SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the ______ day of July, 2000,
by and between Xxxxxx International, Inc. (the "Company"), a Delaware
corporation having a place of business at 0000 X. Xxxx Xxx., Xxxxxx, XX
00000-0000, and the undersigned [insert Officer's name from Exhibit A] (the
"Employee"), an officer of the Company.
RECITAL
The Board of Directors of the Company (the "Board") and the shareholders of
the Company holding more than 75% of the voting power of all the outstanding
capital stock of the Company, and the Board of Directors of Xxxxxx Holdings,
Inc., the sole shareholder of the Company ("Xxxxxx Holdings") and the
shareholders of Xxxxxx Holdings holding more than 75% of the voting power of all
the outstanding capital stock of Xxxxxx Holdings have determined that it is in
the best interests of the Company and of Xxxxxx Holdings to xxxxxx the
continuous employment of Corporate Officers and that the Company should enter
into this Agreement to reinforce and encourage the continued attention and
dedication of the Employee to his or her duties, free from distractions which
might arise in the event of a Change in Control (as defined in this Agreement),
or a proposed Change in Control, of the Company or of Xxxxxx Holdings.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company and the undersigned Employee agree as follows:
1. Term of Agreement: This Agreement shall commence as of the date first
written above and shall continue in effect until June 30, 2001; provided,
however, that commencing on July 1, 2001 and on each July 1 thereafter, the term
of this Agreement shall automatically be extended for one (1) year (until June
30 of the year next following) unless either the Company or the Employee shall
have given written notice to the other at least sixty (60) days prior thereto
that the term of this Agreement shall not be so extended; provided, further,
however, the Company shall not have the right to terminate or fail to extend
this Agreement in the event of a Change of Control (as defined in Section
2(c)(1) below) prior to the expiration of twelve (12) months after such Change
in Control shall have occurred. This Agreement shall automatically terminate if
the Employee's employment with the Company is terminated prior to a Change in
Control; provided, however, if the Employee's employment is terminated by the
Company other than for Cause (and not due to the Employee's Disability or by
reason of the Employee's death) and such termination of employment occurs within
ninety (90) days before a Change in Control, then the termination of the
Employee's employment shall be deemed to have occurred immediately following the
Change in Control and this Agreement shall remain in effect until the expiration
of twelve (12) months after such Change in Control shall have occurred.
Notwithstanding the foregoing provisions or any other provisions of this
Agreement to the contrary, if a Change in Control shall occur or be deemed to
have occurred during the term of this Agreement, this Agreement shall remain in
effect until the Company and the Employee have fully discharged all obligations
hereunder with respect to any termination of the Employee's employment with the
Company to which the provisions hereof shall apply.
2. Termination Benefits:
(a) If, within twelve (12) months following a Change in Control, and
during the term of this Agreement (including any extensions or deemed
extensions thereof as provided in Section 1 above), the Employee's
employment with the Company shall be terminated, the Employee shall be
entitled to the following compensation and benefits (in addition to any
compensation and benefits provided for under any of the Company's employee
benefit plans, policies and practices or as required by law):
(1) If the Employee's employment with the Company shall be
terminated (A) by reason of the Employee's Disability, or (B) by
reason of the Employee's death, the Company shall within five (5) days
after the Release Effective Date (as defined in Section 5(a) below)
pay the Employee his full Base Monthly Salary through the Date of
Termination at the rate in effect when the Notice of Termination is
given (or the Date of Termination in the case of the Employee's
death), plus any bonuses or incentive compensation which pursuant to
the terms of any compensation or benefit plan have been earned or have
become payable as of the Date of Termination, but which have not yet
been paid.
(2) If the Employee's employment with the Company shall be
terminated by the Company for Cause, the Company shall pay the
Employee his full Base Monthly Salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given, and
the Company shall have no further obligations to the Employee under
this Agreement.
