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Exhibit 10.12
Domestic 2.99x
[GRAFTECH INC. LETTERHEAD]
June __, 2000
NAME
ADDRESS
Dear NAME:
The Board of Directors (the "Board") of Graftech Inc. (the "Corporation")
has authorized the grant to you of this Severance Compensation Agreement (this
"Agreement"). The Board recognizes that, following the initial public offering
of common stock of the Corporation (the "IPO"), the possibility of a Change in
Control of the Corporation exists, as is the case with many publicly held
corporations, and that the uncertainty and questions which it may raise among
management may result in the departure or distraction of management personnel to
the detriment of the Corporation and its stockholders. This Agreement shall
become effective upon, but only upon, the closing of the IPO so long as such
closing occurs on or before December 31, 2000.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from a
possible Change in Control of the Corporation. The Board has also determined
that it is in the best interests of the Corporation and its stockholders to
ensure your continued availability to the Company in the event of a potential
Change in Control of the Corporation. References herein to the "Company" mean
the Corporation and its subsidiaries.
In order to induce you to remain in the employ of the Company and in
consideration of your continued service to the Company, the Corporation and its
subsidiary or subsidiaries (now or hereafter) signing the signature page of this
Agreement jointly and severally agree that you shall receive the severance
benefits set forth in this Agreement in the event your employment with the
Company is terminated subsequent to a Change in Control of the Corporation under
the circumstances described below.
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1. Definitions.
a. "Change in Control of the Corporation" shall be
deemed to occur if, after (but only after) UCAR International Inc. or its
successors (collectively, "UCAR") ceases to own or hold, directly or indirectly,
a majority of the then outstanding Common Stock, any of the following
circumstances shall occur:
(i) any "person" or "group" within the meaning of
Section 13(d) or 14(d)(2) of the Securities Exchange Act
of 1934 (the " Act") becomes the beneficial owner of 15%
or more of the then outstanding Common Stock or 15% or
more of the then outstanding voting securities of the
Corporation;
(ii) any "person" or "group"within the meaning of
Section 13(d) or 14(d)(2) of the Act acquires by proxy or
otherwise the right to vote for the election of directors,
on any merger or consolidation of the Corporation or on
any other matter or question with respect to 15% or more
of the then outstanding Common Stock or 15% or more of the
combined voting power of the then outstanding voting
securities of the Corporation;
(iii) Present Directors and New Directors cease for
any reason to constitute a majority of the Board (and, for
purposes of this clause (iii), "Present Directors" shall
mean individuals who at the beginning of any consecutive
twenty-four month period were members of the Board and
"New Directors" shall mean individuals whose election by
the Board or whose nomination for election as directors by
the Corporation's stockholders was approved by a vote of
at least two-thirds of the directors then in office who
were Present Directors or New Directors);
(iv) the stockholders of the Corporation approve a
plan of complete liquidation or dissolution of the
Corporation; or
(v) consummation of: (x) a reorganization,
restructuring, recapitalization, reincorporation, merger
or consolidation of the Corporation (a "Business
Combination") unless, following such Business Combination,
(a) all or substantially all of the individuals and
entities who were the beneficial owners of the Common
Stock and the voting securities of the Corporation
outstanding immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of
the common equity securities and the combined voting power
of the voting securities of the corporation or other
entity resulting from such Business Combination
(including, without limitation, a corporation or other
entity which as a result of such Business Combination owns
the Corporation or all or substantially all of the assets
of the Corporation or the Company either directly or
through one or more subsidiaries) outstanding after such
Business Combination, in substantially the same
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proportions as their ownership, immediately prior to such
Business Combination, of outstanding Common Stock and the
combined voting power of the outstanding voting securities
of the Corporation, respectively, (b) no "person" or
"group" within the meaning of Section 13(d) or 14(d)(2) of
the Act (excluding (1) any corporation or other entity
resulting from such Business Combination and (2) any
employee benefit plan (or related trust) of the Company or
any corporation or other entity resulting from such
Business Combination) beneficially owns 15% or more of the
common equity securities or 15% or more of the combined
