Exhibit 10.16
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
April 1, 2002, and effective April 8, 2002, ("Effective Date") by and between
AMCAST INDUSTRIAL CORPORATION, an Ohio corporation ("Amcast"), and XXXXXX X.
XXXXX ("Executive").
ARTICLE 1
EMPLOYMENT
1.01 Amcast hereby employs Executive as its President and Chief Operating
Officer to be based at Amcast's corporate headquarters, and Executive hereby
accepts and agrees to such employment from and after the Effective Date of this
Agreement based upon the terms and conditions stated herein.
1.02 Executive shall generally have the authority, powers and responsibilities,
and shall perform such duties, as are delegated from time to time by the Chief
Executive Officer and Amcast's Board of Directors.
1.03 Executive represents and warrants that prior to entering into this
Agreement he has not been an employee, director, officer or substantial security
holder of Amcast.
ARTICLE 2
BEST EFFORTS OF EXECUTIVE
2.01 Executive agrees that he will devote his full time and attention to, and at
all times will faithfully, industriously, and to the best of his ability,
experience, and talents, perform, all of the duties that may be required of and
from him pursuant to the express and implicit terms of this Agreement, to the
reasonable satisfaction of Amcast.
ARTICLE 3
EMPLOYMENT RELATIONSHIP
3.01 The employment relationship between Amcast and Executive under this
Agreement is "at will." As such, Amcast may terminate Executive's employment at
any time with or without cause; and Executive may terminate his employment with
Amcast at any time provided the notice requirement at Section 5.01 is met.
However, so long as the employment relationship between Amcast and Executive
continues to exist, it shall be governed by the terms and provisions of this
Agreement.
ARTICLE 4
COMPENSATION AND BENEFITS
4.01 Executive will be paid an annualized base salary of Three Hundred Fifty
Thousand and no/100 Dollars ($350,000.00). Executive's base salary shall be
payable in equal installments pursuant to Amcast's normal payroll procedures and
dates. The Compensation Committee of Amcast's Board of Directors shall review
Executive's base salary compensation annually at such times as it reviews the
salaries of other Amcast officers. Any actual increase in Executive's base
salary shall be made within Amcast's sole judgment and discretion based on any
criteria Amcast determines appropriate. Such base compensation shall not be
subject to decrease unless the Board takes action to effect a uniform percentage
decrease in compensation for all senior executives of Amcast.
4.02 Executive shall participate in Amcast's Annual Incentive Plan and be
eligible to receive annual discretionary incentive bonus compensation in an
amount targeted to be 50% of Executive's annualized base salary (with maximum
payout at 100% of salary), based upon achievement of personal and overall
company goals as are determined and approved by the Chief Executive Officer or
the Board. For the fiscal year ending August 31, 2002, Amcast guarantees it will
pay a bonus equal to 50% of Executive's base salary paid to him as if Executive
commenced employment with Amcast on January 1, 2002 through August 31, 2002. To
receive a bonus for any fiscal year, Executive must be employed by Amcast on the
last day of the fiscal year. Any bonus payments shall be made within ninety (90)
days following the completion of each fiscal year. Any dispute between Executive
and Amcast as to the amount of, or entitlement to, any bonus shall be promptly
addressed by the Board's Compensation Committee.
4.03 Executive shall be eligible to receive such fringe benefits as are, and may
be, made available to other senior executive employees of Amcast from time to
time in the exclusive discretion of the Board. Such benefits may include, but
are not limited to, a medical and dental plan, short-term disability plan,
long-term disability plan, life insurance plan, and 401(k) plan. Executive also
shall be provided with an automobile or car allowance pursuant the Amcast Lease
Car/Car Allowance Program. Amcast may, without any prior notice, discontinue or
modify any benefit already provided or as may be provided in the future, within
the exclusive discretion of the Board, only if such benefits are uniformly
discontinued or modified for all senior executives of Amcast. Executive shall be
entitled four weeks vacation a year effective upon the Effective Date. In
addition, Executive shall receive an additional $28,000 in February 2003 and in
February 2004 to replace the bonus that Executive would have received from his
prior employer.
