SEPARATION AGREEMENT AND RELEASE
Exhibit 10(y)
THIS SEPARATION AGREEMENT AND RELEASE is entered into at Cleveland, Ohio this 21st day of December, 2001, by and
among OGLEBAY NORTON MANAGEMENT COMPANY (the “Management Company”), an Ohio corporation, OGLEBAY NORTON COMPANY (“ONCO”), an Ohio corporation, Oglebay Norton Industrial Sands, Inc. (“ONIS”), a California corporation,
and Xxxxxxx X. Xxxx (“Employee”).
RECITALS:
A. Management Company is a wholly owned subsidiary of ONCO formed for the sole purpose of acting as the employer of
management personnel for ONCO. ONIS is a wholly owned subsidiary of ONCO. Collectively, ONCO, Management Company and ONIS are hereafter referred to as the “Company.”
B. The Company, and in particular, ONIS, is engaged in pertinent part in the mining of industrial sands and the
processing, sales, and marketing of industrial sand fillers, abrasives and proppants for use in building materials, ceramics and glass, and the oil field within the United States (the “Business”).
C. Employee has been employed in a key management position by the Company in the Business since 1997.
D. The Company is in the process of reorganizing its operations, including the Business, and, as a result,
Employee’s position is being eliminated and the Company desires to make special severance provisions for the benefit of Employee.
NOW, THEREFORE, in consideration of mutual promises and agreements contained herein and intending to be legally bound
hereby, the parties agree as follows:
| 1. Employment. The Company hereby agrees to continue to
employ Employee until March 31, 2002, (the “Separation Date”) upon the terms and conditions set forth herein. Employee shall resign as an officer of ONCO and each affiliate thereof for which he currently serves as an officer effective
December 31, 2001.
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| 2. Services. From the date hereof until the Separation
Date, Employee shall assist the Company in special projects and the orderly transition of management of ONIS as requested by the President or Chairman of ONCO. Employee shall not obligate the Company without the prior approval of the Chairman or
President of the ONCO. Employee shall perform his services in accordance with such rules, policies and procedures as the Company may adopt from time to time.
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| 3. Compensation.
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| 3.1 Separation Payment. Provided Employee does
not breach this Agreement, the Company shall pay to Employee, or in the event Employee dies prior to the fulfillment of Company’s obligations hereunder to Employee’s spouse, or in the event Employee’s spouse is deceased, to
Employee’s estate, Separation Pay of $304,150.87, payable in 45 consecutive, equal, biweekly installments of $6,655.38 each and one installment of $4,658.77. In the event of a breach of this Agreement by Employee, Company’s obligations
hereunder shall immediately cease.
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| 3.2 Certain Basic Fringe Benefits. The Company
shall provide to Employee the following extra benefits:
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| a. continuation of the Company provided variable life insurance
policy paid for by the Company through the policy year ending in 2004 in the same manner as that payment is currently made to Employee;
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| b. health and welfare benefits, that are provided to its key
employees and on the same terms and conditions, as may be applicable to such employees through December 31, 2003 (in the event
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| Employee dies prior to the fulfillment of Company’s obligations hereunder, Employee’s spouse and family shall
continue to receive such benefits); Company and Employee agree that COBRA coverage commences on April 1, 2002 and shall not be extended by anything contained herein;
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| c. Employee shall be entitled to receive all retirement benefits
to which he is entitled pursuant to his current employment on the terms and pursuant to the provisions of such benefit plans and elections Employee has made or will make upon separation, including without limitation, benefits under the Oglebay
Norton Company Salaried Pension Plan and related SERP, the Oglebay Norton Company Incentive Savings Plan and related SERP, and the Oglebay Norton Capital Accumulation Plan; and
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| d. On the Separation Date, Company shall pay Employee a one-time,
lump sum payment of $30,000 in lieu of paying for Employee’s relocation back to Cleveland, Ohio.
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| 3.3 Incentive Compensation. Employee shall
continue to be entitled to participate in the Company’s Annual Incentive Plan for the year 2001; however, shall not be entitled to participate in such plan or receive an incentive bonus from the Company for any time thereafter. Pursuant to such
Annual Incentive Plan, Employee may receive a bonus for 2001, if, and only if, the performance objectives and other criteria set forth in the program are met by the Company. Employee shall also be entitled to continue to be a participant in the
Oglebay Norton Company 1999 Long-Term Incentive Plan (the “LTIP”) for the purpose of the cash incentive payment to the extent he would have been entitled to a cash payment under the LTIP had he not entered into this Agreement and instead
had remained employed in his capacity as an officer of the Company until December 31, 2002. Stock options issued to Employee pursuant to the 1999 LTIP, which are not vested as of the date hereof shall be vested effective on the Separation Date and
shall be fully exercisable for a period of three (3) years thereafter. In the event of Employee’s death prior to payment of any compensation due hereunder, then Company shall make such payment to Employee’s spouse, or in the event of her
death prior to such payment, Employee’s estate.
