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Exhibit 10.1
EMPLOYMENT AGREEMENT
by and between
XXXXXXX TUBE COMPANY, INC.
and
XXXXXXXX X. XXXXXXXX
dated effective as of
MARCH 3, 1997
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TABLE OF CONTENTS
Page
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1. Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Duties as Employee of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Other Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Non-Compete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Tolling of Non-Competition Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Reasonableness of Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(d) Separate Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Compensation and Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Base Salary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Bonus Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Expenses and Other Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Vacations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(e) Perquisites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(f) Proration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(g) Relocation Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(h) Temporary Living Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(i) Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Death/Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Termination by Executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Compensation Upon Termination Prior to a Change in Control of the Company . . . . . . . . . . . . . . . . . 7
(a) Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(d) Breach by the Company or for Good Reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Compensation Upon Termination After a Change in Control of the Company . . . . . . . . . . . . . . . . . . . 9
9. Other Provisions Relating to Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Notice of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Date of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Good Reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(i)
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(e) Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(f) Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10. Successors and Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12. Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Specific Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15. Reimbursement By Executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16. Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(ii)
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is effective as of the
3rd day of March, 1997, by and between Xxxxxxx Tube Company, Inc., a Delaware
corporation (the "Company"), and Xxxxxxxx X. Xxxxxxxx (the "Executive").
1. Employment. The Company hereby employs Executive as its
President and Chief Operating Officer, and Executive hereby accepts such
employment, on the terms and conditions set forth herein, for the period
commencing on the date hereof and expiring on March 3, 1998 (unless sooner
terminated as hereinafter set forth) (the "Term"); provided, however, that
commencing on the first anniversary of the date hereof, and each anniversary of
the date hereof thereafter, the Term of this Agreement automatically 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.
2. Duties.
(a) Duties as Employee of the Company. Executive shall,
subject to the authority and supervision of the Chief Executive Officer of the
Company, have general powers of supervision and management of the business,
affairs and property of the Company in the ordinary course of its business
usually vested in a President and Chief Operating Officer, with all such powers
with respect to such general management as may be reasonably incident to such
responsibilities, and shall have such additional or substitute duties as from
time to time designated by the Chief Executive Officer. Executive will devote
his full time, attention, and energies to the business of the Company and shall
not, without the consent of the Chief Executive Officer, either directly or
indirectly, engage in any other business or activity which would necessitate
Executive giving an appreciable portion of his time to such activity.
(b) Other Duties. Executive agrees to serve as a
director of the Company, and of any Subsidiary of the Company, and in one or
more executive offices of any such Subsidiary, in each case if elected or
appointed to any such positions; provided, however, that Executive is
indemnified for serving in any and all such capacities in a manner acceptable
to the Company and Executive. Executive agrees that he shall not be entitled
to receive any compensation for serving as a director of the Company, or in any
capacity with respect to any Subsidiary of Chase Brass Industries, Inc.
("CBI"), other than the compensation to be paid to Executive pursuant to this
Agreement or any other written agreement between the Company or any of its
Subsidiaries and Executive.
3. Non-Compete.
(a) Covenant. Executive agrees that he will not, for a
period of one year following the termination of his employment with the
Company, (i) employ any person who was a salaried employee of or a consultant
to the Company or any Subsidiary of the Company during the six (6) month period
preceding such termination or induce, request, advise, attempt to influence, or
solicit, directly or indirectly, any person who is a salaried employee of or a
consultant to the Company or any Subsidiary of the Company during the six (6)
month period preceding such termination to terminate his or her employment or
consulting relationship with the Company or any
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Subsidiary of the Company, (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 in the manufacture, distribution, licensing, sale, or marketing of
mechanical or structural steel tubing or any other products manufactured,
distributed, licensed, sold or marketed by the Company or any Subsidiary of the
Company during the Term (collectively, "Products"), or any company which
otherwise is directly competitive with the Company or any Subsidiary of the
Company, in any geographical area in which the Company or any Subsidiary of the
Company engage in business at the time of such termination or in which any of
them, 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 or business enterprise to purchase Products from any
person or business enterprise other than the Company if the Company provides,
or negotiated to provide, Products to that person or business enterprise 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 employee of the Company to purchase Products
from any person or business enterprise other than the Company; provided,
however, that the provisions of this Section 3(a) shall not apply in the event
(i) the Company terminates Executive's employment with the Company other than
for "Cause" (as herein defined) or otherwise in violation of this Agreement or
(ii) Executive terminates this Agreement for Good Reason (as hereinafter
defined). 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 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 the Company
in which the provisions of Section 3(a) are applicable, Executive is not in
compliance with the terms of Section 3(a), the Company shall be entitled to,
among other remedies, compliance by Executive with the terms of Section 3(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 3(a) are reasonable and are no
broader than are necessary to maintain and to protect the legitimate business
interests of the Company, the Company's Subsidiaries and CBI.
