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Exhibit 10(x)
SEPARATION AGREEMENT AND RELEASE
The parties to this Separation Agreement and Release ("Agreement") are
Oglebay Norton Company (hereinafter referred to as "Oglebay") and Xxxxxxx X.
Xxxxxxx (hereinafter referred to as "Xxxxxxx"). This Agreement is entered into
for the purpose of fully and totally releasing and settling all present and/or
future claims or disputes between the parties arising out of events, whether
known or unknown, suspected or unsuspected, occurring prior to the signing of
this Agreement.
WHEREAS, Xxxxxxx is presently employed as Oglebay's Vice President and
Chief Financial Officer; and
WHEREAS, Xxxxxxx and Oglebay are mutually desirous of terminating the
employment relationship; and
WHEREAS, Xxxxxxx and Oglebay are further desirous of entering into a
comprehensive agreement to settle and satisfy any and all claims as may be
related to the termination of said employment relationship;
NOW, THEREFORE, in consideration of the promises and covenants
contained herein, the parties agree as follows:
1. EMPLOYMENT TERMINATION. The parties hereby acknowledge and
agree that the employment relationship between Oglebay and
Xxxxxxx will be terminated as of December 31, 1999.
1. Effective as of March 9, 1998, Xxxxxxx will
voluntarily resign as Vice President and Chief
Financial Officer of Oglebay.
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2. Xxxxxxx will continue to be employed by Oglebay in
the capacity of a consultant until December 31, 1999.
During such period Oglebay agrees to pay compensation
for the services described below at the rate of
$159,000 per year paid monthly. Xxxxxxx acknowledges
that he will not participate in the 1998 and 1999
Performance Management Process bonuses. Between March
1, 1998 and December 31, 1999, Oglebay shall further
provide to Xxxxxxx all other benefits as are provided
to full-time salaried employees of Oglebay.
3. CONSULTING DUTIES. Between March 1, 1998 and December
31, 1999, Xxxxxxx'x primary responsibility will be to
facilitate the transition of duties and
responsibilities to the person chosen by Oglebay to
be the next Chief Financial Officer. The transitional
duties are expected to require Xxxxxxx'x full time
and best efforts. Xxxxxxx will further assist the
Chief Financial Officer and the President and Chief
Executive Officer on special projects. At such time
that it is mutually agreed and to the extent that
Xxxxxxx'x full time and best efforts are no longer
needed by Oglebay, Xxxxxxx will be free to pursue
other interests.
2. LIFE INSURANCE. Oglebay further agrees to pay all premiums on
Xxxxxxx'x insurance policy under the Executive Life Program in
accordance with the agreement dated June 3, 1992, entered into
between Xxxxxxx and R. Xxxxxx Xxxxx, Xx. on behalf of Oglebay.
3. RETIREMENT BENEFITS. Commencing December 31, 1999, if Xxxxxxx
terminates the employment relationship by retirement, Oglebay
agrees that Xxxxxxx
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shall be entitled to receive a monthly pension benefit of
$9,000 per month (including amounts payable to Xxxxxxx under
any defined benefit plan or supplemental defined benefit plan
presently maintained by Oglebay), subject to appropriate
actuarial adjustments for optional forms of payment as
provided for under Oglebay's Salaried Benefit Plan. If
Xxxxxxx'x employment relationship with Oglebay is terminated
by reason of his death prior to December 31, 1999, he will be
presumed to have retired the day before he died and his spouse
will then be entitled to Pre-Retirement Death Benefits as
prescribed in the Salaried Pension Plan and will be based on
the above $9,000 per month figure.
4. RETIREMENT PLANNING FEES. Oglebay shall pay up to $5,000 for
any and all retirement planning consultation deemed necessary
by Xxxxxxx prior to his retirement on December 31, 1999. In
addition to the payment and reimbursement for such
consultation, Oglebay shall pay to Xxxxxxx an additional
amount sufficient to pay all federal, state and local taxes
incurred by Xxxxxxx as a result of (a) the payment of the
expense or receipt of the reimbursement and (b) the receipt of
the additional payment.
5. In consideration of the foregoing, Xxxxxxx agrees, if
applicable, to dismiss with prejudice any and all charges,
complaints, claims or legal actions now pending before any
administrative agency (state or federal) or court, and agrees
not to initiate or maintain any charges, complaints, claims,
legal actions or grievances arising out of or in connection
with his previous employment with or separation from Oglebay,
his claimed right to severance
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pay, or any events occurring prior to the signing of this
Agreement before any court or any administrative agency in the
future, except a charge brought pursuant to the provision of
29 U.S.C. Section 626(f)(4). The right to file such a charge
and the resolution of such charge shall have no force and
effect on any other provision set forth in this Agreement.
6. In further consideration of the foregoing, Xxxxxxx agrees to
release and forever discharge Oglebay and any of its past,
present or future affiliated companies, subsidiaries,
divisions, and any and all of Oglebay'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 Oglebay, 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:
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
Retaining Notification Act, as amended; the
Rehabilitation Act of 1973, as amended; the Americans
with Disabilities Act, as amended; the Family
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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.
7. Xxxxxxx 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 and attorney, unless required to do so by
law. Should Oglebay Norton Co. prove that the terms were
divulged by Xxxxxxx then Xxxxxxx shall return all
consideration tendered and will totally and fully release
Oglebay from all obligations, claims, charges, complaints or
causes of action and Xxxxxxx will be entitled to no rights,
remedies or causes thereafter.
8. Xxxxxxx 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. Xxxxxxx also acknowledges that he
has been advised in writing to consult with an attorney prior
to executing it. Xxxxxxx 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. Xxxxxxx 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.
Xxxxxx, Oglebay's Assistant Vice President of Human
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Resources ("Xxxxxx") so that Xxxxxx may actually and
personally receive notice of the revocation.
9. 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 Oglebay and/or by Xxxxxxx.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and the terms hereof are contractual and
not mere recitals. This Agreement shall be added to the
schedule of agreements for Oglebay's grantor trust known as
Rabbi Trust II. All prior agreement(s) relative to Xxxxxxx'x
employment are hereby terminated and only this Agreement shall
be listed on the aforementioned schedule of agreements. No
modification or amendment of this Agreement shall be valid or
binding unless contained in a written instrument and signed by
the parties hereto.
11. GOVERNING LAW. This Agreement shall be construed under the
laws of the State of Ohio and shall in all respect be
interpreted, enforced and governed under the law of said
State.
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READ BEFORE SIGNING
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I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS
SETTLEMENT 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 OGLEBAY'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 OF MY CHOICE PRIOR TO
EXECUTING THIS SETTLEMENT AGREEMENT AND RELEASE.
IN WITNESS WHEREOF, the parties have hereunto set their hands this 23rd
& 24th day of March, 1998.
Witnessed:
OGLEBAY NORTON COMPANY
/s/ Xxx Xxx Xxxxxx By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
------------------------------ Its: President and Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx, Xx.
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Xxxx X. Xxxxxx, Xx.
Its: Assistant Vice President of Human Resources
Date: 3-23-98
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/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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Date: 3-24-98
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