EXHIBIT 10(m)
February 23, 2001
Xx. Xxxxxx Xxxx
00 Xxxxxx Xxxx Xxxxx
Xxxx, XX 00000
Re: Employment Agreement
Dear Xxx:
This letter will set forth the basis of your continuing employment at the
P. H. Xxxxxxxxxx Company (the "Company"). This letter is intended as a
confidential statement of your employment arrangement with the Company and
supersedes all prior understandings and agreements whether written or oral. The
terms of your Employment Agreement, which are contingent on your execution of
the General Release Agreement attached hereto, are as follows:
1. Effective as of July 2000, you had been promoted to the position of
Vice President New Product Development, initially reporting to the (COO and now
reporting to the VP Sales and Marketing). You have accepted and you hereby
continue to accept such employment and agree to serve the Company on a
full-time basis and to perform your duties faithfully, diligently and to the
best of your ability. Through April 30, 2002, you further agree to fully
cooperate with the officers and directors of the Company to the best of your
ability and not to engage in outside for profit business or commercial activity
without the prior written consent of the President of the Company.
2. You will be employed as Vice President New Product Development through
the transition and orientation of the Director of New Product Development which
is anticipated to be completed no earlier that June 1 and no later than
December 31, 2001, unless your position terminates earlier under the
circumstances described below. Thereafter, you will be put on a paid leave of
absence lasting until April 30, 2002, unless your employment terminates earlier
under paragraphs 4 or 5 below.
3. The position of Vice President New Product Development will be a
salary grade 20 and your compensation for your employment to and through April
30, 2002, will consist of the following:
(a) a salary based on a minimum annual rate of $225,492, which may
be increased during the employment term pursuant to this Agreement at the
prerogative of the Compensation Committee of the Board of Directors (after
consultation with the President/CEO), payable on the regular pay dates of the
Company; and
(b) the standard benefits and perquisites made available from time
to time to executives of the Company with similar years of service and level of
responsibilities, subject to the discretion of the Compensation Committee of
the Board.
4. The Company will have the right to terminate your employment under
this Agreement at any time, immediately upon providing you with notice of the
cause for the termination. "Cause" will include but not be limited to: willful
failure to perform; dishonest or grossly negligent conduct in the performance
of your duties; incompetence; insubordination; violation of any express
direction; violation of any rule or regulation established by the Company from
time to time; or breach of any provision contained in this Agreement. In the
event of such a termination for cause, the Company shall have no further
obligation under this Agreement, except the obligation to pay you an amount
equal to the portion of your compensation as defined in paragraph 3 as may be
accrued and unpaid on the date of termination.
5. If you die or become totally disabled during your employment on or
prior to April 30, 2002 under this Agreement, you will be treated as any other
executive employee of the Company under the same circumstances.
6. So long as your employment continues to and through April 30, 2002 and
you retire effective as of that date, you will receive the following payments
and benefits:
(a) The Company will, effective as of May 1, 2002, provide you and
your spouse with retiree medical benefits in accordance with the terms and
conditions of the Company's program of retiree medical benefits for salaried
employees in effect from time to time. You will be responsible for payment of
your share of the cost of this coverage in the same manner as any other retiree;
(b) Your participation in the Company's other benefit plans,
including without limitation, the Retirement Plan for Salaried Employees,
dental plan, 401k Savings Plan, long-term disability plan and life insurance
plan will end of April 30, 2002. (You will receive separate notice regarding
your right, as an alternative to receiving the retiree medical benefits
described in item (a) able, to elect to continue your Company group medical
coverage at your own expense under Cobra);
(c) After your separation from service on April 30, 2002, the
Company will pay to you, in lump sum, the amounts that would be due to you
under the Company's Management Incentive Plan (50% deferred for 2001) and the
Company's profit sharing program as soon as administratively practicable after
those payments become due for the year 2001. You will not receive any incentive
bonus or profit sharing payment for the portion of 2002 in which you are
employed, and
(d) You will be deemed as vested, on a pro-rata basis, with respect
to outstanding Restricted stock awards which have not vested as of April 30,
2002; specifically: (I) your stock award of 4,456 shares due to vest on
12/31/02 shall be deemed to have vested as to seventy-five percent (75%) of
said shares; (ii) your stock award of 4,710 shares due to vest as of 12/31/03
shall be deemed to vested as to fifty percent (50%) of said shares; and (iii)
your stock award of 5,000 shares due to vest as of 12/31/04 shall be deemed to
have vested as to twenty - five percent (25%) of said shares. As soon as
administratively practicable after the date of the Company determines that the
performance criteria for your performance and/or restricted shares have been
satisfied, the Company will either distribute to you shares of Company common
stock corresponding to such performance and/or restricted shares, or pay to you
in a single sum the cash value of the restricted share award or provide a
combination of shares and cash, in accordance with the same options available
as of April 30, 2002, to other executives who remain in the Company's
employment.
