EXHIBIT (10)(o)
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 18th day of January, 1999 by and
between MINE SAFETY APPLIANCES COMPANY, a Pennsylvania corporation ("Company")
and XXXXX X. XXXXXXX ("Employee").
RECITAL:
Simultaneously with the execution of this Agreement, Employee will
enter into an Employment Agreement with the Company, under which Employee, as
President of MSA Europe, will devote 65% of his time outside Germany, to the
operations of the Company and the Company's non-German European affiliates
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties agree as follows:
(1) Duties and Term. The Company hereby agrees to employ Employee,
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and Employee agrees to be so employed, in the capacity of President, MSA Europe
for a term effective as of January 18, 1999 and terminating December 31, 2001
(the "Initial Term") unless terminated earlier pursuant to Section 12 of this
Agreement. At the end of the Initial Term, Employer may continue Employee's
employment with the Company on terms as are mutually agreeable by Employee and
Company.
Employee shall diligently devote 35% of his best efforts, time and
attention in all matters concerning the operations of Auergesellschaft GmbH
("Xxxx")
(2) Supervision and Place of Employment. Employee shall at all times
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discharge his duties in consultation with, and under the supervision of the
Chairman and Chief Executive Officer of the Company. Employee shall be based at
the principal offices of MSA Europe (currently in Berlin, Germany) and shall
have his principal residence within the metropolitan area of Berlin, Germany.
Employee understands that he will be required to travel from time to time on the
business of Xxxx.
(3) Salary. Employee shall receive an annual salary of 75,250 euros,
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for his services payable by Xxxx in installments pursuant to the then current
payroll practices of Xxxx. During the term of this Agreement, Employee will be
entitled to annual salary reviews similar to the annual review policies of the
Company for other executives. If, during the term of this Agreement, Employee
shall become so disabled as to be unable to perform his regular duties on a
full-time basis, he shall continue to receive, for a period of six (6) months
from the date the disability commences the salary he was receiving immediately
prior to such disability. If any such disability continues for more than six
(6) months, Employee shall not be entitled to any further salary or benefits
(except for long-term disability benefits of Company in effect at such time),
and Company shall have the right to terminate this Agreement and Employee's
employment hereunder upon written notice to Employee.
(4) Vacation. Employee shall be entitled to 7 days of paid vacation
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during each year of the term of this Agreement.
(5) Automobile. The Company shall provide the Employee with an
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automobile, including all related maintenance, repairs, insurance and other
costs. Such automobile shall be
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returned to the Company at the termination of his employment and in such case,
the right to the use of such automobile will cease immediately without a right
of retention. Employee shall bear the responsibility to pay any taxes due under
German law or regulations on the monetary benefit of the private use of such
automobile.
(6) Reimbursement for Expenses. The Company shall reimburse Employee
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for all reasonable and necessary expenses incurred in carrying out his duties
and responsibilities under this Agreement. Employee shall present to the
Company from time to time an itemized account of such expenses required by the
Company.
(7) Tax Return Services. Company shall reimburse Employee for his
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reasonable costs for the preparation of any tax return required to be filed in
Germany by virtue of his employment hereunder.
(8) Inventions.
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(a) Any and all inventions and discoveries, whether or not
patentable, which Employee may have made or may make, either alone or in
conjunction with others, during the term of his employment hereunder relating or
in any way appertaining to or connected with any of the assets or operations of
Company or any of its subsidiaries or matters which are, or may during the term
of his employment become, the subject of its business or investigation, shall be
promptly and fully disclosed to Company or and to the extent of Employee's
interest therein shall be the sole and exclusive property of Company or Xxxx.
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(b) Whenever requested to do so and at the Company's sole cost
and expense, Employee shall testify in any proceeding or suit, and promptly
execute and assign any and all applications, assignments or other instruments
which the Company shall deem necessary in order to apply for, obtain or protect
letters patent of foreign countries for said inventions or discoveries, and, in
order to assign and convey to Company or Xxxx the sole and exclusive right,
title and interest in and to said inventions, discoveries or any applications or
patents thereon.
(c) This Section (8) shall survive the termination of this
Agreement.
(9) Confidential Information/Non-competition.
