EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
CHASE BRASS & COPPER COMPANY, INC.
AND
XXXX X. XXXXXXXX
DATED EFFECTIVE AS OF
SEPTEMBER 1, 2001
TABLE OF CONTENTS
Page
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1. Employment..............................................................................1
(a) Absent a Change of Control.....................................................1
(b) Change of Control..............................................................1
(c) Effect of Termination..........................................................1
2. Duties..................................................................................2
(a) Duties as Employee of the Company..............................................2
(b) Other Duties...................................................................2
3. Non-Compete.............................................................................2
(a) Covenant.......................................................................2
(b) Tolling of Non-Competition Term................................................3
(c) Reasonableness of Restrictions.................................................3
(d) Separate Covenants.............................................................3
4. Confidentiality.........................................................................4
5. Compensation and Related Matters........................................................4
(a) Base Salary....................................................................4
(b) Bonus Payments.................................................................5
(c) Expenses and Other Benefits....................................................5
(d) Vacations......................................................................5
(e) Perquisites....................................................................5
(f) Proration......................................................................5
(g) Stock Options..................................................................5
6. Termination.............................................................................6
(a) Death/Disability...............................................................6
(b) Cause..........................................................................6
(c) Termination by Executive.......................................................7
7. Compensation Upon Termination Prior to a Change in Control of the Company...............8
(a) Death..........................................................................8
(b) Disability.....................................................................8
(c) Cause or Without Good Reason...................................................8
(d) Breach by the Company or for Good Reason.......................................9
8. Compensation Upon Termination After a Change in Control of the Company.................10
(a) Benefits......................................................................10
(b) Termination in Anticipation of Change of Control..............................11
(c) Employment by Buyer...........................................................11
9. Other Provisions Relating to Termination; Definitions..................................11
(a) Notice of Termination.........................................................12
(b) Date of Termination...........................................................12
(c) Good Reason...................................................................12
(d) Cause.........................................................................12
(e) Certain Definitions...........................................................12
(f) Affiliate.....................................................................15
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10. Successors and Assignments.............................................................15
11. Notice.................................................................................15
12. Disputes...............................................................................16
(a) Arbitration...................................................................16
(b) Specific Enforcement..........................................................17
13. Severability...........................................................................18
14. Miscellaneous..........................................................................18
15. Reimbursement by Executive.............................................................18
16. Release and Other Agreements...........................................................19
17. Attorney Fees..........................................................................19
18. Severance Pay Agreement................................................................19
19. Counterparts...........................................................................19
20. Restatement of Original Employment.....................................................19
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated
Employment Agreement (this "Agreement") is
effective as of the 1st day of September 2001, by and between Chase Brass &
Copper Company, Inc., a Delaware corporation (the "Company"), and Xxxx X.
Xxxxxxxx (the "Executive").
WHEREAS, effective October 12, 1999, the Company entered into an
Employment Agreement with Executive, which
Employment Agreement was amended by a
First Amendment entered into effective as of February 15, 2001 as so amended
(the "Original
Employment Agreement"); and
WHEREAS, the Original
Employment Agreement remains in full force and
effect as of the date hereof as contemplated by Section 1 of the Original
Employment Agreement, and
WHEREAS, the Company and Executive desire to amend and restate the
Original
Employment Agreement as set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and other good and valuable consideration, the Company and
Executive agree as follows:
1. Employment.
(a) Absent a Change of Control. Subject to Section 1(b), the Company
shall employ Executive as the Company's President and Chief Operating Officer
for the period commencing on October 12, 2000, and expiring on December 31, 2001
(the "Term"), unless sooner terminated as hereinafter set forth, and Executive
hereby accepts such employment, on the terms and conditions set forth herein,
provided, however, that commencing on December 31, 2001, and each anniversary
thereafter, the Term of this Agreement shall be extended for one additional year
unless at least sixty days prior to any such date the Company or Executive shall
have given written notice that it or he, as applicable, does not wish to extend
this Agreement.
(b) Change of Control. Notwithstanding Section 1(a), if a Change of
Control (as defined in Section 9(e)(ii)) occurs during the Term as defined in
Section 1a and as of the effective time of the Change of Control Executive is
employed by the Company, then the Term shall be modified to expire at midnight
on the one year anniversary of the Change of Control.
(c) Effect of Termination. Notwithstanding the expiration of the
Term or other termination of this Agreement, (i) Sections 4, 12 and 13 of this
Agreement shall survive any expiration or termination of this Agreement, (ii)
the Company agrees that, unless a Change of Control shall have occurred on or
before November 1, 2001 (in which case of such occurrence of a Change of Control
this clause (ii) shall not apply), then the Company shall not give to Executive
notice of termination of this Agreement as of December 31, 2001, and (iii) if a
Change of Control shall occur within one year 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.
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2. Duties.
