Exhibit 10.26
AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 1st day of August, 1996,
between Koppers Industries, Inc., (the "Company"), and Xxxxxx X. Xxxxx of
Pittsburgh, Pennsylvania (the "Employee").
1. Company and Employee agree that Employee's employment as the Vice
President and General Manager, Coke Products of the Company shall be and hereby
is terminated effective August 1, 1996.
2. Company agrees to employ Employee and Employee agrees to be employed
effective August 1, 1996, in the position of Director of Business Development.
Employee's responsibility as the Director of Business Development shall be to
provide consulting and other services as requested by the Chief Executive
Officer in writing. If Employee accepts any employment or engages in any
consulting activities for any person or entity other than the Company, he shall
notify immediately in writing the Chief Executive Officer of the identity of
the person or entity by whom he is engaged and of the nature of the
engagement. Employee shall not be assigned consulting or other services by the
Company which conflict or interfere with his employment or consulting
activities for persons or entities other than the Company. The compensation
and benefits due Employee under this Agreement shall not be reduced as the
result of Employee's engaging in work for any person or entity other than the
Company during the term of this Agreement.
3. This Agreement shall commence on August 1, 1996 and shall continue for a
period of two (2) years, and Employee's employment with the Company shall
terminate effective July 31, 1998.
4. Employee's present base salary of $11,650 per month shall continue
during the term of this Agreement. These salary payments are in lieu of all
severance payments to which the Employee would have been entitled upon
termination.
Employee will be entitled to be reimbursed for ordinary and necessary
business expenses, approved in advance in writing, incurred by Employee in
connection with the performance of his assigned duties.
The Company will provide Employee with benefits equal to those provided
other salaried employees, except that Employee shall not be entitled to payment
for his membership in the Duquesne Club and shall not participate in any Koppers
Bonus or Incentive Plan after December 31, 1996. Employee's Bonus or Incentive
payments shall be paid solely on the basis of the Incentive Letter given to the
Employee dated March 26, 1996.
5. As a material inducement to the Company to enter into this Agreement and
in consideration of the compensation to be paid to Employee under this
Agreement, Employee covenants and agrees that for two (2) years following August
1, 1996, the Employee shall not engage, whether as principal or as agent,
officer, director, employee, consultant, shareholder, or otherwise, in any
business which competes directly with the tar and coke businesses of the Company
or its subsidiaries. Employee further agrees that during the two (2) year term
of this Agreement, Employee shall not solicit any business directly competitive
with the tar and coke business of the Company by means of solicitation of, or
trading with, any
2
customer, prospective customer, supplier, or prospective supplier of Company.
The provisions of this paragraph shall not prohibit employee from engaging in
passive investment in the securities of publicly traded corporations which might
compete directly with the Company's tar and coke business.
6. If Employee violates any of the provisions of this Agreement, the
Company shall promptly notify Employee in writing and with particularity of the
activity believed to be in violation of this Agreement, and shall afford
Employee the opportunity to cure the alleged breach within thirty (30) days of
receipt, by Employee, of the Company's notice of breach. If Employee does not
cure the alleged breech within the thirty (30) day cure period provided herein,
the Company shall be entitled to terminate this Agreement without notice;
however, Employee may appeal any such action by the Company to arbitration as
provided in this Agreement.
7. The parties agree that any violation of the noncompetition terms of this
Agreement by Employee will result in immediate and irreparable harm to the
Company and the Company shall be entitled to a preliminary injunction from a
court of equity pending arbitration of the question whether Employee has
violated the noncompetition terms of this Agreement, Should any court or
arbitrator find any provision of this Agreement to be less than fully
enforceable due to its breadth or restrictiveness, or for any other reason, the
parties hereto intend that the court or arbitrator shall enforce the provision
to the full extent permissible by applicable law.
3
EMPLOYEE HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT AND
AGREES THAT THE RESTRICTIONS ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED
FOR THE PROTECTION OF THE INTERESTS OF THE COMPANY. THE PARTIES AGREE THAT THESE
RESTRICTIONS ARE BEING ENTERED INTO TO INDUCE THE COMPANY TO ENTER INTO THIS
AGREEMENT AND HAVE BEEN REQUIRED BY THE COMPANY TO PRESERVE THE GOODWILL
ASSOCIATED WITH THE BUSINESS.