4.04 Upon vesting in the Amcast Merged Pension Plan, Executive also shall
participate in the Amcast Nonqualified Supplementary Benefit Plan (the
"Supplemental Plan") as a Participant but not as an Executive Participant and
upon Executive completing five (5) years of actual service with Amcast, Amcast
will credit Executive with an additional three (3) years of service for purposes
of calculating Executive's retirement benefit under the Supplemental Plan. Upon
a Change of Control (as defined in Executive's Change of Control Agreement
referenced in Article 7 below) occurring prior to Executive becoming vested in
Amcast's Merged Pension Plan and provided that Executive's employment with
Amcast thereafter ceases before Executive becomes vested in Amcast's Merged
Pension Plan and under circumstances which require compensation and benefits
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pursuant to that Change of Control Agreement, Executive also shall receive such
benefits under the Supplemental Plan as Executive would otherwise have been
entitled to receive under the Amcast Merged Pension Plan and Supplemental Plan
if Executive had completed five (5) years of service with Amcast on the date of
his termination of employment with Amcast but Executive shall not receive the
three (3) additional years of credit until Executive has in fact completed five
(5) years of actual service with Amcast.
4.05 Amcast shall reimburse Executive, in accordance with Amcast's policies and
procedures in effect from time to time, for all reasonable and deductible
out-of-pocket business expenses, which are incurred by Executive in connection
with the performance by him of his duties hereunder.
4.05 Pursuant to the terms and conditions contained in the Stock Option
Agreement separately entered into and executed by Executive and Amcast and in
order to induce Executive to execute this Agreement, Amcast shall grant to
Executive the option to purchase an aggregate 150,000 (One Hundred Fifty
Thousand) common shares of Amcast at a price per share equal to the closing
price of Amcast's common shares as reported on the New York Stock Exchange
Composite Transactions Tape on April 1, 2002. Such option shall be exercisable
as to 75,000 of the shares subject to option beginning on the Effective Date and
shall become exercisable with respect to the remaining 75,000 shares on April 8,
2003 provided Executive is employed by Amcast on such date.
4.06 Amcast shall pay to Executive a sum equal to the amount of interest
accruing during the period April 8, 2002, through April 8, 2004, and paid by
Executive on Executive's $350,000 real estate loan arranged by Executive's prior
employer (or any replacement loan for such loan) plus an additional sum
sufficient to enable Executive to receive such interest reimbursement, for the
period April 8, 2002, through April 8, 2003, net of state and federal income
taxes. Amcast's interest reimbursement obligation shall cease upon Executive
selling his home that secures this loan.
4.07 Executive shall be entitled to receive the benefits provided by the Amcast
Relocation Policy plus an additional sum sufficient to enable Executive to
receive such benefits net of state and federal income taxes. In addition and
upon relocation, Amcast will pay Executive $29,166 for unreimbursed incidental
expenses incurred in relocation.
ARTICLE 5
TERMINATION
5.01 Executive may resign his position and terminate his employment by giving
Amcast one (1) month written notice of his intention to resign. If requested by
Amcast, Executive agrees to cooperate in training his successor until his actual
termination. In the event of such resignation, Executive shall be paid only his
base salary earned through the effective date of his resignation and he shall
not be entitled to receive any pro-rated or other portion of any bonus,
severance, or other compensation otherwise payable under the terms of this
Agreement after Executive's last day of employment.
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5.02 Executive's employment and this Agreement will be deemed terminated upon
the death of the Executive. In the event of such termination, Executive shall
receive only his base salary earned through the date of termination; provided,
however, that Executive may, as the Board shall in its discretion determine,
receive a pro-rated or other portion of any bonus to which Executive was
otherwise eligible pursuant to any bonus plan or other arrangement established
prior to termination, to the extent such bonus was earned based upon the
requirements or criteria of such plan or arrangement.
5.03 Any other provision of this Agreement notwithstanding, Amcast may terminate
Executive's employment without notice and with or without cause at any time.
5.04 Upon termination of employment hereunder for any reason, Executive shall be
deemed to have resigned from all officer positions and director and committee
positions he then holds with Amcast or with any affiliated entity.
5.05 Upon termination of employment hereunder for any reason, Executive agrees
that he shall not disparage or defame Amcast, its directors, officers, employees
or products. The provisions of this Section 5.05 shall indefinitely survive the
termination of Executive's employment with Amcast.
5.06 Upon termination of employment hereunder for any reason, Executive agrees
that he shall reasonably assist Amcast with any litigation brought by or against
Amcast involving matters occurring during the period of his employment
hereunder.
