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Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made between
GRAFTECH INC., a Delaware corporation (the "Company"), and XXXX X. XXXXXX, an
individual residing in ___________ (the "Executive"). This Agreement shall
become effective upon the effective date of the registration statement filed by
the Company with the Securities and Exchange Commission in connection with the
initial public offering of shares of Common Stock of the Company (the "Effective
Date"). Notwithstanding anything contained herein to the contrary, this
Agreement shall become null and void if the Effective Date does not occur before
September 30, 2000 or the closing of such offering does not occur within 30 days
after the Effective Date.
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the
Executive desires to be employed, as the Company's President and Chief Executive
Officer on the terms and conditions set forth herein;
NOW, THEREFORE, the Company and the Executive, each intending to be
legally bound, hereby mutually covenant and agree as follows:
ARTICLE 1
DEFINITIONS
Defined terms used in this Agreement shall have the meanings set
forth below:
1.1 "Accrued Obligations" shall mean, as of the date of Termination
of Employment, the sum of (A) the Executive's Starting Salary through such date
to the extent not theretofore paid, (B) the amount of any bonus, incentive
compensation, deferred compensation and other cash compensation payable to the
Executive as of such date but not yet paid, and (C)
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any vacation pay, expense reimbursements and other cash entitlement accrued by
the Executive as of such date to the extent not theretofore paid.
1.2 "Board" shall mean the Board of Directors of the Company.
1.3 "Cause" shall mean (i) gross neglect or willful and continuing
refusal by the Executive to substantially perform his duties (other than due to
Disability), (ii) breach of Section 4.2, (iii) willful engagement in conduct
which is demonstrably injurious to the Company or its Subsidiaries (including,
without limitation, a breach of Section 4.1) or (iv) conviction or plea of nolo
contendere to a felony or a misdemeanor involving moral turpitude.
1.4 "Competitor" shall have the meaning set forth in Section 4.2.
1.5 "Confidential Information" shall have the meaning set forth in
Section 4.1.
1.6 "Disability" shall mean the inability of the Executive to
perform in all material respects his duties and responsibilities to the Company
or any Subsidiary by reason of a physical or mental disability or infirmity
which inability is reasonably expected to be permanent and has continued (i) for
a period of six consecutive months or (ii) such shorter period as the Company
may determine. The Executive (or his representative) shall furnish the Company
with satisfactory medical evidence documenting the Executive's disability or
infirmity.
1.7 "Good Reason" shall mean the occurrence of any of the following
circumstances without the Executive's express written consent: (i) a reduction
in the Executive's salary or opportunity to participate as set forth herein in
Management Incentive Plan, (ii) a material adverse change in the Retirement
Program, the Savings Plan or the Management Incentive Plan, (iii) relocation of
the Participant's principal place of business to a location which is more than
35 miles from its current location, except in connection with a relocation of
the corporate headquarters of the Company, or (iv) a material diminution in the
Executive's duties,
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responsibilities or reporting position as described in Article 2 (unless due to
a promotion or other increased responsibility).
1.8 "Management Incentive Plan" shall mean the Graftech Inc.
Management Incentive Plan.
1.9 "Retirement" shall mean the voluntary resignation of the
Executive when eligible to receive a pension benefit under the Retirement
Program.
1.10 "Retirement Program" shall mean the UCAR Carbon Retirement
Program or any other retirement program maintained by the Company.
1.11 "Savings Plan" shall mean the UCAR Carbon Savings Plan or any
other savings plan maintained by the Company.
1.12 "Severance Amount" shall mean an amount equal to the sum of
Starting Salary plus the Bonus Award, which sum shall be multiplied by 2.99. The
"Bonus Award" is the bonus amount paid or payable under the Management Incentive
Plan for the calendar year ending on or before the date of Termination of
Employment.
1.13 "Starting Salary" shall mean the amount set forth in Section
3.1.
1.14 "Subsidiary" shall mean any corporation, over 50% of the voting
stock of which is owned by the Company.
1.15 "Term" shall mean the term of this Agreement as set forth in
Section 2.2, and shall include any renewal period described therein.
