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EXHIBIT 10(u)
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 31st day of July, 1995, by and between Bird
Corporation, a Massachusetts corporation having its principal offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Corporation"),
and Xxxxx X. Xxxxxxx of Norfolk, Massachusetts (the "Executive").
WITNESSETH:
WHEREAS, the Executive is presently employed by the Corporation as its
Vice President and General Counsel;
WHEREAS, under the terms of the existing letter agreement dated October
15, 1984 (as amended) between the Executive and the Corporation (the "Severance
Agreement"), the Executive would be entitled to certain benefits if his
employment were to be terminated by the Corporation (other than for disability
or cause) or by the Executive voluntarily;
WHEREAS, the Executive is willing to continue in the employment of the
Corporation and to defer his right to receive benefits under the Severance
Agreement, and the Corporation wishes to continue the employment of the
Executive, on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT PERIOD. The Corporation hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Corporation, for the Employment Period. Unless sooner terminated
pursuant to Section 4, the Employment Period shall be the period beginning on
April 1, 1995 and ending on March 31, 1996. At any time within 90 days prior
to the end of the initial or any subsequent Employment Period, the Executive
and the Corporation may mutually agree in writing to extend the Employment
Period for one year so as to terminate on March 31 of the next year.
2. POSITION AND DUTIES. (a) During the Employment Period, the
Executive shall serve as Vice President and General Counsel of the Corporation.
In that capacity the Executive shall continue to perform duties substantially
similar to those he has performed for the Corporation in the past and to
perform such additional duties as the Board of Directors of the Corporation
(the "Board") may from time to time prescribe.
(b) Excluding periods of vacation and sick leave to which
the Executive is entitled, the Executive agrees to devote substantially all of
his attention and time during normal business hours to the business and affairs
of the Corporation and, to the extent necessary to discharge the
responsibilities assigned to the
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Executive hereunder, to use reasonable best efforts to perform faithfully and
efficiently such responsibilities. The Executive may serve on corporate,
civic, or charitable boards or committees and manage personal investments, so
long as such activities do not significantly interfere with the performance
of the Executive's responsibilities hereunder.
3. COMPENSATION. (a) BASE SALARY. During the Employment Period,
the Executive shall receive a base salary ("Base Salary") at an annual rate of
$135,000, or at such higher rate as shall from time to time be fixed by the
Board. The Base Salary shall be paid at such times and in such amounts as
shall be consistent with the customary payroll practices of the Corporation for
its key executives.
(b) INCENTIVE, SAVINGS, AND RETIREMENT PLANS. In addition
to the Base Salary payable as hereinabove provided, the Executive shall be
entitled to participate, during the Employment Period, in all savings and
retirement plans and programs through the qualified plans of the Corporation or
through nonqualified substitutes in which the Executive has agreed to
participate in lieu of the qualified plans, and all short and long-term
incentive plans and programs applicable to other key executives, including
without limitation the Management Incentive Compensation Plan ("MICP") as in
effect from time to time.
(c) WELFARE BENEFIT PLANS. During the Employment Period,
the Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under each welfare
benefit plan of the Corporation, including, without limitation, all medical,
dental, disability, life, group life, accidental death, and travel accident
insurance plans and programs of the Corporation and its affiliated companies,
as in effect at any time during the Employment Period with respect to other key
executives.
(d) EXPENSES. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the policies and procedures of the
Corporation as in effect at any time during the Employment Period with respect
to other key executives.
(e) FRINGE BENEFITS. During the Employment Period, the
Executive shall be entitled to fringe benefits, including without limitation
the use of an automobile and payment of related expenses and the continued
maintenance (without any further Company matching contributions) of the
existing rabbi trust for the Executive's benefit, of which LaSalle National
Trust, N.A. is Trustee, in accordance with the policies of the Corporation as
in 0effect at any time during the Employment Period with respect to other key
executives. At the end of the Employment Period, the Executive agrees to
purchase and the Corporation agrees to sell the Company-provided automobile
then used by the Executive at a
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price equal to the buy-out amount under the Company's lease of such automobile.
(f) VACATION. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the policies of the
Corporation as in effect at any time during the Employment Period with respect
to other key executives.
