EXHIBIT 10.2
CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT ("Agreement") is entered into as of
September 25, 2001 ("Effective Date"), by and between Chase Industries Inc., a
Delaware corporation ("CSI"), and Xxxx X. Xxxxxx ("Executive").
Recitals
A. Executive currently is employed by Chase Brass & Copper Company,
Inc., a Delaware corporation and a wholly-owned subsidiary of CSI ("CBCC").
B. Executive currently is a party to a Change of Control Agreement
dated March 31, 1997, by and between CSI and Executive, as amended (the
"Original Change of Control Agreement").
C. Executive and CSI agree that it is desirable that CSI provide
greater employment security to Executive in the event of a Change of Control (as
herein defined), and, to that end, the parties hereby enter into this Agreement
to replace and supercede the Original Change of Control Agreement.
In consideration of the mutual agreements herein set forth and for good
and valuable consideration, receipt of which hereby is acknowledged the parties
agree as follows:
1. Term of Agreement.
a. Absent a Change of Control. Subject to Section 1(b), the term
of this Agreement (the "Term") shall be for the period which commences on the
Effective Date and which expires at midnight on the one year anniversary of the
Effective Date.
b. Change of Control. Notwithstanding Section 1(a), if a Change
of Control occurs during the Term as defined in Section 1(a) and as of the
effective time of the Change of Control Executive is employed by CBCC, 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 7, 13 and 14 of this
Agreement shall survive any expiration of the Term or termination of this
Agreement and (ii) if a Change of Control shall occur 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 4 of this Agreement.
2. Change of Employment to Affiliate. If, prior to a Change of Control,
Executive shall resign from his employment with CBCC but, upon such resignation,
shall become or remain an
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employee of CSI or any Subsidiary (other than CBCC) or CBCC is party to a
transaction that does not constitute a Change of Control but in which CBCC is
not a surviving corporation and Executive becomes employed by the surviving
entity then (i) such resignation or change in employer shall not constitute a
termination of Executive's employment for purposes of this Agreement and (ii)
thereafter, all references to CBCC contained in this Agreement shall be deemed
to refer to the entity by which Executive is then employed.
3. Definitions. For purposes of this Agreement, the following
definitions apply unless the context requires otherwise:
a. Acquiring Person: shall mean any Person other than (a)
Executive or any Affiliate of Executive, or (b) CSI or any Subsidiary, any
employee benefit plan of CSI or any Subsidiary 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, or any trustee or other
fiduciary holding securities under an employee benefit plan of CSI or any
Subsidiary 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.
b. Affiliate: shall mean, with respect to any Person, 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, whether through ownership of Voting Securities, by contract, or
otherwise.
c. Base Salary: means the Executive's annual base pay. Base
Salary shall not include any bonus, commission, incentive pay, overtime, auto or
travel allowance or other similar payments or compensation.
d. Board of Directors: shall mean (i) from and after the
Effective Date, the board of directors of CSI or (ii) if a Change of Control
occurs and on or after the effective date of the Change of Control CSI is
merged, reorganized or otherwise consolidated with or into another Person, from
and after the occurrence of such merger, reorganization or consolidation the
board of directors or similar governing body of the Person surviving the merger,
reorganization or consolidation.
