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EXHIBIT 10(r)*
SETTLEMENT AGREEMENT
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This Settlement Agreement is made as of the 25th day of November, 1994
by and between Bird Corporation ("Bird"), a Massachusetts corporation with its
principal place of business in Dedham, Massachusetts, and William A. Krivsky
("Krivsky"), an individual residing in Sharon, Massachusetts.
WHEREAS, Krivsky was employed by Bird for approximately eight years,
during which time he served as an officer of Bird and certain of its
affiliates;
WHEREAS, on August 5, 1994, Bird terminated Krivsky's employment with
Bird (the "Termination Date");
WHEREAS, Bird and Krivsky have. disagreed as to the terms of, and
Krivsky's rights in connection with, his termination of employment, but now
deem it in their best interests to resolve all claims and disputes that the
parties may have against each other, including without limitation claims for
injury to Krivsky's reputation; and
WHEREAS, Bird and Krivsky have agreed in principle that in settlement
and satisfaction of his asserted rights. Krivsky will receive certain severance
payments and certain other benefits in excess of those to which he would be
entitled under Bird's standard termination benefit policy, which policy is
summarized in a memorandum from Joseph D. Vecchiolla to Krivsky dated July 29,
1994 (the "Termination Memo"), a copy of which is attached hereto as Exhibit 1
and made a part hereof, and that Krivsky will release any and all claims he
might otherwise have against Bird relating to his employment and termination of
employment;
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 hereby agree as follows:
1. REVOCATION PERIOD; EFFECTIVE DATE. For a period of seven (7)
days following the date that Krivsky executes this Settlement Agreement (the
"revocation period"), Krivsky 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; the
date on which the revocation period expires without Krivsky having exercised
his right to revoke and this Settlement Agreement becomes effective shall be
the "Effective Date" of this Agreement. In the event Krivsky exercises his
right of revocation during the revocation period, this Settlement Agreement
shall immediately terminate, and neither Krivsky nor Bird shall have any rights
or obligations under this Agreement. Further, if Krivsky elects to execute this
Settlement Agreement within fewer
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than twenty-one (21) days of the date of its delivery to him, Krivsky
hereby warrants and represents that such decision was entirely
voluntary and that he has been given the opportunity to consider
this Settlement Agreement for the entire twenty-one (21) day
period. Krivsky further warrants and represents that he has had the
opportunity to consult with his attorney concerning the provisions of
this Agreement prior to .executing this Settlement Agreement.
2. CASH PAYMENTS. Upon the occurrence of the Effective Date, Bird
agrees to pay to Krivsky, for a period of twenty (20) weeks, an amount equal to
his base salary as in effect immediately prior to his Termination Date, payable
biweekly. Said payments will be made from December 9, 1994 through April 14,
1995. The payments described in this Paragraph 2 shall not be required to be
reduced or modified in the event Krivsky accepts employment with, or otherwise
receives earned income from, a third party prior to completion of all such
payments.
3. LONG TERM INCENTIVE PLAN; ADDITIONAL PAYMENTS. Upon the occurrence
of the Effective Date, the parties agree (i) that the payment to Krivsky
pursuant the Bird Long Term Incentive Compensation Plan ("LTIP Plan") that
became payable on June 28, 1994 is the last payment to which Krivsky shall be
entitled under the LTIP Plan; (ii) that the June 2,8, 1994 LTIP Plan payment
shall be paid in shares of Bird common stock, except the 25% cash payment to be
made pursuant to the first clause of Paragraph 10 of the LTIP Plan; (iii) that
Bird shall increase the gross amount of Krivsky's award, payable in cash, by
$4,536.00, which amount Bird shall apply directly to satisfy Krivsky's tax
withholding obligations with respect to said LTIP Plan payment; (iv) that
Krivsky shall pay to Bird in cash all amounts of tax withholding remaining due
as a result of (ii) and (iii) above; (v) that Bird shall issue to Krivsky
without any payment from Krivsky 15,000 shares of Bird common stock; and (vi)
that all remaining shares of Bird common stock held in escrow for Krivsky's
benefit under the terms of the LTIP Plan shall be forfeited and shall revert to
the Bird treasury.
