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EXHIBIT 10.2
Confidential treatment has been requested for a portion of this exhibit. The
copy filed herewith omits the information subject to the confidentiality request
filed with the Securities and Exchange Commission. The omissions are designated
as " ** ". A complete version of this exhibit has been filed with the Securities
and Exchange Commission.
AGREEMENT
THIS AGREEMENT is made and entered into by and among Xxxxxx X. Xxxxxxx
("Xxxxxxx"), JLK Direct Distribution Inc., and Kennametal, Inc.
WHEREAS, JLK Direct Distribution Inc. terminated Xxxxxxx'x employment
as Vice President effective 12:01 a.m. on October 6, 1998;
WHEREAS, Xxxxxxx, JLK Direct Distribution Inc. and Kennametal, Inc.
desire to enter into a full and complete agreement in an amicable manner;
NOW THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound hereby, the parties to this Agreement
agree as follows:
1. Definitions
(a) "JLK," as used herein, shall at all times mean JLK Direct Distribution Inc.,
its parent, subsidiaries, successors and assigns, its affiliated and predecessor
companies or corporations, its divisions, their successors and assigns, their
affiliated and predecessor companies or corporations and the present and/or
former directors, officers, shareholders, employees, attorneys and agents of any
of them, including but not limited to Kennametal, Inc., J&L Industrial Supply,
and Full Service Supply, whether in their individual or official capacities, and
the current and former trustees or administrators of any pension or other
benefit plan applicable to the employees or former employees of JLK in their
official and individual capacities.
(b) "Kennametal," as used herein, shall at all times mean Kennametal, Inc., its
parent, subsidiaries, successors and assigns, its affiliated and predecessor
companies or corporations, its divisions, their successors and assigns, their
affiliated and predecessor companies or corporations and the present or former
directors, officers, shareholders, employees, attorneys and agents of any of
them, including but not limited to JLK Direct Distribution Inc., whether in
their individual or official capacities, and the
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current and former trustees or administrators of any pension or other benefit
plan applicable to the employees or former employees of Kennametal in their
official and individual capacities.
2. Termination of Employment
(a) Xxxxxxx represents and agrees that effective 12:01 a.m. on October 6, 1998,
his employment with JLK Direct Distribution Inc., his position as Vice President
of JLK Direct Distribution Inc., and any and all positions he held with JLK or
Kennametal or their affiliates or subsidiary companies ended. Xxxxxxx, JLK and
Kennametal agree that Xxxxxxx: (a) has not been required to perform any services
for JLK or Kennametal since 12:01 a.m. on October 6, 1998; and (b) shall not be
required to provide any further services to JLK or Kennametal except as provided
in paragraph 13 of this Agreement.
(b) Xxxxxxx waives any and all rights or claim of right to be reinstated to his
former or any other position with JLK or Kennametal and agrees that he shall not
at any time seek or accept future employment with JLK or Kennametal. A breach of
this subparagraph 2(b) by Xxxxxxx will constitute lawful and just cause to
refuse to employ Xxxxxxx, and he shall have no cause of action against JLK or
Kennametal for such refusal.
3. Severance
(a) At the time of his separation, Xxxxxxx'x monthly salary as Vice President of
JLK was $12,500.00 per month. JLK continued to pay Xxxxxxx this amount, less
applicable withholdings, from the time of his termination through January 5,
1999. On or before February 28, 1999, JLK will pay Xxxxxxx $22,115.38, less
applicable withholdings (representing continuing payments for January 1999 and
February 1999, minus $2,884.62 already paid). Beginning in March 1999, JLK will
pay Xxxxxxx $12,500.00 per month, in semi-monthly installments of $6,250.00,
less applicable withholdings, through July 5, 2000.
(b) The period during which Xxxxxxx can exercise Kennametal and JLK stock
options, outstanding as of October 6, 1998, will be extended through October 5,
2000.
(c) JLK will continue to provide Xxxxxxx with coverage under the group health,
dental, vision, life insurance, and accidental death and dismemberment insurance
programs according to Xxxxxxx'x 1998 Enrollment Elections under JLK's Flex
Benefits Program, or with substantially similar coverage, through July 5, 2000.
