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EXHIBIT 10.A
AMENDED AND RESTATED
EXECUTIVE SEVERANCE AGREEMENT
This AGREEMENT ("Agreement") dated April 17, 1996, by and
between Wyman-Gordon Company, a Massachusetts corporation (the
"Company"), and Andrew C. Genor (the "Executive").
W I T N E S S E T H
WHEREAS, the Company and the Executive are parties to an
Executive Severance Agreement dated January 18, 1995 (the "Prior
Agreement"); and
WHEREAS, the parties wish to amend the Prior Agreement as
provided herein;
NOW, THEREFORE, in consideration of the Executive's
service to the Company and the mutual agreements herein contained,
the Company and the Executive hereby agree, as follows:
ARTICLE I
ELIGIBILITY FOR BENEFITS
SECTION 1.1 QUALIFYING TERMINATION. The Company shall not be
required to provide any benefits to the Executive pursuant to this
Agreement unless a Qualifying Termination occurs before the
Agreement expires in accordance with Section 6.1 hereof. For
purposes of this Agreement, a Qualifying Termination shall occur
only if
(a) a Change in Control occurs, and
(b) within three years after the Change in Control,
(i) the Company terminates the Executive's employment
other than for Cause; or
(ii) the Executive terminates his employment with the
Company for Good Reason;
provided, that a Qualifying Termination shall not occur if the
Executive's employment with the Company terminates by reason of the
Executive's Disability, death, or retirement. For the purposes
hereof "retirement" shall mean any termination of employment which
occurs at or after age 65.
SECTION 1.2 CHANGE IN CONTROL. Except as provided below, a
Change in Control shall be deemed to occur when and only when the
first of the following events occurs:
(a) the acquisition (including by purchase, exchange, merger
or other business combination, or any combination of the
foregoing) by any individuals, firms, corporations or
other entities, acting in concert ("Person"), together
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with all Affiliates and Associates of such Person, of
beneficial ownership of securities of the Company
representing 20 percent or more of the combined voting
power of the Company's then outstanding voting
securities; or
(b) members of the Incumbent Board cease to constitute a
majority of the Board of Directors.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur pursuant to paragraph (a), above, (i) solely
because 20 percent or more of the combined voting power of the
Company's outstanding securities is acquired by one or more
employee benefit plans maintained by the Company, or (ii) if the
Executive is included among the individuals, firms, corporations or
other entities that, acting in concert, acquire the Company's
securities. For purposes of this Section 1.2, the terms
"Affiliates" and "Associates" shall have the meanings set forth in
Rule 12b-2 of the General Rules and Regulations promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"); the terms
"beneficial ownership" and "beneficially owned" shall have the
meaning set forth in section 13(d) of the Exchange Act, as amended,
and in Rule 13d-3 promulgated thereunder, the term "Board of
Directors" shall mean the Board of Directors of the Company and the
term "Incumbent Board" shall mean (i) the members of the Board of
Directors on the date hereof, to the extent that they continue to
serve as members of the Board of Directors, and (ii) any individual
who becomes a member of the Board of Directors after the date
hereof, if his election or nomination for election as a director
was approved by a vote of at least three quarters of the then
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a person other than the Board of
Directors.
SECTION 1.3. TERMINATION FOR CAUSE. The Company shall have
Cause to terminate the Executive's employment with the Company for
purposes of Section 1.1 hereof only if the Executive (a) engages in
unlawful acts intended to result in the substantial personal
enrichment of the Executive at the Company's expense, or (b)
engages (except (i) by reason of incapacity due to illness or
injury or (ii) in connection with an actual or anticipated
termination of employment by the Executive for Good Reason) in a
material violation of his responsibilities to the Company that
results in a material injury to the Company.
