SEPARATION AND RETIREMENT AGREEMENT AND RELEASE
Exhibit 10(z)
SEPARATION AND RETIREMENT AGREEMENT AND RELEASE
THIS SEPARATION AND RETIREMENT AGREEMENT AND RELEASE is entered into at Cleveland, Ohio this 12th day of July,
2001, by and among OGLEBAY NORTON MANAGEMENT COMPANY (the “Management Company”), an Ohio corporation, OGLEBAY NORTON COMPANY (“ONCO”) an Ohio corporation and XXXXXX X. XXXXX (“Xxxxx”).
RECITALS:
A. Management Company is a wholly owned subsidiary of ONCO formed for the sole purpose of acting as the
employer of management personnel for ONCO. Collectively, ONCO and Management Company are hereafter referred to as the “Company.”
B. The Company is engaged in pertinent part in the operation of self-unloading bulk carriers and docks and
bulk terminals on the Great Lakes (the “Business”).
X. Xxxxx has been employed by the Company in the Business and related businesses of the Company since
December 28, 1992.
D. The Company desires to continue to employ Xxxxx but in the new capacity described below after which time
Xxxxx would retire, and Xxxxx is willing to be employed in that capacity by the Company and then retire from the Company, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of mutual promises and agreements contained herein and intending to be legally bound
hereby, the parties agree as follows:
| 1. Employment. The Company hereby continues to employ Xxxxx
until his retirement on June 1, 2003, and Xxxxx hereby accepts such employment by the Company, upon the terms and conditions set forth herein. Xxxxx shall resign as an officer of ONCO and each affiliate thereof for which he currently serves as an
officer effective August 1, 2001.
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| 2. Services. During the term hereof, Xxxxx shall undertake
only such projects as mutually agreed with the Chairman of the Company in writing. It is acknowledged and permitted that Xxxxx may participate as a shareholder, partner, investor or employee, alone or with others, in a group or organization which
acquires the Business or any part thereof, in either a stock or asset transaction during the term hereof. Although Xxxxx will be employed as set forth in this Agreement, Xxxxx will also be free to pursue other interests and employment, subject to
the terms of Sections 7 and 8 hereof. Xxxxx shall not obligate the Company without the prior approval of the Chairman, President and Chief Executive Officer of the Company. Xxxxx shall perform his services in accordance with such rules, policies and
procedures as the Company may adopt from time to time. Xxxxx may perform his services from the Company’s headquarters in Cleveland, Ohio, but shall be permitted to set his own work hours in the office and work at home.
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| 3. Compensation.
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| 3.1 Base Salary. During the term of Xxxxx’
employment with Company pursuant to this Agreement, the Company shall pay to Xxxxx an annual base salary of One Hundred Ninety Thousand Dollars ($190,000.00) payable in consecutive, equal, biweekly installments.
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| 3.2 Certain Basic Fringe Benefits. During the
term of Xxxxx’ employment with the Company pursuant to this Agreement, the Company shall provide to Xxxxx such benefits, if any, but including without limitation, life insurance, health and welfare benefits, that are provided to its key
employees and on the same
terms and conditions from time to time set forth, as may be applicable to such employees. In particular, however, the Company shall continue to provide Xxxxx with reimbursement of premium for that certain life insurance policy provided under the
Company’s executive life insurance program with Security Life of Denver, including reimbursement of the amount sufficient to pay all federal, state and local taxes incurred by Xxxxx as a result of the payment of the premium expense and his
receipt thereof.
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| 3.3 Incentive Compensation. Xxxxx shall
continue to be entitled to participate in the Company’s Annual Incentive Plan for the year 2001; however, shall not be entitled to participate in such plan or receive an incentive bonus from the Company for the years 2002, 2003 or any time
thereafter. Pursuant to such Annual Incentive Plan, Xxxxx may receive a bonus for 2001, if, and only if, the performance objectives and other criteria set forth in the program are met by the Company. Xxxxx shall also be entitled to continue to be a
participant in the Oglebay Norton Company 1999 Long-Term Incentive Plan (the “LTIP”) for the purpose of the cash incentive payment to the extent he would have been entitled to a cash payment under the LTIP had he not entered into this
Agreement and instead had remained employed in his capacity as an officer of the Company until December 31, 2002; however, he shall not be eligible for any future grants of stock options under the LTIP for the years 2001, 2002, 2003 or any time
thereafter.
