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EXHIBIT 10.1
Confidential treatment has been requested for a portion of this exhibit. The
copy filed herewith omits the information subject to the confidentiality request
filed with the Securities and Exchange Commission. The omissions are designated
as " ** ". A complete version of this exhibit has been filed with the Securities
and Exchange Commission.
AGREEMENT
THIS AGREEMENT is made and entered into by and among Xxxxxxx X. Xxxxxxx
("Xxxxxxx"), JLK Direct Distribution Inc., and Kennametal, Inc.
WHEREAS, JLK Direct Distribution Inc. terminated Ruprich's employment
as President and Chief Executive Officer effective 12:01 a.m. on September 17,
1998;
WHEREAS, Ruprich, JLK Direct Distribution Inc. and Kennametal, Inc.
desire to enter into a full and complete agreement in an amicable manner;
NOW THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound hereby, the parties to this Agreement
agree as follows:
1. Definitions
(a) "JLK," as used herein, shall at all times mean JLK Direct Distribution Inc.,
its parent, subsidiaries, successors and assigns, its affiliated and predecessor
companies or corporations, its divisions, their successors and assigns, their
affiliated and predecessor companies or corporations and the present and/or
former directors, officers, shareholders, employees, attorneys and agents of any
of them, including but not limited to Kennametal, Inc., J&L Industrial Supply,
and Full Service Supply, whether in their individual or official capacities, and
the current and former trustees or administrators of any pension or other
benefit plan applicable to the employees or former employees of JLK in their
official and individual capacities.
(b) "Kennametal," as used herein, shall at all times mean
Kennametal, Inc., its parent, subsidiaries, successors and assigns, its
affiliated and predecessor companies or corporations, its divisions, their
successors and assigns, their affiliated and predecessor companies or
corporations and the present or former directors, officers, shareholders,
employees, attorneys and agents of any of them, including but not limited to JLK
Direct Distribution Inc., whether in their individual or official capacities,
and the
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current and former trustees or administrators of any pension or other benefit
plan applicable to the employees or former employees of Kennametal in their
official and individual capacities.
2. Termination of Employment
(a) Ruprich represents and agrees that effective 12:01 a.m. on September 17,
1998, his employment with JLK Direct Distribution Inc., his position as
President and Chief Executive Officer of JLK Direct Distribution Inc., and any
and all positions he held with JLK or Kennametal or their affiliates or
subsidiary companies ended. Ruprich, JLK and Kennametal agree that Ruprich: (a)
has not been required to perform any services for JLK or Kennametal since 12:01
a.m. on September 17, 1998; and (b) shall not be required to provide any further
services to JLK or Kennametal except as provided in paragraph 13 of this
Agreement.
(b) Ruprich waives any and all rights or claim of right to be reinstated to his
former or any other position with JLK or Kennametal and agrees that he shall not
at any time seek or accept future employment with JLK or Kennametal. A breach of
this subparagraph 2(b) by Ruprich will constitute lawful and just cause to
refuse to employ Ruprich, and he shall have no cause of action against JLK or
Kennametal for such refusal.
3. Severance
(a) At the time of his separation, Ruprich's monthly salary as President and
Chief Executive Officer of JLK was $29,167.00 per month. JLK continued to pay
Ruprich this amount, less applicable withholdings, from the time of his
termination through January 31, 1999. On or before February 28, 1999, JLK will
pay Ruprich $29,167.00, less applicable withholdings (representing continuing
payments for February 1999). Beginning in March 1999, JLK will pay Ruprich
$29,167.00 per month, in semi-monthly installments of $14,583.50, less
applicable withholdings, through June 16, 2000.
(b) The period during which Ruprich can exercise Kennametal and JLK stock
options, outstanding as of September 17, 1998, will be extended through
September 16, 2000.
(c) JLK will continue to provide Ruprich with coverage under the group health,
dental, vision, life insurance, and accidental death and dismemberment insurance
programs according to Ruprich's 1998 Enrollment Elections under JLK's Flex
Benefits Program, as well as under the $500,000.00 executive officer's term life
insurance policy, or with substantially similar coverage, through June 16, 2000.
