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Exhibit 10(r)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made at Cleveland,
Ohio, this 17th day of December, 1997, between OGLEBAY NORTON COMPANY, a
Delaware corporation ("Oglebay"), and XXXX XXXXX ("Xxxxx").
The Board of Directors of Oglebay, recognizing the depth and quality of
Xxxxx'x operational and mergers and acquisition experience and the success he
has achieved in integrating related businesses and maximizing synergies and
efficiencies, has named Xxxxx as President and Chief Executive Officer and as a
member of the Board of Directors, effective January 1, 1998, and has determined
to nominate Xxxxx for the post of Chairman of the Board of Directors for
election by the shareholders of Oglebay at its annual meeting of shareholders
scheduled for April 29, 1998. Xxxxx will become an employee of Oglebay
immediately upon the execution of this Agreement with such duties during the
remainder of the month of December 1997 as he and the Board of Directors may
agree upon. (Certain capitalized terms not otherwise defined in this Agreement
have the meanings ascribed to them in Section 14, at the end of this Agreement.)
Oglebay and Xxxxx, each intending to be legally bound, agree as
follows:
1. Employment, Term. Oglebay hereby engages and employs Xxxxx as its
President and Chief Executive Officer to render such services in the
administration and operation of its affairs as are appropriate to those offices
and may be specified from time to time by the Board of Directors for a term of
approximately five years commencing on January 1, 1998 and continuing through
January 2, 2003, all subject to and in accordance with the terms and conditions
set forth below in this Agreement. In addition, Oglebay hereby employs Xxxxx
effective as of the date of execution of this Agreement to perform such services
during the remainder of the month of December 1997 as he and the Board of
Directors may agree.
2. Services. Xxxxx will devote all of his business time and efforts to
the service of Oglebay, except for (a) usual vacation periods and reasonable
periods of illness, (b) services as an officer and director of any Subsidiary of
Oglebay, and (c) services as a director or trustee of other corporations or
organizations that are not in competition with Oglebay or any Subsidiary, except
that Xxxxx shall obtain the prior approval of Oglebay's Compensation
Subcommittee before accepting any new position (i.e., a position not held by
Xxxxx as of the date of execution of this Agreement) as director or trustee of
any for profit entity (whether the entity is in corporate or other form).
Nothing in this Agreement shall preclude Xxxxx from devoting reasonable periods
of time to charitable and community activities or the management of his
investment assets provided these activities do not materially interfere with the
performance by Xxxxx of his duties hereunder.
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3. Chairman, President, and Chief Executive Officer; Board of Directors
Membership. Unless otherwise mutually agreed by Xxxxx and the Board of
Directors, commencing January 1, 1998 and thereafter throughout the period of
his employment under this Agreement, Xxxxx shall hold the offices of President
and Chief Executive Officer of Oglebay and shall be a member of the Board of
Directors. The Board of Directors shall nominate Xxxxx to become Chairman of the
Board of Directors for election by the shareholders of Oglebay at its annual
meeting of shareholders scheduled for April 29, 1998 (the "1998 Annual Meeting")
and, unless otherwise mutually agreed by Xxxxx and the Board of Directors, at
each subsequent annual meeting of shareholders so long as Xxxxx is employed by
Oglebay pursuant to this Agreement.
4. Compensation. Oglebay will not pay any salary to Xxxxx but, as
compensation for all services to be rendered by Xxxxx to Oglebay under this
Agreement, including services as an officer, director, or member of any
committee of Oglebay or of any Subsidiary, or any other services specified by
the Board of Directors, will provide to Xxxxx (a) the Restricted Stock Award
described in Section 4.1, (b) the Stock Option described in Section 4.2, (c) the
Cash Bonus described in Section 4.3, and (d) the benefits described in Section
4.4.
