Exhibit 10.25
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of the 1st day of January , 1998 by and
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between UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC., a Delaware corporation (the
"Company"), and Xxxx X. XxXxxxx (the "Executive").
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WITNESSETH:
In consideration of the covenants and agreements herein contained, and
intending to be legally bound hereby, the Company and Executive agree as
follows:
Article 1. - Employment
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1.1. Employment. The Company agrees to employ Executive, and
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Executive agrees to serve the Company, for the period stated in Article 2 hereof
(the "Term of Employment") and upon the other terms and conditions herein
provided.
1.2. Position and Responsibilities. The Company employs Executive,
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and Executive agrees to serve as Director Employee Relations/General
Counsel/Secretary of the Company and to accept such other responsibilities as
may be assigned to Executive by the Company from time to time during the Term of
Employment.
1.3. Duties. During the Term of Employment, Executive shall devote
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all of his business time, attention, skill and efforts to the faithful
performance of his duties hereunder.
Article 2. - Term
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The Term of Employment shall commence as of January 1 , 199 8 (the
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"Effective Date"), and shall continue until the 1st anniversary of the
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Effective Date (the "Expiration Date"), unless sooner terminated by one of the
parties as permitted in this Agreement or the term of the Agreement will
automatically extend for one-year periods, expiring on January 1 of each
subsequent year, barring a notice by the Company not to extend, delivered at
least ninety (90) days prior to any expiration date.
Article 3. - Compensation
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3.1. Salary. As compensation to the Executive for the performance of
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services hereunder, the Company shall pay to the Executive a base salary (the
"Salary") of Eighty-one thousand, three hundred and seventy-five dollars
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($81,375.00) per year. Installments of the Salary shall be paid to the
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Executive in accordance with the standard procedure of the Company, which at the
present time is once every two (2) weeks. During the period of this Agreement,
Executive's salary shall be reviewed at least annually and may be increased, but
not decreased, if the Board of Directors of the Company (the "Board"), the
Compensation Committee (the "Compensation Committee"), or the President of the
Company (President) determines that an increase is appropriate on the basis of
the types of factors it generally takes into account in increasing the salaries
of employees similarly situated in the Company.
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3.2. Reimbursement of Expenses. The Company will reimburse the
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Executive for those customary and necessary business expenses incurred by him in
the performance of his duties and activities on behalf of the Company. Except
as provided in this Agreement, such expenses will be reimbursed only on
presentation by the Executive of appropriate documentation to substantiate such
expenses pursuant to the policies and procedures of the Company governing
reimbursement of business expenses to its executives.
3.3. Participation in Plans. The Executive shall be entitled to
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participate in any incentive compensation or bonus plan, life, medical, dental,
health, hospitalization, travel, accident and/or disability insurance plans and
in any sick leave and/or salary continuation plan, vacation (which shall not be
less than two (2) weeks per year), holiday pay, retirement or employee benefit
plan or program generally offered by the Company to its salaried employees.
Article 4. - Termination of Employment
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4.1. Definitions. For the purposes hereof:
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(a) "Disability" shall be deemed to have occurred at the same
time as the Executive has been determined to be entitled to benefits under the
Company's Short Term or Long Term Disability Plan then in effect.
(b) "Cause" shall mean any of the following: (i) Executive's
personal dishonesty, incompetence or willful misconduct; (ii) Executive's
willful violation of any law or material rule or regulation, provided that such
violation is demonstrably and materially injurious to the assets, operations or
business prospects of the Company; (iii) the conversion or embezzlement for the
personal benefit of the Executive of corporate funds or property or a material
business opportunity of the Company; (iv) the misuse by the Executive for his
personal benefit of any trade secrets or other information of the Company in
violation of the provisions of Article 7 of this Agreement; or (v) Executive's
material breach of any other provision of this Agreement which is not cured
within thirty (30) days of receipt of notice of such breach from Company.
(c) "Good Reason" shall, absent the Executive's express written
consent to such action, mean the occurrence of any one of the following: (i)
following a Change of Control, the removal of the Executive as Director of
Employee Relations/General Counsel/Secretary of the Company (by reason other
than death, disability or cause); (ii) any material breach by the Company of its
respective or joint obligations contained in this Agreement not cured within 30
days after written notice; (iii) the assignment to the Executive of any duties
inconsistent with his status as Director Employee Relations/General
Counsel/Secretary of the Company or a substantial alteration in the nature or
status of the Executive's duties and responsibilities which renders the
Executive's position to be of less dignity, responsibility or scope; (iv) a
reduction by the Company in the Executive's annual base salary as in effect on
the date hereof or as the same may be increased from time to time, except for
proportional across-the-board salary reductions due to economic conditions of
the Company similarly affecting all executives of the Company, for at least six
(6) months, provided, however, that in no event shall the Executive's base
salary be reduced by more than fifteen percent (15%) below the per year amount
set forth in Section 3.1 hereof without the Executive's consent; (v) the
relocation of the principal executive offices of the Company to a location
outside the Greater Pittsburgh Metropolitan area or the
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Company's requiring the Executive to be based anywhere other than Company's
principal executive offices except for required travel on Company's business; or
(vi) any material reduction by the Company of the benefits enjoyed by the
Executive under any of the savings, life insurance, medical, health-and-
accident, disability or other employee welfare benefit plans or programs,
including vacation days, corporate time, provided that this paragraph (vi) shall
not apply to any proportional across-the-board reduction or action similarly
affecting all executives of the Company; (vii) within sixty (60) days of receipt
of notice not to extend this Agreement, the employee may elect to resign for
"Good Reason" in which case the notice not to extend shall constitute notice to
the Company by the employee of the "Good Reason."