8. The covenants and provisions of this Agreement are severable, and if any
portion is held to be unlawful or unenforceable, the remaining terms and
conditions will remain in full force and effect.
9. Should any durational or geographical restriction on business activities
covered under this Agreement be found to be less than fully enforceable due to
its breadth of restrictiveness, the parties intend that any court or arbitrator
will enforce the remaining provisions to the full extent permissible by
construing such provisions to cover only that duration, extent or activity which
may be enforceable.
10. Employee shall not use any confidential information, nor shall Employee
disclose or permit to be disclosed to any third party during or after the term
of his employment, any confidential information without the prior express
written consent of Company. By the term "confidential information" as used
herein, the Parties mean the Company's special techniques, processes,
analyses, methods, forms, hardware systems, software programs, and/or pricing
or customer or supplier lists which are not generally known in the
4
industry, which the Company has protected against disclosure. Employee shall not
be prohibited, by this Paragraph, from disclosing confidential information (1)
which at the time of receipt or thereafter becomes publicly known through no
wrongful act of Employee, or (2) is received from a third party not under an
obligation to keep such information confidential, or (3) as required to be
disclosed by Employee pursuant to any law, regulation, or legal process.
11. As a material inducement to the Company to enter into this Agreement,
Employee irrevocably and unconditionally releases, acquits, and forever
discharges the Company and each of the Company's owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, subsidiaries, affiliates, and other
related entities (collectively, "Company Releasees"), from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, and expenses including attorneys' fees, costs actually
incurred, and damages of any description (herein "Claims"), known and unknown,
which Employee may have or claim to have against Company Releasees, including,
but not limited to, Claims arising from any alleged violation of any federal,
state or local statutes, ordinances, executive orders, or common law principles
relating to employment, discrimination in employment, the termination of
employment, the payment of wages and benefits (provided, however, that nothing
in this paragraph shall constitute
5
a release of any obligations for any amounts payable to Employee under any of
the Company's benefit plans, which plans shall operate in accordance with their
own terms, including Employee's accrued pension benefits and Employee's rights
under the Company's Stock Option Plan, Survivor Benefit Plan and the
Stockholders' Agreement), or any other Claims relating to or arising from, in
connection with or during Employee's employment or the termination of his
employment. The foregoing waiver and release of Claims does not include Claims
which by law cannot be waived and does not include Claims arising in connection
with enforcement of this Agreement.
12. Employee acknowledges that in executing this Agreement he does not rely
upon any representation or statement made by any of the Company Releasees.
13. It is expressly understood that neither Employee nor the Company has
any obligation to provide any other payments or benefits.
14. The Company shall provide Employee with executive outplacement services
from a service mutually agreeable to Employee and the Company, at a cost to the
Company not to exceed $10,000.00, which amount will be deducted from the last
payments to be received under Paragraph 4 of this Agreement.
15. The Company shall reimburse to Employee his reasonable attorney fees in
connection with negotiation of this Agreement, in an amount not to exceed
$2,500.00.
6
16. The Company acknowledges that Employee has been granted ownership of
his computer and associated equipment.
17. EMPLOYEE ACKNOWLEDGES THAT HE HAS READ CAREFULLY AND UNDERSTANDS
FULLY THE PROVISIONS OF THIS AGREEMENT INCLUDING THE RELEASE OF CLAIMS AND
HAS HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH AND HAS CONSULTED
WITH LEGAL ADVISORS PRIOR TO EXECUTING THIS AGREEMENT.
18. If a dispute, controversy, or potential controversy arises under or in
connection with this Agreement, the parties agree first to try in good faith
to settle such dispute or controversy. The parties shall first try to resolve
any such dispute or controversy by discussion between Employee and the
Company's Vice President - Human Resources, who shall have authority to resolve
any such dispute or controversy on behalf of the Company. The parties shall
reduce to writing any resolution of any dispute, controversy, or potential
controversy achieved through such discussions. The parties shall try to
expedite the resolution of all such disputes and controversies, and shall
complete their negotiations in this regard within no more than thirty days from
the commencement of their discussions under this Paragraph.