1.16 "Termination of Employment" shall mean the Executive's death or
Disability, termination by the Company of the Executive's employment for Cause
or without Cause, resignation by the Executive from the employ of the Company
for Good Reason or
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without Good Reason, Retirement of the Executive, or termination of the
Executive's employment at the end of the Term.
ARTICLE 2
EMPLOYMENT AND TERM
2.1 Employment. The Company hereby offers to employ the Executive as
the President and Chief Executive Officer of the Company, and the Executive
hereby accepts such employment, for the Term.
2.2 Term. The term of this Agreement shall commence on the date
hereof and shall end, unless extended as hereinafter provided, on the third
anniversary of the date hereof. The term of this Agreement shall be extended
automatically for successive additional one-year periods at the end of such
three-year period and of each such renewal period, unless, no later than ninety
days prior to any such renewal date, the Board gives written notice to the
Executive that the term of this Agreement shall not be so extended or unless, no
later than one year prior to any such renewal date, the Executive gives written
notice to the Board that the term of this Agreement shall not be so extended.
2.3 Duties. During the Term, unless otherwise agreed in writing by
the parties, the Executive shall have all powers and duties consistent with his
position as set forth in Section 2.1.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Starting Salary. For services performed by the Executive for the
Company pursuant to this Agreement, the Company shall pay the Executive the
Starting Salary in the amount of $175,000 per year (which may be increased by
the Board, in its discretion, and references herein to Starting Salary and in
other documents to base salary shall mean such
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amount as so increased) payable in accordance with the Company's regular payroll
practices. Any compensation which may be paid to the Executive under any
additional compensation plan of the Company or the Management Incentive Plan or
which may be otherwise authorized from time to time by the Board in its
discretion (or an appropriate committee thereof) shall be in addition to the
Starting Salary.
3.2 Annual Bonuses. The Executive shall be entitled to participate
in the Graftech Inc. Management Incentive Plan in accordance with its terms,
with a target award of 50% of the grade range of the Executive.
3.3 Other Benefits. In addition to the Starting Salary and
participation in the Bonus Plan, the Executive shall also be entitled to the
following:
(a) Stock Ownership. The Executive and the Company have on the
date hereof entered into a Non-Qualified Stock Option Agreement.
(b) Severance Compensation Agreement. The Executive and the
Company have on the date hereof entered into a Severance Compensation Agreement.
(c) Participation in Benefit Plans. The Executive shall be
entitled to participate in the benefit plans and arrangements (including,
without limitation, retirement, savings, bonus, long-term incentive and stock
option plans) maintained by the Company for its executives at a level
commensurate with his position. The Executive shall also be entitled to
participate in all other welfare and benefit plans maintained by the Company for
its employees generally. For the purpose of calculating the Executive's benefits
under such plans and arrangements, all prior service with UCAR Carbon Company
Inc. will be recognized.
(d) Vacation. The Executive shall be entitled to 4 weeks
vacation annually and paid holidays consistent with the Company's policies
applicable to executives.
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ARTICLE 4
COVENANTS OF THE EXECUTIVE
4.1 Confidentiality. The Executive acknowledges that, as a
consequence of his employment and position with the Company, the Executive will
have access to and become acquainted with confidential information of the
Company and its Subsidiaries. During the Term and at all times thereafter, the
Executive shall not, without the prior written consent of the Company, use,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity any Confidential Information (as defined below)
pertaining to the business of the Company or any of its Subsidiaries, except
while employed by the Company, in the business of and for the benefit of the
Company or any Subsidiary. For purposes of this Section 4.1, "Confidential
Information" shall mean non-public (i) trade secrets, financial data, strategic
business plans, customer lists, sales and marketing information and plans and
(ii) any other technical, creative, proprietary and confidential information of
the Company and its Subsidiaries that is material to the business of the Company
or its Subsidiaries, which information described in either (i) or (ii) above was
not lawfully obtained by the Executive from a source independent of the Company
or its Subsidiaries or was not obtained in violation of such source's
contractual or other legal obligations or duties.
