EXHIBIT 10(j)
RETIREMENT AGREEMENT
AGREEMENT made November 9, 1993 between Stanhome Inc., a
Massachusetts corporation with its principal place of business at 333
Western Avenue, Westfield, Massachusetts (the "Company") and Mr. G. William
Seawright of 17 Kira Lane, Englewood, New Jersey ("Seawright").
WHEREAS, the Company and Seawright are entering into an Employment
Agreement simultaneously herewith providing for Seawright's employment by
the Company as President and Chief Executive Officer effective November 9,
1993 pursuant to the terms and conditions thereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, the parties agree as follows:
l. Normal Retirement.
(a) Subject to the provisions of paragraph 9 below, if Seawright
retires on or after August 28, 2006 the Company will pay him each month for
the duration of his life deferred compensation equal to 1/12 of (i) 50% of
the average annual compensation received by him in the 5 most highly
compensated years of his final l0 years of employment, as determined under
paragraph 5 below, less (ii) 50% of his annual Primary Social Security
Benefit, as hereinafter defined.
(b) The monthly benefit determined under subparagraph (a) above
shall be reduced by the value of the monthly retirement benefit, if any,
which Seawright is entitled to receive from any other qualified or non-
qualified plan maintained by the Company (excluding (i) the portion, if
any, of such benefit based on Seawright's contributions to such plan, and
(ii) employer contributions to any 40l(k) Plan) commencing at such time as
Seawright first becomes eligible to receive such benefit.
For purposes hereof, the value of the monthly retirement benefit of
any amount which Seawright is entitled to receive from a defined
contribution plan based on the Company's contributions thereto, shall be
determined as of the time of Seawright's termination by the written
recommendation of an independent nationally recognized firm of compensation
consultants, as may be selected by the Company, and after written notice to
Seawright.
2. Early Retirement. Subject to the provisions of subparagraph 2(d)
and paragraph 9 below:
(a) If Seawright's employment terminates on or after August 28, 1998
and before August 28, 2006, for any reason other than a discharge for
cause, the Company will pay him each month for the duration of his life the
benefit which would be payable if the provisions of paragraph l above were
applied as of the date of such termination, provided that the portion of
the benefit determined under paragraph l shall be reduced by the following
percentages based on Seawright's age at his termination date (to be
adjusted on a daily pro-rata basis if Seawright retires on a day other than
his birthday):
Age at Termination Percentage
62-64 0%
6l 2%
60 4%
59 9%
58 14%
57 19%
(b) If Seawright's employment terminates involuntarily before August
28, 1998 for any reason other than cause, he shall be entitled to receive
the benefit determined under subparagraph 2(a) as if he had reached age
fifty-seven (57) on the date of his termination, but such benefit shall not
be payable until his fifty-seventh (57th) birthday.
(c) During a period beginning on the later to occur of his 57th
birthday and his termination date and ending on his 65th birthday, or if
different by law such other age as then entitles Seawright to receive his
actual, unreduced Primary Social Security benefit, the Company shall pay
him an additional monthly amount equal to his Primary Social Security
Benefit.
(d) If Seawright's employment terminates by reason of discharge for
cause, neither he nor his wife shall be entitled to receive payment of any
kind under this agreement; "cause" hereunder shall mean dishonesty,
misconduct, insubordination or any activity which would cause a forfeiture
of rights under paragraph 9 below if it occurred following termination of
employment.
3. Disability.
(a) In the event Seawright becomes disabled after reaching age 57
but while still employed by the Company, he shall receive, commencing with
the month following the commencement of his disability, a monthly amount
determined under paragraph l that would have been payable to him if he had
remained employed until retirement at age 65 at the annual rate of
compensation in effect at the time of his disability, provided that the
amount payable hereunder shall be reduced by the monthly value of any
benefit paid to Seawright under a sick leave policy or long-term disability
income plan maintained by the Company for so long as such benefits remain
payable.
(b) If Seawright applies for payment of a social security disability
benefit prior to age 65 and his application is denied, the Company shall
also pay Seawright an additional amount equal to his Primary Social
Security Benefit for as long as Seawright remains ineligible to receive
such social security disability benefit prior to age 65, or if different by
law the then age at which Seawright then becomes entitled to receive his
actual Primary Social Security Benefit.
For purposes hereof, Seawright shall be deemed to be disabled when he
is rendered incapable of performing the work for which he was employed by a
medically determinable physical or mental condition which is likely to
result in death or to be of long-continued and indefinite duration.