e. Cause: shall mean
(i) the continued failure by Executive to substantially
perform his duties, as such duties exist at the Effective Date or as
such duties thereafter may be modified with Executive's written
consent, as an employee of CBCC or any other Subsidiary (other than
any such failure resulting from Executive's incapacity due to physical
or mental illness) after written demand for substantial performance is
delivered by the Board of Directors specifically identifying the
manner in which the Board of Directors believes Executive has not
substantially performed his duties;
(ii) dishonesty by Executive of a material nature that
relates to the performance of Executive's duties as an employee of
CBCC or any other Subsidiary or the
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commission by Executive of an act of fraud upon, or willful misconduct
toward, CSI or any Subsidiary, as reasonably determined by the Board
of Directors 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 or 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
or a conviction or plea of nolo contendere based on 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 CBCC;
(iv) a material violation by Executive of his duty of
loyalty to CSI or any Subsidiary which results or may reasonably be
expected to result in material injury to CSI or any Subsidiary;
(v) the failure of Executive to cease any conduct reasonably
determined in good faith by the Board of Directors to be detrimental
to the well-being or morale, or otherwise not in the best interest, of
CSI or any Subsidiary after written demand directing Executive to
cease such conduct is delivered by the Board of Directors specifically
identifying such conduct and demanding cessation thereof;
(vi) the use by Executive of alcohol which renders Executive
unable to perform the essential functions of his position as an
employee of CBCC or the illegal 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) a violation by Executive of Executive's covenants and
obligations under Section 6 or Section 7 of this Agreement which is
willful on Executive's part and which is not remedied to the
reasonable satisfaction of the Board of Directors in a reasonable
period of time after receipt of written notice from the Board of
Directors.
Any termination of Executive's employment by CBCC 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.
f. Change of Control: shall be deemed to have occurred if:
(i) 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
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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
(ii) a public announcement is made of a tender or exchange
offer by any Acquiring Person for, or upon completion of which any
Acquiring Person would beneficially own, fifty percent or more of the
outstanding Voting Securities of CSI, and the Board of Directors of
CSI approves or fails to oppose that tender or exchange offer in its
statements in Schedule 14D-9 under the Exchange Act, provided, that,
within one year after the occurrence of such event, an event described
in clauses (i), (iii) or (iv) hereof shall have occurred (in which
case a Change of Control shall be deemed to have occurred on the date
of the occurrence of the event described above in this clause (ii));
(iii) the stockholders of CSI approve a merger or
consolidation of CSI with any other Person (or, if no such approval is
required, the consummation of such a merger or consolidation of CSI),
other than a Conversion Transaction. A "Conversion Transaction" shall
mean a merger or consolidation that would result in the Voting
Securities of CSI 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 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 or
consolidation shall not be deemed a "Conversion Transaction";
(iv) the stockholders of CSI or CBCC approve a plan of
complete liquidation of CSI or CBCC, respectively, or an agreement for
the sale or disposition by CSI or CBCC of all or substantially all of
CSI's or CBCC'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's
or CBCC's assets in one transaction or a series of related
transactions to a Subsidiary or any other Person 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;
(v) CSI ceases to be the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of CBCC representing at least a majority of the combined
voting power of the then outstanding Voting Securities of CBCC other
than pursuant to a transaction in which, immediately after the
consummation of such transaction, all of the outstanding Voting
Securities of CBCC or any Person into which CBCC 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
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(vi) members of the Incumbent Board cease for any reason to
constitute at least a majority of the Board of Directors.
g. 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.
h. CVC Directors: (A) those members of the Board of Directors of
CSI 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
Board of Directors of CSI and (B) any other members of the Board of Directors
nominated by (i) such members of the Board of Directors of CSI 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 CSI.
i. Good Reason: a resignation for Good Reason shall mean the
resignation by Executive from employment by CBCC after:
(i) a material reduction or material alteration in the
nature of Executive's position, responsibilities or authorities which
Executive holds as of the Effective Date, as such position,
responsibilities, or authorities may have been modified as of the time
of the Change of Control with Executive's written consent,
(ii) (A) any reduction of Executive's Base Salary,
(B) any reduction in Executive's annual year end bonus
as compared to Executive's immediately preceding year end bonus
(expressed as a percentage) by more than 120% of any reduction in
CBCC's operating income for the year to which the bonus relates
as compared to the prior year (expressed as a percentage); by way
of example, if operating income for year one is $1,000,000 and
Executive's bonus was $20,000, then if operating income in year
two is $900,000 - 90% of year one, or a 10% decline from year
one, - Executive's bonus may not be less than $17,600 - 88% of
year one bonus, or a 12% (120% x 10%) decline from year one bonus
- or it will constitute Good Reason, or
(C) any material reduction of benefits (excluding
salary and bonus) to which Executive was entitled immediately
prior to the Change of Control,
(iii) the relocation of Executive's principal place of
employment to a location which is 60 miles or more from Executive's
principal residence immediately prior to the Change of Control
(provided such relocation shall not constitute Good Reason unless such
relocation also results in Executive's principal place of employment
being at least five miles further away from Executive's principal
residence immediately prior to the Change of Control)
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(iv) any other material adverse change to the terms and
conditions of Executive's employment or benefits as in effect
immediately prior to the Change of Control, or
(v) the liquidation, dissolution, merger, consolidation or
reorganization of CSI 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 CSI under this Agreement pursuant to
Section 11.b. hereof;
provided, that, if Executive shall consent in writing to any event described in
clauses (i) through (iv) of this paragraph, Executive's subsequent resignation
shall not be treated as a resignation for Good Reason unless a subsequent event
described in such clauses to which Executive did not consent occurs.
