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EXHIBIT 10(d)*
SETTLEMENT AGREEMENT
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Settlement Agreement made as of the 7th day of July, 1994 by and
between Bird Corporation ("Bird"), a Massachusetts corporation with its
principal place of business in Dedham, Massachusetts, and George J. Haufler
("Haufler"), an individual residing in Weston, Massachusetts.
WHEREAS, Haufler was employed by Bird for over twelve years, during
which time he served in various executive capacities including president, chief
executive officer, chairman of the board of directors, and as a director; and
WHEREAS, on January 25, 1994, Bird's board of directors terminated
Haufler's employment with Bird, which termination Haufler has disputed; and
WHEREAS, Haufler has challenged the validity and propriety of his
disputed termination by the board of directors and has asserted that such
disputed termination was unlawful pursuant to federal and state statutes and
common law and further has asserted that such termination has caused him
substantial tortious injury; and
WHEREAS, Bird and its officers and directors deny Haufler's assertions
and deny liability for any of the causes of action which Haufler might have
asserted arising from his termination and do not, by this Settlement Agreement,
admit or concede liability or wrongdoing; and
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WHEREAS, the parties deem it in their best interests to resolve all
claims of any kind, including without limitation the aforesaid dispute, which
the parties may have against each other;
NOW, THEREFORE, in consideration of the promises contained herein and
for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree hereby as follows:
1. On the Closing Date (as defined in Section 19), Bird shall issue
and deliver to the escrow agent identified in Section 7.A. below certificates
in the name of Haufler representing Thirty Thousand (30,000) shares of Bird
common stock, all of which shall be allocable to compensation for the alleged
tortious injury which Haufler asserts he suffered as a result of Bird's alleged
conduct in connection with the events culminating in the termination of
Haufler's employment and the terms and conditions of that termination.
2. On the Closing Date, Bird shall execute and deliver to the escrow
agent identified in Section 7.A. below a Release of Haufler in the form
appended hereto as Exhibit A.
3. On the Closing Date, Haufler shall execute and deliver to the
escrow agent identified in Section 7.B. below a Release of Bird in the form
appended hereto as Exhibit B.
4. Prior to, on, and after the Closing, Bird shall provide to
Haufler, at Bird's expense, coverage under its group health plans in accordance
with the federal Consolidated Omnibus Budget
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Reconciliation Act of 1985 ("COBRA") for the statutory period of eighteen (18)
months commencing January 25, 1994. After the expiration of said period, Bird
will continue to provide health insurance for Haufler, at substantially the
same level of coverage as was provided to him as of January 24, 1994, under a
comprehensive medical conversion plan until Haufler reaches sixty-five (65)
years of age (hereinafter the "covered period"). Upon the expiration of the
covered period, Bird will be under no obligation to provide or to fund any
health insurance for Haufler, except with respect to any claim which Haufler
may submit subsequent to the covered period but which accrued or arose
during the covered period.
5. The parties acknowledge that prior to the Closing Date Haufler
converted his current life insurance policy, provided by Bird, to his own name.
Bird hereby agrees to reimburse Haufler for all premiums Haufler may pay to
continue said current life insurance policy through and including 3anuary 25,
1996. It is expressly understood and agreed that Haufler will not be reimbursed
for (i) the costs of conversion, or (ii) premium payments for life insurance
coverage after January 25, 1996.
6. Bird acknowledges (i) that it has approved a contribution under
the Bird Employees' Savings and Profit Sharing Plan (the "Savings Plan") for
the 1993 plan year that would result in an allocation to Haufler's account
thereunder in the amount of $13,139.66, and (ii) that $28,509.56 is required to
be
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credited to Haufler under the Deferred Compensation Agreement for
George J. Haufler between Haufler and Bird, effective March 1, 1987, and
contributed to the trust (the "rabbi trust") established pursuant to the
associated Haufler Trust Agreement, dated February 27, 1987 (together, the
"Deferral Agreement"), for the year 1993. Haufler acknowledges that such
amounts are payable by Bird under the terms of the Savings Plan and the
Deferral Agreement in September, 1994. On the Closing Date Bird shall pay an
amount equal to such amounts ($41,649.22) to the escrow agent identified in
Section 7.B. below.
7.A. The escrow agent described herein, who shall be responsible for
the receipt and maintenance of Bird common stock certificates as described in
Section i herein and the Release as described in Section 2 herein, shall be:
Alan L. Lefkowitz, Esq.
