Exhibit 10.4
April 4, 2003
VIA HAND DELIVERY
PERSONAL AND CONFIDENTIAL
Mr. Joseph T. Doyle
Dear Joe:
This letter confirms our discussion today regarding your separation from
employment with Foster Wheeler Ltd., including its subsidiaries, divisions and
affiliates (collectively the "Company"). The details of our discussion are set
out below.
1. Employment And Separation From Employment
In accordance with Section 4.1.3 of the Employment Agreement between the Company
and you dated July 15, 2002 ("Employment Agreement"), a copy of which is
attached, this letter serves as notice that your employment is being terminated
without Cause effective May 4, 2003. Except as otherwise provided below, the
"Term" of the Employment Agreement shall end on May 4, 2003 and that date would
be your "Termination Date" for all purposes under the Employment Agreement.
Provided that (i) you abide by all of your obligations under the Employment
Agreement and (ii) you do not engage in any behavior or activities which result
in the Company transforming your separation into a termination for Cause in
accordance with Section 4.1.1(iii) of the Employment Agreement,1 during the
period between the date of this letter and your Termination Date (the
"employment period") your current base salary, employee benefits and perquisites
shall remain unchanged. However, during the employment period, (i) you are to
perform only those specific duties which I request you to perform and (ii) you
are not to be present at the Company's Perryville offices or other facilities
unless your presence is specifically requested by me. Please contact Richard
Lively, Senior Vice President Human Resources, to arrange a mutually convenient
time during non-business hours to vacate your Perryville office on or before
April 11, 2003.
Following your Termination Date, the Company will pay or provide to you the
amounts and benefits specified in Section 4.2.1 of the Employment Agreement.
- --------
1 So that there is no misunderstanding, if, for example, you do not strictly
adhere to your obligations under the Employment Agreement or you were to
disparage the Company and/or its directors, officers or employees, such behavior
and activities would constitute gross misconduct on your part and would result
in a termination for Cause.
2. Separation Amounts and Benefits
Provided that you remain in the employ of the Company through the employment
period, you abide by the provisions of Paragraph 1 above and all of your
obligations under the Employment Agreement, then in accordance with Section
4.2.2 of the Employment Agreement, on the condition that (i) on or within three
(3) days after your May 4, 2003 Termination Date you sign, date and return to me
the Waiver and Release Agreement attached hereto as Attachment I, and (ii) you
do not revoke the signed Waiver and Release Agreement, you will receive from the
Company the separation amounts and benefits specified in Section 4.2.2 of the
Employment Agreement.
The separation amounts and benefits provided under Section 4.2.2 of the
Employment Agreement are extra amounts and benefits which you would not be
entitled to under the Company's established policies, plans and procedures and
the separation amounts and benefits are in exchange for your signing (and not
later revoking) the Waiver and Release Agreement. The Company's offer of the
separation amounts and benefits and your signing of the Waiver and Release
Agreement does not in any way indicate that you have any viable claims against
the Company or that the Company has or admits any liability to you whatsoever.
You are encouraged to consult with an attorney of your choice at your own
expense prior to signing the Waiver and Release Agreement. You will have been
given at least twenty-one (21) days prior to your Termination Date within which
to consider the Waiver and Release Agreement.
You are further advised that you may revoke the signed Waiver and Release
Agreement within seven (7) days after its signing. Any such revocation must be
made in writing and be received by me within the seven (7) day period. All
legally required taxes and any monies owed the Company shall be deducted from
the separation amounts and benefits provided under Section 4.2.2 of the
Employment Agreement.
3. Company Property/Expenses
In accordance with Section 5.1.2 of the Employment Agreement, you are hereby
requested to immediately return to me all confidential information and trade
secrets of the Company, including all copies thereof as described in the
Employment Agreement. You are further precluded from transferring or using any
copies or excerpts of the foregoing items. Further, in accordance with Section
5.1.2, you are to immediately return to me all Company property in your
possession including, but not limited to, computers, other business equipment,
keys, credit cards, cellular phones and beepers, and Company identification
badges. Also, please note that all business expenses for which you are entitled
to reimbursement under the Company's expense reimbursement policy must be
documented and submitted for approval within thirty (30) days after your
Termination Date.