Notwithstanding the foregoing, Executive shall be entitled to resign for Good
Reason only if any occurrence referred to in clauses (i), (ii), (iii), (iv) or
(v) of this Section 3.i. is not remedied within 10 calendar days after receipt
by CSI of written notice from Executive setting forth in reasonable detail the
facts and circumstances giving rise to such Good Reason.
j. Incumbent Board: individuals who, as of the date hereof,
constitute the Board of Directors of CSI and any other individual who becomes a
director of CSI after that date and whose election or appointment by the Board
of Directors or nomination for election by CSI'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.
k. Permanent Disability: shall mean any physical or mental
disability which shall have rendered Executive unable to perform his duties as
an employee of CBCC with or without reasonable accommodation for 120 consecutive
days, or which, in the opinion of a licensed physician reasonably satisfactory
to CSI, is likely to render Executive unable to perform his duties as an
employee of CBCC for such period with or without reasonable accommodation;
provided, however, that during any period of Executive's disability CSI or any
Subsidiary may assign Executive's duties to any other employee of CSI or such
Subsidiary 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 his
employment.
l. Person: shall mean any individual, group, partnership,
corporation, association, trust, or other entity or organization.
m. Protection Period: shall have the same meaning assigned to
such term in Section 4.a.
n. 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 CSI).
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o. Subsidiary: shall mean any corporation or other entity of
which a majority of the combined voting power of the outstanding Voting
Securities is owned, directly or indirectly, by CSI.
p. Voting Securities: shall mean (i) any securities or interests
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 CSI).
4. Severance Benefit.
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 CBCC, 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"), either (a) Executive's employment
with CBCC is terminated by CBCC other than (1) for Cause or (2) on account of
Executive's death, Permanent Disability or Retirement, or (b) Executive resigns
from CBCC for Good Reason, then CSI shall:
(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 the most recent 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 CBCC, and in
which such Persons were participating immediately prior to the date
effective 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, and if such continued
participation of any of such Persons is barred, then CSI shall arrange
to provide such Persons
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with 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, the Executive pays to CSI an amount equal to the premiums,
or portion thereof, that the Executive was required to pay to maintain
such coverage for such Persons prior to the date of termination or
resignation, provided that such coverage, except to the extent of
premiums paid by the Executive or reimbursed to CBCC or CSI as
provided herein, shall be provided on an after-tax basis and Executive
shall be issued a Form 1099 which reflects the entire cost of such
coverage for himself and his dependents; and provided, further, that
any coverage provided pursuant to this Section 4.a.(ii) 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 arrangements available to such persons; and
provided, further, that solely for the purpose of calculating
continued medical and dental coverage under the medical and dental
plan program component of the Employee Benefit Plan Chase Brass &
Copper Co., Inc. (but not under the health care reimbursement plan
program component of the Employee Benefit Plan Chase Brass & Copper
Co., Inc.) pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, the date of Executive's termination of
employment shall be the date Executive's medical and dental insurance
coverage expires pursuant to the terms of this Section 4.a(ii).
b. Termination in Anticipation of Change of Control. For purposes
of this Section 4, 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 4, if (i) there shall be a sale or disposition of all or
substantially all the assets of CBCC or a merger, consolidation or
reorganization to which CBCC 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 CBCC before such sale) with the
purchaser or corporation into which CBCC 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 4.a. as a result of such transaction. In any such event,
however, Executive shall be entitled to such severance compensation as provided
in Section 4.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
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"Good Reason" and termination for "Cause," and the provisions of Sections 6 and
7 shall be construed with reference to the Buyer instead of with reference to
CBCC and/or CSI, as applicable.