(a) Duties as Employee of the Company. Executive shall, subject to
the authority and supervision of the Board of Directors (the "CSI Board"), of
Chase Industries Inc., a Delaware corporation ("CSI"), have general powers of
supervision and management of the business, affairs and property of the Company
in the ordinary course of its business usually vested in a President and Chief
Operating Officer, in each case with all such powers with respect to such
general management as may be reasonably incident to such responsibilities, and
shall have such additional or substitute duties as from time to time designated
by the CSI Board. Executive will devote his full time, attention, and energies
to the business of the Company and shall not, without the consent of the CSI
Board, either directly or indirectly, engage in any other business or activity
which would necessitate Executive giving an appreciable portion of his time to
such activity.
(b) Other Duties. Executive agrees to serve as a director of the
Company, and of any Subsidiary (as defined in Section 9(e)(viii)) of the Company
or CSI, and in one or more executive offices of any such Subsidiary, in each
case if elected or appointed to any such positions; provided, however, that
Executive is indemnified for serving in any and all such capacities in a manner
acceptable to the Company and Executive. Executive agrees that he shall not be
entitled to receive any compensation for serving as a director of the Company,
or in any capacity with respect to any Subsidiary of CSI or the Company, 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.
3. Non-Compete.
(a) Covenant. Executive agrees that he will not, directly or
indirectly, during the Term (and regardless of whether Executive is employed by
the Company):
(i) employ any person who was a salaried employee of the Company
during the six month period preceding such employment or induce,
request, advise, attempt to influence, or solicit, directly or
indirectly, any person who is a salaried employee of the Company to
terminate his or her employment arrangement with the Company,
(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 Person (as defined in Section 9(e)(vi)) that engages in
the business of manufacture of copper alloy rod or any other products
manufactured by the Company during the Term (but excluding any products
manufactured by the Company after a Change of Control that were not
manufactured by the Company prior to a Change of Control)
(collectively, "Products"), or any Person which otherwise is directly
competitive with the Company or any Subsidiary of the Company, in any
geographical area in which the Company or such Subsidiary of the
Company engages in business during the Term or has evidenced in writing
during the Term (and prior to the termination of Executive's
employment) its intention to engage in such business (any such company,
a "Competing Business"),
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(iii) induce, request, advise, attempt to influence, or solicit,
directly or indirectly, any Person to purchase Products from any Person
other than the Company if the Company provides, or negotiated to
provide, Products to that Person during the Term (and prior to the
termination of Executive's employment) (any such Person, a "Customer"),
or
(iv) induce, request, advise, attempt to influence, or solicit,
directly or indirectly, any Customer with whom Executive had personal
contact in connection with performing his duties as an employee of the
Company to purchase Products from any Person other than the Company;
provided, however, that (a) the provisions of this Section 3 shall apply only to
the copper alloy rod business of the Company and not to other businesses that
any Acquiring Person (as defined in Section 9(e)(i)) or Buyer (as defined in
Section 8(c)) may have at the time of a Change of Control or later acquire, (b)
if Executive accepts employment with, becomes associated with or has an interest
in a Person that does not constitute a Competing Business at the time Executive
first becomes employed by, associated with or obtains an interest in such Person
and such Person later acquires or becomes affiliated with a Person that
constitutes a Competing Business, then Executive is not in violation of this
Section 3 solely by reason of such acquisition or affiliation provided Executive
excludes himself from the evaluation of the acquisition or decision to become
affiliated with such Competing Business and the operations of such Competing
Business, (c) Executive may be employed by, associated with or hold an interest
in a consulting firm provided Executive does not consult for a Competing
Business, and (d) the provisions of this Section 3 shall not apply in the event
(i) Executive's employment is terminated by the Company other than (A) for
"Cause" or (B) on account of Executive's death, Permanent Disability (as defined
in Section 6(a)) or Retirement (as defined in Section 9(e)(vii)) or (ii)
Executive terminates his employment for Good Reason (as defined in Section
6(c)). 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 or regional securities
exchange or publicly traded in any over-the-counter market.
(b) Tolling of Non-Competition Term. If, during any calendar month
after the termination of Executive's employment by the Company in which the
provisions of Section 3(a) are applicable, Executive is not in compliance with
the terms of Section 3(a), the Company shall be entitled to, among other
remedies, compliance by Executive with the terms of Section 3(a) for an
additional number of months that equals the number of calendar months during
which such noncompliance occurred.
(c) Reasonableness of Restrictions. Executive acknowledges that the
geographic boundaries, scope of prohibited activities, and time duration of the
provisions of Section 3(a) are reasonable and are no broader than are necessary
to maintain and to protect the legitimate business interests of the Company, the
Company's Subsidiaries and CSI.
(d) Separate Covenants. The parties hereto intend that the covenants
contained in each of subsections 3(a)(i), (ii), (iii), and (iv) of this
Agreement be construed as a series of separate covenants, one for each county or
other defined province in each geographic
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area in which the Company or any Subsidiary of the Company conducts its business
or otherwise manufactures, distributes, licenses, sells, or markets Products.