2
4. Protection of Confidential Information; Non-Competition
Please review all of your continuing obligations to the Company delineated in
Section 5 of the Employment Agreement. Specifically, please note that you have
the following obligations under Section 5:
5. Protection of Confidential Information; Non-Competition.
5.1 The Executive acknowledges that the Executive's services will be
unique, that they will involve the development of Company-subsidized
relationships with key customers, suppliers, and service providers as
well as with key Company employees and that the Executive's work for
the Company will give the Executive access to highly confidential
information not available to the public or competitors, including trade
secrets and confidential marketing, sales, product development and
other data and information which it would be impracticable for the
Company to effectively protect and preserve in the absence of this
Section 5 and the disclosure or misappropriation of which could
materially adversely affect the Company. Accordingly, the Executive
agrees:
5.1.1 except in the course of performing the Executive's duties
provided for in Section 1.1, not at any time, whether before, during or
after the Executive's employment with the Company, to divulge to any
other entity or person any confidential information acquired by the
Executive concerning the Company's or its subsidiaries' or affiliates'
financial affairs or business processes or methods or their research,
development or marketing programs or plans, or any other of its or
their trade secrets. The foregoing prohibitions shall include, without
limitation, directly or indirectly publishing (or causing,
participating in, assisting or providing any statement, opinion or
information in connection with the publication of) any diary, memoir,
letter, story, photograph, interview, article, essay, account or
description (whether fictionalized or not) concerning any of the
foregoing, publication being deemed to include any presentation or
reproduction of any written, verbal or visual material in any
communication medium, including any book, magazine, newspaper,
theatrical production or movie, or television or radio programming or
commercial. In the event that the Executive is requested or required to
make disclosure of information subject to this Section 5.1.1 under any
court order, subpoena or other judicial process, then, except as
prohibited by law, the Executive will promptly notify the Company, take
all reasonable steps requested by the Company to defend against the
compulsory disclosure and permit the Company to control with counsel of
its choice any proceeding relating to the compulsory disclosure. The
Executive acknowledges that all information, the disclosure of which is
prohibited by this section, is of a confidential and proprietary
character and of great value to the Company and its subsidiaries and
affiliates.
3
5.1.2 to deliver promptly to the Company on termination of the
Executive's employment with the Company, or at any time that the
Company may so request, all confidential memoranda, notes, records,
reports, manuals, drawings, blueprints and other documents (and all
copies thereof) relating to the Company's (and its subsidiaries' and
affiliates') business and all property associated therewith, which the
Executive may then possess or have under the Executive's control.
5.2 In consideration of the Company's entering into this Agreement,
the Executive agrees that at all times during the Term and thereafter,
the Executive shall not, directly or indirectly, for Executive or on
behalf of or in conjunction with, any other person, company,
partnership, corporation, business, group, or other entity (each, a
"Person"):
5.2.1 until the first anniversary of the Termination Date,
provide services to a "Competitor" (as defined below), as an officer,
director, greater than 5% shareholder, owner, partner, joint venturer,
or in any other capacity, whether as an executive, independent
contractor, consultant, advisor, or sales representative; or
5.2.2 until the second anniversary of the Termination Date,
(i) call upon any Person who is or that is, at such Termination Date,
engaged in activity on behalf of the Company or any subsidiary or
affiliate of the Company for the purpose or with the intent of enticing
such Person to cease such activity on behalf of the Company or such
subsidiary or affiliate; or (ii) solicit, induce, or attempt to induce
any past or current customer of the Company to cease doing business in
whole or in part with or through the Company or a subsidiary or
affiliate, or to do business with any Competitor.
For purposes of this Agreement, "Competitor" means, on any date, a
person or entity that is primarily engaged in a material line of
business conducted by the Company.
As you know, the Company takes seriously the protection of its confidential
information and trade secrets and its former employees' obligations not to
compete.