Notwithstanding the foregoing, except as stated in (vii) of this
section, no event of "Good Reason" shall be deemed to have occurred unless
Executive provides to the President of the Company written notice of the facts
and circumstances which Executive believes constitutes "Good Reason" under this
Section 4.1(c) and such facts and circumstances are not corrected or otherwise
cured by the Company within thirty (30) days of receipt thereof.
For purposes of this Agreement, a Change of Control shall be deemed to
have occurred the earlier of (i) if, in any transaction or a series of related
transactions consummated in a ninety day period, more than fifty percent (50%)
of the then outstanding voting common stock of the Company is sold to a person
or group; (ii) a merger or consolidation of the Company and another entity in
which the Company is not the surviving corporation or in which more than fifty
percent (50%) of the equity ownership of the Company changes and (iii) the sale
of substantially all of the assets of the Company.
(d) "Notice of Termination" shall mean written notice which
shall indicate the specific termination or resignation provisions in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination or resignation
under the provision so indicated and shall include a certified statement of the
Company President approving such termination in the case of a Termination by the
Company for Cause or Without Cause.
(e) "Date of Termination" shall mean the date specified in the
Notice of Termination as the effective date the Executive's employment is
terminated for any reason or the Executive's effective date of resignation,
which ever is earlier.
Article 5. - Compensation Upon Termination
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5.1. Death. If the Executive's employment hereunder terminates by
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reason of his death, his beneficiaries shall be entitled to receive from the
Company such amounts as are then provided pursuant to plans, programs or
arrangements currently in effect or as approved from time to time by the Board
of Directors.
5.2. Disability. If the Executive's employment hereunder terminates
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by reason of his Disability, the Company shall pay to the Executive for a period
of one (1) month, payments on the regular pay dates in an amount equal to 100%
of his then monthly salary, and for a period of
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five (5) months, payments on the regular pay dates, 60% of his then monthly
salary, in addition thereto, the Executive shall be entitled to receive such
amounts as are then provided pursuant to plans, programs or arrangements. The
Company may carry insurance to cover this liability and in such case would not
require a separate salary continuation.
5.3. By the Company with Cause or if the Executive Resigns or Quits
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without Good Reason. If the Executive's employment hereunder is terminated by
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the Company for Cause, or if the Executive resigns or quits without good reason,
the Company shall pay to the Executive his full base salary through the Date of
Termination but at a rate no greater than that in effect at the time Notice of
Termination is given, and the Company shall have no further obligations to the
Executive under this Agreement.
5.4. By the Company Without Cause or by the Executive by Resignation
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for Good Reason. If the Executive's employment hereunder is terminated by the
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Company without Cause or is terminated by the Executive pursuant to his
Resignation for Good Reason, then the Executive shall be entitled to the
benefits provided below, which shall constitute complete satisfaction of the
obligations of the Company to the Executive under this Agreement:
(a) The Company shall pay the Executive his full annual base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given.
(b) Subsequent to the Date of Termination, the Company shall pay
as severance pay to the Executive, a lump sum payment equal to the Executive's
full base salary at the rate then in effect for a period of twelve (12) months,
or pay to the Executive the full base salary rate in the regular pay periods for
twelve months from termination.
(c) The Company will provide health care benefits as provided
prior to termination for the employee and eligible dependents for twelve (12)
months at no cost to the employee. This period will not reduce the eligible
COBRA period.
(d) The Executive shall not be required to mitigate the amount
of any payments provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by the Executive as the result of employment
by another employer, or otherwise.
(e) Notwithstanding any provisions herein to the contrary, the
Executive shall be entitled to receive all benefits to which the Executive is
entitled under the terms of any of the Company's qualified employee benefit
plans and any other plan, program or arrangement relating to retirement or other
benefits including, without limitation, any employee stock ownership plan or any
plan now in effect which is established (with approval of the Board of
Directors) as a supplement to any of the aforenamed plans, except as otherwise
provided in such plans as a result of the Executive's termination of employment.
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Article 6. - Duties of Executive After
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Termination of Employment
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Following any termination of Executive's employment and for a period
of ninety (90) days thereafter, the Executive shall fully cooperate with the
Company in all matters relating to the winding up and orderly transfer of the
Executive's work on behalf of the Company. Not later than the effective date of
any termination of the employment, the Executive will immediately deliver to the
Company any and all of the Company's property of any kind or nature whatsoever
in the Executive's possession, custody or control, including, without limitation
any and all Confidential Information as that term is defined in Section 7 of
this Agreement.
