AMENDED SALARY CONTINUATION AGREEMENT
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THIS AMENDED AGREEMENT, effective as of December 9, 1999, is among ACX
Technologies, Inc., a Colorado corporation ("ACX"), CoorsTek, Inc., a Delaware
corporation (the "Company" or "CoorsTek"), and Xxxx X. Xxxxx, (the "Executive").
RECITALS
1. The Executive is presently employed by CoorsTek, an affiliate of ACX.
2. The Executive and ACX are parties to a salary continuation agreement,
effective October 1, 1994 (the "Prior Agreement"), pursuant to which ACX has
agreed to provide the Executive with certain ACX stock units and nonqualified
stock options.
3. The Company intends to spin off CoorsTek to the owners of the common
stock of ACX on or about December 31, 1999. Following the spinoff, CoorsTek
desires to tie the Executive's benefits more closely to CoorsTek's performance.
4. By entering into this Amended Agreement, the Executive is electing to
convert the shares pursuant to the Prior Agreement from the $0.01 par value
common stock of ACX (the "ACX Stock") into $.01 par value common stock of
CoorsTek ("CoorsTek Stock").
5. ACX, CoorsTek, and the Executive now wish to enter into this Amended
Agreement to amend the Prior Agreement in certain respects and to replace the
Prior Agreement with this Amended Agreement.
AGREEMENT
In consideration of the Executive's continued services to CoorsTek, the
mutual covenants contained herein and other good and valuable consideration, the
parties agree as follows, effective as of the spin-off:
1. Benefit. As of December 31, 1999, the Executive holds 18,156 ACX
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stock units representing the right to receive 18,156 shares of ACX
Stock.
2. Conversion of 18,156 ACX Stock Units to CoorsTek Stock Units. By
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entering into this agreement, Executive hereby elects to convert the
Executive's 18,156 shares of ACX stock units to CoorsTek stock units.
The conversion will be calculated by valuing the ACX stock units at
the closing price of the ACX Stock as reported on the New York Stock
Exchange on December 30, 1999, or if later, the day before CoorsTek
Stock begins trading on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") in the regular
market (the "ACX Pre-Spin Price") and by valuing the CoorsTek stock
units at the closing price of the CoorsTek Stock as reported on NASDAQ
on the first day of trading on NASDAQ (the "CoorsTek Post-Spin
Price"). The number of CoorsTek stock units to be issued to Executive
shall be determined by multiplying the 18,156 shares times the ACX
Pre-Spin Price and dividing by the CoorsTek Post-Spin Price and by
rounding a fractional share up to the next whole share.
4. Vesting of CoorsTek Stock Units. The CoorsTek stock units shall vest
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based on the Executive's age and years of service as follows:
4.1 Vesting shall be determined initially based on the Executive's
age according to the following schedule:
Age Vested Percentage
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Less than 50 0%
50 50%
51 55%
52 60%
53 65%
54 70%
55 75%
56 80%
57 85%
58 90%
59 95%
60 and older 100%
4.2 Vesting, determined according to the schedule above, shall be
modified based on years of service so that if the Executive has
fewer than ten years of service, a portion of the vested CoorsTek
stock units determined above will be forfeited. The percentage
of CoorsTek stock units that remain vested is determined by the
following schedule:
Years of Service Vested Percentage
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Fewer than 5 0%
5 50%
6 60%
7 70%
8 80%
9 90%
10 or more 100%
For example, an Executive who terminates employment at age 51 with 5 years
of service will be 27.5% vested (55% x 50%).
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4.3 Upon a "change in control" (as defined in the CoorsTek, Inc.
Stock Option and Incentive Plan), the CoorsTek stock units shall
be 100% vested without regard to the Executive's age or service.
4.4 For purposes of this Amended Agreement, "Year of Service" shall
mean vesting service as defined under the CoorsTek, Inc.
Retirement Plan (the "Retirement Plan") or any successor defined
benefit plan, or if the Retirement Plan is terminated without the
establishment of a successor defined benefit plan, any other
qualified retirement plan maintained by CoorsTek. If the
Retirement Plan is amended to provide for additional or imputed
Years of Service and if the Executive retires under the
Retirement Plan and receives credit for such additional Years of
Service, then such additional Years of Service shall also be
credited for purposes of this Amended Agreement. Service shall
also include (i) all service with ACX on and after December 28,
1992 and (ii) all service prior to December 28, 1992, with Xxxxxx
Xxxxx Company and its subsidiaries.
