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EXHIBIT 10.26
CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT ("Agreement") is entered into as of
March 31, 1997, by and between Chase Industries Inc., a Delaware corporation
("CBI"), and Xxxxxxx X. Xxxxxxxx ("Executive").
Recitals
A. Executive currently is employed as Vice
President-Manufacturing of Chase Brass & Copper Company, Inc.,
a Delaware corporation and a wholly-owned subsidiary of CBI
("CBCC").
B. Executive and CBI agree that it is desirable that CBI provide
greater employment security to Executive, and, to that end,
the parties hereby enter into this Agreement.
In consideration of the mutual agreements herein set forth and for good
and valuable consideration, receipt of which hereby is acknowledged the parties
agree as follows:
1. Term of Agreement. The term of this Agreement (the "Term")
shall be for the period which commences on the date hereof and which terminates
on December 31, 1999; provided, however, that (A) subject to Section 4.b.
hereof, if, prior to a Change of Control, Executive ceases for any reason to be
an employee of CBCC, thereupon the Term shall be deemed to have expired and this
Agreement shall immediately terminate and be of no further effect and (B)
commencing on December 31, 1999, and each December 31 thereafter, the Term of
this Agreement shall automatically be extended for an additional year unless at
least 30 days prior to any such date CBI or the Executive shall have given
written notice that CBI or the Executive, as the case may be, does not wish to
have the Term of this Agreement extended. Notwithstanding the expiration of the
Term or other termination of this Agreement, (i) if Executive's employment is
terminated prior to the first anniversary of the expiration of the Term or other
termination of this Agreement, the provisions of Section 6 of this Agreement
shall survive and continue to apply to Executive in accordance with the terms of
Section 6, but only until the first anniversary of such expiration of the Term
or other termination of this Agreement, (ii) Sections 7, 10 and 11 of this
Agreement shall survive any expiration or termination of this Agreement, and
(iii) if a Change of Control shall occur prior to the expiration of the Term or
other termination of this
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Agreement, the terms of this Agreement shall survive to the extent necessary to
enable Executive to enforce his rights under Section 4 of this Agreement.
2. Change of Employment to Affiliate. If, prior to a Change of
Control, Executive shall resign from his employment with CBCC but, upon such
resignation, shall become or remain an employee of CBI or any Subsidiary (other
than CBCC) or CBCC is party to a transaction that does not constitute a Change
of Control but in which CBCC is not a surviving corporation and Executive
becomes employed by the surviving entity then (i) such resignation or change in
employer shall not constitute a termination of Executive's employment for
purposes of this Agreement and (ii) thereafter, all references to CBCC contained
in this Agreement shall be deemed to refer to the entity by which Executive is
then employed.
3. Definitions. For purposes of this Agreement, the following
definitions apply:
a. Acquiring Person: shall mean any Person other than (a)
Executive or any Affiliate of Executive, (b) CBI or any Subsidiary, any employee
benefit plan of CBI or any Subsidiary or of a corporation owned directly or
indirectly by the stockholders of CBI in substantially the same proportions as
their ownership of stock of CBI, or any trustee or other fiduciary holding
securities under an employee benefit plan of CBI or any Subsidiary or of a
corporation owned directly or indirectly by the stockholders of CBI in
substantially the same proportions as their ownership of stock of CBI, or (c)
Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), or any Affiliate
of CVC that is directly controlled by Citicorp or Citibank, N.A., or otherwise
is in the same tier as CVC of Affiliates under the control of such entities
("Direct Affiliates"), but shall not include any entities that may be deemed an
Affiliate of CVC as a result of the investment by any Direct Affiliate in such
entity.
b. Affiliate: shall mean, with respect to any Person, any
other Person that directly or indirectly controls, is controlled by, or is under
common control with the Person in question. As used in this definition of
"Affiliate," the term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through ownership of Voting Securities, by contract, or
otherwise.