Ruprich's contribution to this coverage, subject to increases consistent with
changes in contributions
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made by current JLK employees, will be deducted from the payments described in
subparagraph 3(a). For benefit continuation purposes only, Ruprich will be
deemed to be an inactive employee on an approved termination related leave of
absence. For any period during which Ruprich is entitled to, eligible for, or
receiving group health, dental, vision, life insurance, accidental death and
dismemberment insurance, and/or executive officer's term life insurance benefits
from or through an employer or former employer other than JLK or Kennametal, JLK
will not be required to provide the corresponding benefit continuation described
in this subparagraph 3(c).
(d) JLK will not pay Ruprich any bonus.
(e) In lieu of providing executive outplacement services to Ruprich, JLK will
pay Ruprich $10,000.00, less applicable withholdings, within thirty (30) days
after the expiration of the seven (7) day period referenced in paragraph 15 of
this Agreement.
(f) In the event of a Change in Control of JLK Direct Distribution Inc. (as
hereinafter defined) occurring prior to September 17, 2000, and at Ruprich's
option, Ruprich will exercise his then-outstanding JLK options. For each share
of JLK common stock which Ruprich acquires upon exercise of an employee stock
option following an official announcement of a Change in Control of JLK Direct
Distribution Inc., and which Ruprich sells in the stock market within thirty
(30) days of that announcement for less than $24.00, if the announced Change in
Control of JLK Direct Distribution Inc. actually occurs, JLK will pay Ruprich
the difference between $24.00 and the sales price, less applicable withholdings.
If the stock market value of JLK common stock does not equal or exceed $20.00
per share at any time during that thirty (30) day period, and at Ruprich's
option, Ruprich may forfeit his then-outstanding JLK options by giving written
notice to Xxxxx X. Xxxxx, Esquire within five (5) calendar days thereafter, and
JLK will pay Ruprich $4.00 per option so forfeited, less applicable
withholdings. The total payment from JLK to Ruprich pursuant to this
subparagraph 3(f) shall not exceed $400,000.00, less applicable withholdings.
The term "Change in Control of JLK Direct Distribution Inc." shall mean a change
in control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A promulgated under the Securities Exchange Act of 1934 as in
effect on the date hereof ("1934 Act"), or if Item 6(e) is no longer in effect,
any regulations issued by the Securities and Exchange Commission pursuant to the
1934 Act which serve similar purposes; provided that, without limitation, such a
change in control shall be deemed to have occurred if (A) JLK Direct
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Distribution Inc. shall be merged or consolidated with any corporation or other
entity other than a merger or consolidation with a corporation or other entity
all of whose equity interests are owned by JLK Direct Distribution Inc. or
Kennametal, Inc. immediately prior to the merger or consolidation, or (B) JLK
Direct Distribution Inc. shall sell all or substantially all of its operating
properties and assets to another person, group of associated persons or
corporation other than Kennametal, Inc. or its subsidiaries, or (C) any "person"
(as such term is used in Sections 13(d) and 14(d) of the 1934 Act), other than
Kennametal, Inc. or its subsidiaries, is or becomes a beneficial owner, directly
or indirectly, of securities of JLK Direct Distribution Inc. representing 25% or
more of the combined voting power of JLK Direct Distribution Inc.'s then
outstanding securities coupled with or followed by the existence of a majority
of the board of directors of JLK Direct Distribution Inc. consisting of persons
other than persons who either were directors of JLK Direct Distribution Inc.
immediately prior to or were nominated by those persons who were directors of
JLK Direct Distribution Inc. immediately prior to such person becoming a
beneficial owner, directly or indirectly, of securities of JLK Direct
Distribution Inc. representing 25% or more of the combined voting power of JLK
Direct Distribution Inc.'s then outstanding shares. A change in control of
Kennametal, Inc. shall not be considered a "Change in Control of JLK Direct
Distribution, Inc."
