Exhibit 10.ll
COMPANY CONFIDENTIAL
Employment Agreement
THIS EMPLOYMENT AGREEMENT is entered into by and between Xxxxxx X. Xxxxxx
(hereinafter referred to as "Employee") and BW/IP, Inc.
WHEREAS, Employee has been employed by BW/IP, Inc. or its subsidiaries or
predecessors (hereinafter individually or collectively referred to as "BWIP")
since March of 1964 in various positions and until August 13, 1996 in the
executive capacity of Vice President and Pump Division President.
WHEREAS, Employee and BWIP desire to continue Employee's employment
relationship in a capacity other than as an officer of BWIP on the terms and for
the period set forth herein.
THEREFORE, in consideration of the mutual obligations set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Employee and BWIP agree as follows:
1. Employment of Employee by BWIP. BWIP agrees to employ
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Employee through March 31, 2000, at which time Employee agrees to retire.
2. Duties. Employee shall render his utmost cooperation in the
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conduct of the business affairs of BWIP performing such mutually agreeable
services as may be directed by President and CEO of BWIP or their successors
which are consistent with his former position as a corporate officer, and
Employee shall devote such time as shall be necessary and mutually agreeable to
fully discharge his obligation hereunder. Employee shall be based in San Xxxxx
or such other location as Employee shall select.
3. Salary. BWIP shall pay to Employee in accord with its
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normal payroll practices, the monthly equivalent of $242,000 per annum through
March 31, 1997, and shall pay Employee the monthly equivalent of $125,800
commencing April 1, 1997 and terminating on March 31, 2000. Payment of this
amount shall be deemed to include payment for any vacation, holiday or salary
continuation benefits to which Employee would otherwise be entitled as an
employee during the period preceding or covered by this Agreement.
4. Benefit(s). Until the dates specified below, Employee shall
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be provided with the following benefits.
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(a) Until March 31, 2000 Employee shall be provided all group
insurance benefits (life, medical, long term disability and dental) to which he
would have been entitled had he remained an officer of BWIP and received annual
compensation of $242,000 or $125,800, as the case may be, and under the same
terms and conditions.
(b) Until March 31, 2000, Employee shall continue to be an
active employee participant in the BW/IP International, Inc. Retirement Plan;
the BW/IP International, Inc. Supplemental Executive Retirement Plan ("SERP");
and the BW/IP International, Inc. Capital Accumulation Plan ("CAP Plan").
(c) Employee shall be ineligible for participation in the
BW/IP International, Inc. Management Incentive Plan for calendar year 1996 and
thereafter. Employee shall no longer be eligible for the award of Stock Options
or any other form of incentive or contingent compensation under the BW/IP, Inc.
Long Term Incentive Plan or any other incentive compensation plan or program.
This provision shall not effect the rights of Employee under any previously
granted stock options under the 1991 or 1996 Long Term Incentive Plans.
(d) Until, January 1, 1998 Employee shall have the continued
use of the BWIP automobile currently in possession of and driven by Employee and
BWIP shall pay or reimburse
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Employee for all expenses incurred in connection with the use of said automobile
in accordance with the existing BWIP policy regarding BWIP leased or owned
automobiles. On January 1, 1998, the automobile will, be transferred to Employee
at no cost, however, Employee shall be responsible for any transfer fees or
taxes, including income taxes attributable to the transfer of the automobile.
(e) Until June 30, 1998, Employee shall be provided with tax
preparation and financial planning benefits in accordance with existing BWIP
policy. The maximum amount to which Employee is entitled under this policy is
$3,000 per calendar year.
(f) The Employment Continuation Agreement between Employee
and BWIP dated January 2, 1996 which provides Employee with certain benefits
following a "Change of Control" of BWIP (as that term is defined in the
agreement) shall terminate upon the execution of this Agreement and shall
thereafter be treated as void and without effect.
(g) Employee shall not be eligible for any additional
benefits provided to other employees of BWIP under any policy, practice, or plan
currently in existence or which may be adopted in the future except to the
extent expressly provided for in this Agreement .
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(h) Business Expenses. Employee is not authorized to incur
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business expenses on behalf of BWIP without the prior authorization or direction
of the President and CEO of BWIP.
5. Death or Disability of Employee. In the event of the death of
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Employee prior to March 31, 2000 the balance of any payments due under Section 3
hereof shall be paid and shall be payable to Employee's estate or The Xxxxxx
Family Trust in a lump sum. In the event of Employee's disability during the
term hereof, including total and permanent disability, the obligations of BWIP
to Employee hereunder shall not be altered or modified except that the salary
under Section 3 hereof shall be reduced by the amount of any disability payments
received by Employee pursuant to any long term disability coverage provided by
BWIP.