5. Forfeiture. Notwithstanding the provisions of Section 4 above, if the
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Executive's employment is terminated by death or for cause, as
determined by CoorsTek, the CoorsTek stock units shall be forfeited in
their entirety. As used in this Section 5, "cause" shall mean a gross
violation, as determined by CoorsTek, of CoorsTek's established
policies and procedures, provided that the effect of this Section 5
shall be limited to determining the consequences of a termination and
that nothing in this Section 5 shall restrict or otherwise interfere
with CoorsTek's discretion with respect to the termination of the
Executive.
6. Payment.
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6.1 Upon termination of employment for any reason other than by death
or for cause, the Executive shall be entitled to receive a number
of shares of CoorsTek Stock, pursuant to the CoorsTek, Inc. Stock
Option and Incentive Plan, equal to the number of his CoorsTek
stock units that are then vested. The CoorsTek Stock shall be
issued in one block within 30 days after retirement which is the
time previously elected by the Executive under the Prior
Agreement. Notwithstanding the foregoing, if the Executive is
required to be separately reported in CoorsTek's annual proxy
statement, the issuance of CoorsTek Stock to the Executive shall
be effected no earlier than the first day of the calendar year in
which CoorsTek's deduction with respect to the CoorsTek Stock
issued is not limited by Code (S) 162(m).
6.2 (a) Upon a "change in control" (as defined in the CoorsTek, Inc.
Stock Option and Incentive Plan), the Executive shall be issued a
number of shares of CoorsTek Stock, pursuant to the CoorsTek,
Inc. Stock Option
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and Incentive Plan, equal to the number of his CoorsTek stock
units. The shares shall be issued immediately after the change in
control.
(b) If all or any portion of the capital stock or assets of
CoorsTek are disposed of and if, as a result of the disposition
and immediately after the disposition, the Executive is not
employed by CoorsTek, a subsidiary of CoorsTek, or an affiliate
of CoorsTek, the Executive's unvested CoorsTek stock units shall
become fully vested without regard to the Executive's age and
years of service. The Executive shall be issued a number of
shares of CoorsTek Stock, pursuant to the CoorsTek Stock Option
and Incentive Plan, equal to the number of his CoorsTek stock
units. The CoorsTek Stock shall be issued immediately after the
disposition. If, however, immediately after the disposition, the
Executive becomes employed by CoorsTek, a subsidiary of CoorsTek,
or an affiliate of CoorsTek, the Executive's unvested CoorsTek
stock units shall not become fully vested as a result of the
disposition, but shall continue to vest according to Section 4 of
this Amended Agreement.
6.3 The Company shall issue irrevocable instructions to the Company's
transfer agent to issue certificates to the Executive for a
number of shares of CoorsTek Stock equal to the number of vested
CoorsTek stock units on the 15th calendar day after the Executive
terminates employment. Notwithstanding the foregoing, if the
Executive is required to be separately reported in CoorsTek's
annual proxy statement, the issuance of CoorsTek Stock to the
Executive shall be effected no earlier than the first day of the
calendar year in which CoorsTek's deduction with respect to the
CoorsTek Stock issued is not limited by Code (S) 162(m). The day
on which the Company issues the irrevocable instructions shall be
the day on which the CoorsTek Stock shall be valued for purposes
of determining the Executive's taxable compensation unless, based
on all the facts and circumstances, the Committee (as defined in
Section 11.3 below) determines that the trading prices on that
day do not adequately reflect CoorsTek Stock's fair market value
in which case the Committee shall determine how the Stock shall
be valued.
6.4 If the Executive dies before payment of the amount due under this
Amended Agreement is completed, the amount remaining shall be
paid to the Executive's beneficiary as set forth in the
Executive's Beneficiary Designation designated under the Prior
Agreement and attached as Appendix A. The Executive may change
his Beneficiary Designation at any time and from time to time
without the consent of any previously designated beneficiary. If
the Executive dies after termination of employment, the
irrevocable instructions shall be given to the transfer agent at
the time provided in Section 6.3. If necessary, the transfer
agent
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shall be given follow-up instructions to issue the certificate in
the name of the Executive's beneficiary.
6.6 The Executive shall not have any rights as a stockholder with
respect to any shares of CoorsTek Stock represented by a CoorsTek
stock unit until the Executive becomes the holder of record of
such CoorsTek Stock, and no adjustments shall be made for
dividends or other distributions or other rights as to which
there is a record date preceding the date the Executive becomes
the holder of record of the CoorsTek Stock.