SECTION 1.4 TERMINATION FOR GOOD REASON. The Executive shall
have a Good Reason for terminating employment with the Company only
if one or more of the following occurs after a Change in Control:
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(a) a change in the Executive's status or position (including
for this purpose a change in the principal place of the
Executive's employment on a basis that does not conform
with the Company's present policies for executive
relocation, but excluding required travel on the
Company's business to an extent substantially consistent
with the Executive's present business travel obligations)
with the Company that, in the Executive's reasonable
judgment, represents an adverse change from the
Executive's status or position in effect immediately
before the Change in Control;
(b) the assignment to the Executive of any duties or
responsibilities that, in the Executive's reasonable
judgment, are inconsistent with the Executive's status or
position in effect immediately before the Change in
Control;
(c) layoff or involuntary termination of the Executive's
employment, except in connection with the termination of
the Executive's employment for Cause or as a result of
the Executive's Disability, death or retirement;
(d) a reduction by the Company in the Executive's total
compensation as in effect at the time of the Change in
Control (which shall be deemed, for this purpose, to be
equal to his base salary plus the most recent award that
he has earned under the Company's Incentive Compensation
Plan, as amended from time to time, or any successor
thereto (the "ICP")) or as the same may be increased from
time to time;
(e) the failure by the Company to continue in effect any Plan
in which the Executive is participating at the time of
the Change in Control (or plans or arrangements providing
the Executive with substantially equivalent benefits)
other than as a result of the normal expiration of any
such Plan in accordance with its terms as in effect at
the time of the Change in Control;
(f) any action or inaction by the Company that would
adversely affect the Executive's continued participation
in any Plan on at least as favorable a basis as was the
case at the time of the Change in Control, or that would
materially reduce the Executive's benefits in the future
under the Plan or deprive him if any material benefits
that he enjoyed at the time of the Change in Control,
except to the extent that such action or inaction by the
Company is required by the terms of the Plan as in effect
immediately before the Change in Control, or is necessary
to comply with applicable law or to preserve the
qualification of the Plan under section 401(a) of the
Internal Revenue Code (the "Code"), and except to the
extent that the Company provides the Executive with
substantially equivalent benefits;
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(g) the Company's failure to obtain the express assumption of
this Agreement by any successor to the Company as
provided by Section 6.3 hereof;
(h) any material violation by the Company of any agreement
(including this Agreement) between it and the Executive;
or
(i) the failure by the Company, without the Executive's
consent, to pay to him any portion of his current
compensation, or to pay to the Executive any portion of
any deferred compensation, within 30 days of the date the
Executive notifies the Company that any such compensation
payment is past due.
Notwithstanding the foregoing, no action by the Company shall give
rise to a Good Reason if it results from the Executive's
termination for Cause, death or retirement, and no action by the
Company specified in paragraphs (a) through (d) of the preceding
sentence shall give rise to a Good Reason if it results from the
Executive's Disability. A Good Reason shall not be deemed to be
waived by reason of the Executive's continued employment as long as
the termination of the Executive's employment occurs within the
time prescribed by Section 1.1(b) hereof. For purposes of this
Section 1.4, "Plan" means any compensation plan, such as an
incentive or stock option plan, or any employee benefit plan, such
as a thrift, pension, profit-sharing, stock bonus, long-term
performance award, medical, disability, accident, or life insurance
plan, or any other plan, program or policy of the Company that is
intended to benefit employees.
SECTION 1.5 DISABILITY. For purposes of this Agreement,
"Disability" shall mean illness or injury that prevents the
Executive from performing his duties (as they existed immediately
before the illness or injury) on a full-time basis for six
consecutive months.
SECTION 1.6 NOTICE. If a Change in Control occurs, the
Company shall notify the Executive of the occurrence of the Change
in Control within two weeks after the Change in Control.