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| 3.4 The Company shall pay up to Five Thousand Dollars
($5,000.00) for any and all retirement planning consultation deemed necessary by Xxxxx prior to his retirement on May 31, 2003. In addition to the payment and reimbursement for such consultation, the Company shall pay to Xxxxx an additional amount
sufficient to pay all federal, state and local taxes incurred by Xxxxx as a result of (a) the payment of the expense or receipt of the reimbursement and (b) the receipt of the additional payment.
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| 4. Term and Termination of Agreement.
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| 4.1 The term of Xxxxx’ employment pursuant to
this Agreement shall commence on August 1, 2001 and shall continue until June 1, 2003. Notwithstanding anything to the contrary in the preceding sentence, Xxxxx’ employment pursuant to this Agreement may be terminated bythe Company at any time
“For Cause”. On June 1, 2003, Xxxxx shall retire from the Company and Xxxxx’ status as an employee of the Company shall terminate.
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| 4.2 “For Cause” shall mean embezzlement,
conviction of a crime involving moral turpitude, fraud, repeated acts of negligence, dishonesty and the material breach by Xxxxx of any obligation hereunder (including Sections 7 and 8 hereof). In the event the Company determines to terminate this
Agreement “For Cause”, such determination shall be made by the Chairman of the Company who shall provide the reasons therefore delivered in writing to Xxxxx. Xxxxx may contest the For Cause termination by electing within fifteen (15) days
of receipt of the notice to seek a determination by the Court from a court of competent jurisdiction as to the validity of the termination. Any such determination as set forth herein shall be deemed to be a final, non-appealable
determination.
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| 5. Retirement; Age and Service Adjustment to
Xxxxx.
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| 5.1 Subject to the last two sentences hereof, if Xxxxx
dies during the term of Xxxxx’ employment with Company pursuant to this Agreement, or remains employed with the Company until, and retires on, June 1, 2003 as described in the first sentence of Section 4.1 hereof, the Company will credit Xxxxx
with such additional years of age and years of benefit service for purposes of the Company’s Defined Benefit Pension Plan for Salaried Employees (the “Pension Plan”) equal to the difference between Xxxxx’ actual age and benefit
service on his date of termination of employment (or death) and the years of age and benefit service Xxxxx would have attained if he had continued to work for the Company until December 31, 2007, such that Xxxxx would immediately be eligible for
retirement benefits under the Plan as if he were age 65 with 15 years of service. Notwithstanding the immediately preceding sentence, in the event this Agreement is terminated by the Company “For Cause,” and if Xxxxx timely elected to seek
a final determination pursuant to Section 4.2 and one has been made or the time for Xxxxx electing to seek such determination has expired without Xxxxx so electing, Xxxxx shall not be entitled to be credited with such additional years of age and
benefit service and shall be credited only with his actual years of age and benefit service as of his date of
termination for purposes of the Pension Plan. Violations by Xxxxx of Sections 7, 8 or 12 hereof shall be deemed to be material breaches of material obligations hereunder and Company shall be entitled to terminate this Agreement For Cause, subject to
Xxxxx’ rights pursuant to Section 4.2 hereof. In addition, in the event this Agreement is terminated For Cause, as a result of Xxxxx’ violation of Sections 7, 8 or 12 hereof, to the extent permitted by law, Xxxxx shall not be entitled to
be credited with such additional years of age and benefit service and any benefits paid to him from the Pension Plan based on such additional years of age and benefit service shall be used to offset subsequent payments to him or his beneficiary from
the Pension Plan.
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| 5.2 Commencing on June 1, 2003, the Company agrees
that Xxxxx shall be entitled to receive a monthly pension benefit of $5,808.00 per month (including amounts payable to Xxxxx under the Pension Plan and any defined benefit plan or supplemental defined benefit plan presently maintained by the
Company), subject to appropriate actuarial adjustments for optional forms of payment, including spousal survivorship payments, as provided for under the Company’s Salaried Benefit Plan.
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| 6. Change of Control Agreement. The change of control
Employment Agreement entered into between the Company and Xxxxx on or about May 25, 2000, (the “Change of Control Agreement”) shall be, and hereby is, terminated effective August 1, 2001.
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| 7. Trade Secrets Covenant.
