1
EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
CHASE INDUSTRIES INC.
AND
XXXXXX X. XXXXXX
dated effective as of
March 1, 2001
2
TABLE OF CONTENTS
Page
1. Employment............................................................... 1
2. Duties and Restrictions.................................................. 1
(a) Duties as Employee of the Company................................. 1
(b) Other Duties...................................................... 1
(c) Non-Compete....................................................... 2
(d) Confidentiality................................................... 2
3. Place of Performance..................................................... 3
4. Compensation and Related Matters......................................... 3
(a) Base Salary........................................................ 3
(b) Bonus Payments..................................................... 3
(c) Expenses........................................................... 3
(d) Other Benefits..................................................... 4
(e) Vacations.......................................................... 4
(f) Perquisites........................................................ 4
(g) Proration.......................................................... 5
5. Unauthorized Disclosure.................................................. 5
6. Termination.............................................................. 6
(a) Death.............................................................. 6
(b) Disability......................................................... 6
(c) Cause.............................................................. 6
(d) Termination by Executive........................................... 6
7. Compensation Upon Termination Prior to a Change in Control of the Company 7
(a) Death.............................................................. 7
(b) Disability......................................................... 7
(c) Cause.............................................................. 8
(d) Breach by the Company or for Good Reason........................... 8
(e) Mitigation......................................................... 8
(f) Retirement......................................................... 9
8. Compensation Upon or After a Change in Control of the Company............ 9
(a) Compensation Upon Termination...................................... 9
(b) Mitigation......................................................... 10
(c) Letter of Credit................................................... 11
(d) Compensation Upon Change in Control................................ 11
9. Other Provisions Relating to Termination................................. 11
(a) Notice of Termination.............................................. 11
i
3
Page
(b) Date of Termination................................................ 11
(c) Good Reason........................................................ 12
(d) Cause.............................................................. 12
(e) Certain Definitions................................................ 13
(f) Affiliate.......................................................... 15
(g) Interest........................................................... 15
10. Successors; Binding Agreement............................................ 15
(a) Successors......................................................... 15
(b) Assumption......................................................... 15
(c) Certain Payments................................................... 16
11. Notice................................................................... 16
12. Dispute.................................................................. 16
13. Severability............................................................. 17
14. Miscellaneous............................................................ 17
15. Attorney Fees............................................................ 17
16. Counterparts............................................................. 17
17. Restatement of Prior Agreement........................................... 17
ii
4
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is
effective as of March 1, 2001, by and between Chase Industries Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Executive") and is
joined in by Chase Brass & Copper Company, Incorporated, a wholly-owned
subsidiary of the Company ("CBCC") for purposes stated on the signature page
hereto. This Agreement amends and restates the Prior Employment Contract (as
defined in Section 17).
RECITALS:
WHEREAS, Executive is the Chairman of the Board, President and Chief
Executive Officer of the Company and is an integral part of its management who
participates in the decision-making process relative to short and long-term
planning and policy for the Company;
WHEREAS, it is the desire of the Board of Directors of the Company (the
"Board") to assure itself of the continued management services of Executive by
(i) continuing to directly engage Executive as an officer of the Company, CBCC,
and each of its other Subsidiaries (as defined in Section 9(e)(vii) below) now
existing or hereafter acquired or formed, and (ii) continuing to directly engage
the services of Executive as a director of the Company, CBCC, and each such
Subsidiary; and
WHEREAS, Executive is desirous of continuing to commit himself to serve
the Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ Executive as
its Chairman of the Board, President and Chief Executive Officer, and Executive
hereby agrees to accept such employment, on the terms and conditions set forth
herein, for the period commencing on the date hereof and expiring on the earlier
of a Change in Control of the Company as described in Section 9(e)(ii) (1), (3),
(4) or (5) of this Agreement or September 1, 2001, unless sooner terminated as
hereinafter set forth (the "Term"). Notwithstanding the expiration of the Term
or other termination of this Agreement, if a Change of Control shall occur at or
prior to the expiration of the Term or other termination of this Agreement, the
terms of this Agreement shall survive to the extent necessary to enable
Executive to enforce his rights under Section 8 of this Agreement.
2. Duties and Restrictions.
(a) Duties as Employee of the Company. Executive shall,
subject to the supervision of the Board, have general management of the
business, affairs and property of the Company in the ordinary course of its
business with all such powers with respect to such general management as may be
reasonably incident to such responsibilities.
(b) Other Duties. Executive agrees to serve as a director
of the Company and of any of its Subsidiaries and in one or more executive
offices of any such Subsidiary; provided, however, that he is indemnified for
serving in any and all such capacities in a manner acceptable
1
5
to the Company and Executive. In addition to the foregoing, the Company agrees
to take all action within its power and authority (including without limitation
voting all shares of voting capital stock of each such Subsidiary held by the
Company) to cause Executive to be a member of the board of directors of each
such Subsidiary, and Executive agrees to accept such employment and
directorships, during the Term of this Agreement. Executive agrees that he shall
not be entitled to receive any compensation for serving as a director of the
Company or, with respect to the Subsidiaries of the Company, in any capacity
other than the compensation to be paid to Executive pursuant to this Agreement
or any other written agreement between the Company or any of its Subsidiaries
and Executive.