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(a) During the term of his employment and thereafter, Employee
shall keep secret and confidential all secret and confidential information
received by him prior to or during the course of his employment ("Confidential
Information"), including, but not limited to, trade secrets, know-how, designs,
plans, blueprints, trademarks, copyrights, patents, patent applications,
manufacturing processes, lists of customers, suppliers of jobs, bidding and
contract information and any other proprietary commercial information of Company
or any of its subsidiaries, except to the extent that the information is now or
hereafter becomes available (other than through him) as public knowledge or
literature, patented or otherwise. Employee confirms that all Confidential
Information is the exclusive property of Company or its subsidiaries.
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(b) Employee shall deliver to Company promptly at the termination
of his employment or at any other time Company may request, all memoranda,
notes, records, sketches, plans or other documents wholly or partly made or
compiled by or delivered to Employee and which are in his possession or under
his control concerning costs, uses, applications or purchasers of products made
or sold by Company, or any of its subsidiaries, or any product, apparatus,
process, formula or method used, developed, produced or investigated by it
during his employment hereunder.
(c) (i) Employee shall not for a period of one (1) year after
termination of employment with Company engage directly or indirectly, whether as
principal, agent, officer, director, employee, consultant or otherwise, in a
COMPETING ACTIVITY. COMPETING ACTIVITY means a work or activity directed to the
development, manufacture, sale or rental of a product, process or service which
is competitive with or similar to any product, process or service of Company or
its subsidiaries on which Employee worked during the last one (1) year of
employment by Company, or about which Employee acquired Confidential
Information.
(ii) Employee shall not during his employment or for a period of
one (1) year after termination of employment by Company, solicit, directly or
indirectly, any employee of Company or any of its subsidiaries to engage in
COMPETING ACTIVITY.
(d) This Section (9) shall survive the termination of this
Agreement.
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(10) Employee Benefits. This Agreement shall be in lieu of any
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rights, benefits and privileges to which Employee may be entitled as an employee
of the Company under any retirement, pension, profit-sharing, insurance,
hospital, disability or other plans which may now be in effect or which may
hereafter be adopted by the Company or any of its subsidiaries.
(11) Covenants of Employee. Employee agrees that during the term of
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this Agreement, he will comply with MSA's Policy No. 10-I on Business Ethics -
International, Policy No. 20 on Environmental Law Compliance and Management, and
Policy No. 40 on Antitrust Compliance, all of which are attached as Exhibit 1
hereto.
(12) Termination of Employment.
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(a) Employee is an employee-at-will and the Company or Employee
may terminate this Agreement by giving sixty (60) days' written notice to the
other party.
(b) Employee may be terminated by the Company for cause (a
"Termination For Cause") by reason of:
(i) Employee's willful breach of any material term of
this Agreement continuing for a period of ten (10) business days after
receipt of written notice thereof,
(ii) The perpetration by Employee of a serious dishonest
act or fraud against the Company, or
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(iii) the failure, continuing for ten (10) business days or
more after receipt of notice, to comply with reasonable directives of the
Chairman and Chief Executive Officer of the Company.
(c) In the event of termination of employment for whatever
cause, the Company shall pay Employee the amount of his annual salary prorated
to the end of the month in which employment is terminated.
(d) In the event Employee's employment with the Company is
terminated, for whatever reason, except by reason of (i) Employee's voluntary
termination, (ii) Employee's disability which extends for more than six (6)
months, (iii) Employee's death, or (iv) Employee's Termination For Cause,
Employee shall be entitled also to severance compensation equal to one (1)
year's salary in effect on the date of such termination.
(13) Outside Activities. The Employee shall be permitted to serve on
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not more than two (2) outside Boards as a non-executive director.
(14) Withholdings. All compensation to Employee hereunder shall be
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reduced by all taxes and other charges required to be withheld by the Xxxx under
applicable laws.
(15) Injunction. Employee agrees that a breach on his part of any of
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the terms, provisions and conditions of this Agreement will cause such damage to
Company as will be irreparable and the exact amount of which will be impossible
to ascertain and for that reason agrees that the Company shall be entitled, as a
matter of right, to an injunction from any court
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of competent jurisdiction, restraining any threatened or further violation of
this Agreement. Such right to an injunction, however, shall be cumulative, and
in addition to whatever other remedies the Company may have to protect its
rights.
