EXHIBIT 4.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective February 15, 2001, ("Effective Date") by and between Amcast Industrial
Corporation, a corporation duly organized and existing under the laws of the
State of Ohio, with a place of business at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx,
Xxxxxx, Xxxx 00000, hereinafter referred to as "Amcast", and Xxxxx Xxxx, with an
address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, hereinafter
referred to as "Executive".
ARTICLE 1
EMPLOYMENT
1.01 Amcast hereby agrees to employ Executive as its President and Chief
Executive Officer and Executive hereby accepts and agrees to such employment
from and after the Effective Date of this Agreement based upon the terms and
conditions stated herein.
1.02 Executive shall generally have the authority, responsibilities, and perform
such duties as are customarily held and performed by the President and Chief
Executive Officer in businesses such as that engaged in by Amcast, including,
among other things, developing and implementing the company's strategic and
operational plans, recruiting and developing strong senior management,
allocating resources to achieve the strategic and financial objectives,
establishing effective financial controls and management, managing external and
internal communications and relationships, and ensuring a strong relationship
with the Amcast Board of Directors ("Board"). Executive shall also render such
additional services and duties as may be reasonably requested of Executive from
time to time by the Board.
1.03 Executive shall report to the Board, or any committee thereof as the Board
shall direct, and shall generally be subject to direction, orders and advice of
the Board.
1.04 Executive represents and warrants that prior to entering into this
Agreement he has not been an employee, director, officer or substantial security
holder of Amcast.
ARTICLE 2
BEST EFFORTS OF EXECUTIVE
2.01 Executive agrees that he will devote his full time and attention to, and at
all times faithfully, industriously, and to the best of his ability, experience,
and talents, perform, all of the duties that may be required of and from him
pursuant to the express and implicit terms of this Agreement, to the reasonable
satisfaction of Amcast.
ARTICLE 3
TERM OF EMPLOYMENT AND AGREEMENT
3.01 The Term of Executive's employment with Amcast pursuant to this Agreement
shall be three (3) years from the Effective Date, subject to the provisions set
forth in Articles 6, 7 and 8 of this Agreement.
ARTICLE 4
COMPENSATION AND BENEFITS
4.01 Executive will be paid an annualized base salary of Four Hundred Thirty
Thousand and no/100 Dollars ($430,000.00). Executive's base salary shall be
payable in equal installments pursuant to Amcast's normal payroll procedures and
dates. The Board shall review Executive's base salary compensation annually at
the conclusion of Amcast's fiscal year. Any actual increase in Executive's base
salary shall be made within Amcast's sole judgment
and discretion based on any criteria Amcast determines are appropriate. Such
base compensation shall not be subject to decrease unless the Board takes action
to effect a uniform percentage decrease in compensation for all senior
executives of Amcast.
4.02 Executive shall be eligible to receive such fringe benefits as are, and may
be, made available to other senior executive employees of Amcast from time to
time in the exclusive discretion of the Board. Such benefits may include, but
are not limited to, a medical and dental plan, short term disability plan, long
term disability plan, life insurance plan, 401k plan, and car allowance. Amcast
may, without any prior notice, discontinue or modify any benefit already
provided or as may be provided in the future, within the exclusive discretion of
the Board, only if such benefits are uniformly discontinued or modified for all
senior executives of Amcast.
4.03 Executive shall be eligible to receive annual discretionary incentive bonus
compensation in an amount targeted to be 65% of Executive's annualized base
salary, based upon achievement of personal and overall company goals as are
determined and approved by the Board. Any bonus payments shall be made within
ninety (90) days following the completion of each fiscal year. Any dispute
between Executive and Amcast as to the amount of, or entitlement to, any bonus
shall be promptly addressed by the Board's Compensation Committee.
4.04 Amcast shall reimburse Executive, in accordance with Amcast's policies and
procedures in effect from time to time, for all reasonable and deductible
out-of-pocket business expenses which are incurred by Executive in connection
with the performance by him of his duties hereunder.