c. Cause: shall mean
(i) the continued failure by Executive to
substantially perform his duties as an employee of CBCC or any other
Subsidiary (other than any such failure resulting from Executive's
incapacity due to physical or mental illness) after written demand for
substantial performance is delivered by CBI
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specifically identifying the manner in which CBI believes Executive has
not substantially performed his duties;
(ii) dishonesty by Executive of a material nature
that relates to the performance of Executive's duties as an employee of
CBCC or any other Subsidiary or the commission by Executive of an act
of fraud upon, or willful misconduct toward, CBI or any Subsidiary, as
reasonably determined by the Board of Directors of CBI after a hearing
following ten days' notice to Executive of such hearing;
(iii) criminal conduct by Executive (other than minor
infractions and traffic violations) or the conviction of Executive, by
a court of competent jurisdiction, of any felony (or plea of nolo
contendere thereto);
(iv) a material violation by Executive of his duty of
loyalty to CBI or any Subsidiary which results or may reasonably be
expected to result in material injury to CBI or any Subsidiary;
(v) the failure of Executive to cease any conduct
determined by the Chief Executive Officer of CBI to be detrimental to
the well-being or morale, or otherwise not in the best interest, of CBI
or any Subsidiary after written demand directing Executive to cease
such conduct is delivered by CBI specifically identifying such conduct
and demanding cessation thereof;
(vi) the use by Executive of alcohol which renders
Executive unable to perform the essential functions of his position as
an employee of CBCC or the use by Executive of illegal or controlled
drugs or other substances; or
(vii) a violation by Executive of Executive's
covenants and obligations under Section 6 or Section 7 of this
Agreement which is willful on Executive's part and which is not
remedied to the reasonable satisfaction of CBI in a reasonable period
of time after receipt of written notice from CBI.
Any termination of Executive's employment by CBCC for Cause shall be
communicated to Executive in a written notice of termination which shall set
forth in reasonable detail the facts and circumstances, if any, claimed to
provide a basis for such termination.
d. Change in Control: shall be deemed to have occurred if:
(i) 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 CBI
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representing fifty percent or more of the combined voting power of the
then outstanding Voting Securities of CBI; or
(ii) 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 CBI, and the Board of Directors of CBI
approves or fails to oppose that tender or exchange offer in its
statements in Schedule 14D-9 under the Exchange Act, provided, that,
within one year after the occurrence of such event, an event described
in clauses (i), (iii) or (iv) hereof shall have occurred (in which case
a Change of Control shall be deemed to have occurred on the date of the
occurrence of the event described above in this clause (ii));
(iii) the stockholders of CBI approve a merger or
consolidation of CBI with any other Person (or, if no such approval is
required, the consummation of such a merger or consolidation of CBI),
other than a merger or consolidation that would result in the Voting
Securities of CBI outstanding immediately prior to the consummation
thereof continuing to represent (either by remaining outstanding or by
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;
(iv) the stockholders of CBI or CBCC approve a plan
of complete liquidation of CBI or CBCC, respectively, or an agreement
for the sale or disposition by CBI or CBCC of all or substantially all
of CBI's or CBCC'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 CBI's
or CBCC's assets in one transaction or a series of related transactions
to a Subsidiary or any other Person owned directly or indirectly by the
stockholders of CBI in substantially the same proportions as their
ownership of stock of CBI; or
(v) CBI ceases to be the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of CBCC representing at least a majority of the combined
voting power of the then outstanding Voting Securities of CBCC other
than pursuant to a transaction in which, immediately after the
consummation of such transaction, all of the outstanding Voting
Securities of CBCC or any Person into which CBCC is merged or otherwise
consolidated which are not owned by CBI or any Subsidiary of CBI are
owned, directly or indirectly, by the stockholders of CBI in
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substantially the same proportions as their ownership of stock of CBI
immediately prior to such transaction.
e. Convertible Voting Securities: shall mean any and all
options, warrants or other rights to purchase, or securities convertible into or
exchangeable or exercisable for, directly or indirectly, Voting Securities of
any Person.
f. Good Reason: a resignation for Good Reason shall mean the
resignation by Executive from employment by CBCC after (i) a material reduction
or material adverse alteration in the nature of Executive's position,
responsibilities or authorities which Executive held immediately prior to the
Change of Control, (ii) any material reduction of Executive's compensation or
benefits to which Executive was entitled immediately prior to the Change of
Control, (iii) the relocation of Executive's principal place of employment to a
location which is 60 miles or more from Executive's principal residence
immediately prior to the Change of Control (provided such relocation shall not
constitute Good Reason unless such relocation also results in Executive's
principal place of employment being at least five miles further away from
Executive's principal residence immediately prior to the Change of Control) (iv)
any other material adverse change to the terms and conditions of Executive's
employment or benefits as in effect immediately prior to the Change of Control,
or (v) the liquidation, dissolution, merger, consolidation or reorganization of
CBI or transfer of all or substantially all of its assets in a transaction that
constitutes a Change of Control, unless the successor (by liquidation, merger,
consolidation, reorganization or otherwise) to which all or a substantially all
of its assets have been transferred (directly or by operation of law) shall have
assumed all duties and obligations of CBI under this Agreement pursuant to
Section 8.b. hereof; provided, that, (A) if Executive shall consent in writing
to any event described in clauses (i) through (iv) of this paragraph,
Executive's subsequent resignation shall not be treated as a resignation for
Good Reason unless a subsequent event described in such clauses to which
Executive did not consent occurs and (B) any changes in Executive's
discretionary bonus as from time to time determined by the Board of Directors of
CBI shall not constitute Good Reason for resignation. Notwithstanding the
foregoing, Executive shall be entitled to resign for Good Reason only if any
occurrence referred to in clauses (i), (ii), (iii), (iv) or (v) of this Section
3.f. is not remedied within 10 calendar days after receipt by CBI of written
notice from Executive setting forth in reasonable detail the facts and
circumstances giving rise to such Good Reason.