ARTICLE 6
SEVERANCE
6.01 If Executive's employment with Amcast is terminated for any reason other
than death or "cause" (as defined below) and Executive is not entitled in
connection with such termination of employment to receive payments under the
Change of Control Agreement (as defined at Article 7), then Amcast shall:
(a) pay Executive as severance pay, each month for twelve (12)
consecutive months following Executive's termination, Executive's monthly base
salary in effect at the time of separation, less customary withholdings,
beginning one (1) month after termination; and
(b) if Executive timely elects to continue Executive's group health and
dental insurance coverage pursuant to applicable COBRA/continuation law and the
terms of the respective benefit plans, continue to pay on Executive's behalf
Amcast's customary share of premiums for such coverage for the lesser of twelve
(12) months or Executive having obtained comparable coverage.
6.02 For purposes of this Article 6, "cause" shall mean (a) the willful and
continued failure by Executive to substantially perform Executive's duties with
Amcast (other than any such failure resulting from Executive's physical or
mental illness or other physical or mental incapacity), after a demand for
substantial performance is delivered to Executive by the Board which
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specifically identifies the manner in which the Board believes that Executive
has not substantially performed Executive duties, or (b) the willful engaging by
Executive in gross misconduct which is materially and demonstrably injurious to
Amcast or an affiliate of Amcast resulting or intended to result, directly or
indirectly, in substantial personal gain or substantial personal enrichment at
the expense of Amcast or an affiliate of Amcast.
ARTICLE 7
CHANGE IN CONTROL
7.01 Concurrently with the execution of this Agreement, Amcast and Executive
shall enter into the agreement attached hereto as Appendix A (the "Change of
Control Agreement").
ARTICLE 8
NONDISCLOSURE
8.01 Except as permitted or directed by Amcast or as may be required in the
proper discharge of Executive's employment hereunder, Executive shall not, while
employed by Amcast or at any time thereafter, divulge, furnish or make
accessible to anyone or use in any way any confidential, trade secret or
proprietary information of Amcast, including without limitation, whether or not
reduced to writing, customer lists, customer files or information, planning and
financial information, contracts, sales and marketing information, business
strategy or opportunities for new or developing business, which Executive has
prepared, acquired or become acquainted with during his employment by Amcast.
Executive acknowledges that the above-described knowledge or information is the
property of Amcast that constitutes a unique and valuable asset and represents a
substantial investment by Amcast, and that any disclosure or other use of such
knowledge or information, other than for the sole benefit of Amcast, would be
wrongful and would cause irreparable harm to Amcast. Executive agrees to at all
times maintain the confidentiality of such knowledge or information, to refrain
from any acts or omissions that would reduce its value to Amcast, and to take
and comply with reasonable security measures to prevent any accidental or
intentional disclosure or misappropriation. Upon termination of Executive's
employment for any reason, Executive shall promptly return to Amcast all such
confidential, trade secret and proprietary information, including all copies
thereof, then in Executive's possession, control or influence, whether prepared
by Executive or others.
8.02 The foregoing obligations of confidentiality shall not apply to any
knowledge or information which is now published or subsequently becomes
generally publicly known, other than as a direct or indirect result of the
breach of this Agreement by Executive or a breach of a confidentiality
obligation owed to Amcast by any third party.
8.03 In the event of a breach or threatened breach by Executive of the
provisions of this Article 8, Amcast shall be entitled to an injunction
restraining Executive from directly or indirectly disclosing, disseminating,
lecturing upon, publishing or using such confidential, trade secret or
proprietary information (whether in whole or in part) and restraining Executive
from rendering any services or participating with any person, firm, corporation,
association or other entity to whom such knowledge or information (whether in
whole or in part) has been disclosed, without the posting of a bond or other
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security. Nothing herein shall be construed as prohibiting Amcast from pursuing
any other equitable or legal remedies available to it for such breach or
threatened breach, including the recovery of damages from Executive. Executive
and Amcast agree that in event of a disputed proceeding regarding Executive's
compliance with the provisions of this Article 8, the prevailing party shall be
entitled to recover his or its costs of litigation and reasonable attorney fees
incurred as a result.
8.04 The provisions of this Article 8 shall survive indefinitely the termination
of Executive's employment with Amcast.