(c) Non-Compete. Executive agrees that he will not, for a
period of one year following the termination of his employment with the Company,
(i) employ, associate in any business relationship with, endeavor to entice away
from the Company or its Subsidiaries or otherwise interfere with any person who
was an employee of or consultant to the Company or any of its Subsidiaries
during the three (3) month period preceding such termination or (ii) be employed
by, associated with or have any interest in, directly or indirectly (whether as
principal, director, officer, employee, consultant, partner, stockholder,
trustee, manager or otherwise), any company in the business of manufacturing or
producing copper alloy rod which is directly competitive with the Company or
CBCC, or any company which otherwise is directly competitive with the Company
and any of its other Subsidiaries, in any geographical area in which the Company
or its Subsidiaries engage in business at the time of such termination or in
which any of them, prior to termination of Executive's employment, evidenced in
writing, at any time during the six month period prior to such termination, its
intention to engage in such business (any such company, a "Competing Business");
provided, however, that the provisions of this Section 2(c) shall not apply in
the event (i) the Company terminates Executive's employment with the Company
other than for "Cause" (as herein defined) or otherwise in violation of this
Agreement, or (ii) Executive terminates this Agreement for Good Reason (as
hereinafter defined). Notwithstanding the foregoing, Executive shall not be
prohibited from owning one percent or less of the outstanding equity securities
of any Competing Business whose equity securities are listed on a national
securities exchange or publicly traded in any over-the-counter market.
(d) Confidentiality. Executive shall not, directly or
indirectly, at any time following termination of his employment with the
Company, reveal, divulge or make known to any person or entity, or use for
Executive's personal benefit (including without limitation for the purpose of
soliciting business, whether or not competitive with any business of the Company
or any of its Subsidiaries), any information acquired during the course of
employment hereunder with regard to the financial, business or other affairs of
the Company or any of its Subsidiaries (including without limitation any list or
record of persons or entities with which the Company or any of its Subsidiaries
has any dealings), other than (i) information already in the public domain, (ii)
information of a type not considered confidential by persons engaged in the same
business or a business similar to that conducted by the Company or its
Subsidiaries, or (iii) information that Executive is required to disclose under
the following circumstances: (A) at the express direction of any authorized
governmental entity; (B) pursuant to a subpoena or other court process; (C) as
otherwise required by law or the rules, regulations, or orders of any applicable
regulatory body; or (D) as otherwise necessary, in the opinion of counsel for
Executive, to be disclosed by Executive in connection with any legal action or
proceeding involving Executive and the
2
6
Company or any Subsidiary of the Company in his capacity as an employee,
officer, director, or stockholder of the Company or any Subsidiary of the
Company. Executive shall, at any time requested by the Company (either during or
within one year after his employment with the Company), promptly deliver to the
Company all memoranda, notes, reports, lists and other documents (and all copies
thereof) relating to the business of the Company or any of its Subsidiaries
which he may then possess or have under his control.
3. Place of Performance. In connection with his employment under
this Agreement, Executive shall be based at 0 Xxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxx 00000. The Company shall not, without the written consent
of Executive, relocate or transfer Executive's place of performance to a
location more than 35 miles from Executive's principal residence. If the Company
relocates or transfers Executive's place of performance more than 35 miles from
Executive's principal residence, then the Company promptly will pay all
reasonable moving expenses incurred by Executive relating to a change of his
principal residence, in connection with any such relocation of Executive's place
of performance, to a location at least within 35 miles of the Executive's
relocated place of performance. Furthermore, the Company will indemnify
Executive against any loss realized in the sale of his principal residence in
connection with any such change of residence. Such loss, and the indemnification
by the Company hereunder, shall be computed as the difference (if such
difference is a positive number) between (a) Executive's aggregate investment in
such residence and (b) the actual sale price of the residence minus the expenses
of the sale (including broker's commissions). Notwithstanding the above, the
provisions of this Section 3 will not be applicable to, or invoked by, any
relocation by Executive of his principal residence to a location more than 35
miles from Executive's place of performance if the Company has not changed the
location of Executive's place of performance.
4. Compensation and Related Matters.
(a) Base Salary. Executive shall receive a base salary
paid by the Company ("Base Salary") from the date of this Agreement through the
expiration of this Agreement, as provided in Section 1, at the annual rate of
$350,000 payable in substantially equal monthly installments (or such other more
frequent times as executives of the Company normally are paid).
(b) Bonus Payments. Executive shall be entitled to
receive, in addition to the Base Salary, such bonus payments, if any, as the
Board or the compensation committee of the Board may specify.
(c) Expenses. During the term of his employment
hereunder, Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by the Board for Executive, provided that such policies
and procedures so established by the Board shall not be established and/or
enforced in a manner that is adversely discriminating to Executive as compared
to the policies and procedures established and enforced against the other senior
executive officers of the Company; it being agreed that Executive may be
entitled to a reimbursement for expenses not otherwise available to any other
senior executive officer of the Company if so determined by the Board) in
performing services hereunder, provided that Executive properly accounts
therefore in accordance with Company policy.
3
7
(d) Other Benefits. The Company shall not make any
changes in any employee benefit plans or other arrangements in effect on the
date hereof or subsequently in effect in which Executive currently or in the
future participates (including, without limitation, each pension and retirement
plan, supplemental pension and retirement plan, savings and profit sharing plan,
stock or unit ownership plan, stock or unit purchase plan, stock or unit option
plan, life insurance plan, medical insurance plan, disability plan, dental plan,
health-and-accident plan, or any other similar plan or arrangement) that would
adversely affect Executive's rights or benefits thereunder, unless such change
occurs pursuant to a program applicable to all executives of the Company and
does not result in a proportionately greater reduction in the rights of or
benefits to Executive as compared with any other executive of the Company.