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| 3.4 Confirmation of Right to Be Indemnified. In
the event Employee is entitled to indemnification under Article Seventh, paragraph (d)(1), then the Company hereby agrees to pay his reasonable costs of defense, to the extent permitted by law and ONCO’s Articles of Incorporation.
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| 4. Change of Control Agreement. The change of control
Employment Agreement entered into between the Company and Employee on or about May 25, 2000, (the “Change of Control Agreement”) shall be, and hereby is, terminated effective immediately. In the Event of a Change of Control, as that term
is defined in the Change of Control Agreement, then all cash compensation due and payable pursuant to Sections 3.1 and 3.3 hereunder, which has not been paid to Employee or his spouse or estate, shall become immediately due and payable and all
obligations for the payment of benefits described herein shall continue to be obligations of the Company or its successor in interest.
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| 5. Trade Secrets Covenant.
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| 5.1 Employee acknowledges that during the course of
his employment by the Company he has been and he may be in contact with customers, employees, and others having dealings with the Company and will have access to trade secrets and other confidential information with regard to the business,
operations, accounts, books and records, sales, customers, pricing and other activities of the Company (“Trade Secrets”). Employee recognizes and agrees that the disclosure of such Trade Secrets to parties other than the Company or the
improper use thereof will cause serious and irreparable injury to the Company. Accordingly, Employee shall, at all times, keep secret and inviolate all Trade Secrets, which he now knows or may hereafter come to know. In addition, Employee shall at
no time copy, remove from the premises of the Company or retain, without the prior consent of the Company, any Trade Secrets, including, but not limited to, unpublished records, agreements, books of account, corporate documents, work papers,
correspondence, customer lists, memoranda, computer software or documentation in connection therewith, plans, drawings or copies or extracts from any of the foregoing, except as may be required in carrying out his duties hereunder. Upon the
termination of Employee’ employment, Employee shall promptly return to the Company all documents pertaining to Trade Secrets in his possession or under his control.
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| 6. Non-Competition Covenant. Employee agrees that for a
period of 18 months commencing on the Separation Date, he will not engage in the Business or, own, manage, operate, control, or participate in, or have any ownership interest in, or make loans to, or act as a guarantor, surety, or indemnitor for, or
aid or advise as an employee, director, officer, consultant or otherwise, whether directly or indirectly, any enterprise (whether a sole proprietorship, partnership, corporation, firm, joint venture, trust or other entity) which is engaged in the
Business, without first obtaining the written consent of the President of the ONCO. This provision shall not prohibit Employee form owning less than 5% of any publicly traded shares of a company in the Business.
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| 7. Breach of Trade Secret and/or Non-Competition
Covenants.
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| 7.1 Employee agrees that the remedy at law for any
breach by him of the foregoing provisions of Sections 5 and 6 will be inadequate, and the Company shall be entitled to both temporary and permanent injunctive relief (without notice or bond) enforcing such provisions, in addition to any other remedy
it may have at law or in equity.
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| 7.2 The covenants of Employee contained in Section 5
and 6 are separate and independent of any other provisions hereof and shall survive the termination of this Agreement.
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| 7.3 Employee has carefully considered the nature and
extent of the restrictions upon him and the rights and remedies conferred upon the Company, and he hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition which otherwise would be
unfair to the Company, are fully required to protect the legitimate interest of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Employee.
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| 8. Release.
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| 8.1 In consideration of the foregoing, Employee agrees
not to initiate or maintain any charges, complaints, claims, legal actions or grievances arising out of or in conjunction with his previous employment with or separation from the Company, including claims for severance pay, or relating to any events
occurring prior to the signing of this Agreement. Nothing contained herein shall be construed to limit Employee’ rights pursuant to 29 USC Section 626(f)(4) and the exercise of such rights shall have no force and effect on any other provision
set forth in this Agreement. In further consideration of the foregoing, Employee agrees to release and forever discharge the Company and any of its past, present or future affiliated companies, subsidiaries, divisions, and any and all of the
Company’s past, present and future officers, agents, directors, representatives, employees, shareholders and, as applicable, their successors, assigns, heirs and executors from any and all claims, including, but not limited to, employment,
re-employment, demands, liability, obligations, damages, rights, costs, losses, debts and expenses (including but not limited to attorneys’ fees), causes of actions, or lawsuits based upon, related to, or arising out of his employment with and
separation from the Company, all, and only, with respect to any events, whether known or unknown or suspect or unsuspected, occurring prior to the signing of this Agreement. This Agreement not to xxx includes, but is not limited to:
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| claims, actions, causes of action or liabilities arising under Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act, as amended; Employee Retirement Income Security Act of 1974, as amended; the Older Workers Benefits Protection Act, as amended; 42 U.S.C. Section 1981, as amended; the Civil Rights Act of 1991, as amended; the
Worker Adjustment and Retraining Notification Act, as amended; the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act, as amended; the Family and Medical Leave Act, as amended; any state anti-discrimination, civil rights or
human rights laws, any other federal, state or municipal employment discrimination statutes and decisional law including, but not limited to, claims based on age, sex, attainment of benefit plan rights, race, religion, national origin, marital
status, sexual orientation, ancestry, harassment, parental status, handicap, disability, retaliation, and veteran status, as well as claims for breach of contract, employee benefits, implied contract, promissory estoppel, defamation, tort claims,
and any common law claims recognized now or later, including violations of public policy.