(e) After your separation from service on April 30, 2002, you will
be permitted to exercise any stock options that have been granted to you, and
which are vested as of that date, through the earlier of their respective
stated expiration date or April 30, 2005.
7. Upon successful recruitment and orientation of the Director of
New Product Development but no later than December 31, 2001, you will be placed
on a leave of absence with pay through April 30, 2002 You agree to remain
available during your leave of absence period to advise or assist the Company,
or otherwise to perform such duties as may be reasonably requested of you by
the Company.
8. You hereby agree that the Change in Control Employment Agreement
dated as of December 31, 2000, by and between yourself and the Company, will be
terminated effective as of the first day of your leave of absence according to
paragraph 7 above.
9. You hereby resign as an Officer of the Company effective the day
before the first day of your leave of absence according to paragraph 7 above.
10. During and after your employment with the Company, you will not
engage in any activities or make any statements that may disparage or reflect
negatively on the Company, its Board of Directors, Officers or Employees.
11. You will keep the terms and conditions of this Agreement
confidential, except that you may reveal the terms and conditions of this
Agreement to your spouse, attorney and financial advisor, if any, so long as
they first agree not to disclose them to anyone else. The Company will make
reasonable efforts to keep the terms and conditions of this Agreement
confidential and to limit disclosure on a need-to-know basis. The parties,
however, understand that, by way of example and not of limitation, the Company
may need to disclose the terms and conditions of this Agreement to the
Company's independent auditors, the Board of Directors and as required by
applicable securities laws.
12. Both during and after your employment with the Company, you will
cooperate with any reasonable request of the Company to participate in the
preparation for, response to, prosecution of and/or defense of
any pending, actual or threatened litigation involving the Company. If the
Company requests such participation after your employment ends, it will
reimburse you for all reasonable out-of-pocket expenses you incur as a result
of such cooperation.
13. You represent and warrant that by September 30, 2001 (or the first
day of your leave of absence according to paragraph 7 above), you will have
delivered to the Company all property of the Company or any related entities of
any kind or character, which shall include, but not be limited to, all
identification cards, equipment, books, keys, journals, records, computers,
customer lists, publications, files, computer disks, memoranda and documents of
any kind or description, or any other such property that may be in your
possession.
14. You represent and warrant that you will comply with all terms in your
Employee's Agreement dated May 18, 1982, and the Company Corporate Disclosure
and Securities Trading Policy as in effect from time to time. In addition to
any existing obligation under your Employee's Agreement, the Corporate
Disclosure and Securities Trading Policy or under the common law, you represent
and warrant for all time that all confidential information of the Company
and/or any related entities (whether written, graphic, oral, committed to
memory or otherwise) in your possession, including without limitation,
information relating to the operations or marketing plans of the Company and/or
any related entities, shall remain strictly confidential and secret so long as
that information has not been published in a form generally available to the
public.
15. If you breach your obligations set forth in this Agreement, in
addition to all other remedies available to the Company, all payments due you
under this Agreement, except for your salary and benefits through your
termination date, will cease, and you will reimburse the Company the full
amount of any and all amounts paid to you pursuant to this Agreement after the
termination of your employment and you will reimburse the Company for the
expenses it incurs in connection with any lawsuit based on your breach,
including attorneys' fees and costs. (As required by regulations issued by the
EEOC, the foregoing sentence does not apply with respect to a claim under the
Federal Age Discrimination in Employment Act). In addition, if you breach your
obligations set forth in paragraphs 10, 11, 12, 13 or 14 above, the Company
also shall be entitled to temporary and permanent injunctive relief to restrain
any further breach of those obligations. If the Company breaches its
obligations set forth in this Agreement, in addition to all other remedies
available to you, the Company will reimburse you for the expenses you incur in
connection with any lawsuit based on the Company's breach, including reasonable
attorneys' fees and costs.
16. You agree to execute the General Release Agreement attached hereto as
Exhibit A, and acknowledge that this Employment Agreement shall not be
effective unless you do so.
17. You agree that this Agreement shall be deemed to be made in, and in
all respects to be interpreted, construed and governed by and in accordance
with the laws of the Commonwealth of Pennsylvania, without giving effect of the
principles of conflicts of law under Pennsylvania law. You also agree to submit
to the jurisdiction of the state and federal courts located in Pennsylvania in
the event that there is any claim that you have breached this Agreement.
18. This Agreement is personal to you and the Company's commitments to
you described herein may not be assigned to, or be enforced by, anyone else.
This Agreement shall inure to the benefit of and be binding upon the Company
and its successors and assigns.
If you are in agreement with the foregoing terms of employment, and you
intend to be legally bound hereby, please sign and return one copy of this
letter to me, and also sign and return to me the attached General Release
Agreement. We look forward to your continued contributions to the Company.