Except for geographic coverage, each such separate covenant shall be deemed
identical in terms to the applicable covenant contained in subsections 3(a)(i),
(ii), (iii), and (iv) hereof. Furthermore, each of the covenants in subsections
3(a)(i), (ii), (iii), and (iv) hereof shall be deemed a separate and independent
covenant, each being enforceable irrespective of the enforceability (with or
without reformation) of the other covenants contained in subsections 3(a)(i),
(ii), (iii), and (iv) hereof.
4. Confidentiality. Executive shall not, directly or indirectly, at any
time during or 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,
CSI or any Subsidiary of CSI (including without limitation any list or record of
persons or entities with which the Company, CSI or any Subsidiary of CSI 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, CSI, or any
Subsidiary of CSI; (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 Company, CSI or any
Subsidiary of CSI in his capacity as an employee, officer, director, or
stockholder of the Company, CSI or any Subsidiary of CSI; or (iv) during the
period of his employment hereunder, Executive may disclose such confidential
information to another employee of the Company, CSI or any Subsidiary of CSI or
to representatives or agents of the Company, CSI or any Subsidiary of CSI (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. Executive shall, at any time
requested by the Company (either during or within one year after the termination
of 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, CSI or any Subsidiary of CSI which he
may then possess or have under his control.
5. Compensation and Related Matters.
(a) Base Salary. Executive shall receive a base salary paid by the
Company ("Base Salary") at the annual rate of $240,000 during each calendar year
of the Term, payable in substantially equal monthly installments (or such other
more frequent times as executives of the Company normally are paid). The Base
Salary shall be reviewed by the Compensation Committee of the Board of Directors
of CSI (the "Compensation Committee") at least as often as the compensation of
other senior officers of the Company is reviewed, and may be increased (but not
decreased) at any time in the sole discretion of the Compensation Committee.
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(b) Bonus Payments. Executive shall be entitled to receive, in
addition to the Base Salary, such bonus payments, if any, as the Compensation
Committee may specify. Factors to be considered by the Compensation Committee in
determining Executive's bonus for any given calendar year will include the
financial and operating performance of the Company and Executive's contribution
to profitability of the Company.
(c) Expenses and Other Benefits. Executive shall be (i) reimbursed
for all reasonable expenses incurred by him in performing services hereunder,
provided that Executive properly accounts therefor in accordance with Company
policy, and (ii) 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,
other than the Company's Chairman of the Board, subject to and on a basis
consistent with the terms, conditions, and overall administration of such plan
or arrangement.
(d) Vacations. Executive shall be entitled to 15 paid vacation days
during each year of the Term. For purposes of this Section 5(d), 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. Unused vacation
days for a calendar year shall expire as of such calendar year end if not used
during that calendar year.
(e) Perquisites. Executive shall be entitled to receive the
perquisites and fringe benefits appertaining to the offices of the Company held
by Executive in accordance with any practice established by the Company.
Notwithstanding, and in addition to, any perquisites to which Executive is
entitled pursuant to the preceding sentence, during the Term (i) the Company
shall pay for Executive's membership at one country club, located within 25
miles of Executive's principal residence or the Company's operating
headquarters, to which Executive is or may become a member as of or after the
date hereof, with the selection of the country club subject to prior approval by
the Chairman of the Board, which consent shall not be unreasonably withheld;
provided that in the event Executive terminates his membership in any such
country club, either during the Term or thereafter, the Company shall be
entitled to any amounts that may be payable as a refund of Executive's
initiation fee or monthly dues paid by the Company and (ii) the Company shall
provide Executive with the use of an automobile, make and model to be agreed
upon between Executive and the Chairman of the Board, and shall reimburse
Executive for all reasonable expenses related to maintenance of the automobile,
in accordance with Internal Revenue Service rulings.
(f) 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.
(g) Stock Options. As of the effective date of the Original
Employment Agreement, CSI has granted to Executive stock options to purchase
50,000 shares of common stock of CSI at a per share exercise price equal to the
closing price of CSI's common stock as reported on the New York Stock Exchange
on the effective date of the Original Employment Agreement (the "Stock
Options"). The Stock Options will be subject to the applicable terms and
conditions set forth in the Company's 1994 Long-Term Incentive Plan (the
"Plan"), and the
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Stock Options will vest and become exercisable with respect to 10,000 shares of
CSI common stock on each of the first five anniversaries of the date of grant,
subject to the provisions of the Plan. Executive hereby acknowledges receipt of
the Stock Options.