(3) If the Employee's employment with the Company shall be
terminated by the Company or the Employee (other than for Cause or as
a result of Disability or by reason of the Employee's death), the
Company shall:
(i) within five (5) days after the Release Effective Date
pay the Employee his full Base Monthly Salary through the Date of
Termination at the greater of the rate in effect at the time the
Change in Control occurs or Notice of Termination is given, plus
any bonuses or incentive compensation which pursuant to the terms
of any compensation or benefit plan have been earned or have
become payable as of the Date of Termination, but which have not
yet been paid;
(ii) within five (5) days after the Release Effective Date
pay the Employee a lump sum cash payment equal to [insert months
from Exhibit A] times the Employee's Base Monthly Salary (at the
greater of the rate in effect at the time the Change in Control
occurs or when Notice of Termination is given); provided,
however, that the Company may at its election pay such amount to
the Employee in [insert months from Exhibit A] equal monthly
installments commencing on the fifth day after the Release
Effective Date and on the same day of the month thereafter;
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(iii) continue to provide for the Employee and his
dependents, for a period of [insert months from Exhibit A] months
following the Date of Termination, life insurance, medical and
hospitalization benefits comparable to those provided by the
Company to the Employee and his dependents immediately prior to
the Change in Control, provided that any coverage provided
pursuant to this subsection (iii) shall terminate to the extent
that the Employee obtains comparable life insurance, medical or
hospitalization benefits coverage from any other employer during
such [insert months from Exhibit A] month period. The benefits
provided under this subsection (iii) shall not be materially less
favorable to the Employee in terms of amounts, deductibles and
costs to him, if any, than such benefits provided by the Company
to the Employee and his dependents as of the date of the Change
in Control. This subsection (iii) shall not be interpreted so as
to limit any benefits to which the Employee or his dependents may
be entitled under the Company's life insurance, medical,
hospitalization, dental or disability plans following the
Employee's Date of Termination and shall be in addition to any
COBRA rights under federal law; and
(iv) within five (5) days after the Release Effective Date
pay the Outplacement Assistance Payment to Employee.
(b) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 2 by seeking other employment or
otherwise, nor, except as provided in Section 2(a)(3)(iii) above, shall the
amount of any payment or benefit provided for in Section 2 be reduced by
any compensation earned by the Employee or benefit made available to the
Employee as the result of employment by another employer after the Date of
Termination or otherwise.
(c) For purposes of this Agreement, the following definitions shall
apply:
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(1) A "Change in Control" shall be deemed to occur (i) when any
person (as such term is used in Sections 13(e) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than the holders of any of the Company's shares of capital stock
on the date first written above is or becomes the beneficial owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) directly or
indirectly of securities of the Company representing 50% or more of
the combined voting power of the Company's then outstanding securities
(assuming conversion of all outstanding nonvoting securities into
voting securities and the exercise of all outstanding options or other
convertible securities); (ii) when any person (as such term is used in
Sections 13(e) and 14(d) of the Exchange Act), other than the holders
of any of Xxxxxx Holdings' shares of capital stock on the date first
written above is or becomes the beneficial owner (as defined in Rule
13d-3 promulgated under the Exchange Act) directly or indirectly of
securities of Xxxxxx Holdings representing 50% or more of the combined
voting power of Xxxxxx Holdings then outstanding securities (assuming
conversion of all outstanding nonvoting securities into voting
securities and the exercise of all outstanding options or other
convertible securities); or (iii) upon the approval by the Company's
or Xxxxxx Holdings' shareholders of (A) a merger or consolidation of
the Company or Xxxxxx Holdings with or into another corporation (other
than a merger or consolidation in which the Company or Xxxxxx Holdings
is the surviving corporation and which does not result in any capital
reorganization or reclassification or other change in the ownership of
the Company's or Xxxxxx Holdings' then outstanding shares which would
be deemed a Change in Control pursuant to subsection(s) (i) or (ii)
hereof), (B) a sale or disposition of all or substantially all of the
Company's assets, or (C) a plan of liquidation or dissolution of the
Company or Xxxxxx Holdings.
(2) "Disability" means the Employee is totally and permanently
disabled as defined in the Xxxxxx International, Inc. Pension Plan.
(3) "Retirement" means the voluntary retirement of the Employee
under the terms of the Xxxxxx International, Inc. Pension Plan.
