Exhibt 10.68
Baldwin Technology Company, Inc.
12 Commerce Drive
P.O. Box 901
Shelton, CT 06484-0941
Tel: 203-402-1000
Fax: 203-402-5500
September 1, 2004
Shaun J. Kilfoyle
216 Plain Street
Bridgewater, MA 02324
Dear Shaun:
This Agreement nullifies and replaces your previous employment agreement with
the Company, which was effective January 1, 2003 and signed on February 14,
2003, and now sets forth the terms of your employment with Baldwin Technology
Company, Inc., a Delaware corporation (the "Company"), with a new effective date
of September 1, 2004 and if not extended or unless otherwise terminated, shall
expire on August 31, 2007.
1. DUTIES. You shall be employed primarily as the Vice President of
American Operations with global oversight of the Company's Marketing & Strategic
Planning initiatives. You shall direct and manage the American Operations and
oversee the Marketing and Strategic Planning business, affairs and property of
the Company subject to the direction of the President & CEO of the Company. You
shall also be a member of the Baldwin Executive Team (BET). Periodically from
time-to-time, the Company may change your duties and responsibilities by adding
to them or subtracting from them.
2. COMPENSATION. The following will outline your compensation for your
services as Vice President Marketing & Strategic Planning:
A. Salary. You shall be paid a salary at the annual base rate of One
Hundred Seventy thousand dollars ($170,000). Such salary will be payable in the
appropriate installments to conform with regular payroll dates for salaried
personnel of the Company.
B. Reviews and Adjustments. Your performance shall be reviewed by the
President & CEO of the Company each succeeding year consistent with your
anniversary date of employment which is September 1, 2001. Your base salary for
the ensuing twelve (12) month period may be adjusted, subject to the approval by
the Compensation Committee of the Board of Directors of the Company, and the
entire Board of Directors, in accordance with your level of performance.
C. Incentive Compensation. You will be eligible to participate in the
Company's Management Incentive Compensation Plan (MICP). Your participation
level, as well as the terms and payments of incentive compensation will be in
accordance with the MICP and will be provided to you under separate cover.
D. Supplemental Retirement Benefit. Starting September 1, 2004, on the
first day of each month that you are providing services under the terms of this
Agreement, the Company shall accrue for your Supplemental Retirement Benefit, an
amount necessary to ensure that, to the extent vested, the amount accrued would
be sufficient to support monthly payments to equal 30% of your average base
salary for the previous three (3) years of continuous employment with the
Company (see attachment I). These payments ("Supplemental Retirement Benefits")
are to be paid to you in equal monthly installments over a ten (10) year period
beginning at such times as are set forth in this Agreement. These Supplemental
Retirement Benefits will vest in each case assuming you are then employed by the
Company, as follows: as of September 1, 2004 it shall be vested to the extent of
20%, as of September 1, 2005 it shall be vested to the extent of 40%, as of
September 1, 2006 it shall be vested to the extent of 60%, as of September 1,
2007 it shall be vested to the extent of 80%, and as of September 1, 2008 it
shall be vested to the extent of 100% so that as of the latter date the full
amount of the Aggregate Supplemental Retirement Benefit shall be due and payable
in the instances set forth elsewhere in this Agreement.
E. Insurance. During the term of your employment hereunder, the
Company, subject to your insurability, shall (i) pay the premiums on a contract
or contracts of life insurance on your life providing for an aggregate death
benefit of five hundred thousand dollars ($500,000), which contract or contracts
will be owned by you, your spouse or such other party as may be designated by
you; and (ii) purchase key person term life insurance on your life in the
aggregate amount of one million dollars ($1,000,000), which contract or
contracts will be owned by the Company.
3. EXTENT OF SERVICES. During your employment hereunder you shall devote
your best and full-time efforts to the business and affairs of the Company.
During the duration of your employment with the Company, you shall not undertake
employment with, or participate in, the conduct of the business affairs of, any
other person, corporation, or entity, except at the direction or with the
written approval of the President & CEO.
4. VACATION; OTHER BENEFITS.
A. Vacation. You shall be entitled to vacation with pay in accordance
with the Company's vacation policy as in effect at the time. Your current
vacation accrual will be three (3) weeks of vacation. Any additional vacation
accrual beyond 3 weeks will be in accordance with normal Company policy. You may
accumulate up to twelve (12) weeks vacation, but not more than three (3) weeks
from any single prior year. Any such accumulated vacation may be used in any
subsequent year or years (but no more than two (2) weeks of such accumulated
vacation in any one year) in addition to the vacation to which you are entitled
for each such year.