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| 7.1 Xxxxx acknowledges that during the course of his
employment by the Company he has been and he may be in contact with customers, employees, and others having dealings with the Company and will have access to trade secrets and other confidential information with regard to the business, operations,
accounts, books and records, sales, customers, pricing and other activities of the Company (“Trade Secrets”). Xxxxx recognizes and agrees that the disclosure of such Trade Secrets to parties other than the Company or the improper use
thereof will cause serious and irreparable injury to the Company. Accordingly, Xxxxx shall, at all times, keep secret and inviolate all Trade Secrets which he now knows or may hereafter come to know. In addition, Xxxxx shall at no time copy, remove
from the premises of the Company or retain, without the prior consent of the Company, any Trade Secrets, including, but not limited to, unpublished records, agreements, books of account, corporate documents, work papers, correspondence, customer
lists, memoranda, computer software or documentation in connection therewith, plans, drawings or copies or extracts from any of the foregoing, except as may be required in carrying out his duties hereunder. Upon the termination of Xxxxx’
employment, Xxxxx shall promptly return to the Company all documents pertaining to Trade Secrets in his possession or under his control.
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| 8. Non-Competition Covenant. If the Company is still
engaged in the Business described in Paragraph B of the recitals, Xxxxx agrees that during the term of his employment with Company pursuant to this Agreement except to the extent provided for in Section 2 hereof, he will not engage in the Business
or, own, manage, operate, control, or participate in, or have any ownership interest in, or make loans to, or act as a guarantor, surety, or indemnitor for, or aid or advise as an employee, director, officer, consultant or otherwise, whether
directly or indirectly, any enterprise (whether a sole proprietorship, partnership, corporation, firm, joint venture, trust or other entity) which is engaged in the Business.
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| 9. Breach of Trade Secret and/or Non-Competition
Covenants.
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| 9.1 Xxxxx agrees that the remedy at law for any breach
by him of the foregoing provisions of Sections 7 and 8 will be inadequate, and the Company shall be entitled to both temporary and permanent injunctive relief (without notice or bond) enforcing such provisions, in addition to any other remedy it may
have at law or in equity.
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| 9.2 The covenants of Xxxxx contained in Section 7 are
separate and independent of any other provisions hereof and shall survive the termination of this Agreement.
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| 9.3 Xxxxx has carefully considered the nature and
extent of the restrictions upon him and the rights and remedies conferred upon the Company, and he hereby acknowledges and agrees that the same are
reasonable in time and territory, are designed to eliminate competition which otherwise would be unfair to the Company, are fully required to protect the legitimate interest of the Company, and do not confer a benefit upon the Company
disproportionate to the detriment to Xxxxx.
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| 10. Death. In the event of the death of Xxxxx during the
term of Xxxxx’ employment with the Company pursuant to this Agreement, Xxxxx shall be deemed to have retired the day immediately preceding his death and to have elected a 100% joint and survivor benefit under the Pension Plan; and the Company
shall promptly fulfill its obligations and make all payments pursuant to Section 5 hereof, including all obligations with respect to his surviving spouse, and thereafter this Agreement shall terminate, and Xxxxx’ executor, administrator or
legal representative shall be entitled to receive any accrued salary, additional compensation, unreimbursed expenses and other benefits due and owing to the date of Xxxxx’ death.
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| 11. Release.
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| 11.1 In consideration of the foregoing, Xxxxx agrees
not to initiate or maintain any charges, complaints, claims, legal actions or grievances arising out of or in conjunction with his previous employment with or separation from the Company, including claims for severance pay, or relating to any events
occurring prior to the signing of this Agreement. Nothing contained herein shall be construed to limit Xxxxx’ rights pursuant to 29 USC Section 626(f)(4) and the exercise of such rights shall have no force and effect on any other provision set
forth in this Agreement.
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| 11.2 In further consideration of the foregoing, Xxxxx
agrees to release and forever discharge the Company and any of its past, present or future affiliated companies, subsidiaries, divisions, and any and all of the Company’s past, present and future officers, agents, directors, representatives,
employees, shareholders and, as applicable, their successors, assigns, heirs and executors from any and all claims, including, but not limited to, employment, re-employment, demands, liability, obligations, damages, rights, costs, losses, debts and
expenses (including but not limited to attorneys’ fees), causes of actions, or lawsuits based upon, related to, or arising out of his employment with and retirement and separation from the Company, all, and only, with respect to any events,
whether known or unknown or suspect or unsuspected, occurring prior to the signing of this Agreement. This Agreement not to xxx includes, but is not limited to:
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| claims, actions, causes of action or liabilities arising under Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act, as amended; Employee Retirement Income Security Act of 1974, as amended; the Older Workers Benefits Protection Act, as amended; 42 U.S.C. Section 1981, as amended; the Civil Rights Act of 1991, as amended; the
Worker Adjustment and Retaining Notification Act, as amended; the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act, as amended; the Family and Medical Leave Act, as amended; any state anti-discrimination, civil rights or
human rights laws, any other federal, state or municipal employment discrimination statutes and decisional law including, but not limited to, claims based on age, sex, attainment of benefit plan rights, race, religion, national origin, marital
status, sexual orientation, ancestry, harassment, parental status, handicap, disability, retaliation, and veteran status, as well as claims for breach of contract, employee benefits, implied contract, promissory estoppel, defamation, tort claims,
and any common law claims recognized now or later, including violations of public policy.