(4) A termination for "Cause" means a termination by reason of
the Board's good faith determination that the Employee (i) willfully
and continually failed to substantially perform his duties with the
Company (other than a failure resulting from the Employee's incapacity
due to physical or mental illness), (ii) willfully engaged in conduct
which constituted a material breach of Section 7 of this Agreement,
(iii) engaged in conduct which constituted a crime of moral turpitude,
(iv) perpetuated a fraud or embezzlement against the Company or Xxxxxx
Holdings, or (v) willfully engaged in conduct which is demonstrably
and materially injurious to the Company or Xxxxxx Holdings, monetarily
or otherwise. No act, or failure to act, on the Employee's part shall
be considered "willful" unless he has acted or failed to act with an
absence of good faith and without a reasonable belief that his action
or failure to act was in or at least not opposed to the best interests
of the Company and Xxxxxx Holdings. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause unless
there shall have been delivered to the Employee a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board at a meeting of the Board.
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(5) "Xxxxxx Holdings" shall mean Xxxxxx Holdings, Inc., a
Delaware corporation and the parent corporation of the Company on the
date of this Agreement.
(6) A "Notice of Termination" means a notice which shall indicate
the specific termination provision in this Agreement which is
applicable and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated. For purposes
of this Agreement, no such purported termination shall be effective
without such Notice of Termination. Any purported termination by the
Company or by the Employee shall be communicated by written notice of
termination to the other party hereto in accordance with Section 6
hereof.
(7) "Date of Termination" means (i) if the Employee's employment
is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Employee shall not have
returned to the performance of his duties on a full-time basis during
such thirty (30) day period), and (ii) if the Employee's employment is
terminated for any other reason, the date specified in the Notice of
Termination (which, in the case of a termination for Cause shall not
be less than thirty (30) days from the date such Notice of Termination
is given); provided that within thirty (30) days after any such Notice
of Termination is given the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of
the parties, or by the final judgment, order or degree of court of
competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been taken).
(8) "Outplacement Assistance Payment" means the payment of
$12,000.00 to the Employee to be used at the Employee's discretion for
outplacement career counseling and job search costs and expenses.
(9) "Base Monthly Salary" means the monthly base salary of the
Employee from the Company, but determined without regard to any salary
reduction agreement of the Employee under Sections 401(k) and 125 of
the Internal Revenue Code of 1986 (the "Code") (or corresponding
provisions of subsequent federal income tax laws) or any salary
deferral agreement of the Employee under any non-qualified deferred
compensation program that may be available to the Employee from time
to time, and excludes (i) incentive or additional cash compensation;
(ii) any amounts included in income because of Sections 79 or 89 of
the Code; and (iii) any amounts paid to the Employee for reimbursement
for expenses or discharging tax liabilities.
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3. Successors; Binding Agreement:
(a) This Agreement shall be binding on the Company and any successor
to all or substantially all of its business or assets. Without limiting the
effect of the prior sentence, the Company will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company 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 or assignment had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement or which is otherwise
obligated under this Agreement by the first sentence of this Section 3, by
operation of law or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Employee should die while any amounts would still be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the Employee's devisee, legatee or other designee or if there
is no such devisee, legatee or designee, to the Employee's estate.
4. Fees and Expenses; Acceleration Right: The Company shall pay all
reasonable legal fees and related expenses (including the costs of experts,
evidence and counsel) incurred by the Employee as a result of the Employee
seeking to obtain or enforce any right or benefit provided by this Agreement or
by any other plan or arrangement maintained by the Company under which the
Employee is or may be entitled to receive benefits, unless the Company shall
ultimately prevail in establishing that the Company terminated Employee's
employment for Cause. In the event the Company fails to make any installment
payment due and payable under Section 2(a)(3)(ii) hereof, and such default
continues for a period of more than fifteen (15) days following written notice
from the Employee to the Company of such default, the entire balance of the
amount payable under Section 2(a)(3)(ii) hereof shall immediately become due and
payable to the Employee.
5. Release and Right to Employment:
(a) As a condition of receiving from the Company the payments and
benefits provided for hereunder, which payments and benefits the Employee
is not otherwise entitled to receive, the Employee understands and agrees
that he will be required to execute a release of all claims against the
Company in the form attached hereto as Exhibit 1 (the "Release") on the
Date of Termination. Employee acknowledges that he has been advised in
writing to consult with an attorney prior to executing the Release. The
Employee agrees that he will consult with his attorney prior to executing
the Release. The Employee and the Company agree that Employee has a period
of seven (7) days following the execution of the Release within which to
revoke the Release. The parties also acknowledge and agree that the Release
shall not be effective or enforceable until the seven (7) day revocation
period expires. The date on which this seven (7) day period expires shall
be the effective date of the Release (the "Release Effective Date").