(d) Separate Covenants. The parties hereto intend that
the covenants contained in each of subsections 3(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 in each geographic area in which the Company
or any Subsidiary of the Company 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 3(a)(i), (ii), (iii)
and (iv) hereof. Furthermore, each of the covenants in subsections 3(a)(i),
(ii), (iii) and (iv)
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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 3(a)(i), (ii), (iii) and (iv)
hereof.
4. Confidentiality. Executive shall not, directly or indirectly,
at any time during or for a two year period following termination of his
employment with the Company, 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 the Company, CBI or any other Subsidiary of CBI), any information
acquired during the course of employment hereunder with regard to the
financial, business or other affairs of the Company, CBI or any other
Subsidiary of CBI (including without limitation any list or record of persons
or entities with which the Company, CBI or any other Subsidiary of CBI 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 to that conducted by the Company, CBI, or
any other Subsidiary of CBI, (iii) information that Executive is required to
disclose under the following circumstances: (A) at the express direction of any
authorized governmental entity; (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 the Company, CBI or
any other Subsidiary of CBI in his capacity as an employee, officer, director,
or stockholder of the Company, CBI or any other Subsidiary of CBI, or (iv)
during the period of his employment hereunder, Executive may disclose such
confidential information to another employee of the Company, CBI or any other
Subsidiary of CBI or to representatives or agents of the Company, CBI or any
other Subsidiary of CBI (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 as an executive officer of the
Company, CBI, or any other Subsidiary of CBI. Executive shall, at any time
requested by the Company (either during or within one year after the
termination of his employment with the Company), promptly deliver to the
Company all memoranda, notes, reports, lists and other documents (and all
copies thereof) relating to the business of the Company, CBI or any other
Subsidiary of CBI which he may then possess or have under his control.
5. Compensation and Related Matters.
(a) Base Salary. Executive shall receive a base salary
paid by the Company ("Base Salary") at the annual rate of $200,000 during each
calendar year of the Term, payable in substantially equal monthly installments
(or such other more frequent times as executives of the Company normally are
paid). The Base Salary shall be reviewed by the Compensation Committee of the
Board of Directors of CBI (the "Compensation Committee") at least as often as
the compensation of other senior officers of the Company is reviewed, and may
be increased (but not decreased) at any time in the sole discretion of the
Compensation Committee.
(b) Bonus Payments. Executive shall be entitled to
receive, in addition to the Base Salary, such bonus payments, if any, as the
Compensation Committee may
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specify; each bonus payment may be in an amount of up to 50% of Executive's
Base Salary for the period to which such bonus payment relates. Factors to be
considered by the Compensation Committee in determining Executive's bonus for
any given calendar year will include the financial and operating performance of
the Company and Executive's contribution to profitability of the Company.
(c) Expenses and Other Benefits. Executive shall be (i)
reimbursed for all reasonable expenses incurred by him in performing services
hereunder, provided that Executive properly accounts therefor in accordance
with Company policy, and (ii) entitled to participate in or receive benefits
under any employee benefit plan or other arrangement made available by the
Company now or in the future to its senior executive officers and key
management employees, other than the Company's Chief Executive Officer, subject
to and on a basis consistent with the terms, conditions, and overall
administration of such plan or arrangement.
(d) Vacations. Executive shall be entitled to 15 paid
vacation days during each year of the Term. For purposes of this Section 5(d),
weekends shall not count as vacation days and Executive shall also be entitled
to all paid holidays given by the Company to its senior executive officers.