4. OPTIONS. Krivsky shall be entitled to exercise any stock options or
stock appreciation fights (SARs") issued by Bird and outstanding and
exercisable on Krivsky's Termination Date for such period as is permitted
under, and otherwise subject to and in accordance with the terms of, the
agreements evidencing said options and/or SARS ("options"); in addition, (a)
the Board of Directors of Bird (the "Board") has agreed to amend said options
and SARs, effective as of the Effective Date, to permit their exercise at any
time beginning with Krivsky's termination of employment and ending on December
20, 1994, in substantially the form attached hereto as Exhibit 2; and (b) upon
the occurrence of the Effective Date, Krivsky shall have the right, without
cost to him, (i) to apply the cash receivable upon simultaneous exercise and
sale of shares subject to said options, determined on the basis of a fair
market value per share of $8.75, to payment of
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the exercise price under said options and to receive the net number of shares
remaining after said "cashless exercise;" and (ii) to elect that cash
(determined on the basis of a fair market value per share of $8.75) be payable
in exchange for a sufficient number of said shares to enable him to satisfy his
tax withholding obligations, which cash amount Bird shall apply directly to
satisfy Krivsky's tax withholding obligations with respect to said option
exercise.
5. DEFERRED COMPENSATION AGREEMENT. Krivsky has elected to, and
shall, receive in five approximately equal annual installments such amounts as
are credited to him under the terms of the Deferred Compensation Agreement for
William A. Krivsky between Krivsky and Bird, effective November 21, 1989, and
contributed to the trust (the "Rabbi Trust") established pursuant to the
associated Krivsky Trust Agreement, dated November 20, 1989 (together, the
"Deferral Agreement"), the first of which installments shall be payable as
provided in the amendment to said Deferred Compensation Agreement appended
hereto as Exhibit 3. In addition, Krivsky has requested, and the Board has
agreed, to amend the terms of said Deferred Compensation Agreement, in the form
attached hereto as Exhibit 3, to cause all then remaining benefits under the
Deferral Agreement to be paid in a single lump sum as soon as practicable, but
in no event later than thirty (30) days, after the occurrence of certain events
specified in said amendment.
6. INDEMNIFICATION; LIABILITY INSURANCE. Upon the occurrence of
the Effective Date, Krivsky shall be entitled, with respect to all of his acts
and omissions during the period that he was an employee of Bird, to the
indemnification rights provided under Bird's by-laws and to coverage under all
insurance policies maintained by Bird after the Effective Date providing for
liability insurance for present and former officers and directors of Bird.
7. NO OTHER ADDITIONAL RIGHTS OR BENEFITS. Krivsky acknowledges
and agrees that the only rights and benefits to which he is entitled from Bird
in connection with his employment with Bird and its affiliates and his
termination of such employment are the benefits described in Paragraphs 2
through 6 above and in the Termination Memo, to the extent provided in
Paragraph 9, and, except to the extent provided in said Paragraphs and Memo,
Krivsky specifically acknowledges and agrees (i) that after the Effective Date
he will not make any claims pursuant to any bonus or incentive plans maintained
by Bird, the LTIP Plan, any stock options or stock appreciation rights ("SARs")
granted by Bird, Bird's Management Incentive Compensation Plan (the "MICP
Plan"), Bird's health and life insurance arrangements, or the Deferral
Agreement, and (ii) that he hereby waives and surrenders, and will not assert,
any claims whatsoever that he may have had pursuant to the letter agreement
between Bird and Krivsky dated November 25, 1986, as amended as of May 24, 1990
(the "Parachute Agreement").
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8. RELEASES. Krivsky does hereby remise, release and forever
discharge, and by these presents does for himself and his heirs, next of kin,
executors, administrators, successors and assigns (collectively, "Krivsky")
remise, release and forever discharge Bird Corporation, a Massachusetts
corporation, 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
(collectively, "Bird"), jointly and severally, of and from any and all actions,
causes of action, suits, debts, controversies, damages, judgments, executions,
accounts, loss, claims, demands and liabilities whatsoever, in law or in equity
(collectively, "claims"), which against Bird Krivsky ever had, now has or may
have for, upon or by reason of any matter, cause or thing, from the beginning
of the world to the date of these presents, including, without limiting the
generality of the foregoing, any claims whatsoever arising from or related to
Krivsky's services as an officer or employee of Bird and the termination
thereof, and all claims under the Parachute Agreement.
