Exhibit 10(o)(x)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is dated as of January 20, 2009, by and between Albany
International Corp. (hereinafter referred to as "Albany") and David B. Madden
(hereinafter referred to as "Executive").
WITNESSETH
WHEREAS, Executive has been employed by Albany in a critical managerial
position as Group Vice President - PMC Asia & Pacific; and
WHEREAS, Executive's position has been eliminated in connection with a
restructuring of Albany's business; and
WHEREAS, Executive continues to possesses certain knowledge and skills
beneficial to Albany's business; and
WHEREAS, ALBANY wishes for Executive to continue his employment with
Albany and Executive wishes to continue his employment with Albany; and
WHEREAS, Executive and Albany each believe it to be in their best
interests to define Executive's new position with Albany and to provide each
party with certain protections as set forth herein.
NOW, THEREFORE, in consideration of the premises, covenants and conditions
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Albany and Executive hereby agree
as follows:
1. Executive acknowledges that he was given this Agreement on January 14,
2009 and was afforded 21 days to consider same. Executive was, and hereby is,
advised to consult a lawyer before signing this Agreement and did in fact have
the opportunity to obtain the advice of counsel.
2. Executive may accept this Agreement only by signing, dating and
delivering the Agreement to Albany (in the manner set forth in paragraph 31) on
or before Albany's normal close of business on February 6, 2009. Time is of the
essence with regard to this paragraph 2.
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3. Executive may revoke this Agreement at any time within seven (7) days
after signing and delivering it to Albany by notifying Albany in writing (in the
manner set forth in paragraph 31) of Executive's decision to revoke. Time is of
the essence with regard to this paragraph 3.
4. Executive no longer holds the position of Group Vice President and,
effective immediately upon the execution of this Agreement, further resigns his
position as an officer of Albany.
5. The period during which Executive is to be employed by Albany under the
terms of this Agreement is referred to herein as the "Employment Term". The
Employment Term shall begin immediately upon execution of this Agreement and
shall expire on April 30, 2011.
6. During the Employment Term Executive shall serve in the position of
Vice President - Special Projects, reporting to, and performing to the best of
his abilities the duties assigned to him by Albany's President and CEO, or his
designee. At the discretion of Albany's President and CEO, or his designee, or
Albany's Board of Directors, the duties, responsibilities and title of the
Executive may change from time to time.
7. During the Employment Term Executive shall work out of, and his
principal place of employment shall be located at, his residence, unless
mutually agreed otherwise and the parties acknowledge that Executive's duties
may require business-related travel. Albany shall reimburse Executive for all
reasonable travel and other business expenses upon presentation of the
appropriate documentation, and to the extent consistent with Albany's travel and
expense policies.
8. During the Employment Term, Executive salary shall be equal to
$146,742.00 per annum, payable in installments in accordance with Albany's
customary payroll practices and in no event less than monthly, less (i)
applicable withholdings for taxes, (ii) deductions of premiums due from
Executive for any health care or life insurance coverage provided by or through
Albany, (iii) 401(k), profit-sharing or other Albany benefit plan contributions
and (iv) any other applicable withholdings. Executive shall remain eligible for
a cash incentive bonus relating to the services he performed during 2008 as
Group Vice President. Said bonus shall be determined and paid at the same time
and in the same manner in which bonuses are awarded to Albany's management
employees under current prevailing bonus programs. Executive shall not be
eligible for a bonus relating to his employment during 2009, 2010 or 2011.
9. During the Employment Term, Executive will be eligible to receive the
standard package of employee benefits available to similarly situated Albany
employees. Albany reserves the right to modify, supplement, amend or eliminate
the standard benefits provided to its employees, including, without limitation,
the eligibility requirements and/or premiums, deductibles, co-payments or other
charges relating thereto.
10. Executive acknowledges that as a consequence of his employment with
Albany, proprietary and confidential information relating to Albany's business
may be disclosed to or
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developed or acquired by Executive which is not generally known to the trade or
the general public and which is of considerable value to Albany (the
"Proprietary Information"). Such Proprietary Information includes, without
limitation, information about trade secrets, inventions, patents, licenses,
research projects, costs, profits, markets, sales, customer lists, computer
programs, records, and software; plans for future development, and any other
information not available to the trade or the general public, including
information obtained from or developed in conjunction with a third party that is
subject to a confidentiality or similar agreement to which Albany is a party.
Executive acknowledges and agrees that his relationship with Albany with respect
to such Proprietary Information shall be fiduciary in nature. Consequently,
during the Employment Term, and for a period of five (5) years thereafter,
Executive covenants that he shall not use such Proprietary Information for his
own benefit, or for the benefit of any other employer or for any other purpose
whatsoever other than the performance of his work for Albany, and Executive
shall maintain all such Proprietary Information in confidence and shall not
disclose any thereof to any person other than employees of Albany and its
affiliates authorized to receive such Proprietary Information.