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or other arrangement made available by the Company now or
in the future to its senior executive officers and key management employees,
subject to and on a basis consistent with the terms, conditions, and overall
administration of such plan or arrangement. Nothing paid to Executive under any
plan or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the Base Salary payable to Executive pursuant to Section
4(a) above.
(e) Vacations. Executive shall be entitled to 20 paid
vacation days during the Term or such additional number as may be determined by
the Board from time to time. For purposes of this Section 4(e), weekends shall
not count as vacation days and Executive shall also be entitled to all paid
holidays given by the Company to its senior executive officers. Notwithstanding
the provisions contained in Sections 6, 7 and 8, upon termination of this
Agreement for any reason, Executive shall be entitled to payment by the Company
for accumulated vacation days not taken by Executive as of the Date of
Termination (as defined in Section 9(b) hereof). The payment for accumulated
vacation days shall be calculated based on Executive's Base Salary during the
year in which the accumulated vacation days accrued. In addition, upon execution
of this Agreement, the Company shall pay to Executive for the vacation days
accumulated and carried forward as permitted under Section 4(e) of the Prior
Employment Contract (as defined in Section 17(a)).
(f) Perquisites.
(i) Executive shall be entitled to receive the
perquisites and fringe benefits appertaining to the offices of Chairman of the
Board, President and Chief Executive Officer of the Company in accordance with
any practice established by the Board. Notwithstanding, and in addition to, any
perquisites to which Executive is entitled pursuant to the preceding sentence,
during the Term the Company shall continue to maintain Executive's current
membership at all clubs and other organizations to which Executive is a member
as of the date hereof and with respect to which the Company currently pays for
Executive's membership, and any and all clubs and other organizations in
substitute thereof to which Executive may become a member after the date hereof
that are reasonably comparable in cost to the Company as such current clubs and
organizations.
(ii) In addition to any other benefits payable under this
Section 4, the Company shall provide, at the Company's cost, a life insurance
policy on the life of Executive in the amount of $1 million payable to such
beneficiary as designated by Executive, if and to the extent such insurance is
available on reasonably commercial terms as determined by the
4
8
compensation committee of the Board. The Company may satisfy its obligation
under this clause (ii) by assigning to such beneficiary as designated by
Executive $ 1 million of the proceeds of the Company's key man life insurance
policy maintained on the life of Executive.
(iii) In the event Executive's employment hereunder is
terminated (whether by Executive or the Company) for any reason whatsoever
(other than for Cause (as defined herein) or as a result of Executive's death),
then the Company shall, at Executive's written request and to the extent
permitted by the terms of such policies and applicable law, assign and convey
all life, disability and other insurance policies then maintained by the Company
on the life of or for the benefit of Executive to Executive, who shall
thereafter be solely responsible, at his election, to pay all premiums payable
after such assignment and conveyance to maintain the coverage under such
policies with respect to Executive. Executive shall not be required to pay any
money or other consideration to the Company upon such assignment and conveyance,
it being acknowledged and agreed by the parties hero that Executive's execution
and delivery hereof constitute adequate and satisfactory consideration for such
assignment and conveyance.
(g) Proration. Any payments or benefits payable to
Executive hereunder in respect of any calendar year during which Executive is
employed by the Company for less than the entire year, unless otherwise provided
in the applicable plan or arrangement, shall be prorated in accordance with the
number of days in such calendar year during which he is so employed.
5. Unauthorized Disclosure. During the period of his employment
hereunder, Executive shall not, without the written consent of the Board or a
person authorized thereby, disclose to any person any material confidential
information obtained by him while in the employ of the Company with respect to
any matter concerning the Company's, any of its Subsidiaries' or any of their
affiliates', business or operations, the disclosure of which he knows will be
materially damaging to the Company, any of its Subsidiaries or any of their
affiliates; provided, however, that confidential information shall not include
any information already in the public domain or any information of a type not
otherwise considered confidential by persons engaged in the same business or a
business similar to that conducted by the Company; provided further, however,
that Executive shall not be required to keep confidential any such information
and may disclose such information under the following circumstances:
(i) Executive may disclose such confidential information
to another employee of the Company or any Subsidiary of the Company or to
representatives or agents of the Company or any Subsidiary of the Company (such
as independent accountants and legal counsel) when such disclosure is reasonably
necessary or appropriate in connection with the performance by executive of his
duties as an executive officer of the Company;
(ii) at the express direction of any authorized
governmental entity;
(iii) pursuant to a subpoena or other court process; or
(iv) as otherwise required by law or the rules,
regulations, or orders of any applicable regulatory body.
5
9
6. Termination. Executive's employment hereunder may be
terminated by the Company or Executive, as applicable, without any breach of
this Agreement only under the following circumstances:
(a) Death. Executive's employment hereunder shall
terminate upon his death.
(b) Disability. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been unable to perform
his material managerial duties and responsibilities hereunder on a full time
basis for 180 consecutive calendar days, and within 30 days after written notice
of termination is given (which may occur no sooner than 30 days prior to the end
of such 180 day period) Executive shall not have returned to the performance of
his material managerial duties and responsibilities hereunder on a full time
basis, the Company may terminate Executive's employment hereunder; provided,
however, that during any period of Executive's disability the Company may assign
Executive's duties to any other employee of the Company or may engage or hire a
third party to perform such duties and any such action shall not be deemed "Good
Reason" for Executive to terminate this Agreement pursuant to Section 6(d)(i)
hereof. If the Company and Executive are unable at any time to agree on whether
Executive is physically or mentally capable of performing his duties hereunder
then the Company shall select one physician, Executive shall select one
physician and the physicians so selected shall select one physician to examine
Executive to determine whether Executive is physically or mentally incapable to
perform such duties and the determination of a majority of such physicians shall
be conclusive; and the Company shall be entitled to terminate this Agreement in
accordance with this Section 6(b) based on the determination by such physicians
that Executive is physically or mentally incapable of performing his duties
hereunder.