4.05 Pursuant to the terms and conditions contained in the Stock Option
Agreement separately entered into and executed by Executive and Amcast, Amcast
shall grant to Executive the option to purchase an aggregate 250,000 (Two
Hundred Fifty Thousand) shares of the outstanding common stock of Amcast at a
price per share (herein the "Option Price") equal to the closing price of
Amcast's common stock as reported on the New York Stock Exchange Composite
Transactions Tape on June 1, 2001, which option shall, if Executive is employed
on such vesting dates, vest as follows: 85,000 shares on June 1, 2001; 82,500
shares on January 1, 2002; and 82,500 on January 1, 2003; and provided, however,
that if Amcast and/or its shareholders receive an offer that is accepted by the
Board and the shareholders (a "Change in Control Offer") for a Change in Control
(as defined in Section 8.02) prior to June 1, 2001, then the Option Price shall
be at a price per share equal to eighty-five percent (85%) of the average
closing price of Amcast's common stock as reported on the New York Stock
Exchange Composite Transactions Tape for the last twenty (20) trading days prior
to the date on which the final Change in Control Offer upon which the Change in
Control was based was made. The option granted shall be exercisable for a period
of three years from the date of final vesting of the grant. To the extent
necessary to effectuate the terms of this Section 4.05, Amcast will take proper
steps to have the shares of common stock subject to the option listed with the
New York Stock Exchange and registered with the Securities and Exchange
Commission.
ARTICLE 5
LEAVES OF ABSENCE
5.01 Executive shall be eligible for sick leave, holiday pay and all other
leaves of absence in accordance with Amcast's stated standard personnel
policies.
ARTICLE 6
TERMINATION
6.01 Executive may resign his position and terminate his employment by giving
Amcast one (1) month written notice of his intention to resign. If requested by
Amcast, Executive agrees to cooperate in training his successor until his actual
termination. In the event of such resignation, Executive shall be paid only his
base salary earned through the effective date of his resignation and he shall
not be entitled to receive any pro-rated or other portion of any bonus,
severance, or other compensation otherwise payable under the terms of this
Agreement after Executive's last day of employment.
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6.02 Amcast may, subject to applicable law, terminate this Agreement and
Executive's employment by giving Executive one (1) months written notice if
Executive, due to sickness or injury, is prevented from carrying out his
essential job functions for a period of six (6) months or longer. In the event
of such termination, Executive shall receive only his base salary earned through
the date of termination; provided, however, that Executive may, as the Board
shall in its discretion determine, receive a pro-rated or other portion of any
bonus to which Executive was otherwise eligible pursuant to any bonus plan or
other arrangement established prior to termination, to the extent such bonus was
earned based upon the requirements or criteria of such plan or arrangement.
6.03 Executive's employment and this Agreement will be deemed terminated upon
the death of the Executive. In the event of such termination, Executive shall
receive only his base salary earned through the date of termination; provided,
however, that Executive may, as the Board shall in its discretion determine,
receive a pro-rated or other portion of any bonus to which Executive was
otherwise eligible pursuant to any bonus plan or other arrangement established
prior to termination, to the extent such bonus was earned based upon the
requirements or criteria of such plan or arrangement.
6.04 Any other provision of this Agreement notwithstanding, Amcast may terminate
Executive's employment without notice if the termination is based on any of the
following events that constitute Cause:
(a) Executive embezzles funds or otherwise misappropriates the assets of Amcast,
commits any act of moral turpitude, is convicted in a court of law of or pleads
guilty or no contest to a felony or any criminal activity involving dishonesty,
fraud, breach of trust or involving money or property of Amcast, or engages in
any public conduct that has or can reasonably be expected to have a material
detrimental effect on Amcast; or
(b) Executive breaches any of the provisions of this Agreement or fails to
perform Executive's duties and responsibilities consistent with the lawful
directions of Amcast, provided, however, that with respect to any curable breach
hereof or failure to perform Amcast shall first have given Executive written
notice of his breach of the terms of this Agreement or failure to perform and
Executive shall have failed to remedy such violation within 30 calendar days of
the receipt of such notice.