5. No Reductions or Mitigation
a. Notwithstanding anything in this Agreement to the contrary,
the severance benefit payment received under this Agreement shall be reduced by
loans or other amount due to CSI by the Executive.
b. Except as provided in Section 5.a. the severance compensation
to be provided pursuant to Section 4 of this Agreement shall be paid and
provided without reduction, other than as expressly provided for therein,
regardless of any amounts of salary, compensation or other amounts which may be
paid or payable to Executive from any source or which Executive could have
obtained upon seeking other employment; provided that CSI shall be permitted to
make all such payments net of any legally required tax withholdings.
6. Non-Competition.
a. Covenant. Executive agrees that he will not, directly or
indirectly, during the Term (and regardless of whether Executive is employed by
CBCC):
(i) employ any person who was a salaried employee of CBCC
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 CBCC to terminate
his or her employment arrangement with CBCC,
(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 that engages in the business of manufacture of
copper alloy rod or any other products manufactured by CBCC during the
Term (but excluding any products manufactured by CBCC after a Change
of Control that were not manufactured by CBCC prior to a Change of
Control) (collectively, "Products"), or any Person which otherwise is
directly competitive with CBCC or any subsidiary of CBCC, in any
geographical area in which CBCC or such subsidiary of CBCC 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"),
(iii) induce, request, advise, attempt to influence, or
solicit, directly or indirectly, any Person to purchase Products from
any Person other than CBCC if CBCC provides, or negotiated to provide,
Products to that Person during the Term (and prior to the termination
of Executive's employment) (any such Person or Business Enterprise, 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
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performing his duties as an employee of CBCC to purchase Products from
any Person other than CBCC;
provided, however, that (a) the provisions of this Section 6 shall apply only to
the copper alloy rod business of CBCC and not to other businesses that any
Acquiring Person or Buyer 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 6 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 6 shall not apply in
the event (i) Executive's employment is terminated by CBCC other than (A) for
"Cause" or (B) on account of Executive's death, Permanent Disability or
Retirement or (ii) Executive terminates his employment for Good Reason.
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 CBCC in which the provisions
of Section 6.a. are applicable, Executive is not in compliance with the terms of
Section 6.a., CSI shall be entitled to, among other remedies, compliance by
Executive with the terms of Section 6.a. for an additional number of calendar
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 6.a. are reasonable and are no broader than are
necessary to maintain and to protect the legitimate business interests of CSI
and its Subsidiaries.
d. Separate Covenants. The parties hereto intend that the
covenants contained in each of subsections 6.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 or governmental subdivision in each geographic area in
which CBCC or any subsidiary of CBCC 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 6.a.(i), (ii), (iii)
and (iv) hereof. Furthermore, each of the covenants in subsections 6.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 6.a.(i), (ii),
(iii) and (iv) hereof.
7. Non-Disclosure. Executive shall not, directly or indirectly, at any
time during or for a two year period following termination of his employment
with CBCC, reveal, divulge or make
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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 CSI or any Subsidiary), any information
acquired by Executive during the course of employment by CBCC with regard to the
financial, business or other affairs of CSI or any Subsidiary (including without
limitation any list or record of Persons or entities with which CSI or any
Subsidiary 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 CSI or
any Subsidiary, (iii) information that Executive is required to disclose under
the following circumstances: (A) at the express direction of any authorized
governmental authority; (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 CSI or any Subsidiary in his
capacity as an employee, officer, director, or stockholder of CSI or any
Subsidiary, or (iv) during the period of his employment by CBCC, Executive may
disclose such confidential information to another employee of CSI or any
Subsidiary or to representatives or agents of CSI or any Subsidiary (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 on behalf of CSI or any Subsidiary. Executive shall, at any time
requested by CSI (either during or within two years after the termination of
Executive's employment with CBCC), promptly deliver to CSI all memoranda, notes,
reports, lists and other documents (and all copies thereof) relating to the
business of CSI or any Subsidiary which Executive may then possess or have under
his control.