(c) Cause. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment hereunder upon the
engagement by Executive in:
(i) the continued failure by Executive to substantially
perform his duties hereunder (other than any such failure resulting from
Executive's incapacity due to physical or mental illness) after written demand
for substantial performance is delivered by the Company specifically identifying
the manner in which the Company believes Executive has not substantially
performed his duties;
(ii) dishonesty of a material nature that relates to the
performance of the Executive's duties hereunder;
(iii) criminal conduct (other than minor infractions and
traffic violations) that relates to the performance of the Executive's duties
hereunder;
(iv) a material violation by Executive of his duty of
loyalty to the Company which results or may result in material injury to the
Company;
(d) Termination by Executive. At his option, Executive
may terminate his employment hereunder (i) subject to Section 9(c) hereof, for
Good Reason; (ii) if his health should become impaired to an extent that makes
the continued performance of his duties
6
10
hereunder hazardous to his physical or mental health or his life; and (iii) upon
his retirement at, or anytime after, the completion of the Term of this
Agreement.
For purposes of this Agreement, the termination of Executive's
employment hereunder by Executive because of the occurrence of any one or more
of the following events shall be deemed to have occurred for "Good Reason":
(A) a material change in the nature or scope of
Executive's authorities, powers, functions, duties, or
responsibilities that is not consented to or approved by
Executive;
(B) any removal by the Company of Executive from, or
any failure to re-elect Executive to, the positions indicated
in Section 1 hereof or his position as a director and Chairman
of the Board of the Company, except in connection with
termination of Executive's employment for Cause or disability,
unless such removal or failure to re-elect is consented to or
approved by Executive;
(C) a reduction in Executive's Base Salary or any
other failure by the Company to comply with Section 4 hereof
that is not consented to or approved by Executive;
(D) failure by the Company to comply with Section 3
hereof;
(E) failure of the Company to obtain the assumption
of, and agreement to perform, this Agreement by any successor
as contemplated in Section 10 hereof;
(F) failure by the Company to comply with Section
8(c) hereof; or
(G) failure by the Company or any Subsidiary of the
Company to comply with any other material term or provision
hereof.
7. Compensation Upon Termination Prior to a Change in Control of
the Company. Prior to the occurrence of a Change in Control of the Company,
Executive shall be entitled to the following compensation from the Company upon
the termination of his employment.
(a) Death. If Executive's employment shall be terminated
by reason of his death, the Company shall pay to such person as shall have been
designated in a notice filed with the Company prior to Executive's death, or, if
no such person shall be designated, to his estate as a death benefit, his Base
Salary to the date of his death in addition to any payments Executive's spouse,
beneficiaries, or estate may be entitled to receive pursuant to any pension or
employee benefit plan or other arrangement or group life insurance policy
maintained by the Company;
(b) Disability. During any period that Executive fails to
perform his material managerial duties and responsibilities hereunder as a
result of incapacity due to physical or mental illness, Executive shall continue
to receive his Base Salary and any bonus payments until
7
11
Executive's employment is terminated pursuant to Section 6(b) hereof or until
Executive terminates his employment pursuant to Section 6(d)(ii) hereof,
whichever first occurs. After such termination, Executive shall be entitled to
receive, and the Company agrees to pay, the following compensation:
(i) the remainder, if any, of Executive's Base Salary
which was earned but not paid prior to the Date of Termination (hereinafter
defined); plus
(ii) any disability payments otherwise payable to
Executive by or pursuant to group plans provided by the Company.
(c) Cause. If Executive's employment shall be terminated
for Cause, the Company shall pay Executive his Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
Such payments shall fully discharge the Company's obligations hereunder.
(d) Breach by the Company or for Good Reason. If (A) the
Company shall terminate Executive's employment other than for Cause or (B)
Executive shall terminate his employment for Good Reason, then the Company shall
pay Executive:
(i) his Base Salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to Executive
for periods subsequent to the Date of Termination, the Company shall pay as
severance pay to Executive on or before the fifteenth day following the Date of
Termination, a lump sum in cash equal to one and one-half times the sum of (A)
Executive's full annual Base Salary at the rate in effect at the time the Notice
of Termination is given or, if Executive resigns (or an event, which is not
waived or consented to by Executive, occurs giving Executive the right to
resign) his employment for Good Reason, immediately prior to the occurrence of
the event giving rise to Good Reason, and (B) the average of the bonuses paid by
the Company to Executive for the last three fiscal years of the Company ended
prior to the Date of Termination (or if the Date of Termination occurs before
the determination of Executive's bonus to be paid for the most recent prior
fiscal year, the average of the bonuses paid by the Company to Executive for the
three fiscal years immediately preceding such most recent prior fiscal year),
taking into account, if applicable, any bonuses paid by the Company or CBCC to
Executive during any periods that Executive was employed by the Company or CBCC
(the "Average Three Year Bonus");
(iii) all benefits payable under the terms of all employee
benefit plans or other arrangements as of the Date of Termination.
(e) Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Section 7 by seeking
other employment or otherwise, nor shall the amount of any payment provided for
in this Section 7 be reduced by any compensation earned by Executive as the
result of employment by another employer after the Date of Termination, or
otherwise.