In the event of such termination, and not withstanding any contrary provision
otherwise stated, Executive shall receive only Executive's base salary earned
through the date of termination.
6.05 Upon termination of employment hereunder for any reason, Executive shall be
deemed to have resigned from all officer positions and director positions he
then holds with Amcast or with any affiliated entity.
6.06 Upon termination of employment hereunder for any reason, Executive agrees
that he shall not disparage or defame Amcast, its directors, officers, employees
or products. The provisions of this Section 6.06 shall survive termination of
this Agreement indefinitely.
6.07 Upon termination of employment hereunder for any reason, Executive agrees
that he shall reasonably assist Amcast with any litigation brought by or against
Amcast involving matters occurring during the period of his employment
hereunder.
ARTICLE 7
SEVERANCE
7.01 If prior to completion of the Term, either (a) Amcast terminates
Executive's employment for any reason other than those listed in Sections 6.02,
6.03, and 6.04 above, or (b) Executive terminates his employment due to a
Constructive Discharge, Amcast shall:
(a) pay Executive (i) his base salary earned through the effective date of
termination and (ii) a pro-rated or other portion of any bonus to which
Executive was otherwise eligible pursuant to any bonus plan or other arrangement
established prior to termination, to the extent such bonus was earned based upon
the requirements or criteria of such plan or arrangement;
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(b) pay Executive as severance pay, each month for twelve (12) consecutive
months following Executive's termination, Executive's monthly base salary in
effect at the time of separation, less customary withholdings, beginning one (1)
month after termination; and
(c) if Executive timely elects to continue Executive's group health and dental
insurance coverage pursuant to applicable COBRA/continuation law and the terms
of the respective benefit plans, continue to pay on Executive's behalf Amcast's
customary share of premiums for such coverage for the lesser of eighteen (18)
months or such time as Executive's COBRA/continuation rights expire.
7.02 A "Constructive Discharge" will be deemed to have occurred if:
(a) Amcast substantially modifies Executive's position or principal duties,
responsibilities, reporting relationship, or status without his written consent;
(b) Amcast relocates Executive to a location that is more than fifty (50) miles
from Amcast's current headquarters in Ohio, unless approved in writing by the
Executive;
(c) Amcast reduces Executive's base salary contrary to the provisions of section
4.01 hereof or fails to pay Executive any material compensation or fringe
benefits to which the Executive is entitled within thirty (30) business days of
the due date;
(d) Amcast breaches any of its material obligations under this Agreement and
does not correct any such breach within thirty (30) days of receiving written
notice thereof from Executive; or
(e) Amcast fails to maintain director and officer liability insurance coverage
applicable to Executive.
7.03 Executive agrees that the payment of severance under this Article 7 shall
be in lieu of any other compensation to which he might claim entitlement as a
result of the termination of his employment prior to completion of the Term.
ARTICLE 8
CHANGE IN CONTROL
8.01 If within one (1) year after a Change in Control, either (i) Amcast, its
successors or assigns, terminates Executive's employment for any reason other
than those listed in Sections 6.02, 6.03, and 6.04 above, (ii) Executive
terminates his employment due to a Constructive Discharge, or (iii) Amcast fails
to obtain assumption of this Agreement by its successors or assigns, then
Amcast, its successors or assigns, shall, in lieu of any severance pay under
Article 7 of this Agreement:
(a) pay Executive (i) his base salary earned through the effective date of
termination and (ii) a pro-rated or other portion of any bonus to which
Executive was otherwise eligible pursuant to any bonus plan or other arrangement
established prior to termination, to the extent such bonus was earned based upon
the requirements or criteria of such plan or arrangement;
(b) pay Executive as severance pay, each month for thirty-six (36) consecutive
months following his termination, (i) Executive's monthly base salary in effect
at the time of separation, and (ii) one-twelfth of the greater of either (x)
Executive's average annual bonus pursuant to Section 4.03 of this Agreement for
the previous three years or (y) 32 1/2% of Executive's then current annualized
base salary, each less customary withholdings, beginning one (1) month after
termination; provided, however, that in the event of Executive's termination
within one year of a Change in Control offered and completed by Sligo Company on
or before December 31, 2001, Executive shall instead receive as severance pay,
each month for twenty-four (24) consecutive months following his termination,
only Executive's monthly base salary in effect at the time of separation, less
customary withholdings;
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(c) if Executive timely elects to continue Executive's group health and dental
insurance coverage pursuant to applicable COBRA/continuation law and the terms
of the respective benefit plans, continue to pay on Executive's behalf Amcast's
customary share of premiums for such coverage for the lesser of eighteen (18)
months or such time as Executive's COBRA/continuation rights expire; and
(d) cause all unvested stock options held by Executive to immediately vest.