(e) Perquisites. Executive shall be entitled to receive
the perquisites and fringe benefits appertaining to the offices of President
and Chief Operating Officer of the Company in accordance with any practice
established by the Company. Notwithstanding, and in addition to, any
perquisites to which Executive is entitled pursuant to the preceding sentence,
during the Term the Company shall pay for Executive's membership at one country
club, located within 30 miles of Executive's principal residence (as relocated
as contemplated in Section 5(g) below) or the Company's operating headquarters,
with the selection of the country club subject to prior approval by the Chief
Executive Officer of the Company, which consent shall not be unreasonably
withheld; provided that in the event Executive terminates his membership in any
such country club, either during the Term or thereafter, the Company shall be
entitled to any amounts that may be payable as a refund of Executive's
initiation fee or monthly dues paid by the Company.
(f) Proration. Any payments or benefits payable to
Executive hereunder in respect of any calendar year during which Executive is
employed by the Company for less than the entire year, unless otherwise
provided in the applicable plan or arrangement, shall be prorated in accordance
with the number of days in such calendar year during which he is so employed.
(g) Relocation Expenses. The Company shall reimburse
Executive for moving expenses incurred by Executive in connection with the
relocation of Executive's current principal residence to a location within 30
miles of the Company's operating headquarters in Chicago, Illinois, including
the expenses incurred by Executive in moving the personal property of Executive
and his immediate family to Executive's new principal residence, in accordance
with, and subject to, the following terms and restrictions: (i) the Company
will reimburse Executive for reasonable expenses incurred by Executive and
Executive's family in connection with up to two trips to the Chicago, Illinois,
area for house-hunting purposes, such reimbursable expenses to
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include airfare for Executive and Executive's immediate family to and from
Chicago, hotel expenses, meals and auto rental during the course of such trips,
(ii) the Company will reimburse Executive for all reasonable and customary
closing expenses incurred or paid by Executive in connection with the purchase
of a new principal residence in connection with such relocation; (iii) the
Company will reimburse Executive for all broker's and agent's commissions and
other closing expenses and fees incurred by Executive in connection with the
sale of Executive's current residence in Ithaca, New York; and (iv) the Company
will pay to Executive a one-time lump sum cash payment of $6,000, to be used at
Executive's discretion to cover incidental costs associated with relocating
Executive's principal residence as provided herein, which amount will not be
deducted from or applied towards any expenses referred to in clauses (i)
through (iii) of this Section 5(g) or in Section 5(h). If, as a result of
providing the reimbursement provided for under this Section 5(g), Executive
shall incur any federal income tax liability that otherwise would not have been
incurred, then, in addition to the amounts otherwise payable to Executive under
this Section 5(g), the Company shall pay to Executive cash in an amount
necessary to discharge any additional federal income tax liability incurred by
Executive as a result of the receipt of the benefits provided for under this
Section 5(g) (including the tax gross-up provided by this sentence).
(h) Temporary Living Expenses. Until Executive procures
a principal residence within 30 miles of the Company's headquarters, subject to
such period not exceeding a reasonable time for such relocation as determined
by the Company (with a relocation occurring prior to August 1, 1997, hereby
deemed to be reasonable), the Company shall reimburse Executive for all travel,
hotel and related living expenses incurred by Executive as a result of
Executive's not having a principle residence within such proximity. Expenses
reimbursed pursuant to this Section 5(h) shall not be duplicative of the
expenses reimbursed pursuant to Section 5(g) hereof.
(i) Stock Options. As of the effective date of this
Agreement, CBI will grant to Executive stock options to purchase 30,000 shares
of common stock of CBI at a per share exercise price equal to the closing price
of CBI's common stock as reported on the New York Stock Exchange on the
effective date of this Agreement (the "Stock Options"). The Stock Options will
be subject to the applicable terms and conditions set forth in the Company's
1994 Long-Term Incentive Plan (the "Plan"), and the Stock Options will vest and
become exercisable with respect to 6,000 shares of CBI common stock on each of
the first five anniversaries of the date of grant, subject to the provisions of
the Plan.