(g) If Ruprich becomes employed by or provides consultation to a competitor
prior to June 17, 2000, the salary continuation and benefits coverage extension
as described in subparagraphs 3(a) and 3(c) above shall terminate and be
discontinued immediately. For the purposes of this subparagraph 3(g),
"competitor" shall mean MSC Industrial Direct Co., Industrial Distribution
Group, Inc., Sandvik AB and Sandvik Coromant, SECO Tools AB, Iscar Ltd. and
Iscar Metals Inc., Milacron Inc., Carboloy Inc. and Valenite Inc., Airgas, Inc.,
X.X. Xxxxxxxx, Inc. and/or any of their parents, subsidiaries, successors,
assigns, affiliated and predecessor companies or corporations, and divisions.
Ruprich agrees to immediately notify Xxxxx X. Xxxxx, Esquire orally and in
writing of any employment, consulting arrangement, or comparable business
opportunity he undertakes with any of those entities before June 17, 2000.
(h) JLK's entire obligation to provide salary, incentive compensation,
severance, bonus, stock options, pension, 401(k), medical, dental, life, or
disability insurance, vacation, compensation, emoluments or benefits of any kind
to Ruprich is set forth in this Agreement and any other obligation of
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JLK or Kennametal to provide any of the foregoing to Ruprich is hereby canceled
except that Ruprich shall retain the vested benefits he is entitled to receive
pursuant to the Kennametal, Inc. Retirement Income Plans and Thrift Plan.
4. No Actions
(a) Ruprich affirms that there are no charges, complaints, grievances or actions
by or concerning Ruprich against JLK or Kennametal currently pending in or
before any court, administrative agency, arbitrator or other entity.
(b) Ruprich agrees not to file, pursue, participate in, induce, aid or abet any
claim or cause of action against JLK or Kennametal, and Ruprich confirms that he
has not done so at any time prior to signing this Agreement. This provision does
not prohibit Ruprich from testifying in any cause of action relating to JLK or
Kennametal when required to do so by process of law, or from communicating with
the EEOC. In the event that Ruprich is required by process of law to testify in
any cause of action relating in any way to JLK or Kennametal, Ruprich shall
immediately notify Xxxxx X. Xxxxx, Esquire orally and in writing, and shall use
his best lawful efforts not to testify until JLK and/or Kennametal has a
reasonable opportunity to oppose such testimony, if JLK and/or Kennametal
desires to do so. Ruprich agrees not to accept the proceeds from any cause of
action or proceeding against JLK or Kennametal. Communications between and among
Xxxxxxx, Xxxx X. Xxxxx, Esquire, Xxxxxx X. Xxxxxx, Esquire, Xxxxxxxx X. Xxxx,
Esquire, P. Xxxxxx Xxxxxx, Esquire, Xxxxxx X. Xxxxxxxxx, Esquire, and/or Xxxxx
X. Xxxxx, Esquire, which occurred prior to the execution of this Agreement, do
not constitute a breach by Ruprich of the first sentence of this subparagraph
4(b).
(c) Ruprich agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in this paragraph 4. In the
event JLK or Kennametal pursues a claim against Ruprich pursuant to this
subparagraph 4(c), but Ruprich is deemed not to have breached any of his
promises in this paragraph 4, JLK or Kennametal will pay the reasonable fees and
costs incurred by Ruprich in defending against said claim.