voting power of the voting securities of the corporation or
other entity resulting from such Business Combination
outstanding after such Business Combination, except to the
extent that such beneficial ownership existed prior to such
Business Combination with respect to the Common Stock and
the voting securities of the Corporation, and (c) at least
a majority of the members of the board of directors (or
similar governing body) of the corporation or other entity
resulting from such Business Combination were members of
the Board at the time of the execution of the initial
agreement providing for such Business Combination or at the
time of the action of the Board approving such Business
Combination, whichever is earlier; or (y) any sale, lease,
exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the
assets of the Corporation or the Company, whether held
directly or indirectly through one or more subsidiaries
(excluding any pledge, mortgage, grant of security
interest, sale-leaseback or similar transaction, but
including any foreclosure sale), provided, that, for
purposes of clauses (v) (x) and (v) (y) above, the
divestiture of less than substantially all of the assets of
the Corporation or the Company in one transaction or a
series of related transactions, whether effected by sale,
lease, exchange, spin-off, sale of stock of or merger or
consolidation of a subsidiary, transfer or otherwise, shall
not constitute a Change in Control of the Corporation.
Notwithstanding the foregoing, a Change in Control of the Corporation shall not
be deemed to occur:
(I) pursuant to clause (i) or (ii) above, solely because
15% or more of the then outstanding Common Stock or the then
outstanding voting securities of the Corporation is or becomes
beneficially owned or is directly or indirectly held or acquired by
one or more employee benefit plans (or related trusts) maintained
by the Company; or
(II) pursuant to clause (v)(y) above, if the Board
determines that any sale, lease, exchange or other transfer does
not involve all or substantially all of the assets of the
Corporation or the Company; or
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(III) pursuant to clause (i) or (ii) above, solely because UCAR
remains the beneficial owner of 15% or more of the then outstanding Common Stock
or 15% or more of the then outstanding voting securities of the Corporation; or
(IV) pursuant to clause (i) or (ii) above, if such a "person" or
"group" acquires 15% or more of the then outstanding Common Stock or 15% or more
of the then outstanding voting securities of the Corporation from UCAR or its
direct or indirect subsidiaries; provided, however, that a "Change in Control of
the Corporation" shall be deemed to occur if thereafter the beneficial ownership
of Common Stock or voting securities of the Corporation by such "person" or
"group" increases by more than 1% of the then outstanding shares of Common Stock
or more than 1% of the then outstanding voting securities of the Corporation
(excluding increases due to repurchases of Common Stock or voting securities of
the Corporation by the Company, and similar transactions, which have not been
directly or indirectly proposed or initiated by such "person" or "group"); or
(V) upon the occurrence of a change in control (which shall include,
without limitation, circumstances of the type described in clauses (I) through
(V) above) of UCAR, however structured.
For purposes of this Agreement, references to "beneficial owner" and correlative
phrases shall have the same definition as set forth in Rule 13d-3 under the Act
(except that ownership by underwriters for purposes of a distribution or
offering shall not be deemed to be "beneficial ownership"), references to the
Act or rules and regulations thereunder shall mean those in effect on the date
of the closing of the IPO and references to "Common Stock" shall mean the common
stock of the Corporation.
b. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
c. "Date of Termination" shall mean:
(i) in case employment is terminated for
Disability, thirty (30) days after Notice of
Termination is given (provided that you shall not have
returned to the full-time performance of your duties
during such thirty (30) day period); and
(ii) in all other cases, the date specified in the
Notice of Termination (which shall not be less
than thirty (30) nor more than sixty (60) days,
respectively, from the date such Notice of Termination
is given).
d. "Disability" shall mean total physical or mental
disability rendering you unable to perform the duties of your employment for a
continuous period of six (6) months. Any question as to the existence of your
Disability upon which you and the Company cannot agree shall be determined by a
qualified physician (not employed by the Company) selected by you (or, if you
are unable to make such selection, made by any adult member of your immediate
family) and approved by the Company. The determination of such physician made in
writing to the Company and to you shall be final and conclusive for all purposes
of this Agreement.
