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EXHIBIT 10.2
FIRST AMENDMENT
TO THE EMPLOYMENT AGREEMENT BY AND BETWEEN
CHASE BRASS & COPPER COMPANY, INC. AND XXXX X. XXXXXXXX
DATED EFFECTIVE AS OF OCTOBER 12, 1999
THIS FIRST AMENDMENT (the "First Amendment") to the Employment
Agreement by and between Chase Brass & Copper Company, Inc., and Xxxx X.
Xxxxxxxx, dated effective as of October 12, 1999 (the "Employment Agreement"),
is entered into, effective as of February 15, 2001, by and between Chase Brass &
Copper Company, Inc., a Delaware corporation (the "Company"), and Xxxx X.
Xxxxxxxx (the "Executive").
RECITALS
WHEREAS, the Company and the Executive desire to change the date upon
which the Employment Agreement may be automatically renewed;
WHEREAS, the Company and the Executive desire to modify the definition
of "Acquiring Person" contained in Section 9(e)(i) of the Employment Agreement;
and
WHEREAS, any capitalized term used herein, and not otherwise defined
herein, shall have the meaning set forth in the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Section 1 of the Employment Agreement hereby is amended and restated
in its entirety to read as follows:
1. Employment. The Company shall employ Executive as the
Company's President and Chief Operating Officer for the
period commencing on October 12, 2000, and expiring on
December 31, 2001 (the "Term"), unless sooner terminated
as hereinafter set forth, and Executive hereby accepts
such employment, on the terms and conditions set forth
herein, provided, however, that commencing on December 31,
2001, and each anniversary thereafter, the Term of this
Agreement shall be extended for one additional year unless
at least sixty days prior to any such date the Company or
Executive shall have given written notice that it or he,
as applicable, does not wish to extend this Agreement.
Notwithstanding the expiration of the Term or other
termination of this Agreement, (i) if Executive's
employment is terminated prior to the expiration of the
Term or other termination of this Agreement, the
provisions of Section 3 of this Agreement shall survive
and continue to apply to Executive in accordance with the
terms of Section 3, but only until the first anniversary
of the termination of Executive's employment, (ii)
Sections 4, 12 and 13 of this
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Agreement shall survive any expiration or termination of
this Agreement, and (iii) if a Change of Control shall
occur within one year prior to the expiration of the Term
or other termination of this Agreement, the terms of this
Agreement shall survive to the extent necessary to enable
Executive to enforce his rights under Section 8 of this
Agreement.
2. Section 9(e) of the Employment Agreement hereby is amended and
restated in its entirety to read:
(e) Certain Definitions.
(i) Acquiring Person: shall mean any individual,
group, partnership, corporation, association, trust, or other entity or
organization (a "Person") other than (A) Executive or any Executive
Affiliate or (B) CSI, any of CSI's Subsidiaries, any employee benefit
plan of CSI or of a Subsidiary of CSI or of a corporation owned
directly or indirectly by the stockholders of CSI in substantially the
same proportions as their ownership of stock in CSI, or any trustee or
other fiduciary holding securities under an employee benefit plan of
CSI or of a Subsidiary of CSI or of a corporation owned directly or
indirectly by the stockholders of CSI in substantially the same
proportions as their ownership of stock of CSI.