6. Termination. This Agreement may be terminated at any time for
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any reason by Employee upon thirty (30) days written notice delivered to BWIP.
This Agreement may be terminated by BWIP only in the event of a breach of
Employees obligations under the Covenant Against Competition attached hereto as
Exhibit "A," or a material breach of any of the Employee's obligations
hereunder. Upon termination of this Agreement all obligations of
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BWIP and Employee hereunder shall cease except as provided in Sections 7,8,12,
and 13, and Exhibits A and B hereof.
7. Covenant Against Competition. Employee agrees to execute
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simultaneously with the Employment Agreement the Covenant Against Competition,
attached hereto as Exhibit "A", the provisions of which are acknowledged and
agreed by the parties to survive the termination of this Agreement. Employee
acknowledges that a material part of the inducement for BWIP to enter into this
Agreement are Employee's covenants with respect to non-competition, non-
disclosure, non-cooperation and non-solicitation contained in Exhibit "A".
Employee agrees that if employee shall breach any covenant contained in Exhibit
"A", BWIP shall have no further obligation to pay Employee any benefits
otherwise payable hereunder, or otherwise perform or honor any of its
obligations hereunder. BWIP shall not withhold payment from Employee until the
issue of Employee's breach of the covenant against competition has been finally
determined through arbitration or litigation. Employee agrees and undertakes to
repay in full to BWIP, all amounts paid to Employee pursuant to this Agreement
during any period when he is determined to have been in violation of the
covenant against competition.
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8. Waiver and Release. Employee agrees to execute simultaneously
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with this Agreement the Waiver and Release attached hereto as Exhibit "B", the
provisions of which are acknowledged and agreed by the parties to survive the
termination of this Agreement.
9. Integration. This Agreement and Exhibits "A" and "B" attached
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hereto together constitute the entire agreement between the parties hereto and
fully supersede any and all prior agreements or understandings whether written
or oral between the parties pertaining to the subject matter hereof. This
Agreement may only be amended by a written instrument executed by the parties
hereto.
10. Severability. If any provision of this Agreement is deemed by
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law to be void, invalid or inoperative for any reason, or any phrase or clause
within such provision is deemed by law to be void, invalid or inoperative, that
phrase, clause or provision shall be deemed modified to the extent necessary to
make it valid and operative, or if it cannot be so modified, then such phrase,
clause or provision shall be deemed severed from this Agreement, with the
remaining phrases, clauses and provisions continuing in full force and effect as
if the agreement had been signed with the void, invalid or inoperative
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portion so modified or eliminated. In addition, a phrase, clause or provision
shall be substituted which is consistent with the intent of this Agreement and
the severed phrase, clause or provision which provides the maximum protection to
the parties original agreement as is available at law.
11. Applicable Law. This Agreement shall be governed by and enforced
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in accordance with the laws of the State of California.
12. Arbitration. All controversies, claims, disputes and matters in
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question arising out of, or relating to, this Agreement or the breach thereof,
shall be decided by arbitration in accordance with the provisions of this
Section. The arbitration proceedings shall be conducted under the applicable
rules of the American Arbitration Association in effect at the time a written
demand for arbitration under the rules is made by one party hereto to the other
party. The decision of the arbitrator selected by the parties, including the
determination of the amount of damages suffered by either party, shall be
conclusive, final and binding on the parties hereto, their respective heirs,
legal representatives, successors and assigns. The losing party shall pay to the
prevailing party its expenses in the arbitration including administrative costs
of the American
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Arbitration Association, the arbitrator's fees and expenses,
attorney's fees and expenses, expert witnesses fees and expenses and for all
other costs and expenses incurred in presenting its case.
13. Attorney's Fees and Costs. In the event that it shall be
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necessary for either party hereto to institute legal action to enforce any of
the terms and conditions or provisions contained herein, or for any breach
thereof, the prevailing party in such action shall be entitled to costs and
reasonable attorney's fees.
14 Binding Agreement. The terms and conditions of this Agreement
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shall be binding upon and inure to the benefit of the successor and assignees of
BWIP and to the personal representative, heirs and legatees of Employee.
15. Drafting of Agreement, Construction. The parties hereto
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acknowledge and agree that no provision in this Agreement shall be interpreted
for or against any party because that party or that party's attorney drafted the
provision. Neither this agreement nor any action taken pursuant thereto shall
be construed or deemed to be evidence of an admission on the part of
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any party hereto or any of his or its employees, agents, representatives or
attorneys, of any fact, matter or thing.
16. Captions. The captions of any provisions herein are included for
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convenient reference only, and the same shall not be, nor be deemed to be,
interpretive of the contents of such provisions.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement at Long Beach, California.
Date: Febraury 19, 0000 Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
BW/IP, INC.
Date: March 4, 1997 By: Xxxx X. Xxxxxxxxx
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Vice President
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