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e. "Good Reason for Resignation" shall mean the occurrence
of any of the following:
(i) (A) a change in your status or position with
the Company, which in your reasonable judgment does
not represent a status or position comparable to your
status or position immediately prior a Change in
Control of the Corporation or a promotion from your
status or position immediately prior to a Change in
Control of the Corporation; or
(B) a reduction in the level of your reporting
responsibility as it existed immediately prior to a
Change in Control of the Corporation; or
(C) the assignment to you of any duties or
responsibilities or a diminution of duties or
responsibilities, which in your reasonable judgment
are inconsistent with your status or position with
the Company in effect immediately prior to a Change
in Control of the Corporation;
it being understood that any of the foregoing
in connection with a termination of your employment
for Retirement, Disability or Termination for Cause
shall not constitute Good Reason for Resignation;
(ii) a reduction by the Company in the annual rate
of your base salary as in effect immediately prior
to the date of a Change in Control of the
Corporation or as the same may be increased from
time to time thereafter, or the Company's failure to
increase the annual rate of your base salary for a
calendar year in an amount at least equal to the
average percentage increase in base salary for all
employees of the Company with Severance Compensation
Agreements in the preceding calendar year (and the
Company agrees that, within three (3) days after
your request, the Company shall notify you of the
average percentage increase in base salary for all
such employees in the calendar year preceding your
request);
(iii) the failure by the Company to continue in
effect any compensation plan in which you participate
as in effect immediately prior to a Change in Control
of the Corporation, including but not limited to the
Retirement Program, the Savings Program, any of the
Incentive Compensation Plans or any substitute plans
adopted prior to a Change in Control of the
Corporation, unless an arrangement satisfactory to
you (embodied in an ongoing substitute or
alternative plan) has been made with respect to such
plan, or the failure by the Company to continue your
participation therein on at least as favorable a
basis, both in terms of the amount of benefits
provided and the level of your participation
relative to other participants, as existed
immediately prior to a Change in Control of the
Corporation;
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(iv) the Company requiring you to be based
outside of a thirty-five (35) mile radius from where
your office is located immediately prior to a Change
in Control of the Corporation, except for required
travel on the Company's business to an extent
substantially consistent with your business travel
obligations immediately prior to a Change in Control
of the Corporation;
(v) the failure by the Company to continue to
provide you with benefits at least as favorable as
those enjoyed by you (and your dependents, if
applicable) under any of the Company's
pre-retirement and post-retirement life insurance,
medical, health and accident, and disability plans
or any other plan, program or policy of the Company
intended to benefit employees in which you (or your
dependents) were participating immediately prior to
a Change in Control of the Corporation, the taking
of any action by the Company which would directly or
indirectly materially reduce any of such benefits or
deprive you (or your dependents) of any material
fringe benefit enjoyed by you (or your dependents)
immediately prior to a Change in Control of the
Corporation, or the failure by the Company to
provide you with the number of annual paid vacation
days to which you were annually entitled immediately
prior to a Change in Control of the Corporation;
(vi) the failure of the Company to obtain a
satisfactory agreement from any Successor (as
defined in Paragraph 4a hereof) to assume and agree
to perform this Agreement, as contemplated in
Paragraph 4a hereof; or
(vii) the failure of the Company to pay to you an
Incentive Compensation Award, deferred compensation
or other compensation award earned, but not paid,
prior to a Change in Control of the Corporation.
f. "Incentive Compensation" means any compensation, variable
compensation, bonus, benefit or award paid or payable in cash under an Incentive
Compensation Plan.
g. "Incentive Compensation Award" shall mean a cash payment
or payments awarded to you under any Incentive Compensation Plan.
h. "Incentive Compensation Plan(s)" shall mean any variable
compensation or incentive compensation plan maintained by the Company in which
you were a participant immediately prior to a Change in Control of the
Corporation, including but not limited to the Graftech Inc. Management Incentive
Plan.
i. "Notice of Termination" shall mean a written notice as
provided in Paragraph 8 hereof.