g. Person: shall mean any individual, group, partnership,
corporation, association, trust, or other entity or organization.
h. Retirement: shall mean a termination of Executive's
employment other than for Cause on or after Executive's attainment of age 65 (or
such other age as mutually agreed upon by Executive and CBI).
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i. Subsidiary: shall mean any corporation or other entity of
which a majority of the combined voting power of the outstanding Voting
Securities is owned, directly or indirectly, by CBI.
j. Permanent Disability: shall mean any physical or mental
disability which shall have rendered Executive unable to perform his duties as
an employee of CBCC with or without reasonable accommodation for 120 consecutive
days, or which, in the opinion of a licensed physician reasonably satisfactory
to CBI, is likely to render Executive unable to perform his duties as an
employee of CBCC for such period with or without reasonable accommodation;
provided, however, that during any period of Executive's disability CBI or any
Subsidiary may assign Executive's duties to any other employee of CBI or such
Subsidiary or may engage or hire a third party to perform such duties and any
such action shall not be deemed "Good Reason" for Executive to terminate his
employment.
k. Voting Securities: shall mean (i) any securities or
interests 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 CBI, all shares of CBI'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 CBI).
4. Severance Benefit.
a. Benefits. If a Change of Control occurs prior to the
expiration of the Term or other termination of this Agreement and, within twelve
months after the date of the occurrence of such Change of Control, either (a)
Executive's employment with CBCC is terminated by CBCC other than (1) for Cause
or (2) on account of Executive's death, Permanent Disability or Retirement, or
(b) Executive resigns from CBCC for Good Reason (based on events occurring after
the Change of Control), then CBI shall:
(i) pay to Executive, in a single lump sum which shall be paid
within 30 days after the termination of employment or resignation, a
severance payment in an amount equal to the sum of (A) the greater of
(1) Executive's annual salary in effect immediately prior to the Change
of Control and (2) Executives annual salary in effect at the time of
termination or, if Executive resigns (or an event, which is not waived
or consented to by Executive, occurs giving Executive the right to
resign) his employment for Good Reason, immediately prior to the
occurrence of the event giving rise to Good Reason, plus (B) the bonus,
if any, paid or awarded to Executive for the most recent calendar year
ended prior to the date of the Change of Control or, if bonuses for
such calendar year have not been determined for such calendar year as
of the date of the Change of Control, the prior calendar year;
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(ii) maintain in full force and effect, for the continued
benefit of Executive (and, if applicable, Executive's spouse and
dependent children) for a one-year period beginning upon the date of
termination or resignation, all medical and dental insurance coverages
as in effect and in which such Persons were participating immediately
prior to the date of termination or resignation, provided that the
continued participation of such Persons is possible under the general
terms and provisions of such plans and arrangements; if the
participation of any of such Persons in any such plan or arrangement is
barred, CBI shall arrange to provide such Persons with insurance
coverage substantially similar to those which such Persons would
otherwise have been entitled to receive under such plans and
arrangements from which such Persons' continued participation is
barred; provided, however, that in either case, to the extent
applicable, Executive pays to CBI an amount equal to the premiums, or
portion thereof, that Executive was required to pay to maintain such
insurance coverage for such Persons prior to the date of termination or
resignation; and provided, further, that any insurance coverage
provided pursuant hereto shall be limited and reduced to the extent
such coverage otherwise is provided by (or available from or under), at
no direct out-of-pocket cost to the recipient, any other employer of
Executive or Executive's spouse or minor children, or Social Security,
medicare, medicaid or any similar or substitute plans available to such
Persons.