5. Release and Waiver
(a) As a material inducement to JLK and Kennametal to enter into this Agreement
and for and in consideration of the terms expressed herein, Ruprich, for
himself, his successors and assigns, does hereby irrevocably and unconditionally
release and forever discharge JLK and Kennametal of and from
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any and all claims, charges, demands, liabilities, obligations, promises,
controversies, damages, rights, actions and causes of action of whatever nature,
kind or character, in law or equity, whether known or unknown ("Claims"), which
Ruprich now has, may have or claims to have or which he at any time heretofore
may have, had or claimed to have against JLK and/or Kennametal. This release
includes, but is not limited to, those Claims arising from or during Ruprich's
employment, related to his employment, as a result of his termination of or
separation from employment with JLK or Kennametal, his receipt of stock options,
or his ownership in securities, and Ruprich agrees not to assert any such Claims
or causes of action. This release and waiver includes, but is not limited to,
Claims arising under federal, state or local statutes, ordinances or common
laws, specifically including, but not limited to, the Civil Rights Act of 1866,
the Civil Rights Act of 1871, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the Employee Retirement Income Security Act of 1974,
Executive Order 11246, the Veterans Reemployment Statutes, the Family and
Medical Leave Act, the Securities Exchange Act of 1934, Securities and Exchange
Commission Rule 10b-5, the Pennsylvania Wage Payment and Collection Law, the
Michigan Act Regulating Payment of Wages and Fringe Benefits, the Pennsylvania
Human Relations Act, the Michigan Xxxxxxx-Xxxxxx Civil Rights Act, or the
Michigan Handicappers' Civil Rights Act, all as amended, and Claims pertaining
to unlawful discrimination or harassment, any common law or statutory Claims for
breach of contract, detrimental reliance, wrongful discharge, defamation,
interference with current or prospective contractual relations, fraud, consumer
fraud or otherwise, and/or Claims for attorneys' fees and/or costs.
(b) Ruprich agrees to release and discharge JLK and Kennametal not only from any
and all claims which he could make on his own behalf, but also those which may
or could be brought by any person or organization in his behalf, and he
specifically waives any right to become, and promises not to become, a member of
any class in any proceeding or case in which a claim against JLK or Kennametal
may arise, in whole or in part, from any event which occurred prior to or as of
the date of this Agreement.
(c) **
(d) (i) Ruprich agrees not to file any lawsuit or demand for arbitration against
JLK or Kennametal for or relating to any event that occurred prior to the date
of signing this Agreement, except that, pursuant to paragraph 12 of this
Agreement, Ruprich may file a demand for arbitration for a breach
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of any promises contained in this Agreement. In the event Ruprich files such a
demand, but JLK and/or Kennametal are deemed not to have breached any of their
promises in this Agreement, Ruprich will pay the reasonable fees and costs
incurred by JLK and/or Kennametal in defending against the claim.
(ii) JLK Direct Distribution Inc. agrees not to file any lawsuit or
demand for arbitration against Ruprich or Ruprich's attorneys for or relating to
any event that occurred prior to the date of signing this Agreement, except
that, pursuant to paragraph 12 of this Agreement, JLK Direct Distribution Inc.
may file a demand for arbitration for a breach of any promises or
representations contained in this Agreement. In the event JLK Direct
Distribution Inc. files such a demand, but Ruprich is deemed not to have
breached any of his promises or representations in this Agreement, JLK Direct
Distribution Inc. will pay the reasonable fees and costs incurred by Ruprich in
defending against the claim.
(iii) Kennametal, Inc. agrees not to file any lawsuit or demand for
arbitration against Ruprich or Ruprich's attorneys for or relating to any event
that occurred prior to the date of signing this Agreement, except that, pursuant
to paragraph 12 of this Agreement, Kennametal, Inc. may file a demand for
arbitration for a breach of any promises or representations contained in this
Agreement. In the event Kennametal, Inc. files such a demand, but Ruprich is
deemed not to have breached any of his promises or representations in this
Agreement, Kennametal, Inc. will pay the reasonable fees and costs incurred by
Ruprich in defending against the claim.
(e) Ruprich agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in this paragraph 5.
6. Ruprich confirms that he is not presently aware of any facts which would
support a claim by anyone against JLK or Kennametal under any federal, state or
local statute, ordinance or common law, including but not limited to claims for
unlawful discrimination or harassment, defamation, breach of contract, common
law fraud, violation of state consumer fraud statutes, securities fraud
(including violation of the Securities Exchange Act of 1934, Securities and
Exchange Commission Rule 10b-5, or similar state laws), or intentional
interference with current or prospective contractual relations.