8
12
(f) Retirement. If Executive's employment shall be
terminated by reason of his retirement pursuant to Section 6(d)(iii) hereof:
(i) Executive shall be entitled to receive, and the
Company agrees to pay the remainder, if any, of Executive's Base Salary which
was earned but not paid prior to the Date of Termination (hereinafter defined),
and
(ii) for the remainder of the life of Executive and
Executive's spouse, the Company will continue to provide Executive and
Executive's spouse with medical and dental insurance coverage on substantially
the same terms and conditions as the Company from time to time provides to
senior executive officers of the Company and/or CBCC (such insurance as provided
to Executive and Executive's spouse herein referred to as "Retiree Insurance");
provided, however, that any Retiree Insurance shall be limited and reduced to
the extent such coverage otherwise is provided by (or available from or under),
at no direct out of pocket cost to the recipient, any other employer of
Executive or Executive's spouse or Social Security or any similar or substitute
plans available to such persons.
8. Compensation Upon or After a Change in Control of the Company.
(a) Compensation Upon Termination. If, after the
occurrence of a Change in Control of the Company described in Section 9(e)(ii)
(2) of this Agreement, Executive's employment is terminated by the Company or by
Executive, as the case may be, for any of the reasons described in Section 6
above prior to the expiration of the Term, then Executive shall be entitled to
(i) the same compensation benefits from the Company as set forth in Section 7
above to which he would have been entitled if the termination of his employment
had occurred prior to the occurrence of a Change in Control of the Company plus
(ii) in the event the termination occurs as described in Section 7(d) above, the
following additional benefits (subject to the provisions of Section
9(e)(ii)(2)):
(A) on or before the fifteenth day following the Date
of Termination, the Company shall pay to Executive a lump sum
in cash equal to 2.9999 times Executive's "Annualized
Includable Compensation" (within the meaning of Section
280G(d)(1) of the Internal Revenue Code of 1986, as amended
(the "Code")) from the Company at the time of payment during
the period consisting of the most recent five taxable years of
Executive ending before the date of the Change in Control (or
such portion of such period during which Executive was
employed by the Company); provided, however, that the amount
of cash paid pursuant to this Section 8(a)(A) plus the value
of any other compensation paid to Executive, pursuant to this
Agreement or otherwise, as a result of the termination of
Executive's employment that is subject to the provisions of
Section 280G of the Code shall in no event exceed $100 less
than 3.00 times Executive's Annualized Includable Compensation
and the amount of the Company's cash payment to Executive
under this Section 8(a)(A) shall be adjusted accordingly to
achieve this result. Notwithstanding the provisions of this
Section 8(a)(A), nothing contained in this Section 8(a)(A)
shall be construed to imply that any payments to the Executive
other than pursuant to this Section 8(a)(A) are subject to the
provisions of Section 280G of the Code;
9
13
(B) the Company shall maintain in full force and
effect, for the continued benefit of Executive and Executive's
spouse for a four-year period beginning upon the Date of
Termination, all employee benefit plans and other arrangements
(including medical and dental insurance coverage) as in effect
and in which such persons were entitled to participate
immediately prior to the Date of Termination, provided that
the continued participation of such persons is possible under
the general terms and provisions of such plans and
arrangements. However, in no event shall this paragraph be
construed to reduce the duration or benefits derived from any
such plans or arrangements that otherwise would extend beyond
such four-year period. If the participation of any of such
persons in any such plan or arrangement is barred, the Company
shall arrange to provide such persons with benefits
substantially similar to those which such persons would
otherwise have been entitled to receive under such plans and
arrangements from which such persons' continued participation
is barred. At the end of the period of coverage, Executive
shall have the option to have assigned to him, at no cost and
with no apportionment of prepaid premiums, any assignable
insurance policy (other than Retiree Insurance, which is
provided for in the following sentence) owned by the Company
which relates specifically to him. In addition, upon the
expiration of the period of coverage under this Section
8(a)(B), the Company will continue to provide to Executive and
Executive's spouse Retiree Insurance to the same extent as it
would have been required if Executive had retired as
contemplated by Section 7(f) hereof. If, as a result of
providing the benefits provided for under this Section
8(a)(B), Executive or Executive's spouse shall incur any tax
liability that otherwise would not have been incurred if
Executive were still an employee of the Company, then, in
addition to the amounts otherwise payable to Executive under
this Section 8(a), but subject to the provisions of Section
8(a)(A), the Company shall pay to Executive and/or Executive's
spouse, as applicable, cash in an amount necessary to
discharge any additional federal income tax liability incurred
by Executive and/or Executive's spouse, as applicable, as a
result of the receipt of the benefits provided for under this
Section 8(a)(B) (including the tax gross-up provided by this
sentence); and
(C) the Company shall pay all other damages to which
Executive may be entitled as a result of the termination of
his employment under this Agreement, including all legal fees
and expenses incurred by him in contesting or disputing any
such termination or in seeking to obtain or enforce any right
or benefit provided by this Agreement in accordance with, and
as contemplated by, Section 15 hereof.
(b) Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Section 8 by seeking
other employment or otherwise, nor shall the amount of any payment provided for
in this Section 8 be reduced by any compensation earned by Executive as the
result of employment by another employer after the Date of Termination, or
otherwise; provided, however, that any insurance coverage provided for pursuant
to Section 8(a)(B), including Retiree Insurance, shall be limited and reduced to
the extent such coverage otherwise is provided by (or available from or under),
at no direct out of pocket cost to the
10
14
recipient, any other employer of Executive, Executive's spouse, or Executive's
minor children, as applicable, or Social Security or any similar or substitute
plans available to such persons.