7. Unfunded General Obligation of the Company. The amounts payable under
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this Amended Agreement are unfunded general obligations of CoorsTek.
CoorsTek shall not be required to fund its obligations under this
Amended Agreement in any manner, and the Executive shall have no right
or interest in any asset of CoorsTek, but shall be only an unsecured
general creditor of CoorsTek with respect to all amounts due in
accordance with the provisions of this Amended Agreement. Nothing
contained in this Amended Agreement and no action taken pursuant to
the provisions of this Amended Agreement shall create or be construed
to create a trust of any kind, or fiduciary relationship between
CoorsTek and the Executive, or any other person.
8. No Assignment. Neither the Executive nor his beneficiary shall have
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any right to assign, transfer, pledge, encumber, or dispose of the
right to receive payments under this Amended Agreement and any attempt
to so anticipate, alienate, sell transfer, assign, pledge, encumber or
charge prior to such receipt shall be void. CoorsTek shall not be
liable in any manner for or subject to the debts, contracts,
liabilities, engagements or torts of any person entitled to the
payment of any amounts under this Amended Agreement.
9. Withholding of Applicable Taxes. All payments hereunder shall be
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subject to withholding of all applicable taxes and such amounts shall
be withheld from amounts payable hereunder, whether to the Executive
or his beneficiary. The Executive may elect to satisfy the
withholding obligation with CoorsTek Stock, pursuant to the CoorsTek,
Inc. Stock Option and Incentive Plan.
10. Amendment. This Amended Agreement may be amended, altered or revoked
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only by a written instrument executed by CoorsTek and the Executive.
11. Miscellaneous Provisions.
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11.1 Effect on Other Benefit Plans. Any payments under this Amended
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Agreement shall not be deemed salary or other compensation
received by or payable to the Executive for the purpose of
computing benefits to which the Executive may be entitled under
any other pension plan, benefit plan or other similar arrangement
of CoorsTek for the benefit of its employees.
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11.2 No Contract of Employment. This Amended Agreement shall not be
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construed as a contract of employment nor does it restrict the
right of CoorsTek to discharge the Executive for cause or for any
other reason or the right of the Executive to terminate his
employment with CoorsTek.
11.3 Compensation Committee to Administer Amended Agreement. The
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Compensation Committee (the "Committee") of the Board of
Directors of CoorsTek shall administer and interpret this Amended
Agreement and no member of the Committee shall be liable to any
person for any action taken or omitted with respect to the
interpretation and administration of this Amended Agreement
unless attributable to the Committee member's own willful
misconduct or gross negligence.
11.4 Committee May Grant Additional Stock Units and Options. If the
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Executive receives a large salary increase as part of a promotion
or otherwise, the Committee may, in its sole discretion, grant
additional CoorsTek stock units and options as part of this
Amended Agreement if it believes such an increase in stock units
and options is justified.
11.5 Replacement of Prior Agreement. This Amended Agreement shall
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replace the Prior Agreement in its entirety and rescinds all
obligations under the Prior Agreement. This Amended Agreement
contains the entire agreement of the parties hereto with respect
to the subject matter of this Amended Agreement.
11.6 Interpretive Rules. The headings and underlined section titles
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are included solely for convenience of reference, and shall have
no significance in the interpretation of this Amended Agreement.
Where appropriate in this Amended Agreement, words used in the
singular shall include the plural and words used in the masculine
shall include the feminine. If any provision of this Amended
Agreement is illegal and invalid for any reason, such illegality
or invalidity shall not affect the remaining provisions. On the
contrary, such remaining provisions shall be fully severable, and
this Amended Agreement shall be construed and enforced as if such
illegal or invalid provision never had been a part of this
Amended Agreement.
11.7 ACX. ACX is a party to this Amended Agreement solely for the
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purpose of effecting the amendment and replacement of the Prior
Agreement, in its entirety, by this Amended Agreement.
11.8 Governing Law. This Amended Agreement shall be construed in
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accordance with and administered under the laws of the State of
Colorado.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended Agreement
this 9th day of December, 1999, to be effective as of the effective date of
the spin-off.
ACX TECHNOLOGIES, INC.
By: /s/ Xxxx X.X. Xxxxxx
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Xxxx X.X. Xxxxxx
Title: Secretary
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COORSTEK, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Title: Secretary
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EXECUTIVE
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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