(ii) Change in Control: shall be deemed to have
occurred if:
(1) any Acquiring Person is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), directly or
indirectly, of securities of CSI representing fifty percent or more of
the combined voting power of the then outstanding Voting Securities of
the Company; or
(2) a public announcement is made of a
tender or exchange offer by any Acquiring Person for fifty percent or
more of the outstanding Voting Securities of CSI or the Company, and
the Board of Directors of CSI or the Company, respectively, approves or
fails to oppose that tender or exchange offer in its statements in
Schedule 14D-9 under the Exchange Act; provided, however, that the
benefits payable to Executive under Section 8 hereof shall not be
payable solely as a result of an event described in this clause (2)
unless, within one year after the occurrence of such event, an event
described in clauses (1), (3) or (4) of this Section 9(e)(ii) shall
have occurred, in which case such benefits payable under Section 8
hereof shall be payable within fifteen days after the occurrence of
such event; or
(3) the stockholders of CSI or the Company
approve a merger or consolidation of CSI or the Company, respectively,
with any other corporation or partnership (or, if no such approval is
required, the consummation of such a merger or consolidation of CSI or
the Company), other than a Conversion Transaction. A "Conversion
Transaction" shall mean a merger or consolidation that would result in
the Voting Securities of CSI or the Company, as applicable, outstanding
immediately prior to the consummation thereof continuing to represent
(either by remaining outstanding or by
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being converted into Voting Securities of the surviving entity or of a
parent of the surviving entity) a majority of the combined voting power
of the Voting Securities and Convertible Voting Securities (on a
fully-diluted basis assuming full conversion thereof) of the surviving
entity (or its parent) outstanding immediately after that merger or
consolidation provided that if any Acquiring Person owns less than
fifty percent of the Voting Securities of CSI or the Company, as
applicable, outstanding immediately prior to such merger or
consolidation; and immediately after such merger or consolidation owns
fifty percent or more of the outstanding Voting Securities of the
surviving entity (or its parent) outstanding immediately after that
merger consolidation, then such merger of consolidation shall not be
deemed a "Conversion Transaction"; or
(4) the stockholders of CSI or the Company
approve a plan of complete liquidation of CSI or the Company,
respectively, or an agreement for the sale or disposition by CSI or the
Company of all or substantially all of CSI's or the Company's assets,
respectively, (or, if no such approval is required, the consummation of
such a liquidation, sale, or disposition in one transaction or series
of related transactions) other than a liquidation, sale or disposition
of all or substantially all of CSI or the Company's assets in one
transaction or a series of related transactions to a Subsidiary of CSI
or any other corporation owned directly or indirectly by the
stockholders of CSI in substantially the same proportions as their
ownership of stock of CSI;
(5) CSI ceases to be the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing at least a
majority of the combined voting power of the then outstanding Voting
Securities of the Company other than pursuant to a transaction in
which, immediately after the consummation of such transaction, all of
the outstanding Voting Securities of the Company or any corporation or
other entity into which the Company is merged or otherwise consolidated
which are not owned by CSI or any Subsidiary of CSI are owned, directly
or indirectly, by the stockholders of CSI in substantially the same
proportions as their ownership of stock of CSI immediately prior to
such transaction; or
(6) members of the Incumbent Board cease for
any reason to constitute at least a majority of the Board.
(iii) CVC Directors: (A) those members of the Board
who are, or who have served as, employees, officers or directors of
Citicorp Venture Capital Ltd. ("CVC"), Court Square Capital Limited
("CSCL") or any Affiliate of CVC or CSCL at any time such individuals
serve as a member of the Board and (B) any other members of the Board
nominated by (i) such members of the Board described in (A) above, (ii)
CVC, (iii) CSCL, (iv) any Affiliate of CVC or CSCL, or (v) any person
who is part of a group (as determined pursuant to Section 13(d)(2) of
the Exchange Act) of which CVC, CSCL or any Affiliate of CVC or CSCL is
also a part with respect to any Voting Securities of the Company.
(iv) Incumbent Board: individuals who, as of the date
hereof, constitute the Board and any other individual who becomes a
director of the Company after that date and whose election or
appointment by the Board or nomination for election by the Company's
stockholders was approved by a vote
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of at least a majority of the directors then comprising the Incumbent
Board; provided that, for purposes of this Agreement, the Incumbent
Board shall not include the CVC Directors.
(v) Subsidiary: with respect to any Person, any
corporation or other entity of which a majority of the voting power of
the voting equity securities or equity interest is owned, directly or
indirectly, by that Person.
(vi) Voting Securities: (i) any securities that vote
generally in the election of directors, in the admission of general
partners, or in the selection of any other similar governing body and
(ii) with respect to CSI, all shares of CSI's nonvoting common stock,
par value $.01 per share (all of which are convertible into shares of
common stock, par value $.01 per share, of the Company).
3. Except as modified by this First Amendment, the Employment Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date set forth below, to be effective as of the first date written above.
THE COMPANY:
CHASE BRASS & COPPER COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX
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Title: Chairman of the Board
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Date: 3-9-01
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EXECUTIVE:
By: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
Date: 3/29/01
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