(16) Notices. For the purpose of this Agreement, notices and all
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other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, or by prepaid
courier, addressed, if to the Employee, to the address inserted below the
Employee's signature on the final page hereof and, if to the Company, to the
address set forth below, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon actual receipt:
To the Company:
Mine Safety Appliances Company
RIDC Industrial Park
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
ATTENTION: Xx. Xxxx X. Xxxx III
Chairman and Chief Executive Officer
with a copy to
Mine Safety Appliances Company
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
ATTENTION: General Counsel
(17) Governing Law. This Agreement shall be construed in accordance
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with the laws of the Commonwealth of Pennsylvania.
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(18) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(19) Separability. Each covenant or agreement or portion thereof
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contained in this Agreement shall be independent and separable from all of the
other covenants and agreements or portions thereof contained in this Agreement,
and the invalidity of such covenant or agreement or portion thereof shall in no
way affect the enforceability of any of the other covenants and agreements or
portions thereof.
(20) Amendments and Waivers. This Agreement and the provisions hereof
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may not be terminated, modified, amended or waived orally or by any act or
failure to act, but only by a writing signed by the party to be affected
thereby. Any waiver of any violation of a condition, term or other provision
hereunder shall not constitute a waiver thereof in general or a waiver of any
subsequent violation thereof.
(21) Cooperation. The parties agree to execute any further
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instruments and to perform any further acts incidental to the performance of
this Agreement or as necessary to carry out its provisions.
(22) Effect Of Agreement. All rights and obligations hereunder shall
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inure to the benefit of and be binding upon the heirs, personal representatives,
permitted assigns, and successors and affiliates of the parties hereto.
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(23) Arbitration.
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(a) Subject to the right of the Company to bring an injunction
as provided in Section (15) hereof, if a controversy or claim arises between
Employee and the Company relating to this Agreement, such controversy or claim
shall be fully and finally settled before a panel of three arbitrators appointed
in accordance with the Rules of the American Arbitration Association, pursuant
to its Commercial Arbitration Rules then in effect. The Company and Employee
shall bear the costs of their own counsel and witnesses and the other costs,
which are normally borne solely by a party to arbitration; but otherwise the
Company and Employee shall share equally the charges and fees of the American
Arbitration Association and arbitrators.
(b) Any arbitration pursuant to this Section 23 shall be held in
Pittsburgh, Pennsylvania or at such other place as agreed by the parties.
Pennsylvania law shall be used by the arbitrators in resolving any dispute.
(c) Any judgment upon the award rendered by the arbitrators
shall be final and binding and may be entered in any court having jurisdiction
thereof.
(24) Service of Process. Employee and the Company irrevocably submit
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themselves to the personal jurisdiction of the courts of the Commonwealth of
Pennsylvania with respect to
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any action arising out of, or in connection with, the execution, delivery or
performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: MINE SAFETY APPLIANCES COMPANY
/s/ Xxxxxx X. Xxxxxx By /s/ Xxxx X. Xxxx III
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Secretary Xxxx X. Xxxx III
Chairman and Chief
Executive Officer
WITNESS: EMPLOYEE
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
MSA Europe
P. O. Xxx 000
X-00000 Xxxxxx, Xxxxxxx
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Xxxxx X. Xxxxxxx
EMPLOYMENT AGREEMENT
EXHIBIT 1
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Other Benefits.
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1. Company's standard change of control Severance Agreement.
2. Expenses for storage fees not to exceed $1,500 incurred from January 18,
1999 to October 1, 1999 or until Employee has moved to Berlin, whichever
first occurs.
3. Outplacement services in the event of Employee's termination of employment
pursuant to Section 10(b) of this Agreement.
4. Relocation expenses in Employee's move to Berlin under the Company's
standard United States relocation plan.
5. (a) Expenses to return Employee and his family to the United States, under
the Company's standard United States relocation plan provided (i)
Employee's employment with the Company is terminated prior to the date in
which he attains 61 under circumstances which entitle Employee to the
payment of severance benefits by the Company and (ii) he is employed by the
Company or one of its affiliates immediately prior to such relocation, or
(b) Expenses to return Employee and his family to the United States, at
any time after the Employee attains age 61, under the Company's standard
United States relocation plan provided he is employed by the Company or one
of its affiliates immediately prior to such relocation.