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/Disability. Executive's employment hereunder shall
terminate (i) automatically upon Executive's death or (ii) upon the good faith
determination by the CSI Board that, as a result of Executive's incapacity or
disability due to physical or mental illness, Executive shall have been unable
to perform hereunder with or without reasonable accommodation on a full time
basis for 120 consecutive calendar days ("Permanent Disability"), 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 120 day period) Executive shall not have
returned to the performance of his material managerial duties and
responsibilities hereunder on a full time basis; provided, however, that during
any period of Executive's incapacity or 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(c)(i)
hereof.
(b) 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:
(i) the continued failure by Executive to substantially
perform his duties hereunder (other than any such failure resulting
from Executive's incapacity or disability 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 by Executive of a material nature that relates
to the performance of the Executive's duties hereunder or the
commission by Executive of an act of fraud upon, or willful misconduct
toward, the Company, as reasonably determined by the CSI Board after a
hearing following ten days' notice to Executive of such hearing and at
which hearing Executive will be present and have the opportunity to
present Executive's position;
(iii) criminal conduct by Executive (other than minor
infractions and traffic violations) or the conviction of Executive, by
a court of competent jurisdiction, of any felony (or plea of nolo
contendere thereto) in each case other than alleged criminal conduct
for which Executive is entitled to indemnification with respect to such
conduct under any indemnity agreement or arrangement between the
Executive and CSI and/or the Company;
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(iv) a material violation by Executive of his duty of loyalty
to the Company or CSI which results or may result in material injury to
the Company, CSI or any other Subsidiary of CSI;
(v) a violation by Executive of Executive's covenants and
obligations contained in Section 3(a) or 4 of this Agreement which is
willful on Executive's part and which is not remedied to the reasonable
satisfaction of the CSI Board in a reasonable period of time after
receipt of written notice from the CSI Board;
(vi) notwithstanding the provisions of Section 6(a), the use
by Executive of alcohol which renders Executive unable to perform the
essential functions of his position under this Agreement or the use by
Executive of illegal or controlled drugs or other substances provided
that the use of controlled drugs or substances as prescribed by a
physician shall not constitute grounds for Cause; or
(vii) the failure of Executive to cease any conduct determined
in good faith by the CSI Board to be detrimental to the well-being or
morale, or otherwise not in the best interest, of the Company, CSI or
any other Subsidiary of CSI after written demand directing Executive to
cease such conduct is delivered by the CSI Board specifically
identifying such conduct and demanding cessation thereof.
If the effect of the occurrence of the event described in clauses (iv)
or (v) of Section 6(b) 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 (as defined in Section 9(a)). Any termination of
Executive's employment by the Company for Cause shall be communicated to
Executive in a written notice of termination which shall set forth in reasonable
detail the facts and circumstances, if any, claimed to provide a basis for such
termination. For purposes of this definition of Cause, "CSI" shall mean
Chase
Industries Inc., a Delaware corporation, or if a Change of Control occurs and on
or after the date of the Change of Control
Chase Industries Inc. is merged,
reorganized or otherwise consolidated with or into another Person, the Person
surviving the merger, reorganization or consolidation.
(c) Termination by Executive. At his option, Executive may terminate
his employment hereunder (i) for Good Reason or (ii) if his health should become
impaired to an extent that makes the continued performance of his duties
hereunder hazardous to his physical or mental health or his life.
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 reduction in the nature or scope of Executive's
responsibilities or authorities that is not consented to or approved by
Executive;
(B) any failure by the Company to comply in any material
respect with Section 5 hereof that is not consented to or approved by
Executive; provided, that, any change in Executive's discretionary
bonus as from time to time
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determined by the Compensation Committee shall not constitute Good
Reason for resignation;
(C) the liquidation, dissolution, merger, consolidation (other
than resulting from a sale by CSI of the outstanding Voting Securities
of the Company as contemplated by Section 9(e)(ii)(5)) or
reorganization of the Company or transfer of all or substantially all
of its assets in a transaction that constitutes a Change of Control,
unless the successor (by liquidation, merger, consolidation,
reorganization or otherwise) to which all or substantially all of its
assets have been transferred (directly or by operation of law) shall
have assumed all duties and obligations of the Company under this
Agreement pursuant to Section 10 hereof; or
(D) failure by the Company to comply with any other material
term or provision hereof.
If the effect of the occurrence of the event described in clauses (A)
through (D) of this Section 6(c) 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.
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 Executive's employment is
terminated pursuant to Section 6(a) hereof or until Executive terminates his
employment pursuant to Section 6(c)(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 (as defined in
Section 9(b)); plus
(ii) any disability payments otherwise payable to Executive by
or pursuant to group plans provided by the Company.