6. Termination. Executive's employment hereunder may be
terminated by the Company or Executive, as applicable, without any breach of
this Agreement only under the following circumstances:
(a) Death/Disability. Executive's employment hereunder
shall terminate (i) automatically upon Executive's death or (ii) upon the good
faith determination by the Board of Directors of CBI (the "CBI Board") that, as
a result of Executive's incapacity or disability due to physical or mental
illness, Executive shall have been unable to perform hereunder with or without
reasonable accommodation on a full time basis for 120 consecutive calendar
days, and within 30 days after written notice of termination is given (which
may occur no sooner than 30 days prior to the end
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of such 120 day period) Executive shall not have returned to the performance of
his material managerial duties and responsibilities hereunder on a full time
basis; provided, however, that during any period of Executive's incapacity or
disability the Company may assign Executive's duties to any other employee of
the Company 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 this
Agreement pursuant to Section 6(c)(i) hereof.
(b) Cause. The Company may terminate Executive's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment hereunder upon:
(i) the continued failure by Executive to
substantially perform his duties hereunder (other than any
such failure resulting from Executive's incapacity or
disability due to physical or mental illness) after written
demand for substantial performance is delivered by the Company
specifically identifying the manner in which the Company
believes Executive has not substantially performed his duties;
(ii) dishonesty by Executive that relates to the
performance of the Executive's duties hereunder or the
commission by Executive of an act of fraud upon, or willful
misconduct toward, the Company, as reasonably determined by
the CBI Board 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 the Company which results or may result in
material injury to the Company, CBI or any other Subsidiary of
CBI;
(v) Executive's material breach of any of the
covenants contained in Section 3(a) or 4 of this Agreement;
(vi) notwithstanding the provisions of Section
6(a), the use by Executive of alcohol which renders Executive
unable to perform the essential functions of his position
under this Agreement or the use by Executive of illegal or
controlled drugs or other substances; or
(vii) the failure of Executive to cease any conduct
determined by the Chief Executive Officer of the Company to be
detrimental to the well-being or morale, or otherwise not in
the best interest, of the Company after written demand
directing Executive to cease such conduct is delivered by the
Company specifically identifying such conduct and demanding
cessation thereof.
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If the effect of the occurrence of the event described in clauses (iv)
or (v) of Section 6(b) may be cured, Executive shall have the opportunity to
cure any such effect for a period of 30 days following receipt of the Company's
Notice of Termination.
(c) Termination by Executive. At his option, Executive
may terminate his employment hereunder (i) for Good Reason or (ii) if his
health should become impaired to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health or his life.
For purposes of this Agreement, the termination of Executive's
employment hereunder by Executive because of the occurrence of any one or more
of the following events shall be deemed to have occurred for "Good Reason":
(A) a material reduction or a material adverse
alteration in the nature or scope of Executive's position,
responsibilities or authorities that is not consented to or
approved by Executive;
(B) any failure by the Company to comply in any
material respect with Section 5 hereof that is not consented
to or approved by Executive; provided, that, any change in
Executive's discretionary bonus as from time to time
determined by the Compensation Committee shall not constitute
Good Reason for resignation;
(C) the liquidation, dissolution, merger,
consolidation or reorganization of the Company 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 the Company under
this Agreement pursuant to Section 10 hereof;
(D) failure by the Company to comply with any other
material term or provision hereof; or
(E) after the occurrence of a Change of Control,
the relocation of Executive's job to a site which is 50 miles
or more farther away from Executive's principal residence, as
relocated as contemplated by Section 5(g), than Executive's
job site immediately after such relocation.
If the effect of the occurrence of the event described in clauses (A)
through (E) of this Section 5(c) may be cured, the Company shall have the
opportunity to cure any such effect for a period of 30 days following receipt
of Executive's Notice of Termination.
7. Compensation Upon Termination Prior to a Change in Control of
the Company. Prior to the occurrence of a Change in Control of the Company,
Executive shall be entitled to the following compensation from the Company upon
the termination of his employment.
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(a) Death. If Executive's employment shall be terminated
by reason of his death, the Company shall pay to such person as shall have been
designated in a notice filed with the Company prior to Executive's death, or,
if no such person shall be designated, to his estate as a death benefit, his
Base Salary to the date of his death in addition to any payments Executive's
spouse, beneficiaries, or estate may be entitled to receive pursuant to any
pension or employee benefit plan or other arrangement or group life insurance
policy maintained by the Company.