Xxxxxxx'x contribution to this coverage, subject to increases consistent with
changes in contributions made by current JLK employees, will be deducted from
the payments described
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in subparagraph 3(a). For benefit continuation purposes only, Xxxxxxx
will be deemed to be an inactive employee on an approved termination related
leave of absence. For any period during which Xxxxxxx is entitled to, eligible
for, or receiving group health, dental, vision, life insurance, and/or
accidental death and dismemberment insurance benefits from or through an
employer or former employer other than JLK or Kennametal, JLK will not be
required to provide the corresponding benefit continuation described in this
subparagraph 3(c).
(d) JLK will not pay Xxxxxxx any bonus.
(e) In lieu of providing executive outplacement services to Xxxxxxx, JLK will
pay Xxxxxxx $10,000.00, less applicable withholdings, within thirty (30) days
after the expiration of the seven (7) day period referenced in paragraph 15 of
this Agreement.
(f) In the event of a Change in Control of JLK Direct Distribution
Inc. (as hereinafter defined) occurring prior to October 6, 2000, and at
Xxxxxxx'x option, Xxxxxxx will exercise his then-outstanding JLK options. For
each share of JLK common stock which Xxxxxxx acquires upon exercise of an
employee stock option following an official announcement of a Change in Control
of JLK Direct Distribution Inc., and which Xxxxxxx sells in the stock market
within thirty (30) days of that announcement for less than $24.00, if the
announced Change in Control of JLK Direct Distribution Inc. actually occurs, JLK
will pay Xxxxxxx the difference between $24.00 and the sales price, less
applicable withholdings. If the stock market value of JLK common stock does not
equal or exceed $20.00 per share at any time during that thirty (30) day period,
and at Xxxxxxx'x option, Xxxxxxx may forfeit his then-outstanding JLK options by
giving written notice to Xxxxx X. Xxxxx, Esquire within five (5) calendar days
thereafter, and JLK will pay Xxxxxxx $4.00 per option so forfeited, less
applicable withholdings. The total payment from JLK to Xxxxxxx pursuant to this
subparagraph 3(f) shall not exceed $200,000.00, less applicable withholdings.
The term "Change in Control of JLK Direct Distribution Inc." shall mean a change
in control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A promulgated under the Securities Exchange Act of 1934 as in
effect on the date hereof ("1934 Act"), or if Item 6(e) is no longer in effect,
any regulations issued by the Securities and Exchange Commission pursuant to the
1934 Act which serve similar purposes; provided that, without limitation, such a
change in control shall be deemed to have occurred if (A) JLK Direct
Distribution Inc. shall be merged or consolidated with any corporation or other
entity other than a
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merger or consolidation with a corporation or other entity all of whose equity
interests are owned by JLK Direct Distribution Inc. or Kennametal, Inc.
immediately prior to the merger or consolidation, or (B) JLK Direct Distribution
Inc. shall sell all or substantially all of its operating properties and assets
to another person, group of associated persons or corporation, other than
Kennametal, Inc. or its subsidiaries, or (C) any "person" (as such term is used
in Sections 13(d) and 14(d) of the 1934 Act), other than Kennametal, Inc. or its
subsidiaries, is or becomes a beneficial owner, directly or indirectly, of
securities of JLK Direct Distribution Inc. representing 25% or more of the
combined voting power of JLK Direct Distribution Inc.'s then outstanding
securities coupled with or followed by the existence of a majority of the board
of directors of JLK Direct Distribution Inc. consisting of persons other than
persons who either were directors of JLK Direct Distribution Inc. immediately
prior to or were nominated by those persons who were directors of JLK Direct
Distribution Inc. immediately prior to such person becoming a beneficial owner,
directly or indirectly, of securities of JLK Direct Distribution Inc.
representing 25% or more of the combined voting power of JLK Direct Distribution
Inc.'s then outstanding shares. A change in control of Kennametal, Inc. shall
not be considered a "Change in Control of JLK Direct Distribution, Inc."