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7. Confidentiality
(a) Ruprich recognizes and acknowledges JLK's and Kennametal's interest in the
confidentiality of this Agreement, and agrees that he shall keep the fact and
the terms of this Agreement and the negotiations leading to this Agreement
completely confidential.
(b) Ruprich further recognizes and acknowledges that his positions at JLK and
Kennametal were positions of trust and confidence and that by virtue of his
employment in such positions, Ruprich possesses confidential information and
trade secrets regarding JLK and Kennametal, including, but not limited to
information concerning JLK's and Kennametal's sales, customers, clients,
business, personal data, sources of supply or distribution, business plans,
technical secrets, methodologies, know-how, or the compensation, skills,
abilities, training or qualifications of JLK and Kennametal employees, officers
and directors, or other information not generally known to the public, including
information identified in subparagraph 9(a) of Ruprich's July 1, 1997 Amended
and Restated Officers Employment Agreement, and any tangible embodiments of said
confidential information and trade secrets (collectively "Confidential
Information"). Ruprich recognizes and acknowledges JLK's and Kennametal's
interest in the confidentiality of such Confidential Information.
(c) Ruprich promises and agrees not to disclose, either directly or indirectly,
in any manner whatsoever, any Confidential Information of any kind whatsoever
acquired in the course of his employment at JLK or Kennametal, unless compelled
by subpoena to give sworn testimony or to produce documents or other things
regarding said Confidential Information. Ruprich further promises and agrees
that if he is compelled by subpoena to give sworn testimony or produce documents
or things regarding said Confidential Information or to give sworn testimony or
produce documents or things which may include said Confidential Information,
Ruprich shall notify Xxxxx X. Xxxxx, Esquire orally and in writing immediately
upon being served the subpoena or immediately upon being informed of the
possibility that he may be compelled to testify or produce documents or things
regarding said Confidential Information, whichever occurs first. Ruprich shall
use his best lawful efforts not to testify or produce documents or things until
JLK and/or Kennametal has a reasonable opportunity to oppose such testimony or
production, if JLK and/or Kennametal desires to do so.
(d) JLK and Ruprich agree that the July 1, 1997 Amended and Restated Officer's
Employment Agreement signed by Ruprich was valid and enforceable. Ruprich
reaffirms his continuing obligations
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regarding trade secrets and confidential information as set forth in paragraph 9
of that employment agreement, and acknowledges that he has received all to which
he is entitled under that employment agreement and that JLK is not obligated to
make any future payments to Ruprich under that employment agreement.
(e) This paragraph 7 shall not prohibit Ruprich from (i) disclosing the fact and
terms of this Agreement to immediate family members and/or such professional
legal and tax advisors as he may from time to time engage, and/or government
officials or judicial officers for income or tax-reporting purposes in the event
Ruprich is legally required or professionally advised to do so, or (ii) stating
in response to any other inquiry that the terms of his separation from JLK are
confidential. To the extent that Ruprich does disclose the terms of this
Agreement to persons identified in subparagraph 7(e)(i), Ruprich shall advise
said persons that they must not disclose the fact and terms of the Agreement.
(f) **
(g) Ruprich promises and agrees that within ten (10) days of signing this
Agreement, he shall surrender to JLK any and all Confidential Information and
any and all books, records, files, documents, disks and other items relating to
JLK or Kennametal obtained or generated by Ruprich in the course of his
employment by JLK or Kennametal.
(h) If Ruprich discloses any information in breach of subparagraphs 7(c) or 7(f)
of this Agreement, or if one or more of Ruprich's attorneys (with or without
Ruprich's permission) discloses any information relating to the representation
of Ruprich without being compelled to do so by Rule 1.6(b) of the Pennsylvania
Rules of Professional Conduct, law or court order, to persons not identified in
subparagraph 7(e)(i) of this Agreement, then: (i) Ruprich shall repay to JLK any
payment he received under subparagraphs 3(a), 3(e), and 3(f) of this Agreement;
(ii) JLK shall not be required to make any further payments under subparagraphs
3(a) and 3(e) of this Agreement; (iii) the extended period during which Ruprich
could exercise Kennametal and JLK stock options, as described in subparagraph
3(b) of this Agreement, shall terminate and be discontinued immediately; (iv)
subparagraph 3(f) of this Agreement, relating to Change in Control, will
immediately be rendered null and void; and (v) the extended period during which
JLK agreed to continue to provide benefits as described in subparagraph 3(c) of
this Agreement, shall terminate and be discontinued immediately.