THE P. H. GLATFELTER COMPANY
BY:
/S/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
I HEREBY ACCEPT AND AGREE TO THE TERMS
OF THIS LETTER AGREEMENT
/S/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Date: April 24, 2001
EXHIBIT A
GENERAL RELEASE AGREEMENT
I, Xxxxxx X. Xxxxxx, for myself, my heirs, executors, administrators and
assigns, if any, for and in consideration of the benefits described in the
foregoing Employment Agreement dated February 28, 2001 (the "Employment
Agreement"), and other good and valuable consideration, do hereby state that:
1. I agree to and accept the terms of the Employment Agreement extended
to me dated February 28, 2001.
2. I waive, release and forever discharge the P. H. Glatfelter Company
(as defined below) of and from any and all Claims (as defined below). I agree
not to file a lawsuit to assert any such Claim. (As required by regulations
issued by the EEOC, the foregoing sentence does not apply with respect to a
claim under the Age Discrimination in Employment Act.) This release covers all
Claims arising from the beginning of time up to and including the date of this
General Release Agreement, but does not cover claims for unemployment
compensation benefits, claims relating to the validity or enforcement of the
Employment Agreement or this General Release Agreement or claims for any
accrued benefit under the terms of any employee benefit plan within the meaning
of the Employee Retirement Income Security Act maintained by the P. H.
Glatfelter Company.
The following provisions further explain this general release and promise not
to xxx: Definition of "Claims." "Claims" include without limitation all actions
or demands of any kind that I now have, or may have or claim to have in the
future. More specifically, Claims include rights, causes of action, damages,
penalties, losses, attorneys' fees, costs, expenses, obligations, agreements,
judgments and all other liabilities of any kind or description whatsoever,
either in law or in equity, whether known or unknown, suspected or unsuspected.
The nature of Claims covered by this release and promise not to xxx includes
without limitation all actions or demands in any way based on my employment
with the P. H. Glatfelter Company, the terms and conditions of such employment
or my separation from employment (except as stated above). More specifically,
all of the following are among the types of Claims that will be barred by this
release and promise not to xxx (except as stated above):
- Contract Claims (whether express or implied);
- Tort Claims, such as for defamation or emotional distress;
- Claims under federal, state and municipal laws, regulations,
ordinances or court decisions of any kind;
- Claims of discrimination, harassment or retaliation, whether
based on race, color, religion, gender, sex, age, sexual
orientation, handicap and/or disability, national origin or any
other legally protected class;
- Claims under the Age Discrimination in Employment Act, Title VII
of the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, the Family and Medical Leave Act and similar
state and local laws;
- Claims under the Employee Retirement Income Security Act, the
Fair Labor Standards Act, state wage payment laws and state wage
and hour laws;
- Claims for wrongful discharge; and
- Claims for attorneys' fees, litigation expenses and/or costs.
Definition of "P. H. Glatfelter Company." The "P. H. Glatfelter Company"
includes without limitation the P. H. Glatfelter Company and its respective
past, present and future parents, affiliates, subsidiaries, divisions,
predecessors, successors, assigns, employee benefit plans and trusts, if any.
It also includes all past, present and future managers, members, directors,
officers, partners, agents, employees, attorneys, representatives, consultants,
associates, fiduciaries, plan sponsors, administrators and trustees of each of
the entities listed in the preceding sentence.
I acknowledge that I have carefully read and understand the provisions of this
General Release Agreement and the Employment Agreement, that I have had
twenty-one (21) days from the date I received a copy of the General Release
Agreement and the Employment Agreement to consider entering into this General
Release Agreement and accepting the Employment Agreement, that if I sign and
return this General Release Agreement before the end of the
twenty-one (21) day period that I will have voluntarily waived my right to
consider the Agreement for the full twenty-one (21) days and that I have
executed this General Release Agreement voluntarily and with full knowledge of
its significance, meaning and binding effect. I also acknowledge that P. H.
Glatfelter Company has advised me in writing to consult with an attorney of my
own choosing with regard to entering into this General Release Agreement and
accepting the Employment Agreement. Finally, I acknowledge that my decision to
enter into this General Release Agreement has not been influenced in any way by
fraud, duress, coercion, mistake or misleading information.
I acknowledge that I may revoke this General Release Agreement within seven (7)
days of my execution of this document by submitting a written notice of my
revocation to Xxxxxxx Xxxxxxxxx, Vice President - Human Resources, P. H.
Glatfelter Company. I also understand that this General Release Agreement, and
the Employment Agreement to which it relates, shall not become effective or
enforceable until the expiration of that seven (7) day period.
IN WITNESS WHEREOF, and with the intention of being legally bound hereby, I
have executed this General Release Agreement on the 24th day of April, 2001.
/S/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