Dechert Price & Rhoads
Ten Post Office Square South
Suite 1230
Boston, MA 02109
7.B. The escrow agent described herein, who shall be responsible for
the receipt and maintenance of the Release described in Section 3 herein and
the contributions described in Section 6 herein shall be:
Charles W. Robins, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
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7.C. Each of the escrow agents shall have only the duties and
responsibilities specified for him in Section 9 below and none others, and
performance of such duties and responsibilities shall completely discharge such
escrow agent under this Settlement Agreement. If an escrow agent is unable for
any reason to perform any of his duties or responsibilities, he shall commence
an action of interpleader or like action in a court of competent jurisdiction
for instructions. Neither escrow agent shall incur any liability in the
performance of his duties hereunder, and each escrow agent shall be indemnified
by the party for whom he acts as escrow agent against all losses, costs
expenses and liabilities (including without limitation legal fees and expenses
and court costs) he may incur while acting as escrow agent hereunder, except
when occasioned by his gross negligence or willful misconduct.
8. For a period of seven (7) days following the Closing Date under
this Settlement Agreement (the "revocation period"), Haufler unilaterally may
revoke this Settlement Agreement by written notice to Bird, and this Settlement
Agreement shall not become effective or enforceable until the expiration of
such revocation period, PROVIDED HOWEVER, that nothing contained herein shall
be construed to excuse Bird and Haufler from transferring to the respective
escrow agents on the Closing Date the stock certificates identified in Section
herein, the
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Releases identified in Section 2 and 3 herein, and the contributions
identified in Section 6 herein.
9. Immediately upon expiration of the revocation period provided in
Section 8 above, the Section 7.A. escrow agent shall release from escrow and
shall deliver to Haufler, through his counsel, the certificate(s) and Release
delivered to him pursuant to Sections 1 and 2, respectively, of this Settlement
Agreement. Immediately upon the expiration of the revocation period provided in
Section 8 above, the Section 7.B. escrow agent shall release from escrow and
shall deliver to Bird, through special counsel to the Bird board of directors,
the Release delivered to him pursuant to Section 3, and shall remit $28,509.56,
the amount equal to the Deferral Agreement contribution described in Section 6,
to the trustee of the rabbi trust on behalf of Bird. The Section 7.B. escrow
agent shall hold $13,139.66, the amount equal to the Savings Plan contribution
described in Section 6, in escrow until the date when the contributions for the
1993 plan year are actually deposited as provided in the Savings Plan, at which
time the escrow agent shall remit said amount to the trustee of the Savings
Plan trust on behalf of Bird. In the event Haufler exercises his right of
revocation during the revocation period as provided in Section 8 herein, this
Settlement Agreement shall immediately terminate, and neither Haufler nor Bird
shall have any rights or obligations under this Agreement. Thereupon, the
escrow agents shall return all
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documents and funds entrusted to them to their source, but nothing
contained herein shall be construed to excuse Bird from making the aforesaid
contributions identified in Section 6 above for Haufler's benefit in the
ordinary course.
10. Haufler hereby acknowledges that he has been given the opportunity
to consider this Settlement Agreement for a period of at least twenty-one (21)
days prior to executing it. If Haufler elects to execute this Settlement
Agreement within fewer than twenty-one (21) days of the date of its delivery to
him, Haufler hereby warrants and represents that such decision was entirely
voluntary and that he has the opportunity to consider this Settlement Agreement
for the entire twenty-one (21) day period. Haufler further warrants and
represents that he has had the opportunity to consult with his attorney prior
to executing this Settlement Agreement.
11. The execution and delivery of this Settlement Agreement is for the
purpose of settling the above-described dispute between the parties and is not
to be construed as an admission of any obligation, liability or wrongdoing of
any kind or nature on the part of either of the parties, which the parties
expressly deny. Upon release, and delivery or payment, by the applicable escrow
agent, at the expiration of the revocation period, of the Bird common stock
certificates referred to in Section 1, the Releases referred to in Sections 2
and 3, and the payment to the rabbi trust in accordance with Section 6, all
then outstanding
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controversies and disputes between Haufler and Bird shall be deemed to have
been settled. Haufler hereby acknowledges that after the Closing he will not
make claims pursuant to the Bird Long Term Incentive Compensation Plan or
claims to any options, whether expired or not, for the purchase of stock of
Bird or any stock appreciation rights.
12. This Settlement Agreement shall be binding upon and inure to the
benefit of Bird and its affiliates, subsidiaries, parent corporations,
partnerships and joint ventures in which Bird is a partner or joint venturer,
and its agents, employees, officers, directors, successors and assigns, and
Haufler and his heirs, next of kin, executors, administrators, successors and
assigns.
13. Bird hereby warrants and represents that its execution of this
Settlement Agreement and its performance of its obligations hereunder have been
duly authorized by all necessary corporate action and that the Settlement
Agreement is valid, binding and enforceable upon Bird in accordance with its
terms.