This Release includes all claims arising during Krivsky's employment or
termination thereof arising under federal, state or local laws prohibiting
employment discrimination based upon age, race, sex, religion, handicap,
national origin or any other protected characteristic, including, but not
limited to, any and all claims under the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act, the Americans with Disabilities Act and
Massachusetts General Laws, Chapter 151B and Chapter 93, and all claims for
injury to reputation.
Nothing contained in this Release shall be construed to be a waiver or
a release of Bird with respect to Krivsky's fights to the following:
a. payment of the amount credited to Krivsky's account prior to
his Termination Date pursuant to the Deferral Agreement, which
amount is payable from the Rabbi Trust only in accordance with
the existing terms and conditions of the Deferral Agreement, as
amended to the date hereof, and Paragraph 5 above;
b. payment under and in accordance with the terms and conditions
of the LTIP Plan and Paragraph 3 above of the amount of
Krivsky's benefit thereunder that became vested on June 28,
1994;
c. exercise of any Bird stock options or SARs granted to Krivsky,
to the extent they remain outstanding and were exercisable as
of the date of Krivsky's termination, in accordance with their
terms and Paragraph 4 above;
d. indemnification and insurance coverage to the extent provided
in Paragraph 6 above; or
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e. rights under this Settlement Agreement, and under the
Termination Memo to the extent provided in Paragraph 9.
Bird does hereby remise, release and forever discharge Krivsky of and
from any and all actions, causes of action, suits, debts, controversies,
damages, judgments, executions, accounts, loss, claims, demands and liabilities
whatsoever, in law or in equity (collectively, "claims"), which against Krivsky
Bird ever had, now has or may have for, upon or by reason of any matter, cause
or thing, from the beginning of the world to the date of these presents, but
excluding any claims relating to conduct for which Krivsky would not be
entitled to indemnification under Bird's by-laws or that may hereafter arise
under this Settlement Agreement or the Termination Memo.
9. TERMINATION MEMO. The parties agree that the benefits described
in the paragraphs of the Termination Memo numbered 1 through 5, 7, 11, and the
second sentence of the paragraph numbered 6 on Exhibit 1 have been provided in
full and/or are as of the date of this agreement no longer applicable. The
parties also agree that the remaining provisions of the Termination Memo shall
continue to apply by their terms and are not inconsistent with this Agreement.
10. PURPOSE AND EXTENT OF AGREEMENT. The execution and delivery of
this Settlement Agreement is for the purpose of providing certain benefits to
Krivsky that exceed those that would otherwise have been provided pursuant to
Bird's standard severance policy and of settling any dispute that has arisen or
that might arise between the parties in connection with Krivsky's employment
with Bird and/or the termination of Krivsky's employment with Bird; it 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 the Effective Date, all then outstanding controversies and
disputes between Krivsky and Bird shall be deemed to have been settled. Krivsky
hereby acknowledges that after the Effective Date he will not make claims
pursuant to any plan, program or policy of Bird, except to the extent and in
the manner provided under the terms of this Settlement Agreement.
11. BINDING EFFECT. 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 Krivsky and his heirs, next of kin, executors, administrators,
successors and assigns.
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12. AUTHORITY. 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.
13. ENTIRE AGREEMENT. This Settlement Agreement and the Exhibits
hereto constitute the entire agreement between the panics hereto pertaining to
the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, between the panics, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof; provided, however, that the parties understand and agree that this
Settlement Agreement shall not supersede the terms and conditions of the
instruments referred to in subparagraphs (a) through (e) of Paragraph 8 to the
extent such terms and conditions are specifically preserved thereunder.