8.02 For the purposes of this Agreement, "Change in Control" shall mean any one
of the following:
(a) a "Change in Control" of Amcast of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) (i) the sale, lease, transfer, conveyance or other disposition (pursuant to
a sale of assets, a merger or consolidation or similar transaction), in one or a
series of related transactions, of all or substantially all of the assets of
Amcast taken as a whole to any "person" (as defined below) or (ii) a merger,
consolidation or similar transaction to which Amcast is a party, if the
individuals and entities who were stockholders of Amcast, as applicable,
immediately prior to the effective date of such merger, consolidation or similar
transaction have beneficial ownership (as defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act) of less than 50% of the combined voting power of the
surviving corporation following the effective date of such merger, consolidation
or similar transaction;
(c) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) that, as of the date hereof, does not own 30% or more of Amcast
and becomes the "beneficial owner" (as defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act), directly or indirectly, of securities of Amcast
representing 30% or more of the combined voting power of the then outstanding
securities of the applicable entity;
(d) any "person" (as such is used in Section 13(d) and 14(d) of the Exchange
Act) becomes, through or pursuant to a "tender offer," as that term is used in
the Exchange Act and Regulations promulgated by the Securities and Exchange
Commission thereunder, the "beneficial owner" (as defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act), directly or indirectly, of securities of Amcast
representing 30% or more of the combined voting power of the then outstanding
securities of the applicable entity;
(e) a majority of the Board of Directors is not made up of individuals who (i)
are members of the Board of Directors as of the effective date of this Agreement
or (ii) who were subsequently elected to fill a vacancy in the Board, or were
subsequently nominated for election by Amcast's shareholders, by the affirmative
vote of at least two-thirds of the directors then still in office who were
directors as of the effective date of this Agreement; or
(f) the adoption by Amcast of a plan providing for its liquidation or
dissolution.
8.03 For purposes of this Article 8, "successors or assigns" shall mean a
corporation or other entity or person acquiring all or substantially all the
stock, assets, and/or business of Amcast (including this Agreement) whether by
agreement, operation of law, or otherwise.
8.04 Executive agrees that the payment of Change in Control severance benefits
under this Article 8 shall be in lieu of any other compensation to which he
might claim entitlement as a result of the termination of his employment prior
to completion of the Term.
8.05 All compensation and benefits paid to Executive under this Article 8 due to
and contingent upon the occurrence of a Change in Control shall be treated as
"parachute payments" within the meaning of Internal Revenue Code ("Code")
Section 280G(b)(2), unless, in the opinion of tax counsel selected by Amcast's
independent auditors, such payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of Code section
280G(b)(4)(A). All "excess parachute payments" within the meaning of Code
Section 280G(b)(1) shall be treated as subject to the related excise tax under
the provisions of Code Section 4999, unless, in the opinion of tax counsel, such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually
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rendered within the meaning of Code Section 280G(b)(4)(B) or are otherwise not
subject to the excise tax. In the event the compensation and benefits paid to
Executive under this Article 8 are determined to constitute excess parachute
payments and subject to the excise tax, then the provisions of Section 8.06 of
this Agreement shall become applicable.