B. Benefit Plans. You shall be eligible for inclusion, to the extent
permitted by law, as a full-time employee of the Company, in any and all
pension, profit sharing and savings plans; life and AD&D insurance, health
(medical, dental, short and long term disability) plans, stock option and stock
purchase plans or any other plans and programs
at the time sponsored by the Company or any Subsidiary for employees or
executives generally as in effect at the time.
C. Automobile. During the term of your employment hereunder, the
Company shall provide an automobile for your use pursuant to the Company's
written policy on company autos as in effect at that time.
5. TERMINATION OF EMPLOYMENT. In the event your employment is terminated
for any of the reasons set forth under this Section 5, the Company shall pay to
you or your legal representative, estate or heirs, as the case may be, the
amounts indicated in each subparagraph of this Section 5:
A. Termination by the Company Without Cause. The Company may, without
cause, terminate your employment at any time with six (6) months prior written
notice to you. The termination date in this instance is the date on which the
notice period ends. In such case the Company may release you from your position
and duties immediately and elect to pay six (6) months pay at normal payroll
intervals during the notice period. In the event your employment is terminated
under this Section 5A, the Company shall also pay to you the following:
(i) A severance payment in an amount equal to one-half of your then
current annual base rate compensation. Such payment will begin at the conclusion
of the notice period, which is the termination date, and be made on a
continuation basis at normal payroll intervals until paid in full.
(ii) A single lump sum payment on the date of termination of any
accrued but unpaid salary set forth in Section 2A (as adjusted by Section 2B)
hereof, including salary in respect of any accrued and accumulated vacation due
to you at the date of such termination.
(iii) A single lump sum payment of any incentive compensation earned in
the fiscal year of the termination of your employment. Such payment will be
pro-rated through the last day of your employment and shall be paid in
accordance with the MICP.
(iv) Continuation of medical benefits for a period of six (6) months
from the date of termination.
(v) Executive outplacement for a period of six (6) months from the date
of termination. Such cost shall not exceed ten thousand dollars ($10,000).
(vi) To the extent vested, the Monthly Supplemental Retirement Benefit
as set forth in Section 2D hereof with the first monthly payment beginning on
the first day of the month immediately succeeding the date of termination.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
noted in Sections 6 and 7 of this Agreement.
B. Termination by the Company With Cause. The Company may for cause
terminate your employment at any time by written notice to you. In the event
your employment is terminated under this Section 5B the Company shall pay to you
the following:
(i) A single lump sum payment on the date of termination of any accrued
but unpaid salary set forth in Section 2A (as adjusted by Section 2B) hereof,
including salary in respect of any accrued and accumulated vacation due to you
at the date of such termination.
(ii) To the extent vested, the monthly Supplemental Retirement Benefit
as set forth in Section 2D hereof with the first monthly payment beginning on
the first day of the month immediately succeeding the date of termination.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
noted in Sections 6 and 7 of this Agreement. For purposes of this Agreement, the
term "cause" shall mean (1) a failure by you to remedy, within ten (10) days of
the Company's written notice to you, either (a) a continuing neglect in the
performance of your duties under this Agreement, or (b) any action taken by you
that seriously prejudices the interests of the Company, or (2) your conviction
of a felony.
C. Events. If any of the following described events occurs during your
employment hereunder and results in your employment being terminated by the
Company or a successor to the Company, or you do not receive an offer for at
least comparable employment from the Company or a successor to the Company, then
the Company or successor to the Company shall make to you the same payments that
the Company would have been obligated to make under Section 5A:
(i) Any merger or consolidation by the Company with or into any other
entity or any sale by the Company of substantially all of its assets; provided,
however, that such event shall not be deemed to have occurred under this clause
if consummation of the transaction would result in at least fifty (50%) percent
of the total voting power represented by the voting securities of the Company
outstanding immediately after such transaction being beneficially owned by
holders of outstanding voting securities of the Company immediately prior to the
transaction.
(ii) The adoption by the Company of any plan of liquidation providing
for the distribution of all or substantially all of its assets.
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligations to the Company under this Agreement except as
provided in Section 6 and 7 of this Agreement.
D. Termination by Mutual Consent. You may at any time resign and
terminate your employment with the written consent of the Company. In the event
your employment terminates under this Section 5D the Company shall pay to you
the following:
(i) A single lump sum payment on the date of termination of any accrued
but unpaid salary set forth in Section 2A (as adjusted by Section 2B) hereof,
including salary in respect of any accrued and accumulated vacation due to you
at the date of such termination.