4.1 Restricted Stock Award. Xxxxx has advised Oglebay that he intends
to acquire a sufficient number of shares of Oglebay's Common Stock ("Shares"),
either directly or through a Xxxxx Family Vehicle, so that his total investment
in Shares will be at least $1,000,000 by June 30, 1998. (For all purposes of
this Section 4.1, Shares acquired, held, and/or disposed of by a Xxxxx Family
Vehicle will be treated as acquired, held, and/or disposed of, respectively, by
Xxxxx directly.) Xxxxx shall notify the Compensation Subcommittee promptly after
his total investment in Shares has reached $1,000,000. The date on which Xxxxx
so notifies the Compensation Subcommittee is referred to in this Agreement as
the "Investment Notice Date." Oglebay will grant to Xxxxx, within five days of
the Investment Notice Date (but not before January 2, 1998), that number of
Shares (the "Base Number") that is equal to the number of Shares acquired by
Xxxxx on or before June 30, 1998 (or such later date, if any, upon which Xxxxx
and the Compensation Subcommittee may agree) in exchange for the first
$1,000,000 invested by Xxxxx in Shares. Xxxxx shall timely file with the
Internal Revenue Service an election pursuant to Section 83(b) of the Internal
Revenue Code of 1986 (the "83(b) Election") electing to take into income the
value of the Restricted Shares as of the date the Restricted Shares are granted
to him. The Shares acquired by Xxxxx through the Investment Notice Date, up to
the Base Number of such Shares, are referred to in this Agreement as the
"Personal Investment Shares." The Shares granted to Xxxxx by Oglebay pursuant to
this Section 4.1 (the "Restricted Shares") will be subject to the following
restrictions:
(a) Unless accelerated as provided in Section 6.2: (i) 20% of the Base
Number of Restricted Shares will be fully vested and nonforfeitable as
of the date of the grant; and (ii) on January 1 of each of 1999, 2000,
2001, and 2003 (i.e., on each of the first, second, third, and fifth
anniversaries of January 1, 1998), provided that through each such
date, respectively, (x) Xxxxx continues in the employ of Oglebay and
(y) Xxxxx continues to hold all of the Personal Investment Shares,
Xxxxx'x rights to an additional 20% of the Base Number of Restricted
Shares will become fully vested and nonforfeitable. As a
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condition to the lapse of the restrictions as specified above, Xxxxx
will be required to provide to Oglebay means to satisfy Oglebay's
withholding obligation with respect to the income recognized by Xxxxx
in connection with the Restricted Shares upon the making of a Section
83(b) election, either by paying cash to Oglebay or by surrendering to
Oglebay a sufficient number of Restricted Shares to satisfy the
withholding requirement.
(b) If, on any date before January 1, 2003, Xxxxx sells or otherwise
disposes of any of the Personal Investment Shares, Xxxxx will thereupon
forfeit any and all Restricted Shares that have not become fully vested
and nonforfeitable before that date.
So long as the Restricted Shares are held by Xxxxx subject to restrictions,
Xxxxx will be entitled to exercise all voting rights appurtenant to the
Restricted Shares and to retain any and all dividends paid on the Restricted
Shares.
4.2 Stock Option. Effective December 17, 1997, the Compensation
Subcommittee will grant to Xxxxx, subject to shareholder approval (which will be
sought at the 1998 Annual Meeting), an option to acquire that number of Shares
that is equal to the total number of Shares outstanding as of January 1, 1998
multiplied by .08 (the "Performance Option"). The exercise price for each Share
under the Performance Option will be an amount equal to $38.00 per Share (that
price being equal to the closing per Share sales price for December 16, 1997 as
reported on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") National Market plus $6.00 per Share). Unless accelerated as
provided in Section 6.1 of this Agreement, the Performance Option will first
become exercisable on January 1, 2001 and will be exercisable by Xxxxx
thereafter, in whole or in part and from time to time, while Xxxxx is employed
by Oglebay and, if Xxxxx remains in the employ of Oglebay through January 1,
2003, thereafter through June 30, 2005. The award instrument setting forth the
full terms of the Performance Option will contain provisions for the
satisfaction of income tax withholding requirements by withholding of Shares or
otherwise.
4.3 Annual Bonus. Unless otherwise determined pursuant to the last
sentence of this Section 4.3, by not later than February 28 of each calendar
year during Xxxxx'x employment under this Agreement, the Compensation
Subcommittee will adopt an incentive plan for Xxxxx for that calendar year. Each
such plan will entitle Xxxxx to a cash bonus, payable not later than March 15 of
the immediately following year, ranging in value from $0 to $200,000, depending
upon the extent to which Oglebay and Xxxxx achieve such goals during that
calendar year as the Compensation Subcommittee may choose to set forth in the
incentive plan for that year. The Compensation Subcommittee may, in its
discretion, develop an alternative annual incentive compensation plan for Xxxxx
that would provide similar potential value to him but in the form of Shares or
an interest in Shares rather than in cash.