(c) Cause or Without Good Reason. If Executive's employment shall be
terminated by the Company for Cause or by Executive other than as permitted
under Section 6(a) or 6(c)(i) of this Agreement, the Company shall pay Executive
his Base Salary through the
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Date of Termination at the rate in effect at the time Notice of Termination is
given. Subject to the application of Sections 6(a) and 6(b) of this Agreement,
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 (1) for Cause or (2) on
account of Executive's death, Permanent Disability or Retirement, (B) Executive
shall terminate his employment for Good Reason or (C) the Company shall give
notice to Executive pursuant to Section 1(a) that the Company does not wish to
extend this Agreement beyond the next scheduled expiration of the Term, 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-half (1/2) of
Executive's annual Base Salary at the rate in effect at the time the
Notice of Termination is given;
(iii) maintain in full force and effect, for the continued
benefit of Executive (and, if applicable, Executive's spouse and minor
children) for a six-month period beginning upon the Date of
Termination, all medical and dental insurance coverages as in effect
and in which such persons were participating 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; 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 insurance coverage 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; provided, however, that in either case, to the
extent applicable, Executive pays to the Company an amount equal to the
premiums, or portion thereof, that Executive was required to pay to
maintain such insurance coverage for such persons prior to the Date of
Termination; and provided, further, that any insurance coverage
provided pursuant hereto 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 minor children, or Social Security,
medicare, medicaid or any similar or substitute plans available to such
persons; and
(iv) all benefits payable under the terms of all employee
benefit plans or other arrangements as of the Date of Termination.
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 7(d) by seeking other employment or otherwise, nor, subject
to the last proviso of clause (iii) of this Section 7(d), shall the amount of
any payment provided for in this Section 7(d) be reduced by any compensation
earned by Executive as the result of employment by another employer after the
Date of Termination, or otherwise.
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8. Compensation Upon Termination After a Change in Control of the
Company.
(a) Benefits. If a Change of Control occurs prior to the expiration
of the Term or other termination of this Agreement, as of the effective time of
the Change of Control Executive is employed by the Company, and, after the date
of the occurrence of such Change of Control and prior to midnight on the one
year anniversary of the Change of Control (such period commencing on the date of
the Change of Control and ending at midnight on the one year anniversary
thereof, the "Protection Period"), then Executive shall be entitled to 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; provided, that,
in the event either (a) Executive's employment with the Company is terminated by
the Company other than (1) for Cause or (2) on account of Executive's death,
Permanent Disability or Retirement, or (b) Executive resigns from the Company
for Good Reason, then the Company shall, in lieu of Executive being entitled to
the compensation provided in Section 7(d)(ii),
(i) pay to Executive, in a single lump sum which shall be paid
within 30 days after the termination of employment or resignation, a
severance payment in an amount equal to two times the sum of (A) the
greater of (1) Executive's Base Salary in effect immediately prior to
the Change of Control or (2) Executives Base Salary in effect at the
time of termination 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, plus (B) the
greater of (1) the bonus, if any, paid or awarded to Executive for the
most recent calendar year ended prior to the date of the Change of
Control or, if bonuses for such calendar year have not been determined
for such calendar year as of the date of the Change of Control, the
bonus for the prior calendar year; or (2) the average of the bonuses
paid or awarded to the Executive for the two most recent calendar years
ended prior to the date of the Change of Control or, if bonuses for the
most recent calendar year have not been determined for such calendar
year as of the date of the Change of Control, the average of the
bonuses paid or awarded to Executive for the two calendar years
immediately preceding the calendar year in which the Change in Control
occurs;
(ii) maintain in full force and effect, for the continued
benefit of Executive (and, if applicable, Executive's spouse and
dependent children) for a one-year period beginning upon the date of
termination or resignation, all medical and dental insurance coverages
as in effect, from time to time for salaried employees of the Company,
and in which such Persons were participating immediately prior to the
date of termination or resignation, provided that the continued
participation of such Persons is possible under the general terms and
provisions of such plans and arrangements; if the participation of any
of such Persons in any such plan or arrangement is barred, CSI shall
arrange to provide such Persons with insurance coverage 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; provided, however, that in either
case, to the extent applicable, Executive pays to CSI an amount equal
to the premiums, or portion thereof, that Executive was required to pay
to maintain
10
such insurance coverage for such Persons prior to the date of
termination or resignation; and provided, further, that any insurance
coverage provided pursuant hereto 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 minor children, or
Social Security, medicare, medicaid or any similar or substitute plans
available to such Persons; provided, however, that the amount of cash
paid pursuant to this Section 8 plus the value of any other
compensation paid to or deemed received by or attributed to Executive,
pursuant to this Agreement or otherwise, as a result of the Change in
Control that is subject to the provisions of Section 280G of the
Internal Revenue Code of 1986, as amended (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 shall be adjusted accordingly to achieve
this result. Notwithstanding the provisions of this Section 8, nothing
contained in this Section 8 shall be construed to imply that any
payments to the Executive other than pursuant to this Section 8 are
subject to the provisions of Section 280G of the Code.