ARTICLE II
BENEFITS AFTER A QUALIFYING TERMINATION
SECTION 2.1 BASIC SEVERANCE PAYMENT. If the Executive incurs
a Qualifying Termination following a Change in Control that occurs
on or before termination of this Agreement as provided in Section
6.1 hereof, the Company shall pay within 30 days after the date of
the Qualifying Termination to the Executive a single lump sum cash
amount equal to his Total Annual Compensation multiplied by the
lesser of (a) 2.50 or (b) .0833 multiplied by the number of full
months remaining between termination and his attaining age 65.
"Total Annual Compensation" shall mean the sum of annual base
salary in effect immediately preceding termination or the Change of
Control, whichever is higher, and annual incentive compensation
earned under the "ICP" (annualized in the case of less than a full
year's service) in the last full fiscal year immediately preceding
termination or the Change of Control, whichever is higher.
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SECTION 2.2 INSURANCE. If the Executive incurs a Qualifying
Termination following a Change in Control that occurs on or before
termination of this Agreement as provided in Section 6.1 hereof,
the Company shall provide the Executive, at the Company's expense,
for a period beginning on the date of the Qualifying Termination,
the same medical, accident, disability, life and any other
insurance coverage as was provided to him by the Company
immediately before the Change in Control (or, if greater, as in
effect immediately before the Qualifying Termination occurs); such
coverage shall end upon the earlier of (a) the expiration of 24
months after the Qualifying Termination or (b) with respect to each
coverage, the date on which the Executive first becomes eligible
for insurance coverage of a similar nature provided by a firm that
employs him following the Qualifying Termination.
SECTION 2.3 EXECUTIVE LONG-TERM INCENTIVE PROGRAM. If the
Executive incurs a Qualifying Termination following a Change in
Control that occurs on or before termination of this Agreement as
provided in Section 6.1 hereof, all of the options to purchase
common stock of the Company (and the alternative common stock
appreciation rights) granted to the Executive prior to termination
of this Agreement as provided in Section 6.1 hereof, under the
Executive Long-Term Incentive Program shall become exercisable in
accordance with the terms set forth in the applicable Agreement.
SECTION 2.4 NONDUPLICATION. Nothing in this Agreement shall
require the Company to make any payment or to provide any benefit
or service credit that the Company is otherwise required to provide
under any other contract, agreement, policy, plan, or arrangement.
ARTICLE III
EFFECT OF SEVERANCE POLICY
SECTION 3.1 EFFECT ON SEVERANCE POLICY. If the Executive
becomes entitled to receive benefits hereunder, the Executive shall
not be entitled to any benefits under any other Company severance
policy.
ARTICLE IV
TAX MATTERS
SECTION 4.1 WITHHOLDING. The Company may withhold from any
amount payable to the Executive hereunder all federal, state or
other taxes that the Company may reasonably determine are required
to be withheld pursuant to any applicable law or regulation.
SECTION 4.2 SPECIAL LIMITATION.
(a) If part or all of the payments or benefits payable to the
Executive, when added to other payments payable to the Executive as
a result of a Change in Control, constitute Parachute Payments, the
following limitation shall apply. If the Parachute Payments, net
of the sum of the Excise Tax and the Federal income and employment
taxes, state and local income taxes on the amount of the Parachute
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Payments in excess of the Threshold Amount, are greater than the
Threshold Amount, the Executive shall be entitled to the full
payments and benefits payable under this Agreement. If the
Threshold Amount is greater than the Parachute Payments, net of the
sum of the Excise Tax, and the Federal income and employment taxes,
state and local income taxes on the amount of the Parachute
Payments in excess of the Threshold Amount, then the payments and
benefits under this Agreement shall be reduced to the extent
necessary so that the maximum Parachute Payments shall not exceed
the Threshold Amount. In the event a reduction is required, it
shall be the Executive's choice as to which payments or benefits
shall be so reduced. The Employer shall select a firm of
independent certified public accountants to determine which of the
foregoing alternative provisions shall apply. For purposes of
determining the amount of the Federal income and employment taxes,
and state and local income taxes on the amount of the Parachute
Payments in excess of the Threshold Amount, the Executive shall be
deemed to pay Federal income taxes at the highest marginal rate of
Federal income taxation applicable to individuals for the calendar
year in which the payments and benefits under this Agreement are
payable and state and local income taxes at the highest marginal
rates of individual taxation in the state and locality of the
Executive's residence for the calendar year in which the payments
and benefits under this Agreement are payable, net of the maximum
reduction in Federal income taxes which could be obtained from
deduction of such state and local taxes.