4.2 Non-Competition. The Executive shall not, during the Term and
for a period of two years following the Term, directly or indirectly (a) own,
manage, operate, join or control, or participate (or serve as a consultant or
similar position) in the ownership, management, operation or control of, any
business, entity, firm, partnership, corporation or other person, whether
private, governmental or quasi-governmental, which is engaged, directly or
indirectly, in the business of manufacturing or selling graphite or carbon
electrodes or any other business
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engaged in or being developed by the Company at the time of the Executive's
Termination of Employment (a "Competitor"), or (b) solicit any person who is (or
was during the six months prior to the Executive's Termination of Employment) an
employee of the Company to become an employee, agent or independent contractor
of a Competitor or any other business, or (c) solicit any customer of the
Company on behalf of any Competitor or any other business; provided, however,
that nothing in this Agreement shall preclude the Executive from serving on the
board of directors of any company with the prior consent of the Company or
managing his personal investments which do not exceed 5% of the equity of any
Competitor (so long as, in the reasonable determination of the Company, such
activity does not materially interfere with his duties and responsibilities
hereunder).
4.3 Enforcement.
(a) The Executive agrees that the remedy at law for any breach
by him of any of the covenants and agreements set forth in this Section 4 will
be inadequate and that, in the event of any such breach, the Company may, in
addition to the other remedies which may be available to it at law, obtain
injunctive relief prohibiting the Executive from the breach of such covenants
and agreements.
(b) If any of the provisions of this Agreement shall otherwise
contravene or be invalid under the laws of any state or other jurisdiction where
it is applicable but for such contravention or invalidity, such contravention or
invalidity shall not invalidate all of the provisions of this Agreement, but
rather this Agreement shall be reformed and construed, insofar as the laws of
that state or jurisdiction are concerned, as not containing the provision or
provisions, but only to the extent that they are contravening or are invalid
under the laws of that
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state or jurisdiction, and the rights and obligations created hereby shall be
reformed and construed and enforced accordingly.
(c) The Executive understands that the provisions of Section 4
hereof may limit his ability to earn a livelihood in a business similar to the
business of the Company but nevertheless agrees and hereby acknowledges that (i)
such provisions do not impose a greater restraint than is necessary to protect
the goodwill or other business interests of the Company, (ii) such provisions
contain reasonable limitations as to time and the scope of activity to be
restrained and (iii) the consideration provided under this Agreement, including,
without limitation, any amounts or benefits provided under Section 5, is
sufficient to compensate the Executive for the restrictions contained in this
Section 4. In consideration of the foregoing and in light of the Executive's
education, skills and abilities, the Executive agrees that he will not assert
that, and it should not be considered that, any provisions of this Section 4
prevented him from earning a living or otherwise are void, voidable or
unenforceable or should be voided or held unenforceable.
(d) Each of the covenants of this Section 4 is given by the
Executive as part of the consideration for this Agreement and as an inducement
to the Company to enter into this Agreement and accept its obligations
hereunder.
ARTICLE 5
TERMINATION
5.1 Termination of Agreement. This Agreement shall terminate at the
end of the Term.
5.2 Procedures Applicable to Termination for Cause and Resignation
for Good Reason.
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(a) Termination for Cause. If the Company determines that Cause
exists, it shall notify the Executive. The Executive may be terminated for Cause
upon 30 days' prior written notice. Such termination shall be effected by a
majority vote of the Board after the Executive shall have had the opportunity
(along with counsel) to be heard, unless within 15 days after receiving such
notice the Executive shall have cured the Cause to the reasonable satisfaction
of the Board.
(b) Resignation for Good Reason. The Executive must give at least 45
days prior written notice of his intent to resign for Good Reason. During such
45-day period, the Company shall have the opportunity to cure the Good Reason
during the first 30 days of such notice period. If no notice is given within 45
days after the event giving rise to Good Reason, the Good Reason shall be deemed
to have been waived.