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(b) The Employee understands that as used in this Section 5, the
"Company" includes its past, present and future officers, directors,
trustees, shareholders, parent corporations, employees, agents,
subsidiaries, affiliates, distributors, successors, and assigns, and any
other persons related to the Company.
(c) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not affect the Company's right or ability to terminate the
employment of the Employee, subject to any other written contract between
the Company and the Employee to the contrary.
(d) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not affect in any manner the rights and obligations of the
Employee, the Company or Xxxxxx Holdings with respect to any shares of
stock of Xxxxxx Holdings or options for shares of stock of Xxxxxx Holdings.
(e) The Employee agrees that execution and delivery to the Company of
any release or disclaimer agreement requested by the Company which is
consistent with the provisions of this Section 5 and the passage of all
necessary waiting periods in connection therewith shall be a condition to
the receipt of any payment or benefits to be provided by the Company
following the termination of the Employee's employment with the Company.
6. Notices: For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, or by expedited (overnight)
courier with established national reputation, shipping prepaid or billed to
sender, in either case addressed to the respective addresses last given by each
party to the other (provided that all notices to the Company shall be directed
to the attention of the Board with a copy of the Secretary of the Company) or to
such other address as either party may have furnished to the other in writing in
accordance herewith. All notices and communication shall be deemed to have been
received on the date of delivery thereof, on the third business day after the
mailing thereof, or on the second day after deposit thereof with an expedited
courier service, except that notice of change of address shall be effective only
upon receipt.
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7. Non-Competition: The Employee agrees that during the Employee's
employment with the Company and, in the event of termination of the Employee's
employment with the Company by reason of the Employee's Disability or
Retirement, by the Company for Cause or by the Employee within twelve (12)
months following a Change in Control, for an additional period of one (1) year
immediately following termination of the Employee's employment with the Company,
the Employee shall not directly or indirectly, as an individual or as a
director, officer, contractor, employee, consultant, partner, investor or in any
other capacity with any corporation, partnership or other person or entity,
other than the Company, engage in the business of developing, manufacturing,
selling or distributing high performance nickel base or cobalt base alloys in
competition with the business of the Company or any of its subsidiaries as such
business are constitutes from time to time during the Employee's employment with
the Company, and thereafter, as such businesses are constituted at the time of
termination of the Employee's employment; provided, however, in the event of a
termination of the Employee's employment within twelve (12) months following a
Change in Control the foregoing restriction shall only relate to the business of
the Company or any of its subsidiaries as such business existed immediately
prior to the Change in Control. The restrictions of this Section 7 shall not be
deemed to prevent the Employee from owning less than 5% of the issued and
outstanding shares of any class of securities of an issuer whose securities are
listed on a national securities exchange or registered pursuant to Section 12(g)
of the Exchange Act. The restrictions of this Section 7, to the extent
applicable following termination of the Employee's employment with the Company,
shall only apply within the geographical area served either by the Company or
its subsidiaries during the two (2) years prior to termination of the Employee's
employment with the Company; provided, however, in the event of termination of
the Employee's employment within twelve (12) months following a Change in
Control the geographical area shall only include the geographical area served by
the Company or any of its subsidiaries immediately prior to the Change in
Control. In the event a court of competent jurisdiction determines that the
foregoing restriction is unreasonable in terms of geographic scope or otherwise
then the court is hereby authorized to reduce the scope of said restriction and
enforce this Section 7 as so reduced. If any sentence, word or provision of this
Section 7 shall be determined to be unenforceable, the same shall be severed
herefrom and the remainder shall be enforced as if the unenforceable sentence,
word or provision did not exist.
8. Miscellaneous: No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Employee 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 to
subsequent time. No agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof may have been made by either
party which are not expressly set forth in this Agreement.
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9. Applicable Law and Forum: This Agreement has been entered into in the
State of Indiana and shall be governed by and construed in accordance with the
laws of the State of Indiana without regard to any Choice of Laws provisions
thereof. The parties agree that any action in law or equity brought by either
party arising from or in connection with this Agreement or arising from or in
connection with the performance by either party of its obligations hereunder
shall be brought only in the United States District Court for the Southern
District of Indiana, Indianapolis Division or the Circuit Court of Xxxxxx
County, Indiana, and the parties hereto consent to the jurisdiction of such
forums.