4.4 Benefits. Xxxxx will be entitled to such periods of vacation and
sick leave allowance each year as are determined by Oglebay's vacation and sick
leave policy for executive officers as in effect on the date of execution of
this Agreement or as may be increased form time to time thereafter. Neither
vacation nor sick leave allowance will be accumulated from year to year.
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Oglebay will also provide Xxxxx with such perquisites as it has customarily
provided to its top executives. Xxxxx will be a participant in Oglebay's
qualified Pension Plan for Salaried Employees (the "Qualified Plan," pursuant to
which any bonuses paid by Oglebay to Xxxxx will be treated, up to applicable
limits, as covered compensation). In addition, Oglebay will provide Xxxxx with
an excess or supplemental retirement benefit plan or plans, in such form as may
be determined at the discretion of the Compensation Subcommittee, that will
provide to Xxxxx retirement benefits that, when added to any benefits to him
under the Qualified Plan, equal the benefits Xxxxx would have been entitled to
under the Qualified Plan if (a) in addition to any bonuses received by Xxxxx,
there had been included in Xxxxx'x covered compensation, throughout the period
of his employment, salary earned by Xxxxx at the rate of $350,000 per year, and
(b) there were no limits on the amount of covered compensation that could be
taken into account in determining the benefit payable to Xxxxx under the
Qualified Plan.
5. Termination.
5.1 At End of Term. Unless Oglebay and Xxxxx earlier mutually agree to
extend the term of Xxxxx'x employment under this Agreement, that term will
terminate on January 2, 2003. Beginning not later than six months before the
scheduled end of the term of Xxxxx'x employment hereunder, Oglebay and Xxxxx
will discuss with each other whether the term of Xxxxx'x employment hereunder
should be extended and, if so, for what period and on what terms and conditions.
5.2 Death or Disability. Xxxxx'x employment hereunder will terminate
immediately upon Xxxxx'x death. Oglebay may terminate Xxxxx'x employment
hereunder immediately upon giving notice of termination if Xxxxx is disabled, by
reason of physical or mental impairment, to such an extent that he is unable to
substantially perform his duties under this Agreement for 90 or more days out of
any period of 360 consecutive days.
5.3 For "Cause." Oglebay may terminate Xxxxx'x employment hereunder for
"Cause" at any time if :
(a) Xxxxx commits a felony;
(b) Xxxxx commits an act or series of acts of dishonesty in the course
of his employment that are materially inimical to the best interests of
Oglebay or a Subsidiary as determined by the vote of a majority of the
members of the Board of Directors (excluding Xxxxx);
(c) Xxxxx continues to violate his obligation under Section 7 not to
engage in Competitive Activities after the Board of Directors has
advised him in writing to cease those activities; or
(d) Other than for disability, Xxxxx abandons and consistently fails to
attempt to perform his duties and responsibilities hereunder for 30
consecutive days after written notice from the Board of Directors that
it is considering termination based on this Section 5.3(d).
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5.4 By Oglebay Without Cause. Oglebay may terminate Xxxxx'x employment
hereunder without Cause at any time by action of a majority vote of the entire
Board of Directors.
5.5 By Xxxxx Following Constructive Termination at Any Time. Xxxxx may
terminate his employment hereunder "on grounds of Constructive Termination"
(and, if Xxxxx elects to terminate his employment in such circumstances, he will
be deemed to have been "Constructively Terminated") if, at any time:
(a) Xxxxx is subject to Demotion or Removal;
(b) Oglebay requests Xxxxx'x resignation at a time when Oglebay does
not have grounds to terminate Xxxxx'x employment for Cause; or
(c) Xxxxx'x principal place of employment for Oglebay is relocated
outside of the Cleveland metropolitan area or Xxxxx is otherwise
required by Oglebay to relocate outside the Cleveland metropolitan
area.
5.6 By Xxxxx Following a Change of Control. Xxxxx may terminate his
employment hereunder by notice to the Board of Directors given at any time that
is at least 10 and not more than 90 days after the occurrence of a Change of
Control.
6. Effect of Termination.
6.1 Termination Without Cause, etc., Constructive Termination, or
Termination by Xxxxx after a Change of Control. If Xxxxx'x employment is
terminated by Oglebay for any reason other than Cause, disability, or death or
Xxxxx is Constructively Terminated or Xxxxx terminates his employment by notice
to the Board of Directors within 90 days of the occurrence of a Change of
Control:
(a) Any and all remaining restrictions on the Restricted Shares will
lapse immediately before the Termination Date and Xxxxx'x rights to all
Restricted Shares will thereupon become fully vested and
nonforfeitable.