(ii) To the extent vested, the monthly Supplemental Retirement Benefit
as set forth in Section 2D hereof with the first monthly payment beginning on
the first day of the month immediately succeeding the date of termination.
The Company shall have no further obligation to you under this agreement and you
shall have no further obligation to the Company under this Agreement except as
provided in Sections 6 and 7 of this Agreement.
E. Termination Upon Expiration of Agreement. If not previously
terminated, this Agreement and your employment with the Company shall be
automatically extended for additional three (3) year periods, unless and until
either party notifies the other, in writing, twelve (12) months prior to the
expiration of the then current term of this Agreement that the party giving
notification does not want the Agreement and employment automatically extended.
At expiration of this Agreement, the Company shall pay to you the following:
(i) A single lump sum payment on the date of termination of any accrued
but unpaid salary set forth in Section 2A (as adjusted by Section 2B) hereof,
including salary in respect of any accrued and accumulated vacation due to you
at the date of such termination.
(ii) To the extent vested, the monthly Supplemental Retirement Benefit
as set forth in Section 2D hereof with the first monthly payment beginning on
the first day of the month immediately succeeding the date of termination
The Company shall have no further obligation to you under this Agreement and you
shall have no further obligation to the Company under this Agreement except as
noted in Sections 6 and 7 of this Agreement.
6. INVENTIONS AND CONFIDENTIAL INFORMATION. So long as you shall be
employed by the Company, you agree promptly to make known the existence to the
Company of any and all creations, inventions, discoveries and improvements made
or conceived by you, either solely or jointly with others, during the period of
your employment under this Agreement and for three (3) years after the date of
termination, and to assign to the Company the full exclusive right to any and
all such creations, inventions, discoveries and improvements relating to any
subject matter with which the Company is now or shall become concerned, or
relating to any other subject matter if made with the use of the Company's time,
materials or facilities. To the fullest extent permitted by law, any foregoing
inventions shall be considered "work-made-for-hire" and the Company shall be the
owner thereof. You further agree, without charge to the Company but at its
expense, if requested to do so by the Company, to execute, acknowledge and
deliver all papers, including applications or assignments for patents,
trademarks or copyrights for such creations, inventions, discoveries and
improvements in any and all countries and to vest title thereto in the Company
in all inventions, creations, inventions, discoveries and improvements as
indicated above conceived during your employment by the Company and for three
(3) years thereafter. You further agree that
you will not disclose to any third person or parties any trade secrets or
proprietary information of the Company in any manner, except in the pursuit of
your duties as an employee of the Company, and that you will return to the
Company all materials (whether originals or copies) containing any such trade
secrets or proprietary information on termination of your employment. The
obligations set forth in this Section 6 shall survive the termination of your
employment hereunder.
7. RESTRICTIVE COVENANT. For a period of three (3) years after your
termination date, you shall not, in any geographical location in which there is
at that time business conducted by the Company at the date of such termination,
directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with, the ownership, management,
operation, or control of any business similar to or competitive with such
business conducted by the Company without the written consent of the Company.
8. NON-ASSIGNABILITY. Your rights and benefits hereunder are personal
to you, and shall not be alienated, voluntarily or involuntarily, assigned or
transferred.
9. BINDING EFFECT. This Agreement shall be binding upon the parties
hereto, and their respective assigns, successors, executors, administrators, and
heirs. In the event the Company becomes a party to any merger, consolidation, or
reorganization, this Agreement shall remain in full force and effect as an
obligation of the Company or its successors in interest. None of the payments
provided for by this Agreement shall be subject to seizure for payment of any
debts or judgments against you or your beneficiary or beneficiaries, nor shall
you or your beneficiary or beneficiaries have the right to transfer or encumber
any right or benefit hereunder.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement
relating to your employment by the Company. It only may be changed by written
agreement signed by the parties.
11. LAW TO GOVERN. This Agreement shall be governed by, and construed
and enforced according to, the domestic laws of the State of Connecticut without
giving effect to the principles of conflict of laws.
BALDWIN TECHNOLOGY COMPANY, INC.
By: /s/ Gerald A. Nathe
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Gerald A. Nathe
Chairman, President & CEO
AGREED TO AND ACCEPTED:
/s/ Shaun J. Kilfoyle
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Shaun J. Kilfoyle
DATE: 9/04/04
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