So that there is no misunderstanding, please note that if a breach of Section 5
occurs, the Company will promptly take all necessary legal action to enforce its
rights under Section 5 of the Employment Agreement.
5. General Matters
Should you or your representative require further clarification of any aspect of
this letter, please contact Eugene Jacobs, Esq., at Seyfarth Shaw, 55 East
Monroe Street, Suite 4200, Chicago, IL 60603, telephone number (312-269-8818).
4
Best wishes for success in your future endeavors.
Sincerely yours,
FOSTER WHEELER LTD.
By /s/Raymond J. Milchovich
---------------------------------------
Raymond J. Milchovich
President, Chief Executive Officer and
Chairman of the Board of Directors
5
ATTACHMENT I
FOSTER WHEELER LTD.
WAIVER AND RELEASE AGREEMENT
(1) In consideration for the separation amounts and benefits to be
provided to me under Section 4.2.2 of my July 15, 2002 Employment Agreement (the
"Employment Agreement"), I, on behalf of myself and my heirs, executors,
administrators, attorneys and assigns, hereby waive, release and forever
discharge FOSTER WHEELER LTD. (hereinafter referred to as the "Company") and the
Company's subsidiaries, divisions and affiliates, whether direct or indirect,
its and their joint ventures and joint venturers (including its and their
respective directors, officers, employees, shareholders, partners and agents,
past, present, and future), and each of its and their respective successors and
assigns (hereinafter collectively referred to as "Releasees"), from any and all
known or unknown actions, causes of action, claims or liabilities of any kind
which have or could be asserted against the Releasees arising out of or related
to my employment with and/or separation from employment with the Company and/or
any of the Releasees and/or any other occurrence up to and including the date of
this Waiver and Release Agreement, including but not limited to:
(a) claims, actions, causes of action or liabilities arising under
Title VII of the Civil Rights Act, as amended, the Age
Discrimination in Employment Act, as amended (the "ADEA"), the
Employee Retirement Income Security Act, as amended, the
Rehabilitation Act, as amended, the Americans with Disabilities
Act, as amended, the Family and Medical Leave Act, as amended,
and/or any other federal, state, municipal, or local employment
discrimination statutes or ordinances (including, but not limited
to, claims based on age, sex, attainment of benefit plan rights,
race, religion, national origin, marital status, sexual
orientation, ancestry, harassment, parental status, handicap,
disability, retaliation, and veteran status); and/or
(b) claims, actions, causes of action or liabilities arising under
any other federal, state, municipal, or local statute, law,
ordinance or regulation; and/or
(c) any other claim whatsoever including, but not limited to, claims
for severance pay, claims based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional
distress, tort, personal injury, invasion of privacy, violation
of public policy, negligence and/or any other common law,
statutory or other claim whatsoever arising out of or relating to
my employment with and/or separation from employment with the
Company and/or any of the other Releasees,
but excluding the filing of an administrative charge of discrimination, any
claims which I may make under state workers' compensation or unemployment laws,
and/or claims which by law I cannot waive.
(2) I also agree never to initiate legal action against any of the
Releasees or become party to such legal action on the basis of any claim of any
type whatsoever arising out of or related to my employment with and/or
separation from employment with the Company and/or any of the other Releasees,
other than legal action to challenge this Waiver and Release Agreement under
ADEA or to enforce the payment of the separation amounts and benefits to me
under Section 4.2.2 of the Employment Agreement.
(3) I further acknowledge and agree that if I breach the provisions of
paragraph (2) above, then (a) the Company shall be entitled to receive without
bond an injunction to restrain any violation of paragraph (2) above, (b) the
Company shall not be obligated to make payment of the Employment Agreement
Section 4.2.2 separation amounts and benefits to me, (c) I shall be obligated to
pay to the Company its costs and expenses in enforcing this Waiver and Release
Agreement and defending against such legal action (including court costs,
expenses and reasonable legal fees), and (d) as an alternative to (c), at the
Company's option, I shall be obligated upon demand to repay to the Company all
but $5,000.00 of the Employment Agreement Section 4.2.2 separation amounts and
benefits paid to me, and the foregoing covenants in this paragraph (3) shall not
affect the validity of this Waiver and Release Agreement and shall not be deemed
to be a penalty nor a forfeiture.