(b) Disability. During any period that Executive fails
to perform his material managerial duties and responsibilities hereunder as a
result of incapacity due to physical or mental illness, Executive shall
continue to receive his Base Salary and any bonus payments until Executive's
employment is terminated pursuant to Section 6(a) hereof or until Executive
terminates his employment pursuant to Section 6(c)(ii) hereof, whichever first
occurs. After such termination, Executive shall be entitled to receive, and
the Company agrees to pay, the following compensation:
(i) the remainder, if any, of Executive's Base
Salary which was earned but not paid prior to the Date of
Termination (hereinafter defined); plus
(ii) any disability payments otherwise payable to
Executive by or pursuant to group plans provided by the
Company.
(c) Cause. If Executive's employment shall be terminated
for Cause, the Company shall pay Executive his Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
Such payments shall fully discharge the Company's obligations hereunder.
(d) Breach by the Company or for Good Reason. If (A) the
Company shall terminate Executive's employment other than for Cause or (B)
Executive shall terminate his employment for Good Reason, then the Company
shall:
(i) pay Executive his Base Salary through the
Date of Termination at the rate in effect at the time Notice
of Termination is given;
(ii) in lieu of any further salary payments to
Executive for periods subsequent to the Date of Termination,
the Company shall pay as severance pay to Executive on or
before the thirtieth day following the Date of Termination, a
lump sum in cash equal to (A) Executive's annual Base Salary
at the rate in effect at the time the Notice of Termination is
given divided by (B) three;
(iii) maintain in full force and effect, for the
continued benefit of Executive (and, if applicable,
Executive's spouse and minor children) for a one-year period
beginning upon the Date of Termination, all medical and dental
insurance coverages as in effect and in which such persons
were participating immediately prior to the Date of
Termination, provided that the continued participation of such
persons is possible under the
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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, the Company 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 the Company 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; 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; and
(iv) all benefits payable under the terms of all
employee benefit plans or other arrangements as of the Date of
Termination.
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 7(d) by seeking other employment or otherwise, nor shall
the amount of any payment provided for in this Section 7(d) be reduced by any
compensation earned by Executive as the result of employment by another
employer after the Date of Termination, or otherwise.
8. Compensation Upon Termination After a Change in Control of the
Company. If, after the occurrence of a Change in Control of the Company,
Executive's employment is terminated by the Company or by Executive, as the
case may be, for any of the reasons described in Section 6 above, then
Executive shall be entitled to the same compensation benefits from the Company
as set forth in Section 7 above to which he would have been entitled if the
termination of his employment had occurred prior to the occurrence of a Change
in Control of the Company; provided, that, in the event the termination occurs
as described in Section 7(d) above within one year after the occurrence of the
Change of Control, then Executive shall be entitled to, in lieu of the
compensation provided in Section 7(d)(ii), a lump sum in cash, which shall be
paid within 30 days after the termination of employment or resignation, in an
amount equal to the sum of (a) the greater of (i) Executive's Base Salary in
effect immediately prior to the Change of Control and (ii) Executives Base
Salary in effect at the time of termination or, if Executive resigns 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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9. Other Provisions Relating to Termination; Definitions.
(a) Notice of Termination. Any termination of
Executive's employment by the Company or by Executive (other than termination
because of the death of Executive) shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
(b) Date of Termination. For purposes of this Agreement,
"Date of Termination" shall mean (i) if Executive's employment is terminated by
his death, the date of his death; (ii) if Executive's employment is terminated
because of a disability pursuant to Section 6(a), then 30 days after Notice of
Termination is given (provided that Executive shall not have returned to the
performance of his duties on a full-time basis during such 30 day period);
(iii) if Executive's employment is terminated by the Company for Cause or by
Executive for Good Reason, then the date specified in the Notice of Termination
(which date shall be a date between the date Notice of Termination is given and
30 days thereafter (inclusive)); and (iv) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given.
(c) Good Reason. If Executive does not give a Notice of
Termination to the Company within 30 days after learning of the occurrence of
an event giving rise to Good Reason, then this Agreement will remain in effect;
provided, however, that the failure of Executive to terminate this Agreement
for Good Reason shall not be deemed a waiver of Executive's right to terminate
his employment for Good Reason upon the occurrence of a subsequent event
described in clauses (A) through (E) of Section 6(c) in accordance with the
terms of this Agreement. Notwithstanding the foregoing, the right of Executive
to terminate his employment for Good Reason under Section 6(c) shall not limit
the Company's right to terminate Executive's employment for Cause under Section
6(b) if Cause is determined to exist prior to the time Good Reason is
determined to exist.