8. Tax Withholding. Any payment of benefits under this Agreement will
be subject to reduction due to any and all applicable federal, state or local
income or employment taxes and other required withholdings.
9. Overpayment. If due to mistake or any other reason, the Executive
receives benefits under this Agreement in excess of what this Agreement
provides, the Executive shall repay the overpayment to CBCC or CSI in a lump sum
within thirty (30) days of notice of the amount of overpayment. If the Executive
fails to so repay the overpayment, then without limiting any other remedies
available to CBCC or CSI, CBCC or CSI may deduct the amount of the overpayment
from any other benefits which become payable to the Executive under this
Agreement.
10. Release and Other Agreements. Notwithstanding any other provision
in this Agreement to the contrary, as consideration for receiving severance
benefits under 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.
11. Binding Effect; Assignment.
a. General. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and Executive's heirs and legal
representatives and CSI's successors and assigns. This Agreement is assignable
by CSI to any Person which acquires, directly or indirectly, by merger,
consolidation, purchase or otherwise, all or substantially all of the assets of
CSI or CBCC or
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a majority of the outstanding Voting Securities of CBCC. Upon any such
assignment, and the assumption by the assignee of all obligations hereunder, CSI
shall be released from all liability hereunder. This Agreement shall not be
assignable by Executive.
b. Assumption by Successor. CSI shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization
or otherwise) to all or substantially all of the business and/or assets of CSI
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent CSI or CBCC, as applicable, would be required to perform if
no such succession had taken place.
12. Nonalienation of Benefits. Benefits payable under this Agreement
shall not be subject in any manner to alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of any kind
(collectively "Alienate"), either voluntary or involuntary, prior to actually
being received by Executive, other than by a transfer by the Executive's will or
by the laws of descent and distribution; and any attempt to alienate, sell,
transfer, assign, pledge, encumber, charge, garnish, execute on, levy or
otherwise dispose of any right to benefits payable hereunder contrary to this
Section 12 shall be void ab initio and of no force or effect and CSI shall have
no obligation or liability to pay any amounts so attempted to be Alienated.
13. Severability. In the event that any provision of this Agreement
(including without limitation any provisions relating to the activities or areas
covered by, or time period of, the covenants provided for in subsections
6.a.(i), (ii), (iii) and (iv) hereof) 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
and, subject to the following sentence, the parties hereby request the court or
any arbitrator to whom disputes relating to this Agreement are submitted to
reform any otherwise unenforceable covenants contained in Sections 6 and/or 7
hereof in accordance with the preceding provision. Notwithstanding the above, in
the event any such invalidity, illegality or unenforceability of any portion of
Section 6 hereof (including without limitation any provisions relating to the
activities or areas covered by, or time period of, the covenants provided for in
subsections 6.a.(i), (ii), (iii) and (iv) 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 CSI, 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 CSI or any Subsidiary to recover damages for
any prior violation of such provision as so limited and reduced, to the extent
permitted under applicable law.
14. Specific Enforcement. Executive acknowledges that the covenants of
Executive contained in Sections 6 and 7 of this Agreement are special and
unique, that a breach by Executive of
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any term or provision of either of Sections 6 or 7 hereof may cause irreparable
injury to CSI and/or a Subsidiary, and that remedies at law for the breach of
any terms or provisions of Sections 6 or 7 hereof may be inadequate.