8.06 If it is ultimately determined that any portion of the Change in Control
compensation and benefits under this Article 8 is considered to be an "excess
parachute payment," subject to excise tax under Code Section 4999, Executive
shall be entitled to receive payments sufficient to place Executive in the same
net after-tax position, computed by using the "Special Tax Rate" as such term is
defined below, that Executive would have been in had such payment not been
subject to such excise tax, and had Executive not incurred any interest charges
or penalties with respect to the imposition of such excise tax. For purposes of
this Agreement, the "Special Tax Rate" shall be the highest effective federal
and state marginal tax rates applicable to Executive in the year in which the
payment contemplated under this Section 8.06 is made.
ARTICLE 9
NONDISCLOSURE
9.01 Except as permitted or directed by Amcast or as may be required in the
proper discharge of Executive's employment hereunder, Executive shall not,
during the Term or at any time thereafter, divulge, furnish or make accessible
to anyone or use in any way any confidential, trade secret or proprietary
information of Amcast, including without limitation, whether or not reduced to
writing, customer lists, customer files or information, planning and financial
information, contracts, sales and marketing information, business strategy or
opportunities for new or developing business, which Executive has prepared,
acquired or become acquainted with during his employment by Amcast. Executive
acknowledges that the above-described knowledge or information is the property
of Amcast that constitutes a unique and valuable asset and represents a
substantial investment by Amcast, and that any disclosure or other use of such
knowledge or information, other than for the sole benefit of Amcast, would be
wrongful and would cause irreparable harm to Amcast. Executive agrees to at all
times maintain the confidentiality of such knowledge or information, to refrain
from any acts or omissions that would reduce its value to Amcast, and to take
and comply with reasonable security measures to prevent any accidental or
intentional disclosure or misappropriation. Upon termination of Executive's
employment for any reason, Executive shall promptly return to Amcast all such
confidential, trade secret and proprietary information, including all copies
thereof, then in Executive's possession, control or influence, whether prepared
by Executive or others.
9.02 The foregoing obligations of confidentiality shall not apply to any
knowledge or information the entirety of which is now published or subsequently
becomes generally publicly known, other than as a direct or indirect result of
the breach of this Agreement by Executive or a breach of a confidentiality
obligation owed to Amcast by any third party.
9.03 In the event of a breach or threatened breach by Executive of the
provisions of this Article 9, Amcast shall be entitled to an injunction
restraining Executive from directly or indirectly disclosing, disseminating,
lecturing upon, publishing or using such confidential, trade secret or
proprietary information (whether in whole or in part) and restraining Executive
from rendering any services or participating with any person, firm, corporation,
association or other entity to whom such knowledge or information (whether in
whole or in part) has been disclosed, without the posting of a bond or other
security. Nothing herein shall be construed as prohibiting Amcast from pursuing
any other equitable or legal remedies available to it for such breach or
threatened breach, including the recovery of damages from Executive. Executive
and Amcast agree that in event of a disputed proceeding regarding Executive's
compliance with the provisions of this Article 9, the prevailing party shall be
entitled to recover his or its costs of litigation and reasonable attorney fees
incurred as a result.
9.04 The Executive understands and agrees that any violation of this Article 9
while employed by Amcast may result in immediate disciplinary action by Amcast,
including termination of employment pursuant to Section 6.04 hereof.
9.05 The provisions of this Article 9 shall survive termination of this
Agreement indefinitely.
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ARTICLE 10
NONCOMPETITION AND NON-RECRUITMENT
10.01 Amcast and Executive recognize and agree that: (i) Executive has received,
and will in the future receive, substantial amounts of highly confidential and
proprietary information concerning Amcast, its business, customers and
employees; (ii) as a consequence of using or associating himself with Amcast's
name, goodwill, and reputation, Executive will develop personal and professional
relationships or a reputation with Amcast's current and prospective customers
and clients; and (iii) provision for non-competition and non-recruitment
obligations by Executive is critical to Amcast's continued economic well-being
and protection of Amcast's confidential and proprietary business information. In
light of these considerations, this Article 10 sets forth the terms and
conditions of Executive's obligations of non-competition and non-recruitment
during the Term of and subsequent to the termination of this Agreement and/or
Executive's employment for any reason.