6. Signing bonus of $20,834
7. Participation in the Company's disability plan covering his salary and
previous year's bonus under this Agreement and the XXXX Agreement, subject
to plan maximums currently at $320,000.
8. Participation in the Company's medical plan.
9. Group term life insurance equal to two-times salary plus previous year's
bonus under this Agreement and the XXXX Agreement, subject to plan maximums
currently at $500,000.
10. Travel and accident insurance. covering his salary and previous year's
bonus under this Agreement and the XXXX Agreement, subject to plan maximums
currently at $1,000,000.
Xxxxx X. Xxxxxxx
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EMPLOYMENT AGREEMENT
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EXHIBIT 2
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MSA POLICIES
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Nos. 10-I, 20 and 40 attached
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Policy No. 10-I
Effective Date:
11-01-95
Supersedes:
4-19-93
Approved by:
Business Ethics - International
President,Chairman
& CEO
A. Compliance
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1. Laws
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An employee, officer and director (hereinafter collectively
referred to as "associates") of the Company, its divisions and
affiliates (hereinafter collectively referred to as "Company")
shall adhere to the laws of the United States and to those of
other countries in which the Company affiliates operates. Where
conflicts or ambiguities exist in these laws, or more
particularly the regulations issued thereunder, Corporate Law
Department should be consulted for guidance.
2. Honesty
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An associate shall adhere to honest standards and practices in
all business dealings.
3. Accounting
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Established accounting procedures are to be followed at all times
including the recording of all forms of funds or assets of the
Company. No false entries shall be made in the books and records
of the Company for any reason. No payment on behalf of the
Company shall be approved or made with the intention or
understanding that any part of such payment is to be used for any
purpose other than that described by the documents supporting the
payment.
4. Bribes
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Under no circumstances shall any payments, gifts, rendering of
services or any other form of value be directly or indirectly
given by an associate of the Company to any public official,
employees of customers, or employees of suppliers, particularly
to influence the public official's exercise of judgment and
discretion in disposing of matters on behalf of the Government or
to assist the Company in obtaining or retaining business
contracts. Such consideration provided to a member of the
immediate family of a public official are to be considered and
treated as though provided directly to the public official.
5. Audits
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The Company's internal auditors, as well as its independent
public accountants, shall examine the adherence to these policies
as part of their periodic reviews.
6. Appearance of Impropriety
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An associate must avoid actions that might appear improper in
regard to the ethical matters discussed here and in other
corporate policies.
7. Reporting
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The Company shall provide appropriate means for associates to
report violations of this policy.
8. Management Responsibility
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The General Manager shall be responsible for the monitoring of
compliance with these policies in the areas under their
supervision. Any infraction of these policies will subject an
associate to disciplinary action which, depending upon the
seriousness of the violation, may include warning, reprimand,
suspension or dismissal. Any violation of these policies must
reported to the associate's supervisor.
B. Public Responsibility
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1. Civic Obligations
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An associate shall be cognizant of and perform the Company's
obligations to the community.
2. Providing Services
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An associate shall maintain cordial and cooperative relationships
with the community in which operations are based by participating
in community undertakings when appropriate.
C. Conflict of Interest
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1. Freedom from Constraints
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An associate shall be free from any personal influence, interest,
or relationship, or appearance thereof, in situations that might
conflict with the best interests of the Company.
2. Disclosure
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An associate shall fully disclose to the Company any circumstance
that may contravene this policy. Prompt recognition of conflicts
of interest by the associate permits corrective steps to be taken
by the Company.
3. Financial Interests
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An associate or a member of the associates' immediate family may
not have a substantial financial interest in an organization that
has current or prospective dealings with the Company as a
supplier, contractor or customer, or competes directly with the
Company when the associate may be able to influence the dealings
of the Company to benefit the associates' private interests.
4. Acceptance of Gifts or Entertainment
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An associate shall not accept any gifts or entertainment from an
organization having current or prospective dealings with the
Company as a supplier, contractor or customer, if such gifts or
entertainment are of such significance that they could tend to
prevent the associate from acting solely in the best interests of
the Company. Gifts or entertainment provided to a member of the
immediate family of the associate shall be considered and treated
as though provided directly to the associate.