(b) The Performance Option, if not already exercisable, will become
immediately exercisable and will remain exercisable through January 2,
2004.
(c) Oglebay will pay Xxxxx a bonus for the calendar year in which the
Termination Date occurs equal to $200,000 times multiplied by a
fraction, the numerator of which is 12 minus the number of full months
in the calendar year occurring after the Termination Date and the
denominator of which is 12.
6.2 Termination by Death or Disability. If Xxxxx'x employment with
Oglebay is terminated by his death or by Oglebay on account of Xxxxx'x
disability:
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(a) Any Restricted Shares that were not otherwise, at the Termination
Date, fully vested and nonforfeitable, will be subject to acceleration
to the following extent:
(i) If the Termination Date falls in 1998 or 1999, an
aggregate of 50% of the Restricted Shares (including any that
had previously vested) will be fully vested and nonforfeitable
and the remaining 50% of the Restricted Shares will be
forfeited as of the Termination Date.
(ii) If the Termination Date falls in 2000, an aggregate of
70% of the Restricted Shares (including any that had
previously vested) will be fully vested and nonforfeitable and
the remaining 30% of the Restricted Shares will be forfeited
as of the Termination Date.
(iii) If the Termination Date falls in 2001, an aggregate of
85% of the Restricted Shares (including any that had
previously vested) will be fully vested and nonforfeitable and
the remaining 15% of the Restricted Shares will be forfeited
as of the Termination Date.
(iv) If the Termination Date falls after 2001, all of the
Restricted Shares (including any that had previously vested)
will be fully vested and nonforfeitable.
(b) If the Termination Date occurs before January 1, 2001, the
Performance Option will be terminated as of the Termination Date. If
the Termination Date occurs after December 31, 2000, the Performance
Option, to the extent not previously exercised, will remain exercisable
for a period of one year after the Termination Date.
(c) Oglebay will pay Xxxxx such bonus for the calendar year in which
the Termination Date occurs as may be provided for in the incentive
plan adopted by the Compensation Subcommittee for Xxxxx for that
calendar year.
6.3 Termination for Cause or Voluntarily by Xxxxx. If Xxxxx'x
employment is terminated by Oglebay for Cause or by Xxxxx other than as a result
of a Constructive Termination:
(a) Any Restricted Shares that were not, at the Termination Date, fully
vested and nonforfeitable, will be forfeited as of the Termination
Date.
(b) The Performance Option will be terminated as of the Termination
Date.
(c) Oglebay will not pay Xxxxx any bonus for the calendar year in which
the Termination Date occurs.
7. Limitations on Competition. Xxxxx shall not engage in any
Competitive Activity during the period commencing with the date of execution of
this Agreement and ending on the second anniversary of the Termination Date. In
addition to other remedies provided by law or
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equity, upon a breach by Xxxxx of any prohibition on Competitive Activity
contained in this Section 7, Oglebay shall be entitled to have a court of
competent jurisdiction enter an injunction against Xxxxx restraining him from
any further breach of any such prohibition.
8. Indemnification. Oglebay shall indemnify Xxxxx, to the full extent
permitted or authorized by the Delaware General Corporation Law as it may from
time to time be amended, if Xxxxx is made or threatened to be made a party to
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, by reason of the fact that
Xxxxx is or was a director, officer, or employee of Oglebay or any Subsidiary,
or is or was serving at the request of Oglebay or any Subsidiary as a director,
trustee, officer, or employee of a corporation, partnership, joint venture,
trust, or other enterprise. The indemnification provided by this Section 8 shall
not be deemed exclusive of any other rights to which Xxxxx may be entitled under
the articles of incorporation or the regulations of Oglebay or of any
Subsidiary, or any agreement, vote of shareholders or disinterested directors,
or otherwise, both as to action in Xxxxx'x official capacity and as to action in
another capacity while holding such office, and shall continue as to Xxxxx after
Xxxxx has ceased to be a director, trustee, officer, or employee and shall inure
to the benefit of the heirs, executors, and administrators of Xxxxx.
9. Reimbursement of Certain Expenses.
9.1 Oglebay shall pay, as incurred, all expenses, including the
reasonable fees of counsel engaged by Xxxxx, of defending any action brought to
have this Agreement declared invalid or unenforceable.