(4) To the extent permitted by law, I further waive my right to any
monetary recovery should any federal, state, or local administrative agency
pursue any claims on my behalf arising out of or related to my employment with
and/or separation from employment with the Company and/or any of the other
Releasees.
(5) To the extent permitted by law, I further waive, release, and
discharge Releasees from any reinstatement rights which I have or could have and
I acknowledge that I have not suffered any on-the-job injury for which I have
not already filed a claim.
(6) I agree that I shall not take any actions or make any statements to
the public, the media, future employers, current, former or future Company
employees, or any other third party whatsoever that disparage or reflect
negatively on the Releasees.
(7) I further agree from and after my May 4, 2003 Termination Date to
make myself available to the Company to provide reasonable cooperation and
assistance to the Company with respect to areas and matters in which I was
involved during my employment, including any threatened or actual litigation
concerning the Company, and to provide to the Company, if requested, information
and counsel relating to ongoing matters of interest to the Company. The Company
will, of course, take into consideration your personal and business commitments,
will give you as much advance notice as reasonably possible, and ask that you be
available at such time or times as are reasonably convenient to you and the
Company. The Company agrees to (i) reimburse you for the actual out-of-pocket
expenses you incur as a result of your complying with this provision, subject to
your submission to the Company of documentation substantiating such expenses as
the Company may require, and (ii) after May 6, 2005, pay you for your time at
the rate of Two Hundred Dollars ($200.00) per hour.
2
(8) I further agree that if I breach Section 5 of the Employment
Agreement and/or Paragraphs (6) or (7) above, in addition to any other of the
Company's rights and legal remedies (a) the Company shall be entitled to receive
without bond an injunction to restrain any such breach, (b) the Company shall
not be obligated to make payment of the Employment Agreement Section 4.2.2
separation amounts and benefits to me, and (c) I shall be obligated to pay to
the Company its costs and expenses in enforcing Section 5 of the Employment
Agreement and/or Paragraphs (6) or (7) above (including court costs, expenses
and reasonable legal fees).
(9) I acknowledge that I have been given at least twenty-one (21) days
to consider this Waiver and Release Agreement thoroughly and I was encouraged to
consult with my personal attorney or representative at my own expense, if
desired, before signing below.
(10) I understand that I may revoke this Waiver and Release Agreement
within seven (7) days after its signing and that any revocation must be made in
writing and submitted within such seven day period to the Company's President
and Chief Executive Officer. I further understand that if I revoke this Waiver
and Release Agreement, I shall not receive the Employment Agreement Section
4.2.2 separation amounts and benefits.
(11) I also understand that the Employment Agreement Section 4.2.2
separation amounts and benefits which I will receive in exchange for signing and
not later revoking this Waiver and Release Agreement are in addition to anything
of value to which I am already entitled.
(12) I FURTHER UNDERSTAND THAT THIS WAIVER AND RELEASE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE.
(13) I acknowledge and agree that if any provision of this Waiver and
Release Agreement is found, held, or deemed by a court of competent jurisdiction
to be void, unlawful or unenforceable under any applicable statute or
controlling law, the remainder of the Waiver and Release Agreement shall
continue in full force and effect.
(14) This Waiver and Release Agreement is deemed made and entered into
in the State of New Jersey without giving effect to its choice of laws
provisions, and in all respects shall be interpreted, enforced and governed
under applicable federal law and in the event reference shall be made to State
law, the internal laws of the State of New Jersey. Any dispute under this Waiver
and Release Agreement shall be adjudicated by a court of competent jurisdiction
in the State of New Jersey.
3
(15) I further acknowledge and agree that I have carefully read and
fully understand all of the provisions of this Waiver and Release Agreement and
that I voluntarily enter into this Waiver and Release Agreement by signing
below.
/s/Joseph T. Doyle
---------------------------
Joseph T. Doyle
---------------------------
(Date)
4