4. Survivors Benefit.
(a) In the event that Seawright dies while employed by the Company
prior to reaching age fifty-seven (57), or in the event that Seawright's
employment by the Company is involuntarily terminated prior to age fifty-
seven (57) for any reason other than cause, and he dies subsequent to such
termination, the Company will pay his surviving spouse, subject to
subparagraph (d) below, commencing on the date that Seawright would have
been fifty-seven (57) had he lived, a monthly amount for the remainder of
her life equal to fifty percent (50%) of the benefit which would have been
paid to Seawright commencing on his fifty-seventh (57th) birthday pursuant
to subparagraphs 2(b) and 2(c) above, provided however that supplemental
social security payments pursuant to subparagraph 2(c) of this agreement to
a spouse shall not be subject to actuarial reduction under subparagraph (d)
below, shall not be payable to her unless or until she reaches the age of
fifty-five (55) and shall only continue until she reaches the age of sixty-
five (65), or if different by law such other age as then entitles her to
receive her actual, unreduced Primary Social Security benefit.
(b) In the event that Seawright dies after age fifty-seven (57)
while still employed by the Company, the Company will pay his surviving
spouse, subject to subparagraph (d) below, a monthly amount for the
remainder of her life equal to fifty percent (50%) of the monthly benefit
that would have been paid to Seawright under paragraph 1 or subparagraphs
2(a) and (c), whichever is applicable, had he retired on the day
immediately prior to the date of his death, provided however that
supplemental social security payments pursuant to paragraph 2(c) of this
agreement to a spouse shall not be subject to actuarial reduction under
subparagraph (d) below, shall not be payable to her unless and until she
reaches the age of fifty-five (55) and shall only continue until she
reaches the age of sixty-five (65), or if different by law such other age
as then entitles her to receive her actual unreduced Primary Social
Security benefit.
(c) In the event that Seawright's employment by the Company
terminates after age fifty-seven (57) and he subsequently dies while
receiving payments hereunder, the Company will pay his surviving spouse,
subject to subparagraph (d) below, a monthly amount for the remainder of
her life equal to fifty percent (50%) of the monthly benefit he was
receiving at the time of his death, provided however that supplemental
social security payments pursuant to paragraph 2(c) of this agreement to a
spouse shall not be subject to actuarial reduction under subparagraph (d)
below, shall not be payable to her unless and until she reaches the age of
fifty-five (55) and shall only continue until she reaches the age of
sixty-five (65), or if different by law such other age as then entitles
her to receive her actual unreduced Primary Social Security benefit.
In the event Seawright was disabled and had been receiving a benefit
under paragraph 3, the surviving spouse shall be entitled to receive
fifty percent (50%) of the benefit payable under paragraph 3 without
reduction thereunder for any benefits being paid to Seawright under a
sick leave policy or a long-term disability income plan maintained by the
Company except to the extent such benefits remain payable to such spouse
following Seawright's death, provided however that supplemental social
security payments, pursuant to subparagraph 3(b) of this agreement to a
spouse shall not be subject to actuarial reduction under subparagraph (d)
below, shall not be payable to her unless and until she reaches the age of
fifty-five (55) and shall only
continue until she reaches the age of sixty-five (65), or if different by
law, such other age as then entitles her to receive her actual unreduced
Primary Social Security benefit.
(d) No amounts shall be paid a surviving spouse under subparagraph
(a), (b) or (c) above unless she shall have survived Seawright for a period
of 30 days and shall have been married to him throughout the l year period
ending on Seawright's date of death. Further, if the age of Seawright at
the date of his death exceeds the age of his surviving spouse on such date
by more than 5 years, the benefit payable to such spouse hereunder shall be
actuarially reduced in a manner calculated to reflect the difference in her
actual life expectancy at the time of his retirement and her life
expectancy if she were 5 years younger than Seawright. Seawright may, by
written notice to the Company, and with the Company's consent which will
not be unreasonably withheld, substitute a trust for the benefit of his
surviving spouse as the recipient entitled to payments otherwise payable to
his surviving spouse under this Agreement, but in such case the foregoing
limitations shall continue to apply.
(e) If the sum of $20,000 exceeds the total amount paid to the
surviving spouse at time of her death, such excess shall be paid to a
beneficiary to be designated by Seawright, or in the absence of his
designation, by his surviving spouse, in writing to the Company, provided
that in the event no beneficiary has been designated or the designated
beneficiary does not survive such spouse for a period of 30 days, such
excess shall be paid to the personal representative of the surviving
spouse.
