Baldwin Technology Company, Inc. 2 Trap Falls Road Suite 402 Shelton, CT 06484 Tel: 203-402-1000 Fax: 203-402-5500
Xxxxxxx Technology Company, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
0 Xxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
December 19, 2008
Xxxxx X. Xxxxxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Dear Xxxxx:
This Agreement nullifies and replaces your previous employment agreement with the Company, which
was effective September 1, 2004 and signed on September 1, 2004, and now sets forth the terms of
your employment with Xxxxxxx Technology Company, Inc., a Delaware corporation (the “Company”). The
effective date of your employment hereunder was renewed on September 1, 2007 and if not extended or
unless otherwise terminated, shall expire on August 31, 2010.
1. DUTIES. You shall be employed primarily as the Vice President of American
Operations with global oversight of the Company’s Marketing & Strategic Planning initiatives. You
shall direct and manage the American Operations and oversee the Marketing and Strategic Planning
business, affairs and property of the Company subject to the direction of the President & CEO of
the Company. You shall also be a member of the Xxxxxxx Leadership Team (BLT). Periodically from
time-to-time, the Company may change your duties and responsibilities by adding to them or
subtracting from them.
2. COMPENSATION. The following will outline your compensation for your services as
Vice President of American Operations:
A. Salary. As of September 1, 2004, you shall be paid a salary at the annual base
rate of one hundred eighty six thousand three hundred dollars ($186,300). Such salary will be
payable in the appropriate installments to conform with regular payroll dates for salaried
personnel of the Company.
B. Reviews and Adjustments. You performance shall be reviewed by the President & CEO
of the Company each succeeding year consistent with your anniversary date of employment which is
September 1, 2001. Your base salary for the ensuing twelve (12) month period may be adjusted,
subject to the approval by the Compensation Committee of the Board of Directors of the Company and
the entire Board of Directors, in accordance with your level of performance.
C. Incentive Compensation. You will be eligible to participate in the Company’s
Management Incentive Compensation Plan (MICP). Your participation level, as well as the terms and
payments of incentive compensation will be in accordance with the MICP and will be provided to you
under separate cover.
D. Supplemental Retirement Benefit. Starting September 1, 2004, on the first day of
each month that you are providing services under the terms of this Agreement, the Company shall
accrue for your Supplemental Retirement Benefit, an amount necessary to ensure that, to the extent
vested, the amount accrued would be sufficient to support monthly payments equal to 30% of your
average base salary for the previous three (3) years continuous employment with the Company. These
payments (“Supplemental Retirement Benefits”) are to be paid to you or to your beneficiary or
beneficiaries designated by you in writing to the Company, or, if none is so designated, to your
estate (“Beneficiary”), in equal monthly installments over a ten (10) year period beginning at such
times as are set forth in this Agreement. These Supplemental Retirement Benefits will vest in each
case assuming you are then employed by the Company, as follows: as of September 1, 2004 it shall be
vested to the extent of 20%, as of September 1, 2005 it shall be vested to the extent of 40%, as of
September 1, 2006 it shall be vested to the extent of 60%, as of September 1, 2007 it shall be
vested to the extent of 80%, and as of September 1, 2008 it shall be vested to the extent of 100%
so that as of the later date the full amount of the Supplemental Retirement Benefit shall be due
and payable in the instances set forth elsewhere in this Agreement.
E. Insurance. During the term of your employment hereunder, the Company, subject to
your insurability, shall (i) pay the premiums on a contract or contracts of life insurance on your
life providing for an aggregate death benefit of five hundred thousand dollars ($500,000), which
contract or contracts will be owned by you, your spouse or such other party as may be designated by
you; and (ii) purchase key person term life insurance on your life in the aggregate amount of one
million dollars ($1,000,000), which contract or contracts will be owned by the Company.
3. EXTENT OF SERVICES. During your employment hereunder you shall devote your best
and full-time efforts to the business and affairs of the Company. During the duration of your
employment with the Company, you shall not undertake employment with, or participate in, the
conduct of the business affairs of, any other person, corporation, or entity, except at the
direction or with the written approval of the President & CEO.