(c) Letter of Credit. After the occurrence of a Change in
Control of the Company, Executive may request the Company (and the Company shall
comply with such request, at the Company's sole cost and expense, within ten
days after such request is received by the Company) to post an irrevocable
letter of credit with a banking institution reasonably acceptable to Executive
in an amount equal to the maximum amount of severance benefits to which
Executive would be entitled if Executive were to terminate his employment with
the Company for Good Reason. Such letter of credit shall contain provisions
making the funds available thereunder to Executive by Executive's drafts drawn
at sight at any time and from time to time. Such provisions shall permit
Executive to present drafts (including drafts for partial draws) drawn at sight
by presentation by Executive to the applicable banking institution of a written
statement setting forth (i) that the Company is in default on a payment to be
made to Executive under this Agreement; (ii) the amount of such payment; and
(iii) a representation from Executive that he is not in default under nor has he
breached the terms of this Agreement. The Company shall continue to keep such
letter of credit in place for a period of not less than one year from the date
of the occurrence of such Change in Control of the Company.
(d) Compensation Upon Change in Control. Notwithstanding
the foregoing provisions of this Section 8, (i) if a Change in Control described
in Sections 9(e)(ii)(1), (3), (4) or (5) of this Agreement occurs on or prior to
the expiration of the Term or other termination of this Agreement, Executive
shall be entitled to receive the compensation described in Sections 8(a)(ii)
(irrespective of whether Executive's employment is terminated) simultaneously
with the occurrence of such Change in Control or (ii) if a Change in Control
described in Section 9(e)(ii)(2) of this Agreement (a "Tender") occurs prior to
the expiration of the Term or other termination of this Agreement and a Change
in Control described in Section 9(e)(ii)(1), (3), (4) or (5) occurs within one
year after such Tender as contemplated by Section 9(e)(ii)(2) (the "Second
Step"), then Executive shall be entitled to receive the compensation described
in Section 8(a)(ii) (irrespective of whether Executive's employment is
terminated) simultaneously with the occurrence of such Second Step (regardless
of whether the Second Step is consummated with the same party who initiated the
Tender), notwithstanding any expiration of the Term or other termination of this
Agreement prior to the consummation of such Second Step.
9. Other Provisions Relating to Termination.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive (other than termination because of the
death of Executive) shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
(b) Date of Termination. For purposes of this Agreement,
"Date of Termination" shall mean (i) if Executive's employment is terminated by
his death or retirement, the date of his death or retirement; (ii) if
Executive's employment is terminated because of a
11
15
disability pursuant to Section 6(b), then 30 days after Notice of Termination is
given (provided that Executive shall not have returned to the performance of his
duties on a full-time basis during such 30 day period); (iii) if Executive's
employment is terminated by the Company for Cause or by Executive for Good
Reason, then, subject to Sections 9(c) and 9(d), the date specified in the
Notice of Termination (which date shall be a date between the date Notice of
Termination is given and 30 days thereafter (inclusive)); and (iv) if
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
(c) Good Reason. Upon the occurrence of an event
described in clauses (A) through (G) of Section 6(d), Executive may terminate
his employment hereunder for Good Reason within 30 days thereafter by giving a
Notice of Termination to the Company to that effect, describing in reasonable
detail the facts or circumstances giving rise to Executive's right to terminate
his employment for Good Reason (and, if applicable, the action required to cure
same). If the effect of the occurrence of the event described in clauses (A)
through (G) of Section 6(d) may be cured, the Company shall have the opportunity
to cure any such effect for a period of 30 days following receipt of Executive's
Notice of Termination. If within 30 days following the Company's receipt of a
Notice of Termination for Good Reason (i) the Company delivers written notice to
Executive denying that Good Reason exists, the question of the existence or
nonexistence of Good Reason will be submitted for arbitration in accordance with
Section 12; or (ii) the Company has not cured the facts or circumstances giving
rise to Executive's right to terminate his employment for Good Reason and shall
not have delivered a notice pursuant to clause (i) of this Section 9(c), then
the termination by Executive for Good Reason shall be effective as of the date
specified in Executive's Notice of Termination. If Executive does not give a
Notice of Termination to the Company within 30 days after learning of the
occurrence of an event giving rise to Good Reason, then this Agreement will
remain in effect; provided, however, that the failure of Executive to terminate
this Agreement for Good Reason shall not be deemed a waiver of Executive's right
to terminate his employment for Good Reason upon the occurrence of a subsequent
event described in clauses (A) through (G) of Section 6(d) in accordance with
the terms of this Agreement. Notwithstanding the foregoing, the right of
Executive to terminate his employment for Good Reason under Section 6(d) shall
not limit the Company's right to terminate Executive's employment for Cause
under Section 6(c) if Cause is determined to exist prior to the time Good Reason
is determined to exist.