10.02 Unless the obligation is waived or limited by Amcast as set forth herein,
Executive agrees that during the term of Executive's employment pursuant to this
Agreement and for a period of twenty-four (24) months following termination of
Executive's employment for any reason, Executive will not directly or indirectly
(a) solicit or do competitive business with any person or entity that is or was
a customer or vendor of Amcast within the twenty-four (24) months prior to the
date of termination, or (b) engage within the North American markets in which
Amcast engages in business at the time of termination, in any similar or related
business activity in competition with Amcast's direct line of business as
conducted at the time of Executive's termination. Among all other competitive
actions that are likewise restricted, Executive shall not cause or attempt to
cause any existing or prospective customer, client or account who then has a
relationship with Amcast for current or prospective business to divert,
terminate, limit or in any adverse manner modify, or fail to enter into any
actual or potential business with Amcast.
10.03 At its sole option, Amcast may, by express written notice to Executive,
waive or limit the time and/or geographic area in which Executive cannot engage
in competitive activity or the scope of such competitive activity.
10.04 For a period of twenty-four (24) months following termination of
Executive's employment for any reason, Executive will not initiate or actively
participate in any other employer's recruitment or hiring of any of Amcast's
employees.
10.05 Executive agrees that breach by him of the provisions of this Article 10
will cause Amcast irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Executive of the
provisions of this Article 10, Amcast shall be entitled to an injunction
restraining Executive from directly or indirectly competing or recruiting as
prohibited herein, without posting a bond or other security. Nothing herein
shall be construed as prohibiting Amcast from pursuing any other equitable or
legal remedies available to it for such breach or threatened breach, including
the recovery of damages from Executive and suspension or termination of the
severance payments being made to the Executive under Articles 7 or 8. Executive
and Amcast agree that in event of a disputed proceeding regarding Executive's
compliance with the provisions of this Article 10, the prevailing party shall be
entitled to recover his or its costs of litigation and reasonable attorney fees
incurred as a result. To the extent that the Executive is in violation of any of
the provisions contained in this Article 10, the applicable period shall be
tolled during such period of non-compliance, the intent of which is to provide
Amcast with the full period of compliance as stated herein.
10.06 The Executive understands and agrees that any violation of this Article 10
while employed by Amcast may result in immediate disciplinary action by Amcast,
including termination of employment pursuant to Section 6.04 hereof.
10.07 The obligations contained in this Article 10 shall survive the termination
of this Agreement indefinitely.
ARTICLE 11
INTELLECTUAL PROPERTY
11.01 Executive will promptly disclose in writing to Amcast complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product, whether
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patentable or copyrightable or not, made, developed, perfected, devised,
conceived or first reduced to practice by Executive, either solely or in
collaboration with others, during the period of Executive's employment
hereunder, whether or not during regular working hours, relating either directly
or indirectly to the business, products, practices or techniques of Amcast or
its subsidiaries (hereinafter referred to as "Developments"). Executive, to the
extent that he has the legal right to do so, hereby acknowledges that any and
all of such Developments are the property of Amcast and hereby assigns and
agrees to assign to Amcast any and all of Executive's right, title and interest
in and to any and all of such Developments.
11.02 The provisions of Section 11.01 shall not apply to any Development meeting
the following conditions: (a) such Development was developed entirely on
Executive's own time; and (b) such Development was made without the use of any
Amcast equipment, supplies, facility or trade secret information; and either (c)
such Development does not result from any work performed by Executive for
Amcast, or (d) such Development does not relate (i) directly to the business of
Amcast or (ii) to Amcast's actual or demonstrably anticipated research or
development.