14. COUNTERPARTS. 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.
15. AMENDMENT. This Settlement Agreement may be amended or modified
only in writing executed by the parties hereto.
16. GOVERNING LAW. This Settlement Agreement shall be governed by
the laws of the Commonwealth of Massachusetts.
17. SEVERABILITY. 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.
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IN WITNESS WHEREOF, Bird Corporation and William A. Krivsky have
executed this Settlement Agreement as of the day and year first written above.
BIRD CORPORATION
Attest:__________________________ By:_______________________________
Joseph D. Vecchiolla, President
Dated:
William A. Krivsky
Witness:_________________________ __________________________________
William A. Krivsky
Dated: 11/25/94
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<LOGO> EXHIBIT 1
BIRD MEMORANDUM
CORPORATION____________________________________________________________________
To: William Krivsky From: Joe Vecchiolla
Subject: Benefits Status at Termination Date: 7/29/94
TERMINATION DATE: Your termination date is August 5, 1994.
REGULAR PAY: You will be paid for the two week period through your
termination date. As an exempt employee, you will have been paid up
through the termination date, August 5, 1994, not a week in arrears,
as is printed on the check stub.
VACATION PAY: In accordance with the Company Policy, you have earned
nine vacation days for the credited months up to the date of
termination. According to the payrol1 records, you have taken one
vacation day. Your final pay will be adjusted to provide for the
eight vacation days earned, but not taken.
SEPARATION PAY: You are eligible for six weeks of Separation Pay in
Lieu of Notice in accordance with Company Policy. Separation Pay in
Lieu of Notice payments will he made in the same biweekly schedule
your current pay. No deductions other than applicable payroll taxes
will be taken from your Separation Pay. Your pay-through date
September 16, 1994.
CAR ALLOWANCE: Your car allowance will end with the payment for the
month of July which was paid on July 22, 1994.
UNEMPLOYMENT COMPENSATION: You will be eligible to apply for
Unemployment Compensation benefits at the end of your Separation pay
period. It iS also the Company's right to discontinue Separation Pay
in the event you find other employment before the Separation period
ends.
GROUP INSURANCE: Your coverages under the BirdFLEX Core and Optional
Benefits terminate at the end of August, 1994. Your last deduction
for these coverages Will take place with the August 19 pay date.
Your life insurance coverage under the Key Manager Insurance Plan
will also terminate on August 31, 1994. You may convert this policy
to an indiVidual policy by paying Bird for the cash value of the
policy. The approximate cash value is $15,000.
COBRA: You will be notified in writing of your right to continue
Medical and Dental Coverages and a Health Care Reimbursement Account
under COBRA. If you accept the offer and pay the premiums within the
required time frame, you may continue coverages for up to 18 months
or until you become covered under another plan.
CONTINUATION OF OTHER COVERAGES: You may apply to convert Core
Benefit Plane such as Life Insurance and Long Term Disability Plans
to individual plans. YoU would purchase coverage directly from
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CIGNA. Please contact Sheri Lyons if you have any interest in these
conversion options.
BESPSP: At termination, you will no longer be able to defer compensation into
the 401(k) plan. You will also be provided with a Request for Distribution
package. which will enable you to take a distribution from the Plan. The
Distribution package will explain that you may take a taxable distribution
from the Plan, or you may roll the proceeds over into an IRA or another
company 401(k) plan allowed by that plan). Distributions made directly
to an individual will involve mandatory withholding of Federa1 Income Taxes.
The Distribution package will also require you to decide whether to take any
Company Stock you may own in the Plan as shares or take the distribution as
cash. The trustee will process the Request for Distribution on the last day of
the month in which your request is received. Valuation of Plan assets,
determination of the value of your individual account balance, and processing
of the distribution check should normally take approximately 6-8 weeks after
the valuation date. Since you are eligible to retire, you may elect to defer
your distribution until the end of the year.
COMPANY BASE CONTRIBUTION FOR 1993: The contribution for 1993 will be
made to the Trust by September 15, 1994. If you have already taken a
distribution, the Trustee will follow the same decisions you made in processing
this contribution as were made on the balance of your account.