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j. "Retirement" shall mean a voluntary termination of
employment in accordance with the Retirement Program, or in accordance with any
other retirement arrangement which is established with your consent with respect
to you.
k. "Retirement Program" shall mean the retirement plan and
any excess or supplemental pension plans maintained by the Company or in which
the Company participates.
l. "Savings Program" shall mean the savings plan maintained
by the Company or in which the Company participates.
m. "Termination for Cause" shall mean termination of your
employment upon your willfully engaging in conduct demonstrably and materially
injurious to the Company, monetarily or otherwise, provided that there shall
have been delivered to you a copy of a resolution, duly adopted by the unanimous
affirmative vote of the entire membership of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty of the
conduct set forth and specifying the particulars thereof in detail.
For purposes of this clause (m), no act, or failure to act, on your part shall
be deemed "willful" unless done, or omitted to be done, by you in bad faith and
without reasonable belief that your action or omission was in the best interest
of the Company. Any act or failure to act based upon authority given pursuant to
a resolution duly adopted by the Board or based upon the advice of counsel for
the Company shall be conclusively presumed to be done or omitted to be done by
you in good faith and in the best interests of the Company.
n. "Variable Compensation Year" means a calendar year of
an Incentive Compensation Plan.
2. Compensation Upon Termination or While Disabled. Following a Change in
Control of the Corporation, you shall be entitled to the following benefits:
a. Termination Other Than for Retirement, Death, Disability
or Termination for Cause; Termination By Your Resignation with Good Reason for
Resignation. If your employment by the Company shall be terminated subsequent to
a Change in Control of the Corporation and during the term of this Agreement (a)
by the Company other than for Retirement, Death, Disability or Termination for
Cause or (b) by you for Good Reason for Resignation, then you shall be entitled
to the benefits provided below, without regard to any contrary provision of any
plan:
(i) Accrued Salary. The Company shall pay you,
not later than the fifth day following the Date of
Termination, your base salary and vacation pay
accrued through the Date of Termination (including
any banked vacation and any vested vacation for the
calendar year in which the Date of Termination
occurs) at the rate in effect at the time the Notice
of Termination is given (or at the rate in effect
immediately prior to a Change in Control of the
Corporation, if such rate was higher).
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(ii) Accrued Incentive Compensation. The Company
shall pay you, not later than thirty (30) days
following your Date of Termination, the amount of
your accrued Incentive Compensation which shall be
determined as follows:
(A) If the Date of Termination is after the
end of a Variable Compensation Year, but before
Incentive Compensation for said Variable Compensation
Year has been paid, the Company shall pay to you
under this Agreement for your service during such
Variable Compensation Year the following:
The amount of your target variable
compensation payment (i.e., the percent of your
salary grade midpoint at risk) for such Variable
Compensation Year.
(B) In addition, if the Date of Termination is
other than the first day of a Variable Compensation
Year, the Company shall pay to you under this
Agreement for your service during such Variable
Compensation Year up to the Date of Termination, the
following:
The amount of your target variable
compensation payment (i.e., the percent of your
salary grade midpoint at risk) for such Variable
Compensation Year (or if such target has not then
been established, your target variable
compensation award for the immediately preceding
Variable Compensation Year), multiplied by a
fraction, the numerator of which is the total
number of days which have elapsed in the current
Variable Compensation Year to the Date of
Termination and the denominator of which is three
hundred sixty-five (365).
If there is more than one Incentive
Compensation Plan, your accrued Incentive
Compensation under each Incentive Compensation Plan
shall be determined separately for each such Plan.