5. Annual Compensation. For purposes hereof, Seawright will be
deemed to have been employed for the entire calendar month during which his
employment terminates and his annual compensation shall be measured on the
basis of twelve month periods ending with the last day of such month.
"Compensation" for purposes hereunder shall include total wage,
salary and commission payments received by Seawright from the Company
including base pay, overtime and bonuses but not including Company
contributions under any group life insurance or other qualified or non-
qualified employee retirement or benefit plan or any payment designated by
the Company as an allowance for Seawright's business expenses (except for
the personal use portion of any Company car allowance up to 70% of such
allowance). Compensation shall not be reduced by the amount of any
elective contributions by Seawright under any 40l(k) plan of the Company.
Management Incentive Plan bonuses which are normally awarded in the first
half of March of each year if the Plan criteria are met, shall be deemed to
have been received, whether or not payment is deferred, in the calendar
year with respect to which such bonus is earned, allocated thereto on a
monthly basis. Other compensation whose receipt is deferred by Seawright
shall be deemed to have been received for the purposes hereof at the time
such compensation would have been received, if there had been no such
deferral.
In the event that benefits become payable under subparagraphs 2(b) or
4(a) and Seawright has not been employed for five years, the "average
annual compensation" used in determining the benefits payable thereunder
shall be the sum of the compensation received during his employment by the
Company to the date of death, or termination, divided by five (5).
In the event Seawright's compensation for the last twelve-month
period cannot be determined by the time the first payment becomes due
hereunder, e.g., due to a bonus payable on the results of the Company's
operations for a year in which Seawright retires prior to the end of such
year, then the first payments due hereunder shall be based on the estimated
amount that Seawright will be entitled to actually receive. The exact
amount due Seawright shall be determined as soon as practicable, provided
that following such determination and corresponding adjustment in the
monthly payment to Seawright the Company shall pay Seawright an additional
lump sum to adjust for any underpayment to Seawright and Seawright shall
refund to Company any overpayment.
6. Primary Social Security Benefit. An Employee's Primary Social
Security Benefit shall be determined on the day prior to the date on which
Seawright's employment with the Company terminates and shall be equal to
the estimated old age retirement benefit Seawright will be entitled to
receive under the federal Social Security Act at age 65 (or if different by
law such other age as may then entitle a person to receive his social
security retirement benefits based on his unreduced "primary insurance
amount" under the Social Security Act as then in effect) based on his
earnings up to the day preceding his termination date.
7. Payment. Amounts payable under the above paragraphs will be paid
on or about the end of the month to which the payment relates. Payment
will be made for the full month in which Seawright's death occurs.
8. Confidential Information, Covenant Not to Compete and Non-
Solicitation.
(a) Seawright agrees that he will not use or disclose to anyone
(other than for the benefit of the Company) either during the term of his
employment or at any time thereafter, any Confidential Information obtained
by him or made known to him while employed by the Company, and will make
all reasonable, necessary and appropriate efforts to safeguard all such
Confidential Information from disclosure to anyone other than as permitted
hereby. As used herein "Confidential Information" includes, but is not
limited to, trade secrets, business and sales policies, methods, plans and
customer lists, including any lists written or other of such persons or
entities, whether of the Company or any other organization associated or
affiliated with or owned by or owning the Company, but shall not include
information which becomes generally available to the public other than as a
result of disclosure by Seawright's act or default or the acts or default
of Seawright's agents or representatives.
(b) Provided the Company is making the payments to Seawright as
required pursuant to this Agreement following his termination of
employment, Seawright agrees that he will not during his life, either alone
or in conjunction with any individual, firm, corporation, association or
other entity (except for the benefit of the Company), either as principal,
agent, officer, employee, director, investor, consultant, shareholder,
associate or in any other capacity whatsoever:
(i) carry on, participate in, or be engaged in, concerned with, or
interested in, directly or indirectly, any undertaking which is in
whole or in part competitive with any of the businesses carried on by
the Company within the respective territories in which such
businesses are then carried on (except for any equity share
investment in a public company whose shares are listed on a
recognized stock exchange where such share investment does not in
the aggregate exceed 5% of the issued
equity shares of such company);
(ii) attempt to solicit any suppliers, customers, employees or
independent dealers away from the Company;
(iii) carry on, participate in, or be engaged in, concerned with, or
interested in, directly or indirectly, any undertaking which bears
any name similar to that of the Company; or
(iv) take any act as a result of which the relations between the
Company and its suppliers, customers, employees or others may be
impaired or which may otherwise be detrimental to the business of the
Company.