11.03 Upon request and whether during the period of Executive's retention
hereunder or thereafter, Executive will do all lawful acts, including, but not
limited to, the execution of papers and lawful oaths and the giving of
testimony, that in the opinion of Amcast, its successors and assigns, may be
necessary or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign letters patent, including, but not limited
to, design patents, or other applicable registrations, on any and all of such
Developments, and for perfecting, affirming and recording Amcast's complete
ownership and title thereto, and to cooperate otherwise in all proceedings and
matters relating thereto. Executive will not be entitled to compensation for
acts performed under this Section 11.03 (other than reimbursement for all
reasonable expenses) if the Employee is employed by Amcast at the time such acts
are performed. If Executive is not employed by Amcast at the time such acts are
performed, and if the performance by Executive of such acts causes Executive to
lose compensation from other sources, Amcast will pay Executive reasonable
compensation for such acts.
11.04 Executive will keep reasonably complete accounts, notes, data and records
of all Developments in the manner and form requested by Amcast. Such accounts,
notes, data and records shall be the property of Amcast, and, upon its request,
Executive will promptly surrender same to it or, if not previously surrendered
upon its request or otherwise, Executive will surrender the same, and all but
one copy thereof, to Amcast upon the conclusion of his employment.
11.05 Executive agrees that breach by him of the provisions of this Article 11
will cause Amcast irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Executive of the
provisions of this Article 11, Amcast shall be entitled to an injunction
restraining Executive from breach of this Article 11, without posting a bond or
other security. Nothing herein shall be construed as prohibiting Amcast from
pursuing any other equitable or legal remedies available to it for such breach
or threatened breach, including the recovery of damages from Executive.
Executive and Amcast agree that in event of a disputed proceeding regarding
Executive's compliance with the provisions of this Article 11, the prevailing
party shall be entitled to recover his or its costs of litigation and reasonable
attorney fees incurred as a result.
11.06 The Executive understands and agrees that any violation of this Article 11
while employed by Amcast may result in immediate disciplinary action by Amcast,
including termination of employment pursuant to Section 6.04 hereof.
11.07 The obligations contained in this Article 11 shall survive the termination
of this Agreement indefinitely.
ARTICLE 12
MISCELLANEOUS
12.01 Governing Law. This Agreement shall be governed and construed according to
the laws of the State of Ohio without regard to conflicts of law provisions.
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12.02 Successors. This Agreement is personal to Executive and Executive may not
assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder, to any other person or entity. This Agreement
may be assigned by Amcast and Amcast may require any successors or assigns as
defined in Section 8.03 to expressly assume and agree to perform Amcast's
obligations under this Agreement.
12.03 Waiver. The waiver by Amcast of the breach or nonperformance of any
provision of this Agreement by Executive will not operate or be construed as a
waiver of any future breach or nonperformance under any such provision of this
Agreement or any similar agreement with any other employee.
12.04 Modification. This Agreement supersedes and replaces any and all prior
oral or written understandings, if any, between the parties relating to the
subject matter of this Agreement, which are hereby revoked. The parties agree
that this Agreement (a) is the entire understanding and agreement between the
parties and (b) is the complete and exclusive statement of the terms and
conditions thereof, and there are no other written or oral agreements in regard
to the subject matter of this Agreement. This Agreement shall not be changed or
modified except by a written document signed by the parties hereto.
12.05 Severability and Blue Penciling. To the extent that any provision of this
Agreement shall be determined to be invalid or unenforceable as written, the
validity and enforceability of the remainder of such provision and of this
Agreement shall be unaffected. If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, Amcast and Executive
specifically authorize the tribunal making such determination to edit the
invalid or unenforceable provision to allow this Agreement, and the provisions
thereof, to be valid and enforceable to the fullest extent allowed by law or
public policy.