For the purpose this Paragraph 2a (ii), the
amount of your target variable compensation payment
shall be used, whether or not such Incentive
Compensation was actually paid to you or was
includible in your gross income for Federal income
tax purposes.
(iii) Insurance Coverage. The Company shall arrange
to provide you (and your dependents, if applicable)
with life, disability, accident, dental and medical
benefits substantially equivalent to those which you
are receiving, or were entitled to receive, from the
Company immediately prior to a Change in Control of
the Corporation. Such benefits shall be provided to
you for the longer of (x) thirty-six (36) months
after such Date of Termination or (y) the period
during which such benefits would have been provided
to you, as a terminated employee, under the
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applicable life, disability, accident, dental and
medical plans in effect immediately prior to a
Change in Control of the Corporation (except that
after a period of thirty six (36) months such
benefits shall be provided to you on the same
financial terms and conditions as provided for under
the respective plans). Such benefits shall be
provided to you in lieu of any continuation coverage
you would be eligible for under COBRA.
If you are a participant in the Company's
Executive Life Insurance Plan, you shall have the
same rights thereunder as a person who retires with a
non-actuarially reduced pension (whether or not you
are eligible for such a pension).
(iv) Severance Payment. The Company shall pay as a
severance payment to you, not later than the fifth
day following the Date of Termination, a lump sum
severance payment (the "Severance Payment") equal to
two and ninety-nine hundreths (2.99) times the sum
of the amounts set forth in the following paragraphs
(A) and (B), less the amount set forth in the
following paragraph (C):
(A) the greater of your annual base salary
which was payable to you by the Company immediately
prior to the Date of Termination or your annual base
salary which was payable to you by the Company
immediately prior to a Change in Control of the
Corporation; plus
(B) the greater of:
(I) The amount of your target
variable compensation payment (i.e., the percent
of your salary grade midpoint at risk) for the
year in which the Date of Termination occurs (or
if such target has not then been established, your
target variable compensation award for the
immediately preceding Variable Compensation Year);
or
(II) The amount of your target
variable compensation payment (i.e., the percent
of your salary grade midpoint at risk) for the
year in which the Change in Control of the
Corporation occurs (or if such target has not
then been established, your target variable
compensation award for the immediately preceding
Variable Compensation Year); minus
(C) the amount of any severance payment or the
value of any severance benefit received or to be
received by you from the Company pursuant to any
plan or policy of the Company or pursuant to any
other agreement between you and the Company.
For purposes of calculations under
this subparagraph (iv), the amounts of base salary
and target variable compensation payments shall be
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the amounts calculated without regard to whether or
not such amounts were paid or includible in your
gross income for Federal, state, local, commonwealth
or foreign income tax purposes.
(v) Reduction in Severance Payment. The Severance
Payment shall be reduced only in the event
specifically provided in this subparagraph (v). If
the aggregate present value, as determined for
purposes of Code Section 280G, of all amounts that
are parachute payments for purposes of such Section
exceeds the limitation set forth in Code Section
280G(b)(2)(A)(ii) by an amount not exceeding
$50,000, then there shall be a reduction in the
amount of your Severance Payment so that such limit
is not exceeded.
(vi) Payment of Taxes.
(A) For purposes of this subparagraph (vi),
the following terms shall have the following
meanings:
(I) "Payment" shall mean any payment
or distribution (or acceleration of benefits)
by the Company to or for your benefit
(whether paid or payable or distributed or
distributable (or accelerated) pursuant to
the terms of this Agreement or any
termination or layoff plan referred to in
clause (C) of subparagraph (iv) of this
Section 2a (thus excluding among other things
any payment under an employment agreement),
but determined without regard to any
additional payments required under this
subparagraph (vi)). In addition, "Payment"
shall also include the amount of income
deemed to be received by you as a result of
the acceleration of the exercisability of any
of your options to purchase stock of the
Corporation, the acceleration of the lapse of
any restrictions on performance stock or
restricted stock of the Corporation held by
you or the acceleration of payment from any
deferral plan.