(b) Termination in Anticipation of Change of Control. For purposes
of this Section 8, if Executive's employment is terminated prior to a Change of
Control and Executive reasonably demonstrates that such termination (i) was at
the request of a Person who has indicated an intention or taken steps reasonably
calculated to effect a Change of Control and who effectuates a Change of Control
or (ii) otherwise occurred in connection with, or in anticipation of, a Change
of Control which actually occurs, then for all purposes hereof, a Change of
Control shall be deemed to have occurred and the date of a Change of Control
with respect to the employment shall mean the date immediately prior to the
termination date.
(c) Employment by Buyer. Notwithstanding the foregoing provisions of
this Section 8, if (i) there shall be a sale or disposition of all or
substantially all the assets of the Company or a merger, consolidation or
reorganization to which the Company is a party and is not a surviving
corporation, (ii) such transaction constitutes a Change of Control and (iii)
Executive is offered employment (at substantially the same level of Executive's
authority, responsibility, compensation and benefits with the Company before
such sale) with the purchaser or corporation into which the Company is merged or
consolidated, as applicable, or any of its Affiliates ("Buyer") upon
consummation of such sale or disposition, then Executive shall not be entitled
to the severance compensation as provided in Section 8.a as a result of such
transaction. In any such event, however, Executive shall be entitled to such
severance compensation as provided in Section 8.a if, within the Protection
Period, either (1) Executive's employment with the Buyer shall be terminated by
the Buyer other than (A) for Cause or (B) on account of Executive's death,
Permanent Disability or Retirement, or (2) Executive shall resign from the Buyer
for Good Reason. For purposes of this paragraph, the time of a termination of
employment or resignation, the definitions of "Permanent Disability,"
"Retirement," resignation for "Good Reason" and termination for "Cause," and the
provisions of Sections 3 and 4 shall be construed with reference to the Buyer
instead of with reference to the Company and/or CSI, as applicable.
9. Other Provisions Relating to Termination; Definitions.
11
(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, the date of his death; (ii) if Executive's employment is terminated
because of a Permanent Disability pursuant to Section 6(a), 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 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. 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 (D) of Section 6(c) 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(c) shall not limit the Company's
right to terminate Executive's employment for Cause under Section 6(b) if Cause
is determined to exist prior to the time Good Reason is determined to exist.
(d) Cause. 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, 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 (vi)
of Section 6(b) 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(b) shall not limit Executive's right to terminate his
employment for Good Reason under Section 6(c) if Good Reason is determined to
exist prior to the time Cause is determined to exist.
(e) Certain Definitions.
(i) Acquiring Person: 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) CSI, any of CSI's Subsidiaries, any
employee benefit plan of CSI or of a Subsidiary of CSI or of a
12
corporation owned directly or indirectly by the stockholders of CSI in
substantially the same proportions as their ownership of stock in CSI,
or any trustee or other fiduciary holding securities under an employee
benefit plan of CSI or of a Subsidiary of CSI or of a corporation owned
directly or indirectly by the stockholders of CSI in substantially the
same proportions as their ownership of stock of CSI.
(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 CSI representing fifty percent or more of the
combined voting power of the then outstanding Voting Securities of
CSI; 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 CSI or the Company, and the Board
of Directors of CSI or the Company, respectively, 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 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) or (4) of this Section 9(e)(ii)
shall have occurred, in which case such benefits payable under
Section 8 hereof shall be payable within fifteen days after the
occurrence of such event; or
(3) the stockholders of CSI or the Company approve a
merger or consolidation of CSI or the Company, respectively, with
any other corporation or partnership (or, if no such approval is
required, the consummation of such a merger or consolidation of CSI
or the Company), other than a Conversion Transaction. A "Conversion
Transaction" shall mean a merger or consolidation that would result
in the Voting Securities of CSI or the Company, as applicable,
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 or the Company, as applicable, 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 CSI or the Company approve a plan
of complete liquidation of CSI or the Company, respectively, or an
agreement for the
13
sale or disposition by CSI or the Company of all or substantially
all of CSI's or the Company's assets, respectively, (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 of CSI or the Company's assets in one
transaction or a series of related transactions to a Subsidiary of
CSI or any other corporation owned directly or indirectly by the
stockholders of CSI in substantially the same proportions as their
ownership of stock of CSI immediately prior to such transaction;
(5) CSI ceases to be the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing at least a majority of the
combined voting power of the then outstanding Voting Securities of
the Company other than pursuant to a transaction in which,
immediately after the consummation of such transaction, all of the
outstanding Voting Securities of the Company or any corporation or
other entity into which the Company is merged or otherwise
consolidated which are not owned by CSI or any Subsidiary of CSI
are owned, directly or indirectly, by the stockholders of CSI in
substantially the same proportions as their ownership of stock of
CSI immediately prior to such transaction; or
(6) members of the Incumbent Board cease for any reason
to constitute at least a majority of the CSI Board.