9.2 Oglebay shall pay, as incurred, all expenses, including the
reasonable fees of counsel engaged by Xxxxx, of prosecuting any action to compel
Oglebay to comply with the terms of this Agreement upon receipt from Xxxxx of an
undertaking to repay Oglebay for such expenses if, and only if, it is ultimately
determined by a court of competent jurisdiction that Xxxxx had no reasonable
grounds for bringing that action (which determination need not be made simply
because Xxxxx fails to succeed in the action).
9.3 Expenses (including attorney's fees) incurred by Xxxxx in defending
any action, suit, or proceeding commenced or threatened against Xxxxx for any
action or failure to act as an employee, officer, or director of Oglebay or any
Subsidiary shall be paid by Oglebay, as they are incurred, in advance of final
disposition of the action, suit, or proceeding upon receipt of an undertaking by
or on behalf of Xxxxx in which he agrees to reasonably cooperate with Oglebay or
the Subsidiary, as the case may be, concerning the action, suit, or proceeding,
and (a) if the action, suit, or proceeding is commenced or threatened against
Xxxxx for any action or failure to act as a director, to repay the amount if it
is proved by clear and convincing evidence in a court of competent jurisdiction
that his action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to Oglebay or a Subsidiary or with reckless
disregard for the best interests of Oglebay or a Subsidiary or (b) if the
action, suit, or proceeding is commenced or threatened against Xxxxx for any
action or failure to act as an officer or employee, to repay the amount if it is
ultimately determined that he is not entitled to be indemnified. The obligation
of
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Oglebay to advance expenses provided for in this Section 9.3 shall not be deemed
exclusive of any other rights to which Xxxxx may be entitled under the articles
of incorporation or the regulations of Oglebay or of any Subsidiary, or any
agreement, vote of shareholders or disinterested directors, or otherwise.
10. Survival of Obligations. Except as is otherwise expressly provided
in this Agreement, the respective obligations of Oglebay and Xxxxx hereunder
shall survive any termination of Xxxxx'x employment under this Agreement.
11. Merger or Transfer of Assets of Oglebay. Oglebay will not
consolidate with or merge into any other corporation, or transfer all or
substantially all of its assets to another corporation, unless such other
corporation shall assume this Agreement in a signed writing and deliver a copy
thereof to Xxxxx. Upon such assumption the successor corporation shall become
obligated to perform the obligations of Oglebay under this Agreement, and the
term "Oglebay" as used in this Agreement shall be deemed to refer to such
successor corporation.
12. Notices. 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 in person (to the Secretary of Oglebay in the case of notices to
Oglebay and to Xxxxx in the case of notices to Xxxxx) or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to Oglebay:
Oglebay Norton Company
0000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Secretary
If to Xxxxx:
Xx. Xxxx Xxxxx
00000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxx 00000-0000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in a writing signed by Xxxxx and Oglebay. No waiver by either party hereto at
any time of any breach by the other party 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
time or at any prior or subsequent time. No agreement or representation, oral or
otherwise, express or implied, with respect to the subject matter hereof has
been made by either party which is not set forth expressly in this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio.
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14. Definitions.
14.1 Affiliate. The term "Affiliate" has the meaning given to it in
Rule 12b-2 under the Securities Exchange Act of 1934.
14.2 Beneficial Owner. The term "Beneficial Owner" has the meaning
given to it in Rule 13d-3 under the Securities Exchange Act of 1934.
14.3 Board of Directors. The term "Board of Directors," when used other
than with specific reference to another entity, shall mean the Board of
Directors of Oglebay.
14.4 Compensation Subcommittee. The term "Compensation Subcommittee"
shall mean the subcommittee of the Board of Directors that is authorized by the
Board of Directors to establish and administer the Performance Option referred
to in this Agreement. The Compensation Subcommittee shall be made up solely of
individuals who qualify as "outside directors" within the meaning of Section
1.162-27(e)(3) of the Treasury Regulations promulgated under Section 162(m) of
the Internal Revenue Code.
14.5 Competitive Activity. Xxxxx shall be deemed to have engaged in
"Competitive Activity" if he engages, directly or indirectly, without the
consent of Oglebay, in any business or business activity in which Oglebay or any
of its Subsidiaries engages, provided that Xxxxx will not be deemed to be
engaged in Competitive Activity with respect to a publicly held corporation
merely by virtue of his ownership, directly or indirectly, of less than 1% of
the outstanding stock of that corporation.