(b) ADDITIONAL DEFINITIONS
"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
"PARACHUTE PAYMENTS" shall mean any payment or provision
by the Employer of any amount or benefit to and for the benefit of
the Executive, whether paid or payable or provided or to be
provided under the terms of this Agreement or otherwise, that would
be considered "parachute payments" within the meaning of Section
280G(B)(2)(A) of the Code and the regulations promulgated
thereunder.
"THRESHOLD AMOUNT" shall mean three times the Executive's
"base amount" within the meaning of Section 280G(b)(3) of the Code
and the regulations promulgated thereunder, less one dollar.
"EXCISE TAX" shall mean the excise tax imposed by Section
4999 of the Code.
ARTICLE V
COLLATERAL MATTERS
SECTION 5.1 NATURE OF PAYMENTS. All payments to the
Executive under this Agreement shall be considered either payments
in consideration of his continued service to the Company or
severance payments in consideration of his past services thereto.
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SECTION 5.2 LEGAL EXPENSES. The Company shall pay all legal
fees and expenses that the Executive may incur as a result of the
Company's contesting the validity, the enforceability or the
Executive's interpretation of, or determinations under, this
Agreement.
SECTION 5.3 MITIGATION. The Executive shall not be required
to mitigate the amount of any payment provided for in this
Agreement either by seeking other employment or otherwise. The
amount of any payment provided for herein shall not be reduced by
any remuneration that the Executive may earn from employment with
another employer or otherwise following his Qualifying Termination.
SECTION 5.4 AUTHORITY. The execution of this Agreement has
been authorized by the Board of Directors of the Company.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 TERM OF AGREEMENT. This Agreement shall become
effective on the date hereof and shall continue in effect until the
earliest of (a) April 30, 1998, if no Change in Control has
occurred before that date; provided, however, that commencing on
May 1, 1998 and each May 1 thereafter, the term of this Agreement
shall automatically be extended for an additional year unless, not
later than January 30 of the same year, the Company shall have
given notice that it does not wish to extend this Agreement; (b)
the termination of the Executive's employment with the Company for
any reason prior to a Change in Control; (c) the Company's
termination of the Executive's employment for Cause, or the
Executive's resignation for other than Good Reason, following a
Change in Control and the Company's and the Executive's fulfillment
of all of their obligations hereunder; and (d) the expiration
following a Change in Control of three years and the fulfillment by
the Company and the Executive of all of their obligations
hereunder. Furthermore, nothing in this Article VI shall cause
this Agreement to terminate before both the Company and the
Executive have fulfilled all of their obligations hereunder.
SECTION 6.2 GOVERNING LAW. Except as otherwise expressly
provided herein, this Agreement and the rights and obligations
hereunder shall be construed and enforced in accordance with the
laws of The Commonwealth of Massachusetts.
SECTION 6.3 SUCCESSOR TO THE COMPANY. This Agreement shall
inure to the benefit of and shall be binding upon and enforceable
by the Company and any successor thereto, including, without
limitation, any corporation or corporations acquiring directly or
indirectly all or substantially all of the business or assets of
the Company, whether by merger, consolidation, sale or otherwise,
but shall not otherwise be assignable by the Company. Without
limitations of the foregoing sentence, the Company shall require
any successor (whether direct or indirect, by merger,
consolidation, sale or otherwise) to all of substantially all of
the business or assets of the Company, by agreement in form
satisfactory to the Executive, expressly, absolutely and
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unconditionally to assume and to agree to perform this Agreement in
the same manner and to the same extent as the Company would have
been required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as
heretofore defined and any successor to all or substantially all of
its business or assets that executes and delivers the agreement
provided for in this Section 6.3 or that becomes bound by this
Agreement either pursuant to this Agreement or by operation of law.