(g) If Xxxxxxx becomes employed by or provides consultation to a competitor
prior to July 6, 2000, the salary continuation and benefits coverage extension
as described in subparagraphs 3(a) and 3(c) above shall terminate and be
discontinued immediately. For the purposes of this subparagraph 3(g),
"competitor" shall mean MSC Industrial Direct Co., Industrial Distribution
Group, Inc., Sandvik AB and Sandvik Coromant, SECO Tools AB, Iscar Ltd. and
Iscar Metals Inc., Milacron Inc., Carboloy Inc. and Valenite Inc., Airgas, Inc.,
X.X. Xxxxxxxx, Inc. and/or any of their parents, subsidiaries, successors,
assigns, affiliated and predecessor companies or corporations, and divisions.
Xxxxxxx agrees to immediately notify Xxxxx X. Xxxxx, Esquire orally and in
writing of any employment, consulting arrangement, or comparable business
opportunity he undertakes with any of those entities before July 6, 2000.
(h) If each of the following conditions are satisfied, JLK will pay a realtor
designated by Xxxxxxx and/or Xxxxxxx'x mover up to $25,000.00, on an after-tax
basis, for moving expenses and/or real estate commissions actually incurred by
Xxxxxxx: (A) Xxxxxxx moves his primary residence to Western Pennsylvania before
July 6, 2000; (B) the above move is Xxxxxxx'x first move following the date of
this
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Agreement; (C) the above move is not for the purposes of accepting or furthering
employment or consulting opportunities with a competitor, as that term is
defined in subparagraph 3(g) of this Agreement; (D) Xxxxxxx is not moving for
the purposes of accepting or furthering employment or consulting opportunities
with an entity which ordinarily pays all or a portion of moving expenses
incurred by a person similarly situated to Xxxxxxx; (E) Xxxxxxx incurs moving
expenses and/or real estate commissions as a result of the above move; and (F)
Xxxxxxx submits written invoices to Xxxxx X. Xxxxx, Esquire, indicating the
amount of expenses and/or commissions incurred as a result of the above move and
the specific purpose for which the expense was incurred. JLK's total payments to
the realtor and/or mover pursuant to this subparagraph 3(h) shall not exceed
$25,000.00 on an after-tax basis.
(i) JLK's entire obligation to provide salary, incentive compensation,
severance, bonus, stock options, pension, 401(k), medical, dental, life, or
disability insurance, vacation, compensation, emoluments or benefits of any kind
to Xxxxxxx is set forth in this Agreement and any other obligation of JLK or
Kennametal to provide any of the foregoing to Xxxxxxx is hereby canceled except
that Xxxxxxx shall retain the vested benefits he is entitled to receive pursuant
to the Kennametal, Inc. Retirement Income Plans and Thrift Plan.
(j) Xxxxxxx acknowledges his continuing obligations to repay his outstanding
loan under his 401(k) plan. This Agreement is not intended to, and does not,
interfere with Xxxxxxx'x obligations regarding said loan.
4. No Actions
(a) Xxxxxxx affirms that there are no charges, complaints, grievances or actions
by or concerning Xxxxxxx against JLK or Kennametal currently pending in or
before any court, administrative agency, arbitrator or other entity.
(b) Xxxxxxx agrees not to file, pursue, participate in, induce, aid or abet any
claim or cause of action against JLK or Kennametal, and Xxxxxxx confirms that he
has not done so at any time prior to signing this Agreement. This provision does
not prohibit Xxxxxxx from testifying in any cause of action relating to JLK or
Kennametal when required to do so by process of law, or from communicating with
the EEOC. In the event that Xxxxxxx is required by process of law to testify in
any cause of action relating in any way to JLK or Kennametal, Xxxxxxx shall
immediately notify Xxxxx X. Xxxxx, Esquire orally and in writing, and shall use
his best lawful efforts not to testify until JLK and/or Kennametal has a
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reasonable opportunity to oppose such testimony, if JLK and/or Kennametal
desires to do so. Xxxxxxx agrees not to accept the proceeds from any cause of
action or proceeding against JLK or Kennametal. Communications between and among
Xxxxxxx, Xxxxxx X. Xxxxxxx, Esquire, Xxxxx X. Xxxxxxxx, Esquire, Xxxxxx X.
Xxxxxx, Esquire, Xxxxxxxx X. Xxxx, Esquire, P. Xxxxxx Xxxxxx, Esquire, Xxxxxx X.
Xxxxxxxxx, Esquire, and/or Xxxxx X. Xxxxx, Esquire, which occurred prior to the
execution of this Agreement, do not constitute a breach by Xxxxxxx of the first
sentence of this subparagraph 4(b).
