held to be a waiver of any succeeding breach
of such provision or a waiver of the provision itself or a waiver of any
other provision of this Agreement.
17. DISPUTE RESOLUTION - Any dispute between the parties arising out of or
relating to this Agreement, or the employment relationship, shall first be
submitted to non-binding mediation as set forth below in Section 17.1. In
the event either party is not satisfied with the results of the mediation
proceeding any unresolved disputes shall be submitted to arbitration as
provided in Section 17.2.
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17.1 Mediation proceedings shall be conducted in accordance with the
National Rules for Resolution of Employment Disputes of the American
Arbitration Association ("AAA") in effect on the date notice of
mediation is served and shall be non-binding on the parties. In no
event shall the results of any mediation proceeding be admissible in
any arbitration or judicial proceeding.
17.2 Arbitration of any dispute shall be held in the State of Connecticut,
USA, in accordance with the National Rules for Resolution of
Employment Disputes then obtaining of the AAA, except that there shall
be one arbitrator selected with respect to any such arbitration
proceeding. Judgment upon the award rendered may be entered in any
court having jurisdiction thereof. Notwithstanding anything herein to
the contrary, if any dispute arises between the parties under
Paragraphs 8, 9, 10 or 11 hereof, or if the Company makes any claim
under Paragraphs 8, 9, 10 or 11, the Company shall not be required to
mediate or arbitrate such dispute or claim, but shall have the right
at its election to institute judicial proceedings in any court of
competent jurisdiction with respect to such dispute or claim. Also, if
such judicial proceedings are instituted, the parties agree that such
proceedings shall not be stayed or delayed pending the outcome of any
arbitration proceeding hereunder.
17.3 Without regard to whether the Executive prevails, in whole or in part,
in connection therewith, the Company will pay and be financially
responsible for 100% of any and all attorneys' and related fees and
expenses incurred by the Executive in connection with a dispute
regarding the payments due under Section 6, provided that, in regard
to such dispute, the Executive has not acted in bad faith or with no
colorable claim of success. All such fees and expenses will be paid by
the Company as incurred by the Executive on a monthly basis upon an
undertaking by the Executive to repay such advanced amounts if an
arbitrator or court determines, in a decision against which no appeal
may be taken or with respect to which the time period to appeal has
expired, that he/she acted in bad faith or with no colorable claim of
success.
18. Successors, No-Assignment
18.1 This Agreement is binding on and is for the benefit of the parties
hereto and their respective successors, heirs, executors,
administrators and other legal representatives. The Company shall
require any successor to all or a portion of the business and/or
assets of the Company by purchase, merger, consolidation, acquisition
of stock or otherwise which is or becomes the employer of the
Executive to assume and agree to perform this Agreement in the same
manner and to the same extent as the Company would be required to
perform if no such succession had taken place, and a failure of any
such successor to the Company which is or becomes the employer of the
Executive to assume and agree to perform this Agreement shall be for
all purposes of this Agreement (including, without limitation,
Paragraph 6.2 of this Agreement) a termination of this Agreement by
the Company and such successor.
18.2 Except as provided in Paragraph 18.1, neither this Agreement nor any
right or obligation hereunder may be assigned by either party.
19. SEVERABILITY OF PROVISIONS - If any provision of this Agreement, or portion
thereof, is
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so broad in scope or duration so as to be unenforceable, such provision or
portion thereof shall be interpreted to be only so broad as is enforceable.
If any one or more provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and this Agreement shall be interpreted as if such
invalid, illegal, or unenforceable provision was not contained therein.
20. NO RULE OF STRICT CONSTRUCTION, HEADINGS
20.1 The language contained in this Agreement shall be deemed to be
approved by both parties and no rule of strict construction shall be
applied against either party.
20.2 The headings used in this Agreement are intended for convenience and
reference only and will not in any manner amplify, limit, modify or
otherwise be used in the construction or interpretation of any
provision of this Agreement. All section references are to sections of
this Agreement, unless otherwise noted.
21. CHOICE OF LAW - This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, USA, without giving
effect to choice of law provisions.
22. COUNTERPARTS - This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
23. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement between
the parties hereto with respect to the Executive's employment by the
Company, and supersedes, and is in full substitution of, any and all oral
or written prior understandings, representations, or agreements with
respect to the Executive's employment with the Company or any affiliate
unless otherwise indicated herein.
24. VOLUNTARY AGREEMENT - The parties represent and agree that each has
reviewed all aspects of this Agreement, has carefully read and fully
understands all provisions of this Agreement, and is voluntarily entering
into this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated below.
Xxxxxx Xxxxxxx For ABB Inc.
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Feb. 21, 2003 2-21-2003
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Date Date
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