b. Termination in Anticipation of Change of Control. For purposes of
this Section 4, if Executive's employment is terminated prior to a Change of
Control and Executive reasonably demonstrates that such termination (i) was at
the request of a Person who has indicated an intention or taken steps reasonably
calculated to effect a Change of Control and who effectuates a Change of Control
or (ii) otherwise occurred in connection with, or in anticipation of, a Change
of Control which actually occurs, then for all purposes hereof, a Change of
Control shall be deemed to have occurred and the date of a Change of Control
with respect to the employment shall mean the date immediately prior to the
termination date.
c. Employment by Buyer. Notwithstanding the foregoing provisions of
this Section 4, if (i) there shall be a sale or disposition of all or
substantially all the assets of CBCC or a merger, consolidation or
reorganization to which CBCC is a party and is not a surviving corporation, (ii)
such transaction constitutes a Change of Control and (iii) Executive is offered
employment (at substantially the same level of Executive's authority,
responsibility, compensation and benefits with CBCC before such sale) with the
purchaser or corporation into which CBCC is merged or consolidated, as
applicable, or any of its Affiliates ("Buyer") upon consummation of such sale or
disposition, then Executive shall not be entitled to the severance compensation
as provided in Section 4.a. as a result of such transaction. In any such event,
however, Executive shall be entitled to such severance compensation as provided
in Section 4.a. if, within twelve
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months after the date of such transaction, either (1) Executive's employment
with the Buyer shall be terminated by the Buyer other than (A) for Cause or (B)
on account of Executive's death, Permanent Disability or Retirement, or (2)
Executive shall resign from the Buyer for Good Reason. For purposes of this
paragraph, the time of a termination of employment or resignation, the
definitions of "Permanent Disability," "Retirement," resignation for "Good
Reason" and termination for "Cause," and the provisions of Sections 6 and 7
shall be construed with reference to the Buyer instead of with reference to CBCC
and/or CBI, as applicable.
5. No Reductions or Mitigation. The severance compensation to be
provided pursuant to Section 4 of this Agreement shall be paid and provided
without reduction, other than as expressly provided for therein, regardless of
any amounts of salary, compensation or other amounts which may be paid or
payable to Executive from any source or which Executive could have obtained upon
seeking other employment; provided that CBI shall be permitted to make all such
payments net of any legally required tax withholdings.
6. Non-Competition.
a. Covenant. Executive agrees that he will not, during or for a period
of one year following the termination of his employment with CBCC, (i) employ
any Person who was a salaried employee of or a consultant to CBI or any
Subsidiary during the six month period preceding such termination or induce,
request, advise, attempt to influence, or solicit, directly or indirectly, any
Person who was a salaried employee of or consultant to CBI or any Subsidiary
during the six month period preceding such termination to terminate his or her
employment or consulting arrangement with CBI or any Subsidiary, (ii) be
employed by, associated with or have any interest in, directly or indirectly
(whether as principal, director, officer, employee, consultant, partner,
stockholder, trustee, manager or otherwise), any company that engages in the
manufacture, distribution, licensing, sale, or marketing of copper alloy rod or
any other products manufactured, distributed, licensed, sold, or marketed by
CBCC during the Term (collectively, "Products"), or any company which otherwise
is directly competitive with CBCC or any subsidiary of CBCC, in any geographical
area in which CBCC or such subsidiary of CBCC engages in business at the time of
such termination or in which CBCC or any subsidiary of CBCC, prior to
termination of Executive's employment, evidenced in writing, at any time during
the six month period prior to such termination, its intention to engage in such
business (any such company, a "Competing Business"), (iii) induce, request,
advise, attempt to influence, or solicit, directly or indirectly, any Person to
purchase Products from any Person other than CBCC if CBCC provides, or
negotiated to provide, Products to that Person during the Term (any such Person
or Business Enterprise, a "Customer"), or (iv) induce, request, advise, attempt
to influence, or solicit, directly or indirectly, any Customer with whom
Executive had personal contact in connection with performing his duties as an
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employee of CBCC to purchase Products from any Person other than CBCC; provided,
however, that the provisions of this Section 6 shall not apply in the event (i)
Executive's employment is terminated by CBCC other than (A) for "Cause" or (B)
on account of Executive's Permanent Disability or Retirement or (ii) Executive
terminates his employment for Good Reason. Notwithstanding the foregoing,
Executive shall not be prohibited from owning one percent or less of the
outstanding equity securities of any Competing Business whose equity securities
are listed on a national or regional securities exchange or publicly traded in
any over-the-counter market.