(iii) Convertible Voting Securities: shall mean 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 CSI Board who
are, or who have served as, employees, officers or directors of
Citicorp Venture Capital Ltd. ("CVC"), Court Square Capital Limited
("CSCL") or any Affiliate of CVC or CSCL at any time such individuals
serve as a member of the CSI Board and (B) any other members of the CSI
Board nominated by (i) such members of the CSI Board described in (A)
above, (ii) CVC, (iii) CSCL, (iv) any Affiliate of 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 CVC, CSCL or any Affiliate of
CVC or CSCL is also a part with respect to any Voting Securities of the
Company.
(v) Incumbent Board: individuals who, as of the date hereof,
constitute the CSI Board and any other individual who becomes a
director of the Company after that date and whose election or
appointment by the CSI 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.
(vi) Person: shall mean any individual, group, partnership,
corporation, association, trust, or other entity or organization.
14
(vii) Retirement: shall mean a termination of Executive's
employment other than for Cause or Good Reason on or after Executive's
attainment of age 65 (or such other age as mutually agreed upon by
Executive and the Company).
(viii) 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.
(ix) 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 CSI, all shares of CSI'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 through
ownership of Voting Securities, by contract, or otherwise.
10. Successors and Assignments.
(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.
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:
15
If to Executive:
Xxxx X. Xxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile No. 419/873-1119
If to the Company:
Chase Brass & Copper Company, Inc.
Xxxxx Xxxxx 00
Xxxxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Facsimile No: 419/485-8150
with a copy (which will not constitute notice) to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy No: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith.
12. Disputes.
(a) Arbitration. Subject to Section 12(b) below, in the event any
claim, demand, cause of action, dispute, controversy or other matter in question
("Claim") arises, whether or not arising out of this Agreement or the Employee's
employment (or its termination), whether arising in contract, tort or otherwise
and whether provided by statute, equity or common law, that the Company may have
against Executive or that Executive may have against the Company, CSI or any
other Subsidiary of CSI, or any of the foregoing entities' respective officers,
directors, employees or agents in their capacity as such or otherwise, and is
not resolved by the mutual written agreement between Executive and the Company,
or otherwise, 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. Claims covered by this Section 12
include, without limitation, claims by Executive for breach of this Agreement,
wrongful termination, discrimination (based on age, race, sex, disability,
national origin, sexual orientation, or any other factor), harassment and
retaliation, whether or not arising under Title VII of the Civil Rights Act of
1964, the Age Discrimination Employment Act, the Americans with Disabilities
Act, or similar state or local law. Any arbitration shall be conducted in
accordance with the Federal Arbitration Act ("FAA") and, to the extent an issue
is not addressed by the FAA or the FAA does not apply, with the then-current
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA") or other rules of the
16
AAA as applicable to the claims asserted. If a party refuses to honor its
obligations under this Section 12, the other party may compel arbitration in
either federal or state court. The arbitrators shall apply the substantive law
of Ohio (excluding Ohio choice-of-law principles that might call for the
application of some other state's law) or federal law, or both as applicable to
the claims asserted. The arbitrators shall have exclusive authority to resolve
any dispute relating to the interpretation, applicability or enforceability of
this Section 12, including any claim that all or part of the Agreement is void
or voidable and any claim that an issue is not subject to arbitration. The
results of arbitration will be binding and conclusive on the parties hereto. Any
arbitrators' award or finding or any judgment or verdict thereon will be final
and unappealable. All parties agree that venue for arbitration will be in
Xxxxxxxx County, Ohio, and that any arbitration commenced in any other venue
will be transferred to Xxxxxxxx County, Ohio, 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;
provided that (i) Executive or the Company shall use reasonably diligent efforts
to select their respective arbitrator within 60 days after a matter is submitted
to arbitration and (ii) the parties (including arbitrators) shall not be limited
to selecting arbitrators from only the AAA's lists of arbitrators. Any
arbitrator selected by a party will not be affiliated, associated or related to
the party selecting that arbitrator in any matter whatsoever. The arbitrators
may use the AAA rules but are encouraged to adopt rules the arbitrators deem
appropriate to accomplish the arbitration quickly and inexpensively.
Accordingly, the arbitrators may, (A) dispense with any formal rules of evidence
and allow hearsay testimony so as to limit the number of witnesses required, (B)
act upon their understanding or interpretation of the law on any issue without
the obligation to research the issue or accept or act upon briefs on the issue
prepared by any party, (C) limit the time for presentation of any party's case
as well as the amount of information or number of witnesses to be presented in
connection with any hearing (provided that each party shall have the right to
call at least three witnesses), and (D) impose any other rules which the
arbitrators believe appropriate to effect a resolution of the claims quickly and
inexpensively. The types and amount of discovery shall be conducted in
accordance with the Federal Rules of Civil Procedure. The arbitration hearing
shall be conducted within 60 days after the selection of the arbitrators. All
privileges under state and federal law, including attorney-client, work product
and party communication privileges, shall be preserved and protected. The
decision of the majority of the arbitrators will be binding on all parties.