11. Executive shall disclose promptly to Albany all inventions, concepts,
improvements, discoveries, know-how, designs, processes, methods, formulae and
techniques, and any related suggestions and ideas, that Executive may conceive,
make, develop or work on, in whole or in part, solely or jointly with others
(collectively, "Inventions"), while employed by Albany or one year after
termination of his employment with Albany, whether or not:
(a) patentable, copyrightable or otherwise legally protectable; or
(b) reduced to a writing, drawing, blueprint or other tangible form.
Subject to any applicable requirements of law with respect to compensation,
Executive agrees to assign, and hereby assigns, to Albany all his entire right,
title and interest in all such Inventions (as well as any other forms of
intellectual property relating thereto) that
(a) relate to a business then conducted by Albany, conducted by Albany
in the past, proposed to be conducted by Albany in the future or
then under investigation by Albany;
(b) are conceived, made, developed or worked on by the Executive or any
other employee of Albany;
(i) upon the suggestion of Albany;
(ii) during the Executive's hours of work for Albany; or
(iii) in or about Albany's premises; or
(c) are derived, in whole or in part, from information, technology,
data, materials, equipment, tools or training received from Albany
or its customers;
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(collectively "Employment Inventions"; provided, that "Employment Inventions"
shall not include any invention for which none of Albany's equipment, supplies,
facilities, or trade secret information was used and which is developed entirely
on the Executive's own time, unless (a) the invention relates (i) directly to
Albany's business, or (ii) to Albany's actual or demonstrably anticipated
research or development, or (b) the invention results from any work performed by
Executive for Albany). All Employment Inventions, and any writings, drawings,
blueprints, models or other documentation or tangible representations relating
thereto, shall be the exclusive property of Albany. At the request of Albany, at
its cost and without liability to Executive, Executive shall assist Albany, or
any person or persons from time to time designated by it, in obtaining the grant
of patents, copyrights or similar protections, in such country or countries as
may be designated by Albany, covering Employment Inventions and shall, in
connection therewith, execute such applications, statements or other documents,
furnish such information and data and take all such other action (including,
without limitation, the giving of testimony) as Albany may from time to time
request, all without compensation to Executive other than normal compensation
for services and any special compensation required by law.
12. Executive shall have no right, title or interest in or to any assets,
property, equipment, reports, studies, memoranda, records, plans, manuals,
correspondence, drawings, blueprints, models or other documentation or tangible
representations provided by Albany or created or acquired in the course of, or
as a consequence of, the employment of Executive, or in any copies, pictures,
facsimiles or other reproductions, recordings, abstracts or summaries thereof,
and Executive will promptly surrender to Albany any such property, assets,
equipment or materials in Executive's possession, or under Executive's control,
upon the termination of Executive's employment, or upon request of Albany at any
time prior thereto.
13. Unless terminated earlier in accordance with paragraphs 14 or 15
hereof, Executive's employment with Albany will terminate at the end of the
Employment Term.. Said termination shall be deemed an involuntary termination
(the "Scheduled Termination"); provided, that it shall not be a Scheduled
Termination if, at or prior to the end of the Employment Term, Albany shall have
"cause" to terminate the Executive's employment (as defined in paragraph 14
below) or the Executive shall have exercised his right to terminate his
employment pursuant to paragraph 15. Upon the Scheduled Termination, any
outstanding restricted stock units awarded to Executive under Albany's 2003
Restricted Stock Unit Plan will be treated in accordance with the terms of that
plan governing an involuntary termination by Albany: (i) one-half of the
unvested restricted stock units shall vest on the date of termination and shall
be paid as promptly as practical thereafter; and (ii) the remaining unvested
restricted stock units shall be forfeited and shall never vest, and the
Executive shall cease to have any rights with respect thereto. Furthermore, upon
the Scheduled Termination, any unvested awards granted to Executive under
Albany's 2005 Incentive Plan, will be treated in accordance with the terms of
that plan governing an involuntary termination by Albany: (i) one-half of the
unvested amount then credited to the Executive's Bonus Account established under
the plan shall vest immediately but be distributed to the Executive pursuant to
the payment schedule established at the time of the award; and (ii) the
remainder of the credited amount shall be forfeited and the Executive shall
cease to have any further rights with respect thereto. Until the Scheduled
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Termination, any awards previously granted under either of the foregoing plans
shall continue to be earned, and shall vest and be paid, according to the terms
of the applicable award agreement.