(c) Xxxxxxx agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in this paragraph 4. In the
event JLK or Kennametal pursues a claim against Xxxxxxx pursuant to this
subparagraph 4(c), but Xxxxxxx is deemed not to have breached any of his
promises in this paragraph 4, JLK or Kennametal will pay the reasonable fees and
costs incurred by Xxxxxxx in defending against said claim.
5. Release and Waiver
(a) As a material inducement to JLK and Kennametal to enter into this Agreement
and for and in consideration of the terms expressed herein, Xxxxxxx, for
himself, his successors and assigns, does hereby irrevocably and unconditionally
release and forever discharge JLK and Kennametal of and from any and all claims,
charges, demands, liabilities, obligations, promises, controversies, damages,
rights, actions and causes of action of whatever nature, kind or character, in
law or equity, whether known or unknown ("Claims"), which Xxxxxxx now has, may
have or claims to have or which he at any time heretofore may have, had or
claimed to have against JLK and/or Kennametal. This release includes, but is not
limited to, those Claims arising from or during Xxxxxxx'x employment, related to
his employment, as a result of his termination of or separation from employment
with JLK or Kennametal, his receipt of stock options, or his ownership in
securities, and Xxxxxxx agrees not to assert any such Claims or causes of
action. This release and waiver includes, but is not limited to, Claims arising
under federal, state or local statutes, ordinances or common laws, specifically
including, but not limited to, the Securities Exchange Act of 1934, Securities
and Exchange Commission Rule 10b-5, the Civil Rights Act of 1866, the Civil
Rights Act of 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities
Act, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Employee Retirement Income Security Act of 1974, Executive
Order 11246, the Veterans Reemployment Statutes, the Family and Medical Leave
Act, the
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Pennsylvania Wage Payment and Collection Law, the Michigan Act Regulating
Payment of Wages and Fringe Benefits, the Pennsylvania Human Relations Act, the
Michigan Xxxxxxx-Xxxxxx Civil Rights Act, or the Michigan Handicappers' Civil
Rights Act, all as amended, and Claims pertaining to unlawful discrimination or
harassment, any common law or statutory Claims for breach of contract,
detrimental reliance, wrongful discharge, defamation, interference with current
or prospective contractual relations, fraud, consumer fraud or otherwise, and/or
Claims for attorneys' fees and/or costs.
(b) Xxxxxxx agrees to release and discharge JLK and Kennametal not only from any
and all claims which he could make on his own behalf, but also those which may
or could be brought by any person or organization in his behalf, and he
specifically waives any right to become, and promises not to become, a member of
any class in any proceeding or case in which a claim against JLK or Kennametal
may arise, in whole or in part, from any event which occurred prior to or as of
the date of this Agreement.
(c) **
(d) (i) Xxxxxxx agrees not to file any lawsuit or demand for arbitration against
JLK or Kennametal for or relating to any event that occurred prior to the date
of signing this Agreement, except that, pursuant to paragraph 12 of this
Agreement, Xxxxxxx may file a demand for arbitration for a breach of any
promises contained in this Agreement. In the event Xxxxxxx files such a demand,
but JLK and/or Kennametal are deemed not to have breached any of their promises
in this Agreement, Xxxxxxx will pay the reasonable fees and costs incurred by
JLK and/or Kennametal in defending against the claim.
(ii) JLK Direct Distribution Inc. agrees not to file any lawsuit or
demand for arbitration against Xxxxxxx or Xxxxxxx'x attorneys for or relating to
any event that occurred prior to the date of signing this Agreement, except
that, pursuant to paragraph 12 of this Agreement, JLK Direct Distribution Inc.
may file a demand for arbitration for a breach of any promises or
representations contained in this Agreement. In the event JLK Direct
Distribution Inc. files such a demand, but Xxxxxxx is deemed not to have
breached any of his promises or representations in this Agreement, JLK Direct
Distribution Inc. will pay the reasonable fees and costs incurred by Xxxxxxx in
defending against said claim.
(iii) Kennametal, Inc. agrees not to file any lawsuit or demand for
arbitration against Xxxxxxx or Xxxxxxx'x attorneys for or