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(i) Ruprich agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in this paragraph 7. In the
event JLK or Kennametal pursues a claim against Ruprich pursuant to this
subparagraph 7(i), but Ruprich is deemed not to have breached any of his
promises in this paragraph 7, JLK or Kennametal will pay the reasonable fees and
costs incurred by Ruprich in defending against said claim.
(j) In the event that JLK and/or Kennametal take steps to seek relief from an
alleged breach of the foregoing terms of paragraph 7, all of the remaining
provisions of this Agreement shall remain in full force and effect.
8. No Solicitation. Ruprich agrees that, for two (2) years following his
separation from JLK, Ruprich will not, directly or indirectly, solicit or induce
or participate in recruiting, or attempt to solicit, induce, or recruit any
employee, current or future, of JLK or Kennametal, to leave JLK or Kennametal
for any reason whatsoever, or to hire, cause to be hired or assist in the hiring
of any current or future employee of JLK or Kennametal, or to provide
information to any third party to suggest, encourage, aid or facilitate such
solicitation, inducement, recruitment or hiring. The foregoing terms of this
paragraph 8 do not apply to any individual who has not been employed by JLK or
Kennametal for at least six (6) months immediately prior to the solicitation,
inducement or recruitment, if Ruprich has not, directly or indirectly,
encouraged that individual to terminate employment with JLK or Kennametal and
has not, directly or indirectly, provided or promised any compensation or
benefits to that individual during, or as a result of, that six (6) month
period.
9. **
10. Ruprich represents that he has not heretofore assigned or transferred, or
purported to assign or transfer, to any person or entity any Claim or any
portion thereof or interest therein.
11. Ruprich represents and acknowledges that in executing this Agreement he does
not rely, and has not relied, upon any representation or statement made by JLK
or Kennametal, or any of their agents, representatives or attorneys with regard
to the subject matter, basis or effect of this Agreement or otherwise.
12. The parties agree that in the event of any future dispute between Ruprich
and JLK or Kennametal, including any claims, counterclaims, cross claims or
third-party claims, whether referring or relating to any term of this Agreement,
disputes about whether or not the dispute is arbitrable, or any
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other matter which the parties are unable to resolve between themselves, the
dispute must be submitted to arbitration and must not be filed in any court.
Within ten (10) days after submission of a dispute to arbitration, each party
shall choose an arbitrator and within ten (10) days thereafter the American
Arbitration Association shall be requested to supply a third arbitrator and this
request shall be made by either party. In the event any party does not choose an
arbitrator within ten (10) days, as set forth above, the American Arbitration
Association shall also supply that arbitrator in addition to the third
arbitrator. The arbitration shall be held in Pittsburgh, Pennsylvania, and shall
commence and be completed as soon as possible under the Commercial Arbitration
Rules of the American Arbitration Association then in effect. In the event of
any dispute of any procedural, evidentiary, or substantive matter, including the
arbitrability of the dispute presented, the decision of the majority of the
arbitrators shall be final and conclusive upon the parties on the matter of
dispute.