VESTING: You are 100% vested in all Company Contributions.
If you have any questions or require any assistance, please let me
know, or see John Woodlay.
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EXHIBIT 2
PROPOSED VOTE OF
BIRD CORPORATION
BOARD OF DIRECTORS
VOTED: That, upon the Effective Date under the Settlement Agreement,
dated November 25, 1994, between this corporation and William A. Krivsky
("Krivsky"), each of Krivsky's stock option agreements evidencing
options granted by this corporation and listed on the attached Exhibit
A be, and hereby is, amended to permit Krivsky to exercise each of
said options during the period commencing with his date of termination
and ending on December 20, 1994, subject in all other respects to the
terms and provisions of said agreements.
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EXHIBIT A TO
SETTLEMENT AGREEMENT
BETWEEN BIRD CORPORATION
AND WILLIAM A. KRIVSKY
VESTED OPTIONS OUTSTANDING
AND EXERCISABLE
THROUGH DECEMBER 20, 1994
GRANT OPTION NUMBER OF
DATE PRICE OPTIONS
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11/25/86 $8.000 20,000
7/28/87 $8.875 3,000
4/26/88 $5.000* 8,000
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TOTAL 31,000
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<FN>
*Option also includes Stock Appreciation Rights.
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EXHIBIT 3
BIRD CORPORATION
DEFERRED COMPENSATION AGREEMENT FOR WILLIAM A. KRIVSKY
AMENDMENT
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WHEREAS, Bird Incorporated and William A. Krivsky (the "Executive")
entered into a Deferred Compensation Agreement for William A. Krivsky dated
February 27, 1987, as amended June 27, 1994 (the "Agreement"); and
WHEREAS, in connection with a certain Settlement Agreement between Bird
Corporation ("Bird") and the Executive of even date herewith Bird and the
Executive have agreed to amend the Agreement to provide for an immediate lump
sum payment upon the occurrence of certain events;
NOW, THEREFORE, the Agreement is hereby amended as follows, effective
as of the "Effective Date", as defined in said Settlement Agreement:
Paragraph 5(b) of the Agreement is hereby amended by adding to the end
of said paragraph the following:
Further, in the event that (i) all or substantially all of the
assets of either the Vinyl Division of Bird Incorporated or the
Roofing Division of Bird Incorporated are sold to a party that is
not a parent or subsidiary, direct or indirect ("affiliate"), of
Bird or (ii) the currently outstanding indebtedness of Bird and
its affiliates to its institutional lenders is refinanced, then
the Executive and legal counsel designated by the Executive shall
be given prompt written notice of the occurrence of any of the
events described in (i) or (ii) and the Executive shall be
entitled to elect in writing to receive the full amount then
payable from the Executive's Trust Fund in a single lump sum as
soon as practicable, but in no event more than thirty (30) days,
following such election.
Paragraph 5(c) of the Agreement is hereby amended by adding to the end
of said paragraph the following:
Notwithstanding the preceding sentence, the first installment
payable to the Executive pursuant to his election to receive
installments over a five year period shall be paid as soon as
practicable after the Effective Date of the Settlement Agreement
between the Executive and Bird Corporation, dated November 25,
1994, rather than being payable on January 15, 1995.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
25th day of November, 1994.
Bird Corporation
By:
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Joseph D. Vecchiolla, President
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William A. Krivsky
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W. A. KRIVSKY
LONG TERM INCENTIVE PLAN DISTRIBUTION AT JUNE 28,1994
CALCULATION OF GROSS INCOME
19,110 shares @ $8.75 $167,212.50
Cash at 25% per 9/15/94 letter 56,135.50
Additional cash per Agreement 4,536.00
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GROSS INCOME (W-2) $227,884.00
Federal Income Tax at 20% (45,576.80)
State Income Tax at 5.95% (13,559.10)
Medicare at 1.45% (3,304.32)
Other miscellaneous deductions (165,443.78)
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NET PAY DUE KRIVSKY $ -0-
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NOTE: W.A. Krivsky owes Bird $1,768.72 in excess withholdings since
the cash portion of this distribution was less than the tax
withholding.