4. VACATION; OTHER BENEFITS.
A. Vacation. You shall be entitled to vacation with pay in accordance with the
Company’s vacation policy as in effect at the time. Your current vacation accrual will be three
(3) weeks of vacation. Any additional vacation accrual beyond 3 weeks will be in accordance with
normal Company policy. You may accumulate up to twelve (12) weeks vacation, but not more than
three (3) weeks from any single prior year. Any such accumulated vacation may be used in any
subsequent year or years (but no more than two
(2) weeks of such accumulated vacation in any one year) in addition to the vacation to which you
are entitled for each such year.
B. Benefit Plans. You shall be eligible for inclusion, to the extent permitted by
law, as a full-time employee of the Company, in any and all pension, profit sharing and savings
plans; life and AD&D insurance, health (medical, dental, short and long term disability) plans,
stock option and stock purchase plans or any other plans and programs at the time sponsored by the
Company or any Subsidiary for employees or executives generally as in effect at the time.
C. Automobile. During the term of your employment hereunder, the Company shall
provide an automobile for your use pursuant to the Company’s written policy on company autos as in
effect at that time.
5. TERMINATION OF EMPLOYMENT. For purposes of this Agreement, termination from
employment and the like shall mean a separation from service from the Company and any affiliates of
the Company, as “separation from service” is defined under Section 409A of the Internal Revenue
Code, as amended, and the regulations promulgated thereunder (collectively the “Code”). In
addition, the term “last day of your employment” and the like shall mean the date such separation
from service occurs. In the event your employment is terminated for any of the reasons set forth
under this Section 5, the Company shall pay to you or your legal representative, estate or heirs,
as the case may be, the amounts indicated in each subparagraph of this Section 5:
A. Termination by the Company Without Cause. The Company may, without cause,
terminate your employment at any time with six (6) months prior written notice to you. In such
case the Company may release you from your position and duties immediately and elect to make a
separate lump sum severance payment to you equal to six months pay. Such payment shall be made at
the same time as the payment in subparagraph (i) below is made. In the event your employment is
terminated under this Section 5A, the Company shall pay to you the following:
(i) A single lump sum severance payment in an amount equal to one-half (1/2) of your then
current annual base rate of compensation as defined in Section 2A (as adjusted by Section 2B
hereof), with such payment to be made in a lump sum on the first day of the seventh
(7th) full calendar month immediately succeeding the month in which your termination
from employment occurs.
(ii) A single lump sum payment on the date of termination of any accrued but unpaid salary set
forth in Section 2A (as adjusted by Section 2B) hereof, including salary in respect of any accrued
and accumulated vacation due to you at the date of such termination.
(iii) A single lump sum payment of any incentive compensation earned in the fiscal year of the
termination of your employment which incentive compensation shall be determined on the basis of the
Company’s operations through June 30th of such fiscal
year, and shall be pro-rated through the last day of your employment and shall be paid in
accordance with the Management Incentive Compensation Plan (MICP).
(iv) The Company shall reimburse you on a monthly basis for eighty percent (80%) of any COBRA
premiums paid by you for continuation of coverage under the Company’s medical insurance plan for a
period of up to six (6) months following your termination from employment (or such shorter time as
you may be eligible for such COBRA coverage under the terms of applicable law).
(v) Executive outplacement services for a period of six (6) months immediately following your
termination from employment. Payment for such outplacement services shall not exceed ten thousand
dollars ($10,000) and shall be made upon receipt of invoice from outplacement provider and shall be
paid no later than the last day of the second calendar year following the calendar year in which
your employment is terminated; and
(vi) To the extent vested, the Monthly Supplemental Retirement Benefit as set forth in Section
2D hereof with payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which your termination
from employment occurs. However, the first such payment will include the aggregate of the Monthly
Amounts that would have been made during the interim period, and, therefore, will be equal to seven
(7) times the Monthly Amount and such payment will reduce the number of overall monthly payments
under Paragraph 2D hereof by the number of months in the interim period for which payments are
made.
The Company shall have no further obligation to you under this Agreement and you shall have no
further obligation to the Company under this Agreement except as noted in Sections 6 and 7 of this
Agreement.
B. Termination by the Company With Cause. The Company may for cause terminate your
employment at any time by written notice you. In the event your employment is terminated under
this Section 5B the Company shall pay to you the following:
(i) A single lump sum payment on the date of termination of any accrued but unpaid salary set
forth in Section 2A (as adjusted by Section 2B) hereof, including salary in respect of any accrued
and accumulated vacation due to you at the date of such termination.