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| 12. Confidentiality. Xxxxx further agrees that he will not
divulge the terms of this Agreement to any person or entity whatsoever at any time, except to his spouse, attorney and/or financial advisors, unless required to do so by law.
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| 13. Acknowledgement. Xxxxx acknowledges that he has
been given a period of at least twenty-one (21) days within which to consider this Agreement prior to the execution of it and that he has reviewed its terms and considered its effect, including the foregoing release of claims. Xxxxx also
acknowledges that he has been advised in writing to consult with an attorney prior to executing it. Xxxxx understands that for a period of seven (7) days following the execution of this Agreement, he may revoke it, and that this Agreement shall not
become effective or enforceable until the revocation period of seven (7) days has expired. Xxxxx understands that in order to revoke this Agreement within this seven (7) day time period he must provide
written notice of that intention to Xxxx X. Xxxxx, Chairman, President and Chief Executive Officer of the Company so that Xx. Xxxxx may actually and personally receive notice of the revocation.
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| 14. No Admission. It is agreed that the execution
and/or implementation of this Agreement does not in any way constitute or represent an admission of any kind by the Company and/or by Xxxxx.
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| 15. Severability. The invalidity or unenforceability
of any portion of this Agreement shall not impair or affect the validity or enforceability of any other portion of this Agreement, which shall remain in full force and effect.
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| 16. Assignment. Xxxxx shall not assign, transfer,
pledge or encumber this Agreement or any rights or obligations hereunder. The Company may assign or transfer this Agreement to successor Company in the event of merger, consolidation, or transfer or sale of all or substantially all of the assets of
the Company; provided, however, that in the case of any such assignment or transfer, this Agreement shall be binding upon and inure to the benefit of such transferee, which shall assume and perform all of the obligations of the Company hereunder;
provided further, however, that the Company shall not be released of its obligations hereunder until fully discharged to Xxxxx or his surviving spouse as a result of an assignment or transfer of this Agreement to the extent such obligations are not
fulfilled by the assignee or transferee.
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| 17. Waiver. A waiver by either party of a breach of
any provisions of this Agreement shall not operate or be construed to be a waiver of any subsequent breach.
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| 18. Miscellaneous. This Agreement (a) shall be
governed by and interpreted in accordance with the laws of the State of Ohio, (b) shall not be modified except in writing signed by the parties, (c) constitutes the entire understandings and agreements (both oral and written) except as specifically
provided in Section 6, and (d) shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and permitted assigns.
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| 19. Headings. The paragraph headings are for
convenience only and shall not affect the construction or interpretation of this Agreement.
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READ BEFORE SIGNING
I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS SEPARATION AND RETIREMENT AGREEMENT AND RELEASE.
THIS RELEASE INCLUDES CLAIMS OR RIGHTS AND ALLEGED CLAIMS OR RIGHTS RELATING TO FEDERAL, STATE OR LOCAL LAWS PROHIBITING, EMPLOYMENT DISCRIMINATION, WHETHER BASED ON AGE, SEX, RACE, COLOR NATIONAL ORIGIN, RELIGION, HANDICAP OR MARITAL, PARENTAL OR
VETERAN STATUS OR CLAIMS GROWING OUT OF ANY LEGAL RESTRICTIONS ON THE COMPANY’S RIGHT TO TERMINATE ITS EMPLOYEES. I HAVE NOT RELIED UPON ANY OTHER REPRESENTATION OR STATEMENT WRITTEN OR ORAL. I HAVE HAD TIME TO CONSULT WITH AN ATTORNEY OR MY
CHOICE PRIOR TO EXECUTING THIS SEPARATION AND RETIREMENT AGREEMENT AND RELEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple counterparts at the place and as of the
date and year first above written.
| OGLEBAY NORTON MANAGEMENT COMPANY
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| By:
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| /S
/ XXXX
X. XXXXX
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| Xxxx X. Xxxxx
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| Chairman, President and
Chief Executive Officer |
| OGLEBAY NORTON COMPANY
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| By:
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| /S
/ XXXX
X. XXXXX
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| |
| Xxxx X. Xxxxx
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| Chairman, President and
Chief Executive Officer |
| /S
/ XXXXXX
X. XXXXX
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| Xxxxxx X. Xxxxx
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