(d) Cause. Upon the occurrence of an event described in
clauses (i) through (iv) of Section 6(c), the Company may terminate Executive's
employment hereunder for Cause within 30 days thereafter by giving Executive a
Notice of Termination to that effect, describing in reasonable detail the facts
or circumstances giving rise to the Company's right to terminate Executive's
employment for Cause (and, if applicable, the action required to cure same). If
the effect of the occurrence of the event described in clauses (i) through (iv)
of Section 6(c) may be cured, Executive shall have the opportunity to cure any
such effect for a period of 30 days following receipt of the Company's Notice of
Termination. If, within 30 days following Executive's receipt of a Notice of
Termination for Cause (i) Executive delivers written notice to the Company
denying that Cause exists, the question of the existence or nonexistence of
Cause will be submitted for arbitration in accordance with Section 12; or (ii)
Executive has not cured the facts or circumstances giving rise to the Company's
right to terminate Executive's employment for Cause and shall not have delivered
a notice pursuant to clause (i) of this Section 9(d), then Executive's
termination for Cause shall be effective as of the date specified in the
12
16
Company's Notice of Termination. If the Company does not give a Notice of
Termination to Executive within 30 days after learning of the occurrence of an
event giving rise to Cause, then this Agreement will remain in effect; provided,
however, that the failure of the Company to terminate this Agreement for Cause
shall not be deemed a waiver of the Company's right to terminate Executive's
employment for Cause upon the occurrence of a subsequent event described in
clauses (i) through (iv) of Section 6(c) in accordance with the terms of this
Agreement. Notwithstanding the foregoing, the right of the Company to terminate
Executive's employment for Cause under Section 6(c) shall not limit Executive's
right to terminate his employment for Good Reason under Section 6(d) if Good
Reason is determined to exist prior to the time Cause is determined to exist.
(e) Certain Definitions.
(i) Acquiring Person: shall mean any individual, group,
partnership, corporation, association, trust, or other entity or organization (a
"Person") other than (a) Executive or any Executive Affiliate, or (b) the
Company, any of the Company's Subsidiaries, any employee benefit plan of the
Company or of a Subsidiary of the Company or of a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or of
a Subsidiary of the Company or of a corporation owned directly or indirectly by
the stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(ii) Change in Control: shall be deemed to have occurred
if:
(1) any Acquiring Person is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), directly or
indirectly, of securities of the Company representing fifty percent or
more of the combined voting power of the then outstanding Voting
Securities of the Company; or
(2) a public announcement is made of a tender or
exchange offer by any Acquiring Person for fifty percent or more of the
outstanding Voting Securities of the Company, and the Board of
Directors of the Company approves or fails to oppose that tender or
exchange offer in its statements in Schedule 14D-9 under the Exchange
Act; provided, however, that the benefits payable to Executive under
Section 8(a) hereof shall not be payable solely as a result of an event
described in this clause (2) unless, within one year after the
occurrence of such event, an event described in clauses (1), (3), (4)
or (5) hereof shall have occurred, in which case such benefits payable
under Section 8(a)(ii) hereof shall be payable within fifteen days
after the occurrence of such event; or
(3) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation or
partnership (or, if no such approval is required, the consummation of
such a merger or consolidation of the Company), other than a Conversion
Transaction. A "Conversion Transaction" shall mean a merger or
consolidation that would result in the Voting Securities of the
13
17
Company outstanding immediately prior to the consummation thereof
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity or of a parent
of the surviving entity) a majority of the combined voting power of the
Voting Securities and Convertible Voting Securities (on a fully-diluted
basis assuming full conversion thereof) of the surviving entity (or its
parent) outstanding immediately after that merger or consolidation;
provided that if any Acquiring Person owns less than fifty percent of
the Voting Securities of CSI outstanding immediately prior to such
merger or consolidation and immediately after such merger or
consolidation owns fifty percent or more of the outstanding Voting
Securities of the surviving entity (or its parent) outstanding
immediately after that merger consolidation, then such merger of
consolidation shall not be deemed a "Conversion Transaction"; or
(4) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all the
Company's assets (or, if no such approval is required, the consummation
of such a liquidation, sale, or disposition in one transaction or
series of related transactions) other than a liquidation, sale or
disposition of all or substantially all the Company's assets in one
transaction or a series of related transactions to a Subsidiary of the
Company or any other corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company; or
(5) members of the Incumbent Board cease for any
reason to constitute at least a majority of the Board.
(iii) Convertible Voting Securities: any and all options,
warrants, or other rights to purchase, or securities convertible into or
exchangeable or exercisable for, directly or indirectly, Voting Securities of
any Person.
(iv) CVC Directors: (A) those members of the Board who
are, or who have served as, employees, officers or directors of Citigroup Inc.
("CI"), Citicorp Venture Capital Ltd. ("CVC"), Court Square Capital Limited
("CSCL") or any affiliate of CI, CVC or CSCL at any time such individuals serve
as a member of the Board and (B) any other members of the Board nominated by (i)
such members of the Board described in (A) above, (ii) CI, (iii) CVC, (iv) CSCL,
(v) any affiliate of CI, CVC or CSCL, or (v) any person who is part of a group
(as determined pursuant to Section 13(d)(2) of the Exchange Act) of which CI,
CVC, CSCL or any affiliate of CI, CVC or CSCL is also a part with respect to any
Voting Securities of the Company.
(v) Executive Affiliate: any Person directly or
indirectly controlled by Executive. For purposes of this Agreement, a Person
shall be presumed to be controlled by Executive if (A) Executive is a director
or general partner or of such Person (including any partnership in which
Executive is a general partner or any trust in which Executive is a trustee or
beneficiary), (B) Executive directly or indirectly beneficially owns 10% or more
of the outstanding Voting Securities (hereinafter defined) of such Person or (C)
such Person is controlled by any Person contemplated in clauses (A) or (B) of
this clause (e)(iii).
14
18
(vi) Incumbent Board: individuals who, as of the date
hereof, constitute the Board and any other individual who becomes a director of
the Company after that date and whose election or appointment by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board;
provided that, for purposes of this Agreement, the Incumbent Board shall not
include the CVC Directors.
(vii) Subsidiary: with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
that Person.
(viii) Voting Securities: (i) any securities that vote
generally in the election of directors, in the admission of general partners, or
in the selection of any other similar governing body and (ii) with respect to
the Company, all shares of the Company's nonvoting common stock, par value $.01
per share (all of which are convertible into shares of common stock, par value
$.01 per share, of the Company).