(d) Cause. If the Company does not give a Notice of
Termination to Executive within 30 days after learning of the occurrence of an
event giving rise to Cause, then this Agreement will remain in effect;
provided, however, that the failure of the Company to terminate this Agreement
for Cause shall not be deemed a waiver of the Company's right to terminate
Executive's employment for Cause upon the occurrence of a subsequent event
described in clauses (i) through (vi) of Section 6(b) in accordance with the
terms of this Agreement. Notwithstanding the foregoing, the right of the
Company to terminate Executive's employment for Cause under Section 6(b) shall
not limit Executive's right to terminate his employment for Good Reason under
Section 6(c) if Good Reason is determined to exist prior to the time Cause is
determined to exist.
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(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, (b) CBI, any of CBI's
Subsidiaries, any employee benefit plan of CBI or of a
Subsidiary of CBI 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 of a Subsidiary of CBI 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.
(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 CBI 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 CBI or the Company, and the Board of
Directors of CBI 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)
hereof shall have occurred, in which case such
benefits payable under Section 8 hereof shall be
payable within thirty days after the occurrence of
such event; or
(3) the stockholders of CBI or the
Company approve a merger or consolidation of CBI 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
CBI or the Company), other than a merger or
consolidation that would result in the Voting
Securities of CBI or the Company, as applicable,
outstanding immediately prior to the consummation
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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; or
(4) the stockholders of CBI or the
Company approve a plan of complete liquidation of CBI
or the Company, respectively, or an agreement for the
sale or disposition by CBI or the Company of all or
substantially all of CBI'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 CBI or the
Company's assets in one transaction or a series of
related transactions to a Subsidiary of CBI or any
other corporation owned directly or indirectly by the
stockholders of CBI in substantially the same
proportions as their ownership of stock of CBI; or
(5) CBI 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 CBI or any Subsidiary of CBI are owned, directly
or indirectly, by the stockholders of CBI in
substantially the same proportions as their ownership
of stock of CBI immediately prior to such
transaction.
(iii) 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.
(iv) 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 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 the Company).
(f) Affiliate. For purposes of this Agreement, the term
"affiliate" shall mean, with respect to any Person (including an entity), any
other Person that directly or indirectly controls, is controlled by, or is
under common control with the Person in
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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.
10. Successors and Assignments. This Agreement shall be binding
upon, and inure to the benefit of, the Company, Executive, and their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
This Agreement may not be assigned (either voluntarily or involuntarily) by any
party hereto without the express written consent of the other party; provided,
however, that the Company may at any time assign this Agreement to (i) any
Subsidiary of the Company or CBI, (ii) any other corporation, partnership, or
other entity that controls, is controlled by, or is under common control with
the Company or CBI or (iii) any successor (whether direct or indirect, by
purchase of securities, merger, consolidation, sale of assets, or otherwise) to
all or substantially all of the business or assets of the Company. Any
attempted assignment in violation of this Section 10 shall be void and
ineffective for all purposes. In the event of an assignment permitted by this
Section 10, this Agreement shall be binding upon the heirs, successors, and
assigns of the parties hereto.
11. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when (i) delivered personally; (ii) sent by
facsimile or similar electronic device and confirmed; (iii) delivered by
overnight express; or (iv) if sent by any other means, upon receipt. Notices
and all other communications provided for in this Agreement shall be addressed
as follows:
If to Executive:
Xxxxxxxx X. Xxxxxxxx
Xxxxxxx Tube Company, Inc.
0000 X. 000xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. 773/239-1023
If to the Company:
c/o Chase Brass & Copper Company, Inc.
00000 Xxxxxx Xx. X-00
Xxxxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Facsimile No: 419/485-8150
or to such other address as any party may have furnished to the other in
writing in accordance herewith.
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12. Disputes.