(II) "Exercise Tax" shall mean the
exercise tax imposed by Section 4999 of the
Code, or any interest or penalties incurred
by you with respect to such excise tax.
(III) "Income Tax" shall mean all
taxes other than the Excise Tax (including
any interest or penalties imposed with
respect to such taxes), including, without
limitation,
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any income and employment taxes imposed by any
Federal (including (i) FICA and Medicare taxes
and (ii) the tax resulting from the loss of
any Federal deductions or exemptions which
would have been available to you but for
receipt of the Payment), state, local,
commonwealth or foreign government.
(B) In the event it shall be determined that a
Payment would be subject to an Excise Tax, then you
shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that, after
payment by you of Income Tax and Excise Tax imposed
upon the Gross-Up Payment, you retain an amount of
the Gross-Up Payment equal to the Excise Tax imposed
upon the Payment.
(C) All determinations required to be made
under this subparagraph (vi), including whether and
when a Gross-Up Payment is required and the amount
of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be
made by the public accounting firm that is retained
by the Company as of the date immediately prior to a
Change in Control of the Corporation (the
"Accounting Firm") which shall provide detailed
supporting calculations both to the Company and to
you within fifteen (15) business days after the
receipt of notice from you that there has been a
Payment, or such earlier time as is requested by the
Company (collectively, the "Determination"). In the
event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or
group effecting a Change in Control of the
Corporation, you may appoint another nationally
recognized public accounting firm to make the
determinations required hereunder (which accounting
firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined
pursuant to this subparagraph (vi), shall be paid by
the Company to you within ten (10) days after the
Determination. If the Accounting Firm determines
that no Excise Tax is payable by you, you may
request the Accounting Firm to furnish you with a
written opinion that failure to report the Excise
Tax on your applicable Federal income tax return
would not result in the imposition of a negligence
or similar penalty. The Determination by the
Accounting Firm shall be binding upon the Company
and you. As a result of the uncertainty in the
application of Section 4999 of the Code at the time
of the Determination, it is possible that Gross-Up
Payments which will not have been made by the
Company should have been made ("Underpayment"),
consistent with the calculations required to be made
hereunder. In the event that the Company exhausts
its remedies pursuant to subparagraph (vi)(D) below
and you thereafter
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are required to make payment of any Excise Tax or
Income Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the
Company to or for your benefit.
(D) You shall notify the Company in writing of
any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company
of the Gross-Up Payment or the Underpayment. Such
notification shall be given as soon as practicable
but no later than ten (10) business days after you
are informed in writing of such claim and shall
apprise the Company of the nature of such claim and
the date on which such claim is requested to be
paid. You shall not pay such claim prior to the
expiration of the 30-day period following the date
on which you give such notice to the Company (or
such shorter period ending on the date that any
payment of taxes with respect to such claim is due).
If the Company notifies you in writing prior to the
expiration of such period that it desires to contest
such claim, you shall:
(1) give the
Company any information reasonably requested
by the Company relating to such claim,
(2) give the
connection with contesting such claim as the
Company shall reasonably request in writing
from time to time, including, without
limitation, accepting legal representation
with respect to such claim by an attorney
reasonably selected by the Company,
(3) cooperate with
Company in good faith in order effectively to
contest such claim, and
(4) permit the
participate in any proceeding relating to such
claim;
provided, however, that the Company
shall bear and pay directly all costs and expenses
(including additional interest and penalties)
incurred in connection with such contest and shall
indemnify and hold you harmless, on an after-tax
basis, for any Excise Tax or Income Tax imposed as a
result of such representation and payment of costs
and expenses. Without limitation on the foregoing
provisions of this subparagraph (vi)(D), the Company
shall control all proceedings taken in connection
with such contest
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and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings,
hearings and conferences with the taxing authority
in respect of such claim and may, at its sole
option, either direct you to pay the tax claimed and
sue for a refund or contest the claim in any
permissible manner, and you agree to prosecute such
contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall
determine; provided further, that if the Company
directs you to pay such claim and sue for a refund,
the Company shall advance the amount of such payment
to you on an interest-free basis and shall indemnify
and hold you harmless, on an after-tax basis, from
any Excise Tax or Income Tax imposed with respect to
such advance or with respect to any imputed income
with respect to such advance; and provided further,
that any extension of the statute of limitations
relating to payment of taxes for your taxable year
with respect to which such contested amount is
claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable
hereunder and you shall be entitled to settle or
contest, as the case may be, any other issue raised
by the Internal Revenue Service or any other taxing
authority.