Arbitrations will be conducted in a manner so that the final decision of the
arbitrators will be made and provided to Executive and the Company no later than
120 days after a matter is submitted to arbitration. All proceedings conducted
pursuant to this Section 12, including any order decision or award of the
arbitrators, shall be kept confidential by all parties. EXECUTIVE ACKNOWLEDGES
THAT BY SIGNING THIS EMPLOYMENT AGREEMENT, EXECUTIVE IS WAIVING ANY RIGHT THAT
EXECUTIVE MAY HAVE TO A JURY TRIAL OR A COURT TRIAL.
(b) Specific Enforcement. Executive acknowledges that the covenants
of Executive contained in Sections 3 and 4 of this Agreement are special and
unique, that a breach by Executive of any term or provision of either of
Sections 3 or 4 hereof may cause irreparable
17
injury to the Company, CSI and/or another Subsidiary of CSI, and that remedies
at law for the breach of any terms or provisions of Sections 3 or 4 hereof may
be inadequate. Accordingly, notwithstanding the provisions of Section 12(a), in
addition to any other remedies it may have in the event of breach, the Company
shall be entitled to enforce specific performance of the terms and provisions of
Sections 3 or 4 hereof, to obtain temporary and permanent injunctive relief to
prevent the continued breach of such terms and provisions without the necessity
of posting bond or of proving actual damage, and to obtain attorneys fees in
respect of the foregoing if the Company prevails in such action or proceeding.
For purposes of this Section 12(b) and Sections 3 and 4 hereof, CSI and each
other Subsidiary of CSI shall be deemed a third party beneficiary entitled to
the benefits of such Sections and shall be entitled to enforce Sections 3 and 4
of this Agreement in accordance with this Section 12(b).
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 3 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. This Agreement sets forth the entire understandings
of the parties with respect to the subject matter hereof, it incorporates and
merges any and all previous communications and understandings with respect to
the subject matter hereof, oral or written, and 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. 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. Reimbursement by Executive. Executive agrees that, in the event
Executive terminates his employment with Company other than for Good Reason, or
is terminated by the Company for Cause, at any time prior to October 12, 2001,
Executive will reimburse the
18
Company for amounts paid to Executive by the Company pursuant to Section 5(g)
and (h) of the Original Employment Agreement in accordance with the following
formula:
ER = AP x ((24 - NM) / 24)
where:
ER = amount to be reimbursed by Executive;
AP = amounts paid by the Company to or on behalf of Executive
pursuant to Sections 5(g) and (h) of this Agreement; and
NM = number of months elapsed from and after October 12, 1999, to
(and including) the Date of Termination.
Executive agrees that any amounts owed by Executive pursuant to this
Section 15 may be deducted from any portion of any amounts (including
compensation payable under this Agreement) owed by the Company to the Executive
at the time of termination of Executive's employment, subject to any limitations
or restrictions imposed by applicable law. To the extent such amounts payable by
Executive pursuant to this Section 15 are not deducted from amounts owed by the
Company to the Executive, Executive agrees to pay such excess amounts to the
Company within 60 days after the Date of Termination.
16. Release and Other Agreements. Notwithstanding any other provision
in this Agreement to the contrary, as consideration for receiving severance
benefits under Section 7 or Section 8 of this Agreement, the Executive must
execute (and not revoke) a release in the form attached hereto as Exhibit A. If
the Executive fails to properly execute such release (or revokes such release),
then Executive shall receive no severance benefits under this Agreement.
17. 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.
18. Severance Pay Agreement. Simultaneously with the execution of this
Agreement, each of CSI and Executive shall execute and deliver a Severance Pay
Agreement under the
Chase Industries Inc. Severance Pay Plan, which Severance
Pay Agreement shall, as stated therein, be effective only upon, and for the one
year period following, the expiration of the Protection Period (if a Protection
Period occurs).
19. 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.
20. Restatement of Original Employment Agreement. Upon the execution of
this Agreement by each of Executive and the Company, this Agreement shall
restate and supersede the Original Employment Agreement and, upon such execution
hereof, the Original Employment Agreement 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 Company shall
take into account and include periods prior to the date hereof during which
19
Executive was employed by the Company, and the restatement of the Original
Employment Contract shall not be deemed a termination or any cessation of
Executive's employment by the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth below, to be effective as of the date first above written.
THE COMPANY:
CHASE BRASS & COPPER COMPANY, INC.
a Delaware corporation
Date: 10/5/01 By: /s/ XXXX X. XXXXXX
---------------------------- ---------------------------------------
Xxxx X. Xxxxxx
Secretary
EXECUTIVE:
Date: 10/5/01 By: /s/ XXXX X. XXXXXXXX
---------------------------- ---------------------------------------
Xxxx X. Xxxxxxxx