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| 9. Confidentiality. Employee further agrees that he will
not divulge the terms of this Agreement to any person or entity whatsoever at any time, except to his spouse, attorney and/or financial advisors, unless required to do so by law.
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| 10. Acknowledgement. Employee acknowledges that he has been
given a period of at least twenty-one (21) days within which to consider this Agreement prior to the execution of it and that he has reviewed its terms and considered its effect, including the foregoing release of claims. Employee also acknowledges
that he has been advised in writing to consult with an attorney prior to executing it. Employee understands that for a period of seven (7) days following the execution of this Agreement, he may revoke it, and that this Agreement shall not become
effective or enforceable until the revocation period of seven (7) days has expired. Employee understands that in order to revoke this Agreement within this seven (7) day time period he must provide written notice of that intention to Xxxx X. Xxxxx,
Chairman and Chief Executive Officer of the Company so that Xx. Xxxxx may actually and personally receive notice of the revocation.
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| 11. No Admission. It is agreed that the execution and/or
implementation of this Agreement does not in any way constitute or represent an admission of any kind by the Company and/or by Employee.
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| 12. Severability. The invalidity or unenforceability of any
portion of this Agreement shall not impair or affect the validity or enforceability of any other portion of this Agreement, which shall remain in full force and effect.
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| 13. Assignment. Employee shall not assign, transfer, pledge
or encumber this Agreement or any rights or obligations hereunder. The Company may assign or transfer this Agreement to successor Company in the event of merger, consolidation, or transfer or sale of all or substantially all of the assets of the
Company; provided, however, that in the case of any such assignment or transfer, this Agreement shall be binding upon and inure to the benefit of such transferee, which shall assume and perform all of the obligations of the Company hereunder;
provided further, however, that the Company shall not be released of its obligations hereunder until fully discharged to Employee as a result of an assignment or transfer of this Agreement to the extent such obligations are not fulfilled by the
assignee or transferee.
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| 14. Waiver. A waiver by either party of a breach of any
provisions of this Agreement shall not operate or be construed to be a waiver of any subsequent breach.
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| 15. Miscellaneous. This Agreement (a) shall be governed by
and interpreted in accordance with the laws of the State of Ohio, (b) shall not be modified except in writing signed by the parties, (c) constitutes the entire understandings and agreements (both oral and written), and (d) shall be binding upon and
inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and permitted assigns.
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| 16. Headings. The paragraph headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
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READ BEFORE SIGNING
I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS SEPARATION AGREEMENT AND RELEASE. THIS RELEASE
INCLUDES CLAIMS OR RIGHTS AND ALLEGED CLAIMS OR RIGHTS RELATING TO FEDERAL, STATE OR LOCAL LAWS PROHIBITING, EMPLOYMENT DISCRIMINATION, WHETHER BASED ON AGE, SEX, RACE, COLOR NATIONAL ORIGIN, RELIGION, HANDICAP OR MARITAL, PARENTAL OR VETERAN STATUS
OR CLAIMS GROWING OUT OF ANY LEGAL RESTRICTIONS ON THE COMPANY’S RIGHT TO TERMINATE ITS EMPLOYEES. I HAVE NOT RELIED UPON ANY OTHER REPRESENTATION OR STATEMENT WRITTEN OR ORAL. I HAVE HAD TIME TO CONSULT WITH AN ATTORNEY OR MY CHOICE PRIOR TO
EXECUTING THIS SEPARATION AGREEMENT AND RELEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple counterparts at the place and as of the
date and year first above written.
OGLEBAY NORTON MANAGEMENT COMPANY
OGLEBAY NORTON COMPANY
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
By: /S
/ XXXXXXX
X. XXXXXX
| /S
/ XXXXXXX
X. XXXX
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| Xxxxxxx X. Xxxxxx
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| XXXXXXX X. XXXX “EMPLOYEE”
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| President and Chief Operating Officer
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