(E) If, after the receipt by you of an amount
advanced by the Company pursuant to subparagraph
(vi)(D) above, you become entitled to receive, and
receive, any refund with respect to such claim, you
shall (subject to the Company's complying with the
requirements of subparagraph (vi)(D)) promptly pay
to the Company the amount of such refund (together
with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by
you of an amount advanced by the Company pursuant to
subparagraph (vi)(D), a determination is made that
you shall not be entitled to any refund with respect
to such claims and the Company does not notify you
in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days
after such determination, then such advance shall be
forgiven and shall not be required to be repaid.
(vii) No Duty to Mitigate. You shall not be required
to mitigate the amount of any payment provided for in this
Paragraph 2 by seeking other employment, through use of
tax deductions or credits, or otherwise, nor shall the
amount of any payment or benefit hereunder be reduced by
any compensation earned by you as the result of employment
by anotheremployer or by retirement benefits after the
Date of Termination, or otherwise; provided, however,
should you become reemployed in a job which (a) offers
medical plan benefits which are equal to or greater than
the medical plan benefits provided to you under
subparagraph 2(a)(iii)
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and (b) such medical plan benefits are offered to you at
no cost, you shall no longer be eligible to receive
medical plan benefits under this Agreement.
b. Payments While Disabled. During any period prior to the
Date of Termination and during the term of this Agreement that you are unable to
perform your full-time duties with the Company, whether as a result of your
Disability or as a result of a physical or mental disability that is not total
and therefore is not a Disability, you shall continue to receive your base
salary at the rate in effect at the commencement of any such period, together
with all other compensation and benefits that are payable or provided under the
Company's benefit plans, including its disability plans. After the Date of
Termination for Disability, your benefits shall be determined in accordance with
the Retirement Program, insurance and other applicable programs of the Company.
The compensation and benefits, other than salary, payable or provided pursuant
to this subparagraph b shall be the greater of (x) the amounts computed under
the Retirement Program, disability benefit plans, insurance and other applicable
programs in effect immediately prior to a Change in Control of the Corporation
and (y) the amounts computed under the Retirement Program, disability benefit
plans, insurance and other applicable programs in effect at the time the
compensation and benefits are paid.
c. Payments if Terminated for Cause, or Termination by You
Other Than With Good Reason for Resignation. If your employment shall be
terminated by the Company as a Termination for Cause or by you other than with
Good Reason for Resignation, the Company shall pay you your full base salary and
accrued vacation pay (including any banked vacation and any vested vacation for
the calendar year in which the Date of Termination occurs) through the Date of
Termination, at the rate in effect at the time Notice of Termination is given,
plus any benefits or awards which have been earned or become payable but which
have not yet been paid to you. You shall receive any payment due under this
subparagraph c on your Date of Termination. Thereafter, the Company shall have
no further obligation to you under this Agreement.
d. After Retirement or Death. If your employment shall be terminated by
your Retirement, or by reason of your death, your benefits shall be determined
in accordance with the Company's retirement and insurance programs then in
effect.
3. Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect through December 31, 2000; provided, however, that
commencing on January 1, 2001 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than September 30 of the preceding year, the Company or you shall have
given notice that it or you does not wish to extend this Agreement.