14.6 Change of Control. A "Change of Control" shall be deemed to have
occurred, subject to the last two sentences of this Section 14.6, if at any time
or from time to time after the date of this Agreement:
(a) Any person (other than Oglebay, any of its subsidiaries, any
employee benefit plan or employee stock ownership plan of Oglebay, or
any person organized, appointed, or established by Oglebay for or
pursuant to the terms of any such plan), along or together with any of
its Affiliates, becomes the Beneficial Owner of 20% or more of the
Common Shares then outstanding; any person is declared to be an
"Adverse Person" (i.e.: a person whose interests are adverse to those
of Oglebay) by the Board of Directors; or any person commences or
publicly announces an intention to commence a tender offer or exchange
offer the consummation of which would result in the Person becoming the
Beneficial Owner of 20% or more of the Common Shares then outstanding.
(b) At any time during a period of 24 consecutive months, individuals
who were directors at the beginning of the 24-month period no longer
constitute a majority of the members of the Board of Directors, unless
the election, or the nomination for election by Oglebay's shareholders,
of each director who was not a director at the beginning of the period
is approved by at least a majority of the directors (i) who are in
office at the time of the
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election or nomination and (ii) were directors at the beginning of the
period (the "Continuing Directors").
(c) A record date is established for determining shareholders entitled
to vote upon (i) a merger or consolidation of Oglebay with another
corporation in which Oglebay is not the surviving or continuing
corporation or in which all or part of the outstanding Common Shares
are to be converted into or exchanged for cash, securities, or other
property, (ii) a sale or other disposition of all or substantially all
of the assets of Oglebay, or (iii) the dissolution of Oglebay.
If an event described in clause (b) of this Section 14.6 occurs, the occurrence
of that event shall constitute an irrevocable Change of Control. On the other
hand, if an event described in any of clauses (a) or (c) of this Section 14.6
occurs, the Board of Directors, by vote of two-thirds of all of the Directors
then in office who are not employees of Oglebay, acting in good faith, may
determine, either prior to the event or subsequently, that the event should not
be treated as a Change of Control for purposes of this Agreement, except that
any such determination may not be made after Xxxxx'x employment with Oglebay is
terminated (a) by Xxxxx more than 10 days but not more than 90 days after the
occurrence of the relevant event, (b) by Xxxxx by reason of a Constructive
Termination, or (c) by Oglebay other than for Cause or as a result of Xxxxx'x
disability or death. If the Board of Directors, acting in accordance with the
immediately preceding sentence, determines that an event should not be treated
as a Change of Control for purposes of this Agreement, then, unless otherwise
provided by action of the Board of Directors, from and after the date of that
determination, that event shall be treated as not having occurred for purposes
of this Agreement.
14.7 Demotion or Removal. Xxxxx shall be deemed to have been subjected
to "Demotion or Removal" if (a) without Xxxxx'x express written consent, Oglebay
removes Xxxxx from any of the offices of Chairman of the Board of Directors
(after Xxxxx has been elected to that office), President, or Chief Executive
Officer of Oglebay, or (b) Oglebay becomes a subsidiary of another corporation
or similar entity and Xxxxx does not hold the posts of Chairman of the Board of
Directors, President, and Chief Executive Officer of that other corporation or
similar entity (except the fact that Xxxxx does not hold one or more of such
posts in these circumstances will not constitute a Demotion or Removal if Xxxxx
has, by his express written consent, agreed that his not holding those posts
should not constitute a Demotion or Removal).
14.8 Xxxxx Family Vehicle. The term "Xxxxx Family Vehicle" shall mean
any limited liability corporation, partnership, trust, or similar entity that
meets the following two requirements:
(a) all of the beneficial interests in the entity belong to one or more
of Xxxxx, his wife, his descendants, and/or spouses of descendants, and
(b) So long as Xxxxx is alive and competent, he controls the voting
rights appurtenant to any and all Shares held by the entity.
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14.9 Subsidiary. The term "Subsidiary," as of any time, means any
corporation, partnership, or other entity a majority of the voting control of
which is directly or indirectly owned or controlled at that time by Oglebay.
14.10 Termination Date. The term "Termination Date" means the date on
which Xxxxx'x employment with Oglebay and its Subsidiaries terminates.
IN WITNESS WHEREOF, Oglebay and Xxxxx have executed this Agreement,
Oglebay by the duly authorized Chairman of the Compensation and Organization
Committee of its Board of Directors, as of the date first written above.
OGLEBAY NORTON COMPANY
By /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Chairman, Compensation
and Organization Committee
/s/ Xxxx Xxxxx
----------------------------------------
XXXX XXXXX
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