(a) Arbitration. Subject to Section 12(b) below, in the
event any dispute or controversy arises under this Agreement and is not
resolved by the mutual written agreement between Executive and the Company
within 30 days after notice of the dispute is first given, then, upon the
written request of Executive or the Company, such dispute or controversy shall
be submitted to arbitration, which arbitration shall be conducted in accordance
with the rules of the American Arbitration Association. Judgment may be
entered thereon and the results of arbitration will be binding and conclusive
on the parties hereto. All parties agree that venue for arbitration will be in
Xxxx County, Illinois, and that any arbitration commenced in any other venue
will be transferred to Xxxx County, Illinois upon the written request of any
party to this Agreement. The prevailing party will be entitled to
reimbursement for reasonable attorneys fees, reasonable costs and other
reasonable expenses pertaining to the arbitration and the enforcement thereof
and such attorneys fees, costs and other expenses shall become a part of any
award, judgment or verdict. All arbitrations will have three individuals
acting as arbitrators: one arbitrator will be selected by Executive, one
arbitrator will be selected by the Company, and the two arbitrators so selected
will select a third arbitrator. Any arbitrator selected by a party will not be
affiliated, associated or related to the party selecting that arbitrator in any
matter whatsoever. The decision of the majority of the arbitrators will be
binding on all parties.
(b) Specific Enforcement. Executive acknowledges that
the covenants of Executive contained in Sections 3 and 4 of this Agreement are
special and unique, that a breach by Executive of any term or provision of
either of Sections 3 or 4 hereof may cause irreparable injury to the Company,
CBI and/or another Subsidiary of CBI, and that remedies at law for the breach
of any terms or provisions of Sections 3 or 4 hereof may be inadequate.
Accordingly, notwithstanding the provisions of Section 12(a), in addition to
any other remedies it may have in the event of breach, the Company shall be
entitled to enforce specific performance of the terms and provisions of
Sections 3 or 4 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 the Company prevails in such action or proceeding.
For purposes of this Section 12(b) and Sections 3 and 4 hereof, CBI and each
other Subsidiary of CBI shall be deemed a third party beneficiary entitled to
the benefits of such Sections and shall be entitled to enforce Sections 3 and 4
of this Agreement in accordance with this Section 12(b).
13. Severability. In the event that any provision of this
Agreement, 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
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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. Notwithstanding the above, in the event any such
invalidity, illegality or unenforceability of any portion of Section 3 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 the Company, 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
the Company or any of its Subsidiaries to recover damages for any prior
violation of such provision as so limited and reduced, to the extent permitted
under applicable law.
14. Miscellaneous. This Agreement sets forth the entire
understandings of the parties with respect to the subject matter hereof, it
incorporates and merges any and all previous communications and understandings
with respect to the subject matter hereof, oral or written (including without
limitation that certain letter dated February 12, 1997, from Xxxxxx X. Xxxxxx
to Executive and that certain letter dated February 12, 1997, from Executive to
Xxxxxx X. Xxxxxx), and no provision of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is agreed to in
writing signed by Executive and the Company. No waiver by either party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. The
validity, interpretation, construction, and performance of this Agreement shall
be governed by the laws of the State of Illinois, excluding any choice-of-law
provisions thereof.
15. Reimbursement By Executive. Executive agrees that, in the
event Executive terminates his employment with the Company other than for Good
Reason, or is terminated by the Company for Cause, at any time prior to March
3, 1999, Executive will reimburse the Company for amounts paid to Executive by
the Company pursuant to Section 5(g) and Section 5(h) of this Agreement in
accordance with the following formula:
ER = AP x 730 - ND
-------
___________________ 730
ER = amount to be reimbursed by Executive.
AP = amounts paid by the Company to or on behalf of Executive pursuant
to Sections 5(g) of this Agreement.
ND = number of days elapsed from and after March 3, 1997, to (and
including) the Date of Termination.
Executive agrees that any amounts owed by Executive pursuant to this
Section 15 may be deducted from any portion of any amounts (including
compensation payable under this Agreement) owed by the Company to Executive at
the time of the termination of Executive's employment, subject to any
limitations or restrictions imposed by applicable law. To the extent such
amounts payable by Executive pursuant to this Section 15 are not deducted from
amounts owed by the Company to Executive,
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Executive agrees to pay such excess amounts within 60 days after the Date of
Termination.
16. Attorney Fees. Except as otherwise provided in Section 12,
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.
17. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED this 1st day of April, 1997, to be effective as of March 3,
1997.
CHASE BRASS INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx,
Chairman of the Board,
President and Chief
Executive Officer
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
00