12.06 Notice. Any notice required or permitted to be given under this Agreement
shall be deemed to have been delivered on the date following the day the notice
is deposited in the United States mail, certified or registered, postage
prepaid, return receipt requested, and addressed as follows:
If to Executive: Xxxxx Xxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
or such other address as Executive elects by giving such to Amcast with not less
than 30 days advance written notice.
If to Amcast: Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Its Chairman of the Board of Directors
or such other address as Amcast elects by giving such to Executive with not less
than 30 days advance written notice.
9
IN WITNESS WHEREOF the following parties have executed the above instrument the
day and year first above written.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Its Vice President, Secretary and
General Counsel
/s/ Xxxxx X. Xxxx
---------------------------------------
XXXXX X. XXXX
10
AMENDMENT NO. 1
TO
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") is entered to between AMCAST
INDUSTRIAL CORPORATION, an Ohio corporation ("Amcast"), and XXXXX X. XXXX
("Executive") on this ___day of August 2002.
RECITALS
A. On February 15, 2001, Amcast and Executive entered into an Executive
Employment Agreement (the "Employment Agreement"), pursuant to which Executive
was employed as President and Chief Executive Officer of Amcast; and on April 8,
2002, he was elected Chairman and Chief Executive Officer of Amcast; and
B. Desiring to affirm his confidence in Amcast's prospects and to
further identify his interests with those of Amcast shareholders, Executive has
requested that Amcast pay $80,000 of his salary for its fiscal year ending
August 31, 2003 ("Fiscal 2003") in Amcast Common Shares ("Shares") and Amcast's
Compensation Committee believes such action is in the best interest of Amcast;
NOW, THEREFORE, for and in consideration of the recitals and covenants
herein contained, Amcast and Executive agree as follows:
1. Section 4.01 of the Employment Agreement is hereby amended by adding
the following sentence to the end of Section 4.01:
Notwithstanding anything contained in this Section 4.01 to the
contrary, $80,000 of Executive's salary payable pursuant to this
Section 4.01 for Fiscal 2003 shall be paid in Shares rather than in
cash as follows:
(i) promptly after November 30, 2002, Amcast shall cause
Shares having a Fair Market Value of $20,000 on such date to be issued
to Executive;
(ii) promptly after February 28, 2003, Amcast shall cause
Shares having a Fair Market Value of $20,000 on such date to be issued
to Executive;
(iii) promptly after May 31, 2003, Amcast shall cause Shares
having a Fair Market Value of $20,000 on such date to be issued to
Executive; and
(iv) promptly after August 31, 2003, Amcast shall cause Shares
having a Fair Market Value of $20,000 on such date to be issued to
Executive.
For purposes of this Amendment, "Fair Market Value" means the mean of the
closing price of a Share on the date when the value of a Share is to be
determined, as reported on the New York Stock Exchange Composite Transactions
Tape; or, if no sale is reported for such date, then on the next preceding date
for which a sale is reported; or if the Shares are no longer listed on such
exchange, the determination of such value shall be made by the Compensation
Committee.
2. Each time Shares are issued to Executive in accordance with the
preceding paragraph, Amcast shall satisfy its applicable withholding and
employment tax obligations with respect to the Shares by deducting the amounts
required to be withheld or paid from Executive's next cash salary payment.
3. Amcast intends to file a registration statement on Form S-8 with
the Securities and Exchange Commission covering the Shares issued
to Executive pursuant to this Agreement so that the Shares are not
"restricted securities" under the federal securities laws. In
addition, Amcast shall issue treasury shares to Executive so that
no further listing application need be filed with the NYSE with
respect to the Shares.
4. Executive acknowledges that the Shares issued to him pursuant to
this Amendment will be "control securities" the resale of which may
be subject to the requirements of Rule 144 unless a registration
statement covering the resale of the Shares is filed with the
Securities and Exchange Commission.
5. Except as specifically modified herein with respect to payment of
Executive's salary for Fiscal 2003, the Employment Agreement shall continue in
full force and effect.
IN WITNESS WHEREOF the following parties have executed the above
instrument the day and year first above written.
AMCAST INDUSTRIAL CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Secretary