If the parties have not resolved the dispute, controversy, or potential
controversy by direct negotiations within thirty (30) days of initiating
negotiations, any party may initiate arbitration as herein provided. With the
exception to disputes involving violation of the noncompetition terms of this
Agreement (where Employer may seek a preliminary injunction lending arbitration
of
7
the question whether Employee is in violation of the noncompetition terms
of this Agreement), all disputes, controversies, or potential controversies
arising under or in connection with this Agreement which are not resolved by
negotiation shall be decided by arbitration before a single arbitrator
selected by agreement of the parties. In the event that the parties cannot
agree upon the selection of an arbitrator, the parties agree that the American
Arbitration Association in Pittsburgh Pennsylvania will select the arbitrator.
The arbitrator shall be selected within thirty (30) days after unsuccessful
conclusion of their efforts to resolve their dispute, controversy or potential
controversy through negotiation.
The arbitrator shall decide the dispute, controversy or potential
controversy in accordance with the following procedures:
(a) Within ten (10) days of the selection of an arbitrator, each party
shall submit to the arbitrator its written position (the "initial
Submission") provided that neither memorandum of position shall exceed
10 pages, double spaced plus such other documentary evidence as the
parties deem necessary. In connection with the Initial Submission,
neither of the parties may submit (and the arbitrator may not accept)
any additional documentation (including affidavits).
(b) Within ten (10) days of the delivery of the Initial Submission, each
party may submit to the arbitrator and the other party a reply
memorandum (the "Reply
8
Submission"), provided that neither reply memorandum shall exceed 5
pages, double spaced. In connection with the Reply Submission, neither
of the parties may submit (and the arbitrator may not accept) any
additional documentation (including affidavits).
(c) Within ten 10 days of the expiration of the period for the delivery of
the Reply Submission, the arbitrator, if he or she deems it necessary
or advisable, may call a hearing which may be by telephone conference
(the "Hearing"). The arbitrator shall schedule the Hearing within
fifteen (15) days of determining that a Hearing shall be held. The
arbitrator shall advise the parties as to the form of the hearing,
which may be of one of two types. If the Arbitrator believes that
clarification of the positions of the parties is necessary or
advisable, the arbitrator may call a Hearing to ask representatives
and counsel for the parties questions with respect to the issue to be
decided and positions of the parties. If the Arbitrator believes that
there are credibility issues which are best resolved with testimony,
the arbitrator may call a Hearing in addition to hear the testimony of
those witnesses central to the credibility dispute, either in person
or by telephone as the arbitrator may determine. At Hearing, neither
party may offer (and the arbitrator may not accept) any testimony the
substance of which has not been extensively set forth in the previous
9
submissions of the parties (including affidavits), and neither party
may offer (and the arbitrator may not accept) additional documentary
evidence.
(d) Within ten (10) days after the later to occur, if such is to occur, of
(a) the Hearing or (b) the Reply Submission, the arbitrator shall
render his or her position.
(e) The arbitrator shall promptly notify the parties in writing of the
decision, together with the amount of any dispute resolution costs
arising with respect thereto (the "Notice of Decision"). The Notice of
Decision shall contain a concise explanation of the decision and the
grounds thereof or, not to exceed three (3) pages, double spaced.
(f) The decision of the arbitrator shall be final, binding and not subject
to appeal.
(g) All dispute resolution costs, which shall include any fee for the
arbitrator for services rendered shall be borne by the unsuccessful
party. If neither party is fully successful, the arbitrator may
allocate the dispute resolution costs. Each party is to pay its own
counsel fee and expenses.
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement.
10
This Agreement shall be governed under the laws of the Commonwealth of
Pennsylvania, and the parties consent to the jurisdiction of the courts of the
Commonwealth of Pennsylvania for the purpose of enforcing this Agreement.
ATTEST: KOPPERS INDUSTRIES, INC.
By: By:
------------------------------ ------------------------------
Name: Name:
--------------------------- ----------------------------
Title: Title:
-------------------------- ---------------------------
WITNESS: /s/ Xxxxxx X. Xxxxxxx EMPLOYEE: /s/ Xxxxxx X. Xxxxx
------------------------- ------------------------
11