Notwithstanding any such notice by the Company not to extend, if a Change in
Control of the Corporation shall have occurred or been publicly reported,
proposed or announced (regardless of whether done so by the Company or a third
party) during the original or any extended term of this Agreement, or within
three months thereafter, this Agreement shall continue in effect. In any event,
the term of this Agreement shall expire on the third (3rd) anniversary of the
date of a Change in Control of the Corporation. This Agreement shall terminate
if your employment is terminated by you or the Company prior to the occurrence
of a Change in Control of the Corporation.
4. Successors; Binding Agreement.
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a. Successors of the Company. The Company will require any
Successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
assent at least five business days prior to the time a person becomes a
Successor (or where the Company does not have at least five business days
advance notice that a person may become a Successor, within three business days
after having notice that such person may become or has become a Successor) shall
constitute Good Reason for Resignation by you and, if a Change in Control of the
Corporation has occurred or thereafter occurs, shall entitle you immediately to
the benefits provided in Paragraph 2a hereof upon delivery by you of a Notice of
Termination. For purposes of this Agreement, "Successor" shall mean any person
that obtains or succeeds to, or has the practical ability to control (either
immediately or with the passage of time), the Company's business directly, by
merger or consolidation, or indirectly, by purchase of voting securities of the
Company, by acquisition of rights to vote voting securities of the Company or
otherwise, including but not limited to any person or group that acquires the
beneficial ownership or voting rights described in Paragraph 1a(i) or (ii).
b. Your Successor. This Agreement shall inure to the
benefit of and be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If you should die following your Date of Termination while any amount
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
5. Nature of Payments. All payments to you under this Agreement shall be
considered severance payments in consideration of your past service to
the Company.
6. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
7. 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 instrument.
8. Notice. Any purported termination of your employment by the Company or
by you following a Change in Control of the Corporation shall be communicated to
the other party by a written Notice of Termination. A Notice of Termination by
you shall indicate in reasonable detail the facts and circumstances claimed to
provide a basis for a Good Reason for Resignation. For the purpose of this
Agreement, notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
or mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth on the first page of
this Agreement, provided that all notices to the Company shall be directed to
the attention of the Board with a copy to the Secretary of the Company or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
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9. Fees and Expenses. The Company shall pay all legal fees and related
expenses incurred by you as a result of your termination following a Change in
Control of the Corporation or by you in seeking to obtain or enforce any right
or benefit provided by this Agreement (including all fees and expenses, if any,
incurred in contesting or disputing any such termination or incurred by you in
seeking advice in connection therewith).
10. Miscellaneous. No provision of this Agreement may be amended,
modified, waived or discharged unless such amendment, modification, waiver or
discharge is agreed to in writing and signed by you and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
11. Conflicting Employment Agreements. To the extent that you have or
obtain after the date hereof a written employment agreement with the Company
which contains provisions that conflict with this Agreement, this Agreement
shall govern unless such employment agreement specifically refers to Section 11
of this Agreement and states that such employment agreement governs. To the
extent that such employment agreement provides for rights or benefits which are
duplicative of those set forth in this Agreement, you shall be entitled to only
one such right or benefit (which shall be the one which, in your judgment if
timely made, is most favorable to you). To the extent that such employment
agreement provides for rights or benefits which are additional to those set
forth in this Agreement, this Agreement shall not impair in any way your
entitlement to those additional rights or benefits.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware (without regard to the choice of laws provisions thereof). The Company
and you hereby agree to irrevocably submit to the jurisdiction of any State or
Federal court sitting in the State of Delaware, and any appellate court thereof,
in any action or proceeding arising out of or relating to this Agreement. The
Company and you hereby irrevocably agree that all claims in respect of such
action or proceeding shall only be heard and determined in a State or Federal
court sitting in the State of Delaware.
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If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject.
Sincerely,
GRAFTECH INC.
By:
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Title:
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Agreed to as of the date
first above written
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Employee
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