14. This Settlement Agreement and the Exhibits hereto constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, between the parties, and
there are no warranties, representations or other agreements between the
parties in connection with the subject matter hereof
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except as specifically set forth herein; PROVIDED HOWEVER, that nothing
contained in this Section 14 or in this Settlement Agreement shall be construed
to be in derogation of, or to prejudice, compromise or diminish in any manner
whatsoever Haufler's rights to the following:
a. a final payment of $28,509.56 required to be made to the rabbi
trust under the Deferral Agreement, as set forth in Section 6
above, and all other continuing rights to which Haufler is
entitled under the existing terms and conditions of the Deferral
Agreement;
b. benefits under all insurance policies maintained by Bird after the
Closing Date providing for liability insurance coverage for present
and former officers and directors;
c. indemnification rights as provided in Bird's by-laws; and
d. a final contribution of $13,139.66 for the benefit of Haufler
under the Savings Plan, as set forth in Section 6 above, and all
other continuing rights and benefits to which Haufler is entitled
under the existing terms and conditions thereof.
The terms of all of the above-mentioned documents are incorporated herein by
reference, are integral to this Settlement Agreement, and rights thereunder
shall remain in full force and effect after the Closing Date.
15. This Settlement Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an original, and
all such counterparts together shall constitute but one and the same
instrument.
16. This Settlement Agreement may be amended or modified only in
writing executed bY the parties hereto.
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17. This Settlement Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
18. If for any reason any provision of this Settlement Agreement is
held invalid, such invalidity shall not affect any other provision of this
Settlement Agreement not held so invalid, and each such other provision shall
continue in full force and effect.
19. Unless the parties otherwise agree in writing, the Closing shall be
July 12, 1994, which is the "Closing Date" referred to herein. The Closing will
be held at a time and place in Massachusetts acceptable to each of the parties.
IN WITNESS WHEREOF, Bird Corporation and George J. Haufler have
executed this Settlement Agreement as of the day and year first written above.
BIRD CORPORATION
Attest:______________________________ By:______________________________
Ass't Sec'y Duly Authorized
Dated 7/7/94
GEORGE J. HAUFLER
Witness:_____________________________ _________________________________
George J. Haufler
Dated:
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17. This Settlement Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
18. If for any reason any provision of this Settlement Agreement is
held invalid, such invalidity shall not affect any other provision of this
Settlement Agreement not held so invalid, and each such other provision shall
continue in full force and effect.
19. Unless the parties otherwise agree in writing, the Closing shall be
July 12, 1994, which is the "Closing Date" referred to herein. The Closing will
be held at a time and place in Massachusetts acceptable to each of the parties.
IN WITNESS WHEREOF, Bird Corporation and George J. Haufler have
executed this Settlement Agreement as of the day and year first written above.
BIRD CORPORATION
Attest:__________________________ By:__________________________
Duly Authorized
Dated:
GEORGE J. HAUFLER
Witness:_________________________ _____________________________
George J. Haufler
Dated:
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AMENDMENT NO. 1 TO THE SETTLEMENT AGREEMENT OF
JULY 7, 1994 BETWEEN BIRD CORPORATION AND
GEORGE J. HAUFLER
Bird Corporation ("Bird") and George J. Haufler ("Haufler") hereby
amend their Settlement Agreement of July 7, 1994 as follows:
1. Bird's delivery to Haufler of Thirty Thousand (30,000) shares of
Bird common stock from Bird's Long Term Incentive Compensation Plan is solely
for the convenience of the parties and enables Bird expeditiously to deliver
unrestricted shares of Bird common stock to Haufler for a timely Closing
pursuant to this Settlement Agreement. Nothing in this Amendment No. 1 shall be
construed to contradict, detract from or be in derogation of the parties'
agreement in Section 1 of this Settlement Agreement that the delivery and
acceptance of the Bird common stock pursuant to the Settlement Agreement is
intended by the parties to serve as compensation for the alleged tortious
injury which Haufler asserts he suffered as a result of Bird's alleged conduct
in connection with the events culminating in the termination of Haufler's
employment and the terms and conditions of that termination.
2. The parties hereby warrant and represent that their respective
legal counsel, identified below, are duly authorized to execute this Amendment
No. 1 on behalf of their respective principals, and the parties further
acknowledge that this Amendment No. 1 is a valid amendment to the Settlement
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Agreement pursuant to Section 16 thereof and shall be binding and
enforceable upon each party in accordance with its terms.
BIRD CORPORATION GEORGE J. HAUFLER
By its duly authorized By his duly authorized
attorneys, attorneys,
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Alan L. Lefkowitz Charles W. Robins
Susan M. Camillo Leonard G. Learner
DECHART, PRICE & RHOADS HUTCHINS, WHEELER & DITTMAR
Ten Post Office Square, South A Professional Corporation
Suite 1230 101 Federal Street
Boston, MA 02109 Boston, MA 02110
DATED: July 12, 1994
4549L
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