14. Albany may terminate Executive prior to the Scheduled Termination with
or without cause. Cause shall be deemed to exist if Albany determines that
Executive has:
(i) undertaken a position in competition with Albany;
(ii) caused substantial harm to Albany with intent to do so or as a
result of gross negligence in the performance of his duties;
(iii) wrongfully and substantially enriched himself at the expense
of Albany;
(iv) been convicted of felon
(v) failed to perform his duties in an adequate and proper manner in
accordance with the instructions communicated to Executive by his
direct supervisor
15. Executive reserves the right to terminate his employment with Albany
at will, at any time.
16. If Executive' employment is terminated by Albany at any time prior to
the end of the Employment Term without cause, Albany shall continue to pay the
Executive's base salary for the remainder of the Employment Term in accordance
with paragraph 8. Executive's right to receive such payments in accordance with
this paragraph 16 is contingent upon the Executive's continued compliance with
the provisions of Sections 10, 11, 12, 18 and 19 of this Agreement and upon
Executive having executed and delivered to Albany a release of any and all
claims relating to his termination. Executive will not be required to mitigate
the amount of payments under this paragraph 16, nor will any earnings that
Executive may receive from any other source reduce any such payments. For the
purpose of this paragraph:
(a) Termination "by Albany" shall not include termination as the result
of death or disability; and
(b) "Disability" shall be deemed to exist if (i) by reason of mental or
physical illness Executive has not performed his duties for a period
of six consecutive months; and (ii) the Executive does not return to
the performance of his duties within thirty days after written
notice is given by Albany that the Executive has been determined by
Albany's Board of Directors to be "Disabled" under Albany's long
term disability policy.
17. Except as otherwise provided in paragraphs 13 and 16, Executive shall
not be entitled to receive any severance or other payments or benefits in the
event the Executive's employment with Albany terminates prior to or at the end
of the Employment Term.
18. During the Employment Term, Executive agrees and promises that he will
not directly or indirectly, or in conjunction with any person, firm,
partnership, joint venture,
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association, corporation or other business, organization, entity or enterprise
whatsoever ("Person"):
(i) engage in any business which is in competition with Albany or
any of its subsidiaries or affiliates in the same geographical areas
as Albany or any of its subsidiaries or affiliates are engaged in
their business (a "Competitive Business");
(ii) enter into the employ of, or render any services to, any Person
in respect of any Competitive Business, or any business related to
the papermaking industry;
(iii) acquire a financial interest in, or otherwise become actively
involved with, any Competitive Business; provided, however, that in
no event shall ownership of less than 2% of the outstanding capital
stock of any corporation, in and of itself, be deemed a violation of
this Agreement is such capital stock is listed on a national
securities exchange or regularly traded in an over-the-counter
market; or
(iv) interfere with, or attempt to interfere with, any business
relationships between Albany and its customers, clients, suppliers
or investors.
19. During the Employment Term, and for a period of two (2) years
thereafter, Executive specifically agrees and promises that he will not directly
or indirectly disparage Albany, (as defined below in paragraph 20), or any of
Albany's products or services in any manner, at any time, to any person or
entity. "Disparage" is defined as but not limited to any utterance whatsoever
either verbal, in writing, by gesture or any behavior of any kind that might
tend to or actually harm or injure Albany, whether intended or not.
20. As used in this Agreement, the term "Albany" means, individually and
collectively, Albany, each subsidiary and affiliate of Albany, and their
respective employee welfare benefit plans, employee pension benefit plans,
successors and assigns, as well as all present and former shareholders,
directors, officers, fiduciaries, agents, representatives and employees of those
companies and other entities.
21. By signing this Agreement Executive immediately gives up and releases
Albany from, and promises never to sue Albany with respect to, any and all
rights and claims that Executive may have against Albany, whether or not
Executive presently is aware of such rights or claims. In addition, and without
limiting the foregoing:
(a) Executive on behalf of himself, his agents, spouse, representatives,
assignees, attorneys, heirs, executors and administrators, fully
releases Albany and Albany's past and present successors, assigns,
parents, divisions, subsidiaries, affiliates, officers, directors,
shareholders, employees, agents and representatives from any and all
liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of moneys, controversies, agreements,
promises, damages, back and front pay, costs, expenses, attorneys
fees, and remedies of any type, which
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Executive now has or hereafter may have, by reason of any matter,
cause, act or omission arising out of or in connection with
Executive's employment or the termination of his employment with
Albany, including, without limiting the generality of the foregoing,
any claims, demands or actions arising under the Age Discrimination
in Employment Act of 1967, the Older Worker's Benefit Protection
Act, the Executive Retirement Income Security Act of 1974, Title VII
of the Civil Rights Act of 1964, the Civil Rights act of 1991, the
Civil Rights Act of 1866, the Rehabilitation Act of 1973, the
Americans with Disabilities Act of 1990, and any other federal,
state or local statute, ordinance or common law of any state
regarding employment, discrimination in employment, or the
termination of employment.