b. Tolling of Non-Competition Term. If, during any calendar month after
the termination of Executive's employment by CBCC in which the provisions of
Section 6.a. are applicable, Executive is not in compliance with the terms of
Section 6.a., CBI shall be entitled to, among other remedies, compliance by
Executive with the terms of Section 6.a. for an additional number of calendar
months that equals the number of calendar months during which such noncompliance
occurred.
c. Reasonableness of Restrictions. Executive acknowledges that the
geographic boundaries, scope of prohibited activities, and time duration of the
provisions of Section 6.a. are reasonable and are no broader than are necessary
to maintain and to protect the legitimate business interests of CBI and its
Subsidiaries.
d. Separate Covenants. The parties hereto intend that the covenants
contained in each of subsections 6.a.(i), (ii), (iii) and (iv) of this Agreement
be construed as a series of separate covenants, one for each county or other
defined province or governmental subdivision in each geographic area in which
CBCC or any subsidiary of CBCC conducts its business or otherwise manufactures,
distributes, licenses, sells, or markets Products. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
applicable covenant contained in subsections 6.a.(i), (ii), (iii) and (iv)
hereof. Furthermore, each of the covenants in subsections 6.a.(i), (ii), (iii)
and (iv) hereof shall be deemed a separate and independent covenant, each being
enforceable irrespective of the enforceability (with or without reformation) of
the other covenants contained in subsections 6.a.(i), (ii), (iii) and (iv)
hereof.
7. Non-Disclosure. Executive shall not, directly or indirectly,
at any time during or for a two year period following termination of his
employment with CBCC, reveal, divulge or make known to any Person or entity, or
use for Executive's personal benefit (including without limitation for the
purpose of soliciting business, whether or not competitive with any business of
CBI or any Subsidiary), any information acquired by Executive during the course
of employment by CBCC with regard to the financial, business or other affairs of
CBI or any Subsidiary (including without limitation any list or record of
Persons or entities with which CBI or any Subsidiary has any dealings), other
than (i) information already in the public domain, (ii) information of a type
not considered confidential by Persons engaged in the same business or a
business similar
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to that conducted by CBI or any Subsidiary, (iii) information that Executive is
required to disclose under the following circumstances: (A) at the express
direction of any authorized governmental authority; (B) pursuant to a subpoena
or other court process; (C) as otherwise required by law or the rules,
regulations, or orders of any applicable regulatory body; or (D) as otherwise
necessary, in the opinion of counsel for Executive, to be disclosed by Executive
in connection with any legal action or proceeding involving Executive and CBI or
any Subsidiary in his capacity as an employee, officer, director, or stockholder
of CBI or any Subsidiary, or (iv) during the period of his employment by CBCC,
Executive may disclose such confidential information to another employee of CBI
or any Subsidiary or to representatives or agents of CBI or any Subsidiary (such
as independent accountants and legal counsel) when such disclosure is reasonably
necessary or appropriate in connection with the performance by Executive of his
duties on behalf of CBI or any Subsidiary. Executive shall, at any time
requested by CBI (either during or within two years after the termination of
Executive's employment with CBCC), promptly deliver to CBI all memoranda, notes,
reports, lists and other documents (and all copies thereof) relating to the
business of CBI or any Subsidiary which Executive may then possess or have under
his control.
8. Binding Effect; Assignment.
a. General. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and Executive's heirs and legal representatives
and CBI's successors and assigns. This Agreement is assignable by CBI to any
Person which acquires, directly or indirectly, by merger, consolidation,
purchase or otherwise, all or substantially all of the assets of CBI or CBCC or
a majority of the outstanding Voting Securities of CBCC. Upon any such
assignment, and the assumption by the assignee of all obligations hereunder, CBI
shall be released from all liability hereunder. This Agreement shall not be
assignable by Executive.
b. Assumption by Successor. CBI shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business and/or assets of CBI to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent CBI or CBCC, as applicable, would be required to perform if no
such succession had taken place.
9. Nonalienation of Benefits. Benefits payable under this
Agreement shall not be subject in any manner to alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind (collectively "Alienate"), either voluntary or involuntary, prior to
actually being received by Executive, other than by a transfer by the
Executive's will or by the laws of descent and distribution; and any attempt to
alienate, sell, transfer, assign, pledge, encumber, charge, garnish, execute on,
levy or otherwise dispose of any right to benefits payable hereunder contrary to
this Section 9 shall be void ab initio and of no force or effect and
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CBI shall have no obligation or liability to pay any amounts so attempted to be
Alienated.