ARTICLE 9
NONCOMPETITION AND NON-RECRUITMENT
9.01 Amcast and Executive recognize and agree that: (i) Executive has received,
and will in the future receive, substantial amounts of highly confidential and
proprietary information concerning Amcast, its business, customers and
employees; (ii) as a consequence of using or associating himself with Amcast's
name, goodwill, and reputation, Executive will develop personal and professional
relationships or a reputation with Amcast's current and prospective customers
and clients; and (iii) provision for non-competition and non-recruitment
obligations by Executive is critical to Amcast's continued economic well-being
and protection of Amcast's confidential and proprietary business information. In
light of these considerations, this Article 9 sets forth the terms and
conditions of Executive's obligations of non-competition and non-recruitment
while employed by Amcast and for a period of one year following Executive's
cessation of employment with Amcast.
9.02 Unless the obligation is waived or limited by Amcast as set forth herein,
Executive agrees that while Executive is employed by Amcast and for a period of
one year following termination of Executive's employment for any reason,
Executive will not directly or indirectly (a) solicit or do competitive business
with any person or entity that is or was a customer or vendor of Amcast within
the twelve (12) months prior to the date of termination, or (b) engage within
the North American markets in which Amcast engages in business at the time of
termination, in any similar or related business activity in competition with
Amcast's direct line of business as conducted at the time of Executive's
termination. Among all other competitive actions that are likewise restricted,
Executive shall not cause or attempt to cause any existing or prospective
customer, client or account who then has a relationship with Amcast for current
or prospective business to divert, terminate, limit or in any adverse manner
modify, or fail to enter into any actual or potential business with Amcast.
9.03 At its sole option, Amcast may, by express written notice to Executive,
waive or limit the time and/or geographic area in which Executive cannot engage
in competitive activity or the scope of such competitive activity.
9.04 For a period of one year following termination of Executive's employment
for any reason, Executive will not initiate or actively participate in any other
employer's recruitment or hiring of any of Amcast's employees.
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9.05 Executive agrees that breach by him of the provisions of this Article 9
will cause Amcast irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Executive of the
provisions of this Article 9, Amcast shall be entitled to an injunction
restraining Executive from directly or indirectly competing or recruiting as
prohibited herein, without posting a bond or other security. Nothing herein
shall be construed as prohibiting Amcast from pursuing any other equitable or
legal remedies available to it for such breach or threatened breach, including
the recovery of damages from Executive and suspension or termination of the
severance payments being made to the Executive under Article 6. Executive and
Amcast agree that in event of a disputed proceeding regarding Executive's
compliance with the provisions of this Article 9, the prevailing party shall be
entitled to recover his or its costs of litigation and reasonable attorney fees
incurred as a result. To the extent that the Executive is in violation of any of
the provisions contained in this Article 9, the applicable period shall be
tolled during such period of non-compliance, the intent of which is to provide
Amcast with the full period of compliance as stated herein.
9.06 The obligations contained in this Article 9 shall survive the termination
of Executive's employment with Amcast.
ARTICLE 10
INTELLECTUAL PROPERTY
10.01 Executive will promptly disclose in writing to Amcast complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product, whether patentable or
copyrightable or not, made, developed, perfected, devised, conceived or first
reduced to practice by Executive, either solely or in collaboration with others,
during the period of Executive's employment hereunder, whether or not during
regular working hours, relating either directly or indirectly to the business,
products, practices or techniques of Amcast or its subsidiaries (hereinafter
referred to as "Developments"). Executive, to the extent that he has the legal
right to do so, hereby acknowledges that any and all of such Developments are
the property of Amcast and hereby assigns and agrees to assign to Amcast any and
all of Executive's right, title and interest in and to any and all of such
Developments.
10.02 The provisions of Section 10.01 shall not apply to any Development meeting
the following conditions: (a) such Development was developed entirely on
Executive's own time; and (b) such Development was made without the use of any
Amcast equipment, supplies, facility or trade secret information; and either (c)
such Development does not result from any work performed by Executive for
Amcast, or such Development does not relate (i) directly to the business of
Amcast or (ii) to Amcast's actual or demonstrably anticipated research or
development.
10.03 Upon request and whether during the period of Executive's retention
hereunder or thereafter, Executive will do all lawful acts, including, but not
limited to, the execution of papers and lawful oaths and the giving of
testimony, that in the opinion of Amcast, its successors and assigns, may be
necessary or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign letters patent, including, but not limited
to, design patents, or other applicable registrations, on any and all of such
Developments, and for perfecting, affirming and recording Amcast's complete
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ownership and title thereto, and to cooperate otherwise in all proceedings and
matters relating thereto. Executive will not be entitled to compensation for
acts performed under this Section 10.03 (other than reimbursement for all
reasonable expenses) if the Employee is employed by Amcast at the time such acts
are performed. If Executive is not employed by Amcast at the time such acts are
performed, and if the performance by Executive of such acts causes Executive to
lose compensation from other sources, Amcast will pay Executive reasonable
compensation for such acts.