5.3 Obligations of the Company Upon Termination of Employment.
(a) Accrued Obligations and Other Benefits. In the event of
Termination of Employment for any reason, the Company shall pay to the Executive
or, in the event of the Executive's death, his heirs or estate the following:
(i) all Accrued Obligations in a lump sum within ten
days after the date of Termination of Employment; and
(ii) all benefits accrued by the Executive as of the
date of Termination of Employment under all qualified and
nonqualified retirement, pension, profit sharing and similar plans
of the Company to such extent, in such manner and at such time as
are provided under the terms of such plans and arrangements.
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(b) Termination without Cause or Resignation for Good Reason.
In the event that the Company terminates the Executive's employment during the
Term without Cause (but excluding Termination of Employment by reason of the
Executive's death or Disability) or the Executive resigns from his employment
during the Term for Good Reason, in addition to the amounts payable under
Section 5.3(a), the Executive shall receive:
(i) the Severance Amount, so long as benefits under the
Severance Compensation Agreement are not payable in connection with
such termination or resignation; or
(ii) the benefits under the Severance Compensation
Agreement, in connection with such termination or resignation.
Notwithstanding any other provision of this Agreement,
under no circumstances shall the Executive be entitled to receive
both the Severance Amount under this Agreement and the benefits
under the Severance Compensation Agreement.
(c) Termination Under Other Circumstances. The Executive
acknowledges that the Company's obligations hereunder upon a Termination of
Employment by reason of the Executive's death or Disability, the termination of
the Executive's employment during the Term by the Company for Cause, resignation
by the Executive from the employ of the Company during the Term without Good
Reason, Retirement of the Executive, or termination of the Executive's
employment at the end of the Term (regardless of which party gives notice of
non-renewal or the reasons therefor) are limited to those provided in Section
5.3(a).
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ARTICLE 6
MISCELLANEOUS
6.1 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the heirs and representatives of the Executive and the
successors and assigns of the Company. The Company shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of asset or stock, liquidation or otherwise), by agreement in form
and substance reasonably satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform this Agreement if no such succession
had taken place. Regardless whether such agreement is executed, this Agreement
shall be binding upon any successor of the Company in accordance with the
operation of law and such successor shall be deemed the "Company" for purposes
of this Agreement.
6.2 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Board or the Company, to:
Graftech Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
To the Executive, to:
Xxxx X. Xxxxxx
[insert address]
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Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
6.3 Tax Withholding. The Company shall provide for the withholding
of any taxes required to be withheld by federal, state and local law with
respect to any payment in cash, shares of capital stock and/or other property
made by or on behalf of the Company to or for the benefit of the Executive under
this Agreement or otherwise. The Company may, at its option: (i) withhold such
taxes from any cash payments owing from the Company to the Executive, (ii)
require the Executive to pay to the Company in cash such amount as may be
required to satisfy such withholding obligations and/or (iii) make other
satisfactory arrangements with the Executive to satisfy such withholding
obligations.
6.4 No Assignment. Except as otherwise expressly provided in Section
6.1, this Agreement is not assignable by any party and no payment to be made
hereunder shall be subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or other charge.
6.5 Execution in Counterparts. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
6.6 Jurisdiction and Governing Law. Jurisdiction over disputes with
regard to this Agreement shall be exclusively in the courts of the State of
Delaware, and this Agreement shall be construed and interpreted in accordance
with and governed by the laws of the State of Delaware, other than the conflict
of laws provisions of such laws.
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6.7 Severability. If any provision of this Agreement shall be
adjudged by any court of competent jurisdiction to be invalid or unenforceable
for any reason, such judgment shall not affect, impair or invalidate the
remainder of this Agreement.
6.8 Entire Agreement. Except as otherwise provided in Section 3.3,
this Agreement embodies the entire understanding of the parties hereto, and
supersedes all other oral or written agreements or understandings between them
regarding the subject matter hereof. No change, alteration or modification
hereof may be made except in a writing, signed by each of the parties hereto.
The headings in this Agreement are for convenience and reference only and shall
not be construed as part of this Agreement or to limit or otherwise affect the
meaning hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
GRAFTECH INC.
By: _______________________________
Name:
Title:
_______________________________
Xxxx X. Xxxxxx
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