13. Ruprich promises and agrees that if JLK or Kennametal shall, in the future,
require Ruprich's assistance or cooperation in preparation for, or the conduct
of, litigation or any proceeding, or for periodic consultation generally,
involving matters or events which occurred during Ruprich's employment by JLK or
Kennametal, or as to which Ruprich's knowledge or testimony may be important to
JLK or Kennametal, Ruprich shall furnish such assistance, cooperation, and
consultation to JLK or Kennametal as they shall reasonably request, as does not
unreasonably interfere with Ruprich's efforts to obtain alternative employment,
and as is within Ruprich's capability, provided that JLK or Kennametal shall
reimburse Ruprich for any expense Ruprich incurs in furnishing such assistance
and shall provide reasonable compensation for time expended on the matter by
Ruprich, except that: (a) JLK and Kennametal will not provide compensation to
Ruprich for time spent by Ruprich providing the assistance, cooperation or
consultation discussed in this paragraph 13 during the period in which Ruprich
is receiving payments under subparagraph 3(a) of this Agreement; and (b) no
compensation shall be paid for testimony in any litigation or proceeding.
14. Should any provision of this Agreement be declared or determined by any
court or arbitration panel to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement. If a court or arbitration panel determines paragraph 4 or
paragraph 5 of this Agreement (or any subpart thereof) to be illegal or invalid,
then: (i) Ruprich shall repay to JLK the payments he
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received under subparagraphs 3(a), 3(e), and 3(f) of this Agreement; (ii) JLK
shall not be required to make any further payments under subparagraphs 3(a) and
3(e) of this Agreement; (iii) the extended period during which Ruprich could
exercise Kennametal and JLK stock options, as described in subparagraph 3(b) of
this Agreement, shall terminate and be discontinued immediately; (iv)
subparagraph 3(f) of this Agreement, relating to Change in Control, will
immediately be rendered null and void; and (v) the extended period during which
JLK agreed to continue to provide benefits as described in subparagraph 3(c) of
this Agreement, shall terminate and be discontinued immediately.
15. Ruprich agrees that he has been advised by JLK and Kennametal to consult
with an attorney of his choice and that he has done that, consulting with his
attorneys, Xxxx X. Xxxxx, Esquire, Xxxxxx X. Xxxxxx, Esquire, and Xxxxxxxx X.
Xxxx, Esquire, concerning his lawful remedies and rights as well as the meaning
and significance of this Agreement. Further, Ruprich confirms that he has
carefully read and fully understands the provisions of this Agreement, including
the release and waiver of claims of any nature, and that he has been given
twenty-one (21) days to consider the terms of this Agreement before signing the
Agreement. Ruprich may revoke acceptance of the release and waiver of Claims
arising under the Age Discrimination in Employment Act and the Older Workers
Benefit Protection Act contained in subparagraph 5(a) of this Agreement by
delivering a written revocation to Xxxxx X. Xxxxx, Esquire, of Kennametal, Inc.,
X.X. Xxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000, within seven (7) days after executing
the Agreement. JLK's obligation to render payments under subparagraphs 3(a),
3(e) and 3(f) shall not commence until the seven (7) day period set forth herein
has expired without Ruprich's revocation. Ruprich acknowledges that his
execution of this Agreement is knowing and voluntary.
16. As used in this Agreement, the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires. Whenever a
provision is stated in the disjunctive, it shall also be taken in the
conjunctive and vice versa. The use of any tense of any verb shall be considered
to include within its meaning all other tenses of the verbs so used.
17. The parties agree that this Agreement is the entire agreement between them,
supersedes all previous agreements between them, and represents their full and
complete understanding. No prior or contemporaneous oral agreements may be
offered to alter the terms of this Agreement. This Agreement shall be binding
upon the parties hereto and the parties' heirs, successors and assigns. This
Agreement may not be modified except in writing signed by both parties.
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18. This Agreement may be executed in counterparts, and when each party has
signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with other signed counterparts,
shall constitute one Agreement, which shall be binding upon and effective as to
all parties. For the purposes of this paragraph 18, a counterpart may be
delivered by facsimile.
19. This Agreement shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Pennsylvania.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
WITNESS: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Date: February 25, 1999
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JLK DIRECT DISTRIBUTION INC.
Date: February 25, 1999 By: /s/ H. Xxxxxxx Xxxxxxx
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Director
KENNAMETAL INC.
Date: February 25, 1999 By: /s/ H. Xxxxxxx Xxxxxxx
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Vice President
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