(b) If Executive ever sues Albany in violation of the promise never to
sue stated in this paragraph 21, or otherwise breaches any other
obligation under this Agreement, Executive agrees (1) that Albany
shall not be obligated to continue to making any payments due to
Executive under this Agreement and (2) to reimburse Albany for any
and all attorneys' fees and costs which Albany pays to defend any
such lawsuit, regardless of who prevails.
22. The appearance of a release in this Agreement does not constitute an
admission by Albany of any liability to Executive, and Executive understands and
agrees that Albany denies any such liability to Executive.
23. Executive acknowledges and agrees that, except for this Agreement,
Executive would have no right to receive the benefits described herein.
24. This Agreement constitutes the entire agreement between Albany and
Executive relating to the subject matter thereof, and supercedes any prior
agreement or understanding with respect thereto, and may not be amended or
modified in any way whatsoever except in writing signed by the parties hereto.
25. Executive acknowledges that he has had the opportunity to obtain legal
advice with respect to this Agreement, has had sufficient time to read, and has
carefully read and fully understands all the provisions of this Agreement, and
is knowingly and voluntarily entering into this Agreement.
26. Executive understands that the release contained in paragraph 21
hereof is a general release, and represents that he has been advised to seek
counsel on the legal and practical effect of a general release, and recognizes
that he is executing and delivering this release, intending thereby to be
legally bound by the terms and provisions thereof, of his own free will, without
promises or threats or the exertion of duress. He also acknowledges that he has
had adequate time to review it, have it explained to him, and understands its
provisions.
27. Executive and Albany understand and agree that if an action is
commenced by any party alleging breach of this agreement, the non-prevailing
party shall be liable to the
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prevailing party for any and all available legal and equitable relief, as well
as reasonable attorneys' fees and costs associated with pursuing or defending
such legal action.
28. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to any provisions thereof
relating to conflict of laws. The parties agree that the provisions of the
Agreement shall be enforced to the fullest extent permitted by law. Accordingly,
if, in any judicial proceeding, a court shall determine that any provision
hereof is unenforceable for any reason, then the parties intend that such
covenant shall be deemed to be limited only to the extent necessary to permit
enforceability by the court; however, such limitation shall in no way affect the
remaining provisions of this Agreement.
29. Albany and Executive agree that a breach by Executive of the
provisions of this Agreement may cause irreparable harm to Albany which will be
difficult to quantify and for which money damages will not be adequate.
Accordingly, Executive agrees that Albany shall have the right to obtain an
injunction against Executive enjoining any such breach in addition to any other
rights or remedies available to Albany on account of any breach or threatened
breach of this Agreement. Executive and Albany each further agree that if an
action is commenced by any party alleging breach of this Agreement, the
non-prevailing party shall be liable to the prevailing party for any and all
available legal and equitable relief, as well as reasonable attorneys' fees and
costs associated with pursuing or defending such legal action
30. The terms of this agreement are binding upon and shall be for the
benefit of Executive and Albany, as well as their respective heirs, executors,
administrators, successors and assigns.
31. Notices or other deliveries required or permitted to be given or made
under this Agreement by Executive to Albany shall, except to the extent
otherwise required by law, be deemed given or made if delivered by hand or by
express mail or overnight courier service to Albany International Corp., 1373
Broadway, Albany, New York 12204, Attention: Charles J. Silva, Jr.
32. Whether and when a "separation from service" has occurred for purposes
of Section 409A of the Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code") is a determination based on the facts and circumstances and
is not always clear. The payments and the payment schedules set forth herein are
intended to comply with, or be exempt from, Section 409A of the Code, without
regard to whether a "separation from service" has occurred as of the date hereof
or at any date hereafter.
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IN WITNESS WHEREOF, a duly authorized representative of Albany and
Executive have signed this Agreement to be effective as of the day and year
first set forth above.
Albany International Corp.
By: /s/ Ralph M. Polumbo 01/21/2009
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Ralph M. Polumbo Date
Its: Sr. VP - Human Resources
& Chief Administrative Officer
THE UNDERSIGNED FURTHER STATES THAT HE HAS CAREFULLY READ THE FOREGOING
AGREEMENT AND KNOWS THE CONTENTS THEREOF AND SIGNS THE SAME AS HIS OWN FREE ACT.
THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
/s/ David B. Madden 01/20/2009
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David B. Madden Date
FOR COMPANY USE ONLY
The foregoing Employment Agreement, signed and dated by Executive, was
received by me on behalf of Albany International Corp. this 21st day of January,
2009.
/s/ Charles J. Silva, Jr.
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Charles J. Silva, Jr.
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