(ii) To the extent vested, the Monthly Supplemental Retirement Benefit as set forth in
Section 2D hereof with payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which your termination
from employment occurs. However, the first such payment will include the aggregate of the Monthly
Amounts that would have been made during the interim period, and, therefore, will be equal to seven
(7) times the Monthly Amount and such payment will reduce the number of overall monthly payments
under Paragraph 2D hereof by the number of months in the interim period for which payments are
made.
The Company shall have no further obligation to you under this Agreement and you shall have no
further obligation to the Company under this Agreement except as noted in Sections 6 & 7 of this
Agreement. For purposes of this Agreement, the term “cause” shall mean (1) a failure by you to
remedy, within ten (10) of the Company’s written notice to you, either (a) a continuing neglect in
the performance of your duties under this Agreement, or (b) any action taken by you that seriously
prejudices the interests of the Company, or (2) your conviction of a felony.
C. Events. If any of the following described events occurs during your employment
hereunder and results in your employment being terminated by the Company or a successor to the
Company or you do not receive an offer for at least comparable employment from the Company or a
successor to the Company, then the Company or successor to the Company shall make to you the same
payments that the Company would have been obligated to make under Section 5A.
(i) Any merger or consolidation by the Company with or into any other entity or any sale by
the Company of substantially all of its assets; provided, however, that such event shall not be
deemed to have occurred under this clause if consummation of the transaction would result in at
least fifty (50%) percent of the total voting power represented by the voting securities of the
Company outstanding immediately after such transaction being beneficially owned by holders of
outstanding voting securities of the Company immediately prior to the transaction.
(ii) The adoption by the Company of any plan of liquidation providing for the distribution of
all or substantially all of its assets.
The Company shall have no further obligation to you under this Agreement and you shall have no
further obligations to the Company under this Agreement except as provided in Section 6 and 7 of
this Agreement.
D. Termination by Mutual Consent. You may at any time resign and terminate your
employment with the written consent of the Company. In the event your employment terminates under
this Section 5D the Company shall pay to you the following:
(i) A single lump sum payment on the date of termination of any accrued but unpaid salary set
forth in Section 2A (as adjusted by Section 2B) hereof, including salary in respect of any accrued
and accumulated vacation due to you at the date of such termination.
(ii) To the extent vested, the Monthly Supplemental Retirement Benefit as set forth in
Section 2D hereof with payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which your termination
from employment occurs. However, the first such payment will include the aggregate of the Monthly
Amounts that would have been made during the interim period, and, therefore, will be equal to seven
(7) times the Monthly Amount and such
payment will reduce the number of overall monthly payments under Paragraph 2D hereof by the number
of months in the interim period for which payments are made.
The Company shall have no further obligation to you under this Agreement and you shall have no
further obligations to the Company under this Agreement except as provided in Section 6 and 7 of
this Agreement.
E. Termination Upon Expiration of Agreement. If not previously terminated, this
Agreement and your employment with the Company shall be automatically extended for additional three
(3) year periods, unless and until either party notifies the other, in writing, twelve (12) months
prior to the expiration of the then current term of this Agreement that the party giving
notification does not want the Agreement and the employment automatically extended. At expiration
of this Agreement, the Company shall pay to you the following:
(i) A single lump sum payment on the date of termination of any accrued but unpaid salary set
forth in Section 2A (as adjusted by Section 2B) hereof, including salary in respect of any accrued
and accumulated vacation due to you at the date of such termination.
(ii) To the extent vested, the Monthly Supplemental Retirement Benefit as set forth in
Section 2D hereof with payment of the Monthly Amount delayed until the first day of the seventh
(7th) full calendar month immediately succeeding the month in which your termination
from employment occurs. However, the first such payment will include the aggregate of the Monthly
Amounts that would have been made during the interim period, and, therefore, will be equal to seven
(7) times the Monthly Amount and such payment will reduce the number of overall monthly payments
under Paragraph 2D hereof by the number of months in the interim period for which payments are
made.
The Company shall have no further obligation to you under this Agreement and you shall have no
further obligations to the Company under this Agreement except as provided in Section 6 and 7 of
this Agreement.