SECTION 6.4 SUCCESSOR TO THE EXECUTIVE. This Agreement shall
inure to the benefit of and shall be binding upon and enforceable
by the Executive and his personal and legal representatives,
executors, administrators, heirs, distributees, legatees and,
subject to the Section 6.5 hereof, his designees ("Successors").
If the Executive should die while amounts are or may be payable to
him under this Agreement, references hereunder to the "Executive"
shall, where appropriate, be deemed to refer to his Successors;
provided that nothing in this Section 6.5 shall supersede the terms
of any plan or arrangement (other than this Agreement) that is
affected by this Agreement.
SECTION 6.5 NONALIENABILITY. No right of or amount payable
to the Executive under this Agreement shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, hypothecation, encumbrance, charge, execution, attachment,
levy or similar process or to setoff against any obligations or to
assignment by operation of law. Any attempt, voluntary or
involuntary, to effect any action specified in the immediately
preceding sentence shall be void. However, this Section 6.5 shall
not prohibit the Executive from designating one or more persons, on
a form satisfactory to the Company, to receive amounts payable to
him under this Agreement in the event that he should die before
receiving them.
SECTION 6.6 NOTICES. All notices provided for in this
Agreement shall be in writing. Notices to the Company shall be
deemed given when personally delivered or sent by certified or
registered mail or overnight delivery service to Wyman-Gordon
Company, 244 Worcester Street, No. Grafton, Massachusetts 01536,
Attention: Vice President, General Counsel and Clerk. Notices to
the Executive shall be deemed given when personally delivered or
sent by certified or registered mail or overnight delivery service
to the last address for the Executive shown on the records of the
Company. Either the Company or the Executive may, by notice to the
other, designate an address other than the foregoing for the
receipt of subsequent notices.
SECTION 6.7 AMENDMENT. No amendment to this Agreement shall
be effective unless in writing and signed by both the Company and
the Executive.
SECTION 6.8 WAIVERS. No waiver of any provision of this
Agreement shall be valid unless approved in writing by the party
giving such waiver. No waiver of a breach under any provision of
this Agreement shall be deemed to be a waiver of such provision or
any other provision of this Agreement or any subsequent breach. No
failure on the part of either the Company or the Executive to
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exercise, and no delay in exercising, any right or remedy conferred
by law or this Agreement shall operate as waiver of such right or
remedy, and no exercise or waiver, in whole or in part, or any
right or remedy conferred by law or herein shall operate as a
waiver of any other right or remedy.
SECTION 6.9. SEVERABILITY. If any provision of this
Agreement shall be held invalid or unenforceable in whole or in
part, such invalidity or unenforceability shall not affect any
other provision of this Agreement or part thereof, each of which
shall remain in full force and effect.
SECTION 6.10. CAPTIONS. The captions to the respective
articles and sections of this Agreement are intended for
convenience of reference only and have no substantive significance.
SECTION 6.11. COUNTERPARTS. This Agreement may be executed
in a number of counterparts, each of which shall be deemed to be an
original but all of which together shall constitute a single
instrument.
SECTION 6.12. ENTIRE AGREEMENT. This Agreement contains a
final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement between the parties hereto with
respect to the subject matter hereof, superseding all previous oral
statements and other writings (including the Prior Agreement) with
respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ATTEST: WYMAN-GORDON COMPANY
/S/LYNNE I. MAY By: /S/DAVID P. GRUBER
Lynne I. May David P. Gruber, President
and Chief Executive Officer
ATTEST:
/S/NANCY A. STREICH /S/ANDREW C. GENOR
Nancy A. Streich Andrew C. Genor
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