10.04 Executive will keep reasonably complete accounts, notes, data and records
of all Developments in the manner and form requested by Amcast. Such accounts,
notes, data and records shall be the property of Amcast, and, upon its request,
Executive will promptly surrender same to it or, if not previously surrendered
upon its request or otherwise, Executive will surrender the same, and all but
one copy thereof, to Amcast upon the conclusion of his employment.
10.05 Executive agrees that breach by him of the provisions of this Article 10
will cause Amcast irreparable harm that is not fully remedied by monetary
damages. In the event of a breach or threatened breach by Executive of the
provisions of this Article 10, Amcast shall be entitled to an injunction
restraining Executive from breach of this Article 10, without posting a bond or
other security. Nothing herein shall be construed as prohibiting Amcast from
pursuing any other equitable or legal remedies available to it for such breach
or threatened breach, including the recovery of damages from Executive.
Executive and Amcast agree that in event of a disputed proceeding regarding
Executive's compliance with the provisions of this Article 10, the prevailing
party shall be entitled to recover his or its costs of litigation and reasonable
attorney fees incurred as a result.
10.06 The obligations contained in this Article 10 shall survive indefinitely
the termination of Executive's employment with Amcast.
ARTICLE 11
MISCELLANEOUS
11.01 Governing Law. This Agreement shall be governed and construed according to
the laws of the State of Ohio without regard to conflicts of law provisions.
11.02 Successors. This Agreement is personal to Executive and Executive may not
assign or transfer any part of his rights or duties hereunder, or any
compensation due to him hereunder, to any other person or entity. This Agreement
may be assigned by Amcast and Amcast may require any successors or assigns to
expressly assume and agree to perform Amcast's obligations under this Agreement.
11.03 Waiver. The waiver by Amcast of the breach or nonperformance of any
provision of this Agreement by Executive will not operate or be construed as a
waiver of any future breach or nonperformance under any such provision of this
Agreement or any similar agreement with any other employee.
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11.04 Modification. This Agreement supersedes and replaces any and all prior
oral or written understandings, if any, between the parties relating to the
subject matter of this Agreement, which are hereby revoked. The parties agree
that this Agreement (a) is the entire understanding and agreement between the
parties and (b) is the complete and exclusive statement of the terms and
conditions thereof, and there are no other written or oral agreements in regard
to the subject matter of this Agreement. This Agreement shall not be changed or
modified except by a written document signed by the parties hereto.
11.05 Severability and Blue Penciling. To the extent that any provision of this
Agreement shall be determined to be invalid or unenforceable as written, the
validity and enforceability of the remainder of such provision and of this
Agreement shall be unaffected. If any particular provision of this Agreement
shall be adjudicated to be invalid or unenforceable, Amcast and Executive
specifically authorize the tribunal making such determination to edit the
invalid or unenforceable provision to allow this Agreement, and the provisions
thereof, to be valid and enforceable to the fullest extent allowed by law or
public policy.
11.06 Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (i) on
the date of service if served personally on the party to whom notice is to be
given, (ii) on the day of transmission if sent via facsimile transmission to the
facsimile number given below, and telephonic confirmation of receipt is obtained
promptly after completion of transmission, (iii) on the day after delivery to
Federal Express or similar overnight courier or the Express Mail service
maintained by the United States Postal Service, or (iv) on the fifth day after
mailing, if mailed to the party to whom notice is to be given, by registered or
certified mail, postage prepaid and properly addressed, to the party as follows:
If to Executive: Xxxxxx X. Xxxxx
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
or such other address as Executive elects by giving such to Amcast with not less
than 30 days advance written notice.
If to Amcast Amcast Industrial Corporation
Attn: Chairman of the Board
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
or such other address as Amcast elects by giving such to Executive with not less
than 30 days advance written notice.
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IN WITNESS WHEREOF the following parties have executed the above instrument the
day and year first above written.
AMCAST INDUSTRIAL CORPORATION
By:/s/ Xxxxx X. Xxxx
------------------------
Its Chairman of the Board and Chief Executive
Officer
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