5. Offering of Gifts or Entertainment
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An associate shall not offer any gifts or entertainment to a
current or prospective customer if such gifts or entertainment
are of such significance that acceptance could tend to prevent
the recipient from acting solely in the best interests of the
recipient's organization. Such gifts or entertainment provided
to a member of the immediate family of a customer or its employee
shall be considered and treated as though provided directly to
the customer or its employee.
6. Non-Competition
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An associate shall not receive compensation for services rendered
as an associate or a consultant to another organization or for
services as a director or officer of another organization that
competes directly with the Company or where the other
organization has current or prospective dealings with the Company
that may be influenced by the associate.
7. Employment
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An associate may not accept concurrent employment with another
company if the organization is a competitor or supplier or one
that may become a competitor or supplier in the foreseeable
future.
8. Loans
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An associate or a member of the associate's immediate family may
not borrow money from individuals or organizations that conduct
or may conduct business with the Company, either as a customer or
supplier. This does not apply to public lending institutions,
e.g., banks, savings and loan associations, etc.
D. Code of Ethical Conduct
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The provisions of MSA's Code of Ethical Conduct are included as part
of this Business Ethics Policy. The terms of the Code encompass and
enhance the provisions of the Business Ethics Policy and should be
adhered to as if included in the Business Ethics Policy.
Policy No. 20
Environmental Law Compliance and Effective Date:
Management 11-01-95
Supersedes:
04-19-93
Approved by:
President, Chairman
& CEO
1. Mine Safety Appliances Company, its divisions and affiliates (hereinafter
collectively referred to as the "Company") shall comply with the letter and
spirit of all environmental laws and regulations and, by its actions,
protect public health, public enjoyment and the world in which we live.
Where questions arise concerning these laws, the Corporate Law Department
should be consulted for guidance.
2. The Company shall pledge commitment and support for a strong environmental
management program.
3. The Company shall minimize the production of waste, effluents and emissions
and recycle wastes after minimization efforts.
4. The Company shall reduce environmental risks and future liabilities.
5. The Company shall design, operate and maintain each plant consistent with
the Company's environmental objectives.
6. The Company shall charge plant management with responsibility for the
environmental performance of its plants and operations.
7. The Company shall charge the corporate environmental protection staff with
the responsibility for providing the leadership necessary to implement
these policies.
8. The Company shall assure that its associates understand their
responsibilities and the actions that are necessary to achieve compliance
and to protect the environment.
9. The Company shall make the necessary expenditures to implement these
policies.
10. The Company shall continually evaluate, enhance and communicate the
Company's Environmental Law Compliance and Management Policy.
Policy No. 40
Effective Date:
11-01-95
Supersedes:
04-19-93
Approved by:
President, Chairman
& CEO
Antitrust Compliance
1. Mine Safety Appliances Company, its divisions and affiliates
(hereinafter collectively referred to as the "Company") shall comply
with the letter and spirit of all antitrust laws of the nations,
states, provinces and communities in which the Company operates in the
course of conduct of its business. Where questions arise concerning
these laws, the Corporate Law Department should be consulted for
guidance.
2. The Company shall forbid collusion or conspiring with competitors or
distributors of products sold by the Company whereby prices are fixed
and controlled to any class or type of customer or organization.
3. The Company shall forbid unfair or deceptive trade practices.
4. The Company shall avoid any actions with competitors or distributors
that may give an impression of improper conduct.
5. The Company shall forbid resale price maintenance.
6. The Company shall forbid price discrimination.
7. The Company shall forbid contract bid rigging.
8. The Company shall forbid the initiation of any predatory pricing or
business practices.
9. The Company shall strive to meet each competitive situation as it
develops in conducting its business.
10. The Company shall evaluate for appointment all potential distributors
and other organizations that may resell the Company's products and
will treat those distributors and organizations that are appointed by
the Company in an equal and fair manner according to the marketing
plans established by the Company.
11. The Company shall provide proper antitrust training for all associates
who have responsibility for the sale of the Company's products and the
organization of the Company's sales channels.
12. The Company shall continually enhance, evaluate and communicate its
Antitrust Compliance Policy.