(g) SEVERANCE BENEFITS. Under the terms of the Severance
Agreement, if the employment of the Executive were to be terminated as of the
date of this Agreement either by the Corporation (other than for disability or
for cause) or by the Executive voluntarily for any reason (other than death),
he would be entitled to receive a severance benefit in an amount equal to the
sum of $377,800 plus the benefit payable under paragraph (C) of Section 4(iii)
of the Severance Agreement, determined as of the applicable Date of Termination
(the "Old Severance Benefit"). If the Executive shall remain in the employment
of the Corporation until the end of the Employment Period on March 31, 1996
(regardless of whether the Employment Period shall then be extended), the
Executive shall be entitled to receive a severance benefit in an amount equal
to the sum of the benefits payable under paragraphs (B) and (C) of Section
4(iii) of the Severance Agreement, determined as of March 31, 1996 (the "New
Severance Benefit"). Upon execution of this Agreement, the Company shall, as an
advance against the New Severance Benefit, (i) pay the sum of $135,000 to the
Executive in cash (less any amounts required to be withheld in accordance with
applicable tax withholding laws and regulations) and (ii) deliver the sum of
$15,000 to LaSalle National Trust, N.A., as Trustee of the Trust Agreement
dated as of June 24, 1991 by and between Bird Incorporated and such Bank as
Trustee, to be held as part of the Trust Fund thereunder. The sum of $150,000
shall thereafter be offset against the amount of the New Severance Benefit due
on March 31, 1996. Payment of the New Severance Benefit shall satisfy in full
the obligation of the Corporation to pay the Old Severance Benefit and all
other obligations of the Corporation to the Executive under the Severance
Agreement.
4. TERMINATION. (a) DEATH OR DISABILITY. This Agreement shall
terminate automatically upon the Executive's death. The Corporation may
terminate this Agreement, after having established the Executive's Disability
(pursuant to the definition of "Disability" set forth below), by giving to the
Executive written notice of its intention to terminate the Executive's
employment. In such case, the Executive' s employment with the Corporation
shall terminate effective 30 days after receipt of such notice (the "Disability
Effective Date"), unless the Executive has previously returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" means physical or mental disability which, after the expiration of
more than six months after its commencement, is determined to be total and
permanent by a physician selected by the Corporation or its insurers and
acceptable to the Executive or the Executive's legal
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representative (such agreement to acceptability not to be unreasonably
withheld).
(b) CAUSE. The Corporation may terminate the Executive's
employment for "Cause". For purposes of this Agreement, "Cause" means (i) the
Executive's willful and continued failure to substantially perform assigned
duties with the Corporation (other than any such failure resulting from
incapacity due to physical or mental illness), after a demand for substantial
performance is delivered to the Executive by the Board, specifically
identifying the manner in which the Board believes that the duties have not
been substantially performed; or (ii) the Executive's willful or unlawful
conduct which is demonstrably and materially injurious to the Company. For
purposes of this paragraph (b), no act, or failure to act, shall be considered
"willful" unless done, or omitted to be done, not in good faith and without
reasonable belief that such action or omission was in the best interest of the
Corporation.
(c) NOTICE OF TERMINATION. Any termination by the
Corporation for Cause shall be effected by Notice of Termination to the
Executive given in accordance with Section 10(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated, and (iii) if the termination date is other than the
date of receipt of such notice, specifies the termination date (which date
shall be not more than 15 days after the giving of such notice). In the case
of termination for Cause, the Notice of Termination shall not be effective
unless it takes the form of a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for the purpose, after
reasonable notice and an opportunity for the Executive, together with counsel,
to be heard before the Board, which resolution shall state that the Executive
has given "Cause" within the meaning set forth above in clause (i) or (ii) of
the second sentence of paragraph (b) above, and specifying the particulars
thereof in detail.
(d) DATE OF TERMINATION. "Date of Termination" means the
date of the Executive's Death, the Disability Effective Date, or the date of
receipt of an effective Notice of Termination or any later date specified
therein, as the case may be. If the Executive's employment is terminated by
the Corporation in breach of this Agreement, the Date of Termination shall be
the date on which the Corporation notifies the Executive of such termination.
5. OBLIGATIONS OF THE CORPORATION UPON TERMINATION. (a)DEATH. If
the Executive's employment is terminated by reason of the Executive's death,
this Agreement shall terminate without further obligations to the Executive's
legal representatives under
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this Agreement other than those obligations accrued hereunder at the date of
the Executive's death and the obligation to pay a severance benefit as provided
in Section 5(d), below. Anything in this Agreement to the contrary
notwithstanding, the Executive's family shall be entitled to receive benefits
at least equal to those provided by the Corporation to surviving families of
executives of the Corporation under such plans, programs, and policies relating
to family death benefits, if any, as in effect at the time of the Executive's
death with respect to other key executives and their families.
(b) DISABILITY. If the Executive's employment is
terminated by reason of the Executive's Disability, the Executive shall be
entitled after the Disability Effective Date to receive disability and other
benefits at least equal to those provided by the Corporation to disabled
employees and/or their families in accordance with such plans, programs, and
policies relating to disability, if any, as in effect on the Disability
Effective Date with respect to other key executives and their families.