(f) Affiliate. For purposes of this Agreement, the term
"affiliate" shall mean, with respect to any Person (including an entity), any
other Person that directly or indirectly controls, is controlled by, or is under
common control with the Person in question. As used in this definition of
"affiliate," the term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through ownership of Voting Securities, by contract, or
otherwise.
(g) Interest. Until paid, all past due amounts required
to be paid by the Company under any provision of this Agreement shall bear
interest at the lesser of 25% or the highest non-usurious rate permitted by
applicable federal, state, or local law.
10. Successors; Binding Agreement.
(a) Successors. This Agreement shall be binding upon, and
inure to the benefit of, the Company, Executive, and their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
(b) Assumption. The Company will require any successor
(whether direct or indirect, by purchase of securities, merger, consolidation,
sale of assets, or otherwise) to all or substantially all of the business or
assets of the Company, by an agreement in form and substance reasonably
satisfactory to Executive, to expressly assume this Agreement and to agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason after the occurrence of a Change in Control of the Company, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
15
19
(c) Certain Payments. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee, or other designee
or, if there be no such designee, to Executive's estate.
11. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when (i) delivered personally; (ii) sent by
facsimile or similar electronic device and confirmed; (iii) delivered by
overnight express; or (iv) if sent by any other means, upon receipt. Notices and
all other communications provided for in this Agreement shall be addressed as
follows:
If to Executive:
Xxxxxx X . Xxxxxx
00 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
If to the Company:
Chase Industries Inc.
c/o Chase Brass & Copper Company, Inc.
Attention: Chief Financial Officer
Xxxxx Xxxxx 00
Xxxxxxxxxx, Xxxx 00000
Facsimile No: 419/485-8150
or to such other address as any party may have furnished to the other in writing
in accordance herewith.
12. Dispute. In the event any dispute or controversy arises under
this Agreement and is not resolved by the mutual written agreement between
Executive and the Company within 30 days after notice of the dispute is first
given, then, upon the written request of Executive or the Company, such dispute
or controversy shall be submitted to arbitration, which arbitration shall be
conducted in accordance with the rules of the American Arbitration Association.
Judgment may be entered thereon and the results of arbitration will be binding
and conclusive on the parties hereto. Any arbitrator's award or finding or any
judgment or verdict thereon will be final and unappealable. All parties agree
that venue for arbitration will be in New York, New York, and that any
arbitration commenced in any other venue will be transferred to New York, New
York, upon the written request of any party to this Agreement. The prevailing
party will be entitled to reimbursement for reasonable attorneys fees,
reasonable costs and other reasonable expenses pertaining to the arbitration and
the enforcement thereof and such attorneys fees, costs and other expenses shall
become a part of any award, judgment or verdict. All arbitrations will have
three individuals acting as arbitrators: one arbitrator will be selected by
Executive, one arbitrator will be selected by the Company, and the two
arbitrators so selected will select a third arbitrator. Any arbitrator selected
by a party will not be affiliated, associated or related to the party selecting
that arbitrator in any matter whatsoever. The decision of the majority of the
arbitrators will be binding on all parties. If any disputes submitted to
arbitration pursuant to Sections 9(c) or 9(d) hereof are decided in favor of the
party hereto attempting to terminate
16
20
Executive's employment hereunder, the Date of Termination shall be the date
specified in the Notice of Termination.
13. Severability. In the event that any provision of this
Agreement, or the application thereof to any person or circumstance, is held by
a court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect under present or future laws effective during the effective term of
any such provision, such invalid, illegal or unenforceable provision shall be
fully severable; and this Agreement shall then be construed and enforced as if
such invalid, illegal, or unenforceable provision had not been contained in this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid, or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable. Notwithstanding the above, in the event any such
invalidity, illegality or unenforceability of any portion of Section 2(c) hereof
is caused by such provision being held to be excessively broad as to time,
duration, geographical scope, activity or subject, then such provision shall, at
the option of the Company, remain a part of this Agreement and shall be
construed by limiting and reducing it so as to be enforceable to the extent
compatible with the then applicable law and shall be enforced so as to permit
the Company or any of its Subsidiaries to recover damages for any prior
violation of such provision as so limited and reduced, to the extent permitted
under applicable law.
14. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing signed by Executive and the Company. No waiver by either party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the laws of
the State of Ohio, excluding any choice-of-law provisions thereof.
15. Attorney Fees. Except as otherwise provided in Section 12, the
prevailing party in any dispute or controversy under or in connection with this
Agreement shall be entitled to reimbursement from the non-prevailing party for
all costs and reasonable legal fees incurred by such prevailing party.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same agreement.
17. Restatement of Prior Agreement. Upon the execution of this
Agreement by each of Executive and the Company, this Agreement shall restate and
supersede the Employment Agreement dated as of November 10, 1994, by and between
Executive, the Company and CBCC (the "Prior Employment Contract"), and upon such
execution hereof the Prior Employment Contract shall be superceded in full
hereby. Any provision contained in this Agreement that refers to or is dependent
upon the time period during which Executive has been employed by the
17
21
Company shall take into account and include periods prior to the date hereof
during which Executive was employed by the Company, and the termination of the
Prior Employment Contract shall not be deemed a termination or any cessation of
Executive's employment by the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
THE COMPANY:
CHASE INDUSTRIES INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President and Chief Financial Officer
EXECUTIVE:
/s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx
Joined in for purposes of Section 2(b) hereof
CHASE BRASS & COPPER COMPANY, INC.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
18
