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Exhibit 10.4
SETTLEMENT AGREEMENT AND RELEASE
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1. PARTIES. The parties to this Settlement Agreement and Release (the
"Agreement") are Xxxx X. Xxxxxx Xx. ("Xxxxxx") and Oglebay Norton Company
("Oglebay Norton"). This Agreement is binding on and inures to the benefit of
Xxxxxx'x heirs, successors, and assigns. This Agreement releases Oglebay Norton
as well as its successors, assigns, divisions, parents, related or affiliated
companies, and any and all current or former officers, directors, shareholders,
members, employees (including any and all management and supervisory employees),
heirs, agents, and counsel (collectively "the Released Parties").
2. CONSIDERATION. As consideration for the promises in this Agreement,
Oglebay Norton agrees to continue to pay Xxxxxx'x base salary for twelve (12)
months from the date of the termination of his employment. Xxxxxx'x base salary
will be paid according to the Company's normal payroll schedule, and will be
subject to the usual deductions and withholdings as required by law or as
authorized by Xxxxxx. Oglebay Norton agrees that for the twelve (12) months base
salary payments continue to Xxxxxx, such payments shall be considered as wages
under the Oglebay Norton Company Pension Plan, the Incentive Savings Plan and
the Employee Stock Ownership Plan (ESOP), and that Xxxxxx shall continue in such
programs, including Company paid Medical Insurance, Dental Insurance, and Life
Insurance until the last base salary payment is made to Xxxxxx. Continued
medical coverage may thereafter be purchased by Xxxxxx and/or his dependents
pursuant to COBRA. As further consideration, Oglebay Norton agrees to pay Xxxxxx
a 1998 Performance Bonus in March 1999. Oglebay Norton and Xxxxxx agree that the
Performance Bonus shall be $35,100. Xxxxxx'x Performance Bonus will be subject
to the usual deductions and withholdings required by law or as authorized by
Xxxxxx. Oglebay Norton further agrees to pay
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Xxxxxx eight (8) days of accrued but unused vacation time. Oglebay Norton agrees
that it will pay for outplacement services, as mutually agreed with Xxxxxx,
until such time as Xxxxxx is re-employed.
3. DEATH. In the event that Xxxxxx dies prior to the last of the base
salary payments specified under Paragraph 2 are paid, Oglebay Norton shall then
make such remaining payments to Xxxxxx'x spouse, or if she predeceases him, to
his estate.
4. AGREEMENT. Xxxxxx agrees to release and discharge forever the Released
Parties from all causes of action, claims, demands, costs and expenses which he
now has or may have from the beginning of time until the effective date of this
Agreement, whether known or unknown, on account of his employment with Oglebay
Norton. Xxxxxx agrees to release and discharge all claims and demands including,
but not limited to, any contract or tort claim, or any claim of discrimination
on any basis including race, color, national origin, religion, sex, age,
disability or handicap arising under any federal, state or local statute,
ordinance, order, or law, including, but not limited to, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss.2000e et seq., the Age Discrimination in
Employment Act, 29 U.S.C. ss.621 et. seq., the Americans with Xxxxxxxxxxxx Xxx,
00X.X.X. ss.12101 et seq., and any analogous Ohio anti-discrimination statute or
the common law of Ohio. Xxxxxx further agrees that he is not a prevailing party
for the purposes of the attorney fee provisions of Title VII, the Age
Discrimination in Employment Act or any other statute or law and that he is
solely responsible for the payment of his own attorney's fees and costs, if any.
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6, ACKNOWLEDGMENTS. Xxxxxx acknowledges that he has been advised to
consult with his attorney before executing this Agreement. Xxxxxx further
acknowledges that he has had a reasonable period of time to read and consider
this Agreement before executing it (at least 45 days, if needed). Xxxxxx further
acknowledges that the consideration given to him under this Agreement is in
addition to anything of value to which he may already be entitled from Oglebay
Norton.
7, RECEIPT OF DOCUMENTS. Xxxxxx acknowledges that he has received and had
the opportunity to review Attachment A, which (1) identifies the individuals who
are covered by the severance program; (2) sets forth the eligibility factors and
time limits, if any, applicable to this severance program; and (3) lists the job
titles and ages of all individuals eligible or selected for the severance
program and the ages of all individuals in the same job classification or
organizational unit who are not eligible or selected for the severance program.
8, NON-ADMISSION. Xxxxxx acknowledges, agrees and represents that Oglebay
Norton, in entering into this Agreement is not admitting to any liability or
violation of the law, contract or other agreement and that no promise or
inducement has been offered to Xxxxxx except as set forth in this Agreement.
9. CONFIDENTIALIIY. Xxxxxx agrees to keep the fact of and the terms of
this Agreement confidential and not to publicize, disclose or discuss its terms
with any persons other than his counsel in this matter, his spouse, children,
parents, siblings, tax advisors, or except as required by law. Xxxxxx and
Oglebay Norton agree that Xxxxxx may disclose to a prospective employer that
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this Agreement exists but that Xxxxxx may not disclose the terms of the
Agreement. Xxxxxx and Oglebay Norton agree not to make or utter any disparaging
remarks about the other.
10. APPLICABLE LAW, This Agreement shall be governed by, interpreted
under, and enforced in accordance with the laws of the State of Ohio.
11. REVOCATION/CANCELLATION. Xxxxxx may revoke and cancel this Agreement
by providing written notice of revocation to Xxxxxxx X. Xxxx, Esq., Vice
President Corporate Development and General Counsel, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, (000) 000-0000 (fax) which notice is received within
seven (7) days after his execution of this Agreement. If he does so revoke, this
Agreement will be null and void. This Agreement shall not become effective and
enforceable until after the expiration of this 7-day revocation period, after
such time, if there has been no revocation, the Agreement shall be fully
effective and enforceable.
12. FINAL AGREEMENT. All prior agreements and understandings, whether
written or oral, between Xxxxxx and Oglebay Norton are replaced and superseded
by this Agreement and are no longer of any force and effect.
13. SEVERABILITY. If any provision of this Agreement is declared invalid
or unenforceable, the remaining portions of the Agreement shall not be affected
thereby and shall be enforced.
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14. COUNTERPARTS/EFFECTIVE DATE. This Agreement may be executed in
counterparts which, when taken together, form the entire Agreement executed as
of the latest date hereon.
AGREED TO: WITNESS:
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxx
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Xxxx X. Xxxxxx Xx.
Date: August 6, 1998 Date: August 6, 1998
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Oglebay Norton Company
By: /s/ Xxxx Xxxxx /s/ R. F. Walk
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Its: Chairman, President & CEO
Date: August 5, 1998 Date: August 5, 1998
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