(c) CAUSE. If the Executive's employment shall be
terminated for Cause, the Corporation shall pay the Executive his full Base
Salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and shall have no further obligations to the Executive
under this Agreement.
(d) SEVERANCE BENEFITS. If, during the Employment Period
ending March 31, 1996, the Executive's employment is terminated by reason of
his death or Disability or the Corporation shall terminate the Executive's
employment for any reason other than for Cause, the Corporation shall pay to
the Executive an amount equal to the sum of the benefits payable under
paragraphs (B) and (C) of Section 4(iii) of the Severance Agreement, determined
as of the applicable Date of Termination, less the sum of $150,000 paid to him
or for his account pursuant to Section 3(g) hereof. If, during the Employment
Period ending March 31, 1996, the Executive shall voluntarily terminate his
employment for any reason, the Corporation shall pay to the Executive the Old
Severance Benefit, less the sum of $150,000 paid to him or for his account
pursuant to Section 3(g) hereof, and the Corporation shall have no further
obligation to pay the New Severance Benefit to the Executive.
(e) LEGAL FEES AND EXPENSES. The Company shall pay to the
Executive all legal fees and expenses reasonably incurred by him as a result of
the termination of his employment hereunder, including all such fees and
expenses, if any, incurred in contesting or disputing any such termination or
in seeking to obtain or enforce any right or benefit provided by this
Agreement.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive, or other plan or program provided by the Corporation
or any of its affiliated
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companies and for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as the Executive may have under any stock
option or other agreements (other than the Severance Agreement, which is
expressly superseded by this Agreement to the extent set forth herein)
with the Corporation or any of its affiliated companies. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive under
any plan or program of the Corporation or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan or program.
7. NONCOMPETITION AND CONFIDENTIAL INFORMATION. (a) During the
Employment Period, and during a one-year period following any termination of
his employment, the Executive shall not directly or indirectly compete with the
Corporation (which shall be deemed as including any subsidiary or affiliate of
the Corporation), whether as an individual proprietor or entrepreneur or as an
officer, employee, partner, stockholder, or in any capacity connected with any
enterprise, in any business in which the Corporation is engaged at the time of
the termination of the Executive's employment, within any state or possession
of the United States of America or any foreign country within which such
business is then being conducted, or within which business is then specifically
planned by the Corporation to be conducted. For the purpose of the preceding
sentence, conducting business, doing business, or engaging in business shall be
deemed to embrace sales to customers or performance of services for customers
who are within a relevant geographical area, without any necessity of any
presence of the Corporation therein. Nothing herein, however, shall prohibit
the Executive from acquiring or holding any issue of stock or securities of any
corporation which has any securities listed on a national securities exchange
or quoted in the daily listing of over-the-counter market securities;
provided that at any one time he and members of his immediate family do not own
more than five (5%) percent of the voting securities of any such corporation.
(b) The Executive shall hold in a fiduciary capacity for
the benefit of the Corporation all secret or confidential information,
knowledge, or data relating to the Corporation or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Corporation or any of
its affiliated companies and which shall not be public knowledge (other than by
acts by the Executive or his representatives in violation of this Agreement).
After termination of the Executive's employment with the Corporation, the
Executive shall not, without the prior written consent of the Corporation,
communicate or divulge any such information, knowledge, or data to anyone other
than the Corporation and those designated by it.
8. SUCCESSORS. (a) This Agreement is personal to the Executive
and without the prior written consent of the Corporation shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure
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to the benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors. Any successor to the
Corporation shall, by an agreement in form and substance satisfactory to the
Executive, expressly assume and agree to perform this Agreement in the same
manner and to the same extent as the Corporation would have been required to
perform.
9. INDEMNIFICATION. The Executive shall be entitled to be
indemnified by the Corporation against all liabilities, costs, and expenses
reasonably incurred by or imposed upon him in connection with or resulting from
his actions as an officer or employee of the Corporation to the full extent
provided in the Articles of Organization and By-Laws of the Corporation as
presently in effect, and no amendment to or repeal of such provisions of the
Articles or By-Laws shall apply or have any effect on the right of the
Executive to be indemnified for or with respect to any acts or omissions of the
Executive occurring prior to such amendment or repeal.
10. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
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Xxxxx X. Xxxxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
If to the Corporation:
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Bird Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
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(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state, or local taxes as required to be
withheld pursuant to any applicable law or regulation.
(e) Except as provided in Section 6 hereof, this Agreement
contains the entire understanding of the Corporation and the Executive with
respect to the subject matter hereof and supersedes all prior agreements
between them with respect thereto.
(f) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to
execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void, and of no effect.
(g) As used in this Agreement, the term "affiliated
companies" includes any company controlling, controlled by, or under common
control with the Corporation.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Corporation has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Chairman
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