Article 7. - Confidential Information; Invention Assignment
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7.1. Confidential Relationship. Executive understands and agrees
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that all company manuals, company policies, marketing plans and surveys, product
designs, schematics, specifications and product location and installation data,
formulae, processes, methods, machines, compositions, customer information,
ideas, inventions, financial information and plans of the Company and all
records, correspondence, files, customer lists, data and other information
pertaining to or concerning the Company, its principals, vendors and customers
(collectively the "Confidential Information") contain valuable confidential
information that is owned by the Company, and, therefore, that during the period
of employment hereunder and at all times thereafter, Executive shall not utilize
such Confidential Information for his own benefit or for the benefit of any
person or entity other than the Company, nor shall he divulge or communicate any
such Confidential Information to any person or entity without the express
authorization of the Company. The Executive agrees that, on the termination of
his employment, he will immediately surrender to the Company any and all
Confidential Information in his possession pertaining to the Company and its
business.
7.2. Assignment of Rights. All inventions, discoveries, designs,
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developments, technology, computer programs, writings and reports that are made
or conceived of by the Executive in the course of his employment with the
Company, whether or not patentable or copyrightable, shall become and remain the
sole property of the Company without additional compensation to Executive. The
Executive recognizes that all such works shall be considered works-for-hire and
hereby transfers and assigns any right, title, copyright and interest that
Executive acquires in such works to the Company and will, from time to time,
give the Company all reasonable assistance, execute all papers and do all things
that may reasonably be required to protect and preserve the rights of the
Company in such works.
7.3. No Breach of Other Obligations. The Executive represents that,
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in the course of performing services for the Company, he will not breach any
agreement he may have with others with respect to confidential information, and
will not bring to the Company or use in any way any materials or documents
obtained from others under an agreement of confidentiality.
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Article 8. - Source of Payments
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All payments provided for under this Agreement shall be paid in cash
from the general funds of the Company and no special or separate fund shall be
established and no other segregation of assets shall be made to assure payment
unless specifically permitted herein. No trust or fiduciary relationship with
respect to payments shall be deemed created hereby and, to the extent that any
person acquires a right to receive payments hereunder, such right shall be no
greater than the rights of a general creditor of the Company.
Article 9. - Miscellaneous
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9.1. Indulgences, Etc. Neither the failure nor any delay on the part
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of either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
9.2. Notices. All notices or communications hereunder shall be in
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writing, addressed as follows:
To the Company:
President
Universal Stainless & Alloy Products, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
To the Executive:
Xxxx X. XxXxxxx
000 Xxxx Xxxxxx Xxxxx
XxXxxxxx, XX 00000
Any such notice or communication shall be sent by certified or registered mail,
return receipt requested, postage prepaid, addressed as above (or to such other
address as such party may designate in writing from time to time), and the
actual date of receipt, as shown by the receipt therefor, shall determine the
time at which notice was given.
9.3. Assignment; Agreement. This Agreement shall be binding upon and
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inure to the benefit of the heirs and personal representatives of the Executive,
but neither this Agreement nor any rights hereunder shall be assignable or
otherwise subject to hypothecation by the Executive.
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The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company) to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of his Agreement and shall entitle the
Executive to compensation from the Employer in the same amount and on the same
terms as the Executive would be entitled hereunder if the Executive terminated
his employment pursuant to his Resignation for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be the Date of Termination. As used in this Agreement,
"Company" shall mean as hereinbefore defined and any successor to the business
and/or assets as aforesaid of either of them which assumes and agrees to perform
this Agreement by operation of law or otherwise.
9.4. Entire Agreement; Amendment. This Agreement represents the
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entire agreement of the parties with respect to the subject matter hereof and
will supersede all prior agreements and understandings between the Executive and
the Company regarding the subject matter herein. This Agreement may be amended
or any provision hereof waived at any time only by written agreement of the
parties hereto.
9.5. Governing Law. This Agreement and its validity, interpretation,
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performance and enforcement shall be governed by the laws of the Commonwealth of
Pennsylvania, other than the conflict of laws provisions of such laws.
9.6. Severability. If, for any reason, any provision of this
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Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the remainder of such provision that is not held so invalid,
and the remainder of such provision, together with all other provisions of this
Agreement, shall to the full extent consistent with law continue in full force
and effect.
9.7. Headings. The Article and Section headings in this Agreement
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are for convenience of reference only; they form no part of this Agreement and
shall not affect its interpretation.
9.8. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Executive have duly executed
this Agreement as of the day and year first written above.
UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC.
By: /s/ X.X. XxXxxxxx
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X.X. XxXxxxxx
Title: President & CEO
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EXECUTIVE
/s/ Xxxx X. XxXxxxx
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Xxxx X. XxXxxxx
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