Accordingly, in addition to any other remedies it may have in the event of
breach, CSI shall be entitled to enforce specific performance of the terms and
provisions of Sections 6 or 7 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 CSI prevails in such action or
proceeding. For purposes of this Section 14 and Sections 6 and 7 hereof, CSI,
CBCC and each subsidiary of CBCC shall be deemed a third party beneficiary
entitled to the benefits of such Sections and shall be entitled to enforce
Sections 6 and 7 of this Agreement in accordance with this Section 14
notwithstanding any assignment by CSI of its rights and obligations under this
Agreement. If CSI, its successors or assigns enforces specific performance and
the Executive obtains a judicial determination that the activity CSI enjoined
was not in violation of the Agreement, then the Executive is entitled to pursue
all remedies available at law and at equity including but not limited to
recovery of damages and reasonable attorney fees.
15. Entire Agreement; Amendment; Waiver. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior or contemporaneous oral or written
negotiations, understandings and agreements between the parties hereto. This
Agreement shall not be altered, amended or modified except by written instrument
executed by CSI and Executive. A waiver of any term, covenant, agreement or
condition contained in this Agreement shall not be deemed a waiver of any other
term, covenant, agreement or condition, and any waiver of any default in any
such term, covenant, agreement or condition shall not be deemed a waiver of any
later default thereof or of any other term, covenant, agreement or condition.
16. Legal Fees and Expenses. Except as provided in Section 14, CSI and
its Subsidiaries shall be responsible for its own attorneys' fees and related
fees and expenses incurred to enforce this Agreement or any provision hereof. In
addition, CSI and its Subsidiaries shall reimburse Executive for any and all
attorneys' fees and related fees and expenses incurred by Executive to
successfully enforce (in whole or in part, and whether by modification of CSI's
position, agreement, compromise, settlement, or administrative or judicial
determination) this Agreement or any provision hereof as a result of CSI or any
Subsidiary failing to perform its obligations under this Agreement or any
provision hereof or CSI or any Subsidiary contesting the validity or
enforceability of this Agreement or any provision hereof. Such reimbursement
shall only be paid following the successful enforcement (including any appeals
therefrom which uphold such enforcement) as provided in this Section 16.
17. Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the State of Ohio,
without regard to its choice of law principles.
18. Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by either party to the
other party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery or overnight courier, telegram or
facsimile transmission addressed as follows:
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(a) If to CSI: c/o Chase Brass & Copper Company, Inc.
00000 Xxxxxx Xxxx X-00
Xxxxxxxxxx, Xxxx 00000
Telecopy No.: 419/485-8150
Attention: Corporate Secretary
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
Attention: Xxxxxx X. Xxxxx
(b) If to Executive: 000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxx 00000
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
19. 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).
20. 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.
21. Termination of Original Change of Control Agreement. Upon the
execution of this Agreement by each of Executive and the Company, this Agreement
shall supersede and replace the Original Change of Control Agreement and upon
such execution hereof the Original Change of Control Agreement shall be
terminated in full without any further liability or obligation of any party
thereto and shall be superceded in full hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
CHASE INDUSTRIES INC.
By: /s/ XXXX X. XXXXXXXX
----------------------------
Xxxx X. Xxxxxxxx, President
EXECUTIVE: /s/ XXXX X. XXXXXX
---------------------
Xxxx X. Xxxxxx
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EXHIBIT A
AGREEMENT AND RELEASE
This Agreement and Release ("Agreement") is entered into between you,
_____________________, the undersigned employee, and Chase Industries Inc., a
Delaware corporation (the "Company"), in connection with the Change of Control
Agreement entered into by and between you and the Company (the "Payment
Agreement"). You are advised to consult with an attorney of your choosing before
signing this Agreement. You have 21 days to consider this Agreement, which you
agree is a reasonable amount of time. In addition, you may revoke the Agreement
within 7 days after you have signed it by notice to [CORPORATE SECRETARY], 00000
Xxxxxx Xxxx X-00, Xxxxxxxxxx, Xxxx 00000. This Agreement will not become
effective or enforceable until the 7-day revocation period has expired without
your revocation. You acknowledge that if you accept the payment set forth in
Paragraph 2 after the expiration of the 7-day period, such acceptance shall
constitute an acknowledgment by you that you did not revoke this Agreement
during the 7-day period.