6. SOURCE OF PAYMENTS: All payments provided for hereunder shall be paid from the
general funds of the Company. The Company may, but shall not be required to, make any investment or
investments whatsoever, including the purchase of a life insurance contract or contracts on your
life, to provide it with funds to satisfy its obligations hereunder; provided, however, that
neither you nor your beneficiary or beneficiaries, nor any other person, shall have any right,
title, or interest whatsoever in or to any such investment or contracts. If the Company shall elect
to purchase a life insurance contract or contracts on your life to provide the Company with funds
to satisfy its obligations hereunder, the Company shall at all times be the sole and complete owner
and beneficiary of such contract or contracts, and shall have the unrestricted right to use all
amounts and to exercise all options and privileges there under without the knowledge or consent of
you, your beneficiary or beneficiaries, or any other person, it being expressly agreed that neither
you, any such beneficiary or beneficiaries, nor any other
person shall have any right, title, or interest whatsoever in or to any such contract or contracts
unless expressly provided otherwise in this Agreement.
7. INVENTIONS AND CONFIDENTIAL INFORMATION. So long as you shall be employed by the
Company, you agree promptly to make known to the Company the existence of any and all creations,
inventions, discoveries, and improvements made or conceived by you, either solely or jointly with
others, during your employment by the Company and for three (3) years after the termination of your
employment by the Company , and to assign to the Company the full exclusive right to any and all
such creations, inventions, discoveries, and improvements relating to any subject matter with which
the Company is now or shall become concerned, or relating to any other subject matter if made with
the use of the Company’s time, materials, or facilities. To the fullest extent permitted by law,
any and all of the foregoing creations, inventions, discoveries and improvements shall be
considered as “work-made-for-hire” and the Company shall be the owner thereof. You further agree,
without charge to the Company but at its expense, if requested to do so by the Company, to execute,
acknowledge, and deliver all
papers, including applications or assignments for patents, trademarks, and copyrights relating
thereto, as may be considered by the Company to be necessary or
desirable to
obtain or assign to the Company any and all patents, trademarks, or copyrights for any and all such
creations, inventions, discoveries, and improvements in any and all countries, and to vest title
thereto in the Company in all such creations, inventions, discoveries, and improvements as
indicated above conceived during your employment by the Company, and for three (3) years
thereafter. You further agree that you will not disclose to any third person any trade secrets or
proprietary information of the Company, or use any trade secrets or proprietary information of the
Company in any manner, except in the pursuit of your duties as an employee of the Company, and that
you will return to the Company all materials (whether originals or copies) containing any such
trade secrets or proprietary information (in whatever medium) on termination of your employment by
the Company. The obligations set forth in this Paragraph 11 shall survive the termination of your
employment by the Company.
8. RESTRICTIVE COVENANT. For a period of three (3) years after your termination date,
you shall not, in any geographical location in which there is at that time business conducted by
the Company which was conducted by the Company at the date of such termination, directly or
indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any
manner with, the ownership, management, operation, or control of, any business similar to or
competitive with such business conducted by the Company without the written consent of the Company.
9. NON-ASSIGNABILITY. Your rights and benefits hereunder are personal to you, and
shall not be alienated, voluntarily or involuntarily, assigned or transferred.
10. BINDING EFFECT. This Agreement shall be binding upon the parties hereto, and
their respective assigns, successors, executors, administrators, and heirs. In the event the
Company becomes a party to any merger, consolidation, or reorganization, this Agreement shall
remain in full force and effect as an obligation of the Company or its
successors in interest. None of the payments provided for by this Agreement shall be subject to
seizure for payment of any debts or judgments against you or your beneficiary or beneficiaries, nor
shall you or your such beneficiary or beneficiaries have the right to transfer or encumber any
right or benefit hereunder.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement relating to your
employment by the Company. It only may be changed by written agreement signed by the parties.
12. LAW TO GOVERN. This Agreement shall be governed by, and construed and enforced
according to, the domestic laws of the State of Connecticut without giving effect to the principles
of conflict of laws.
13. DEFERRED COMPENSATION. The portions of this Agreement dealing with deferred compensation
have been prepared with reference to Section 409A of the Code and should be interpreted and
administered in a manner consistent with Section 409A.
XXXXXXX TECHNOLOGY COMPANY, INC.
By: |
/s/ Xxxx X. Xxxxxxxxxx 12/22/08 | |||
| Xxxx X. Xxxxxxxxxx | ||||
| President & Chief Executive Officer | ||||
| AGREED TO AND ACCEPTED: | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
DATE: |
December 22, 2008 | |||