Competition shall be deemed to include (i) any dealings with the Company's
employees or independent dealers, and (ii) the use in any way of the
Company's customer or mailing lists. The reference to Company in this
Paragraph 8 shall include all subsidiaries and affiliated entities of the
Company. Seawright agrees that the remedy at law for breach by him of the
foregoing covenant will be inadequate and that the Company shall be
entitled to injunctive relief.
(c) Seawright's obligations under the foregoing subparagraphs of
this paragraph 8 shall continue notwithstanding the termination of his
rights to receive any payments hereunder.
9. Forfeiture of Payments. The Company may discontinue payments
hereunder and have no further liability under this agreement in the event
that Seawright fails to observe any of the terms of this agreement,
provided, however, that if his failure to observe is limited to the terms
of subparagraph 8(b) above and is his first failure, the Company shall give
him written notice thereof and if, within l5 days of such notice, Seawright
gives the Company written notice of his discontinuance of the activity
complained of, payments hereunder shall be reinstituted.
10. Assignment. Neither Seawright nor his wife shall have any
right to commute, encumber, or dispose of the right to receive payments
hereunder, which payments and the right thereto are expressly declared to
be nonassignable and nontransferable, except as provided in Paragraph
4(d).
All rights under this agreement are merely unsecured contractual
rights of Seawright or Seawright's spouse against the Company. Seawright
and Seawright's spouse are unsecured general creditors of the Company.
The Company agrees to set aside certain assets in a trust for the payment
of benefits under this agreement. In the event of the insolvency or
bankruptcy of the Company, any assets set aside in such trust shall at all
times be subject to the claims of the Company's general creditors as if
such assets were general assets of the Company.
11. Binding Effect. This agreement shall be binding upon and inure
to the benefit of any successor of the Company and any such successor shall
be deemed substituted for the Company under the terms of this agreement.
As used in this agreement, the term "successor" shall include any person,
firm, corporation, or other business entity which at any time, whether by
merger, purchase, or otherwise, acquires all or substantially all of the
assets or business of the Company. To the extent any payment required to
be made by the Company under this agreement is instead made by the Trust
created by the Company for that purpose, the Company's obligation under
this agreement will to such extent be deemed satisfied. If the Trust for
any reason fails to make a payment required to be made by the Company under
this agreement, the Company remains fully liable for such payment under the
terms of the agreement.
12. Not an Employment Agreement. This agreement is not an
employment agreement and the Company reserves the right to discharge
Seawright with or without cause. The agreement in no way affects his
rights under the Stanhome Inc. Employees' Profit-Sharing Plan or Pension
Plan or under any Stanhome group or other insurance policy.
13. Notices. Any notice required or permitted to be given under
this agreement shall be sufficient if in writing, and if sent by registered
mail, or delivered, to his residence in the case of Mr. Seawright, at 17
Kira Lane, Englewood, New Jersey 07631, or in the case of the Company, to
its principal office at 333 Western Avenue, Westfield, Massachusetts, Attn:
Secretary. Either party may change the address to which notices are to be
addressed by notice in writing given to the other in accordance with the
terms hereof.
14. Waiver of Breach. The waiver by the Company of a breach of any
provision of this agreement by Seawright shall not operate or be construed
as a waiver of any subsequent breach by Seawright.
15. Governing Law. This agreement shall be deemed made in the
Commonwealth of Massachusetts, and its form, execution, validity,
construction and performance shall be construed in accordance with the laws
of said Commonwealth.
16. Entire Agreement. This agreement constitutes the entire
agreement of the parties. It may not be changed orally but only by an
agreement in writing signed by Seawright and for the Company by an officer
duly authorized by the Company's Board of Directors.
17. Severability. In the event that any of the terms or provisions
of this agreement or any portion of such terms or provisions shall be
determined to be invalid or inoperative, such determination shall not
affect the efficacy of the balance of the agreement and any such invalid or
inoperative term or provision shall be deemed severable.
IN WITNESS WHEREOF, the parties have executed this Agreement.
STANHOME INC.
BY /s/ H. L. Tower
H. L. Tower
Chairman of the Board
/s/ G. William Seawright
G. William Seawright