10. Severability. In the event that any provision of this
Agreement (including without limitation any provisions relating to the
activities or areas covered by, or time period of, the covenants provided for in
subsections 6.a.(i), (ii), (iii) and (iv) hereof) or the application thereof to
any Person or circumstance, is held by a court of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect under present or future laws
effective during the effective term of any such provision, such invalid, illegal
or unenforceable provision shall be fully severable; and this Agreement shall
then be construed and enforced as if such invalid, illegal, or unenforceable
provision had not been contained in this Agreement; and the remaining provisions
of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
from this Agreement. Furthermore, in lieu of each such illegal, invalid, or
unenforceable provision, there shall be added automatically as part of this
Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable
and, subject to the following sentence, the parties hereby request the court or
any arbitrator to whom disputes relating to this Agreement are submitted to
reform any otherwise unenforceable covenants contained in Sections 6 and/or 7
hereof in accordance with the preceding provision. Notwithstanding the above, in
the event any such invalidity, illegality or unenforceability of any portion of
Section 6 hereof (including without limitation any provisions relating to the
activities or areas covered by, or time period of, the covenants provided for in
subsections 6.a.(i), (ii), (iii) and (iv) hereof), is caused by such provision
being held to be excessively broad as to time, duration, geographical scope,
activity or subject, then such provision shall, at the option of CBI, remain a
part of this Agreement and shall be construed by limiting and reducing it so as
to be enforceable to the extent compatible with the then applicable law and
shall be enforced so as to permit CBI or any Subsidiary to recover damages for
any prior violation of such provision as so limited and reduced, to the extent
permitted under applicable law.
11. Specific Enforcement. Executive acknowledges that the
covenants of Executive contained in Sections 6 and 7 of this Agreement are
special and unique, that a breach by Executive of any term or provision of
either of Sections 6 or 7 hereof may cause irreparable injury to CBI and/or a
Subsidiary, and that remedies at law for the breach of any terms or provisions
of Sections 6 or 7 hereof may be inadequate. Accordingly, in addition to any
other remedies it may have in the event of breach, CBI shall be entitled to
enforce specific performance of the terms and provisions of Sections 6 or 7
hereof, to obtain temporary and permanent injunctive relief to prevent the
continued breach of such terms and provisions without the necessity of posting
bond or of proving actual damage, and to obtain attorneys fees in respect of the
foregoing if CBI prevails in such action or proceeding. For purposes of this
Section 11 and Sections
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6 and 7 hereof, CBI, CBCC and each subsidiary of CBCC shall be deemed a third
party beneficiary entitled to the benefits of such Sections and shall be
entitled to enforce Sections 6 and 7 of this Agreement in accordance with this
Section 11 notwithstanding any assignment by CBI of its rights and obligations
under this Agreement.
12. Entire Agreement; Amendment; Waiver. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior or contemporaneous oral or written
negotiations, understandings and agreements between the parties hereto. This
Agreement shall not be altered, amended or modified except by written instrument
executed by CBI and Executive. A waiver of any term, covenant, agreement or
condition contained in this Agreement shall not be deemed a waiver of any other
term, covenant, agreement or condition, and any waiver of any default in any
such term, covenant, agreement or condition shall not be deemed a waiver of any
later default thereof or of any other term, covenant, agreement or condition.
13. Legal Fees and Expenses. The prevailing party in any dispute or
controversy under or in connection with this Agreement shall be entitled to
reimbursement from the non-prevailing party for all costs and reasonable legal
fees incurred by such prevailing party.
14. Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the State of Ohio,
without regard to its choice of law principles.
15. Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by either party to the
other party pursuant to this Agreement will be in writing and will be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery or overnight courier, telegram or
facsimile transmission addressed as follows:
(a) If to CBI: c/o Chase Brass & Copper Company, Inc.
00000 Xxxxxx Xxxx X-00
Xxxxxxxxxx, Xxxx 00000
Telecopy No.: 419/485-8150
Attention: Corporate Secretary
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with a copy (which will
not constitute notice) to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(b) If to Executive: 00000 Xxxxxx Xxxx X-00
Xxxxxxxxxx, Xxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
CHASE INDUSTRIES INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx, President
EXECUTIVE: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
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