10. Severability: The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
11. Entire Agreement: This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the severance of the employment of the undersigned Employee from the Company,
except as may be provided herein.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Employee has executed this Agreement, to be
effective as of the day and year first above written.
COMPANY:
XXXXXX INTERNATIONAL, INC.
--------------------------------------------
By: Xxxxxxx X. Xxxxx, President and CEO
ATTEST:
------------------------------------
R. Xxxxxx Xxxxx, Secretary
EMPLOYEE:
--------------------------------------------
WITNESS:
------------------------------------
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Exhibit 1
RELEASE OF ALL CLAIMS
In consideration of receiving from Xxxxxx International, Inc. (the
"Company") the payments and benefits provided for in that certain Severance
Agreement dated as of July ___, 2000 (the "Severance Agreement") between the
Company and the undersigned (the "Employee"), which payments and benefits the
Employee was not otherwise entitled to receive, the Employee unconditionally
releases and discharges the Company from any and all claims, causes of action,
demands, lawsuits or other charges whatsoever, known or unknown, directly or
indirectly related to the Employee's employment with the Company, except for (i)
a breach of the Company's obligations under the Severance Agreement, (ii) any
claims relating to, or rights of the Employee appurtenant to, any shares of
stock of, or options for shares of stock of, Xxxxxx Holdings, Inc., and (iii)
the right of the Employee to elect continuation of group medical and dental
benefits for the Employee and his eligible dependents who are qualified
beneficiaries under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended ("COBRA"), at the Employee's expense, pursuant to COBRA. The claims
or actions released herein include, but are not limited to, those based on
allegations of wrongful discharge, breach of contract, promissory estoppel,
defamation, infliction of emotional distress, and those alleging discrimination
on the basis of race, color, sex, religion, national origin, age, disability, or
any other basis, including, but not limited to, any claim or action under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the Rehabilitation Act of 1973, the Americans with Disabilities Act of
1990, the Equal Pay Act of 1963, the Civil Rights Act of 1991, the Employee
Retirement Income Security Act of 1974, or any other federal, state, or local
law, rule, ordinance, or regulation as presently enacted or adopted and as each
may hereafter be amended.
With respect to any claim that the Employee might have under the Age
Discrimination in Employment Act of 1967, as amended:
(i) The Employee does not waive rights or claims that may arise after the
date of this Release;
(ii) The Employee's waiver of said rights or claims under the Age
Discrimination in Employment Act of 1967 is in exchange for the consideration
reflected in this Release;
(iii) The Employee acknowledges that he has been advised in writing to
consult with an attorney prior to executing this Release and that he has
consulted with his attorney prior to executing this Release;
(iv) The Employee acknowledges that he has been given a period of at least
twenty-one (21) days within which to consider this Release; and
(v) The Employee and the Company agree that the Employee has a period of
seven (7) days following the execution of this Release within which to revoke
the Release.
The parties also acknowledge and agree that this Release shall not be effective
or enforceable until the seven (7) day revocation period expires. The date on
which this seven (7) day period expires shall be the effective date of this
Release.
The Employee further agrees, in consideration of receiving the payments and
benefits provided for in the Severance Agreement, not to initiate or instigate
any claims, causes of action or demands against the Company in any way directly
or indirectly related to the Employee's employment with the Company or the
termination of his employment except for a breach of the Company's obligations
under the Severance Agreement or claims or rights of the Employee relating to
any shares of stock of, or options for shares of stock of, Xxxxxx Holdings,
Inc., and the Employee agrees to reimburse, defend, and hold harmless the
Company against any such claims, causes of action or demands.
The Employee understands that as used in this Release, the "Company"
includes its past, present and future officers, directors, trustees,
shareholders, parent corporations, employees, agents, subsidiaries, affiliates,
distributors, successors, and assigns, any and all employee benefit plans (and
any fiduciary of such plans) sponsored by the Company, and any other persons
related to the Company.
--------------------------------------------
(Employee)
--------------------------------------------
Date Signed
WITNESS:
------------------------------------
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