1. Definitions.
a. "Released Parties" means each of Chase Brass & Copper
Company Inc. and the Company and their past, present and future parents,
subsidiaries, divisions, successors, predecessors, employee benefit plans and
affiliated or related companies, and also each of the foregoing entities' past,
present and future owners, officers, directors, stockholders, investors,
partners, managers, principals, committees, administrators, sponsors, executors,
trustees, fiduciaries, employees, agents, assigns, representatives and
attorneys, in their personal and representative capacities.
b. "Claims" means all theories of recovery of whatever nature,
whether known or unknown, recognized by the law or equity of any jurisdiction.
It includes but is not limited to any and all actions, causes of action,
lawsuits, claims, complaints, petitions, charges, rights, demands and Damages to
which you are or may be entitled or in which you have had or may have an
interest. It also includes but is not limited to any claim for wages, benefits
or other compensation. It also includes but is not limited to claims asserted by
you or on your behalf by some other person, entity or government agency.
c. "Damages" means all liabilities, indebtedness, losses,
damages, costs and expenses (including without limitation reasonable attorneys
fees) and judgments.
2. Consideration. The Company agrees to pay you an amount equal to $
_____ as the severance payment in accordance with Section 4.a.(i) of the Payment
Agreement, which you acknowledge is the amount owed you under the Payment
Agreement. If you do not revoke this Agreement as per the terms of this
Agreement, the Company will make this payment to you pursuant to the terms of
the Payment Agreement. You acknowledge that the payment that the Company will
make to you under this Agreement is in addition to anything else of value to
which you are entitled and that the Company is not otherwise obligated to make
this payment to you.
A-1
3. Release of Claims.
a. You, on behalf of yourself and your heirs, executors,
administrators, legal representatives, successors, beneficiaries, and assigns,
unconditionally release and forever discharge the Released Parties from, and
waive, any and all Claims that you have or may have against any of the Released
Parties arising from your employment with the Company, the termination thereof,
and any other acts or omissions occurring on or before the date you sign this
Agreement. This Agreement shall not affect your entitlement, if any, to benefits
in accordance with (i) the terms of the Company's employee benefit plans as
defined in section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended or (ii) Section 4.a.(ii) of the Payment Agreement.
b. The release set forth in Paragraph 3.a. includes, but is
not limited to, any and all Claims under (i) the common law (tort, contract or
other) of any jurisdiction; (ii) the Rehabilitation Act of 1973, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1866, and any other
federal, state and local statutes, ordinances, executive orders and regulations
prohibiting discrimination or retaliation upon the basis of age, race, sex,
national origin, religion, disability, or other unlawful factor; (iii) the
National Labor Relations Act; (iv) the Employee Retirement Income Security Act;
(v) the Family and Medical Leave Act; (vi) the Equal Pay Act; and (vii) any
other federal, state or local law.
c. In furtherance of this Agreement, you promise not to bring
any Claim covered by Paragraph 3.a. of this Agreement against any of the
Released Parties in or before any court or arbitral authority and agree to
indemnify any Released Party for any and all Damages suffered or incurred by any
Released Party in connection with any such Claim asserted by you or on your
behalf or resulting therefrom.
4. Injunctive Relief. The parties shall be entitled to injunctive or
other equitable relief in any court of competent jurisdiction to prevent or
otherwise restrain a breach of this Agreement without the necessity of posting
bond or proving actual damage. This provision shall not be deemed in any way to
limit the availability of other remedies to which the parties may be entitled.
5. Acknowledgment. You acknowledge that, by entering into this
Agreement, the Company does not admit to any wrongdoing in connection with your
employment, and that this Agreement is intended as a compromise of all Claims,
if any, you have or may have against the Released Parties. You further
acknowledge that you have carefully read this Agreement and understand its final
and binding effect, have had a reasonable amount of time to consider it, have
had the opportunity to seek the advice of legal counsel of your choosing, and
are entering this Agreement voluntarily.
------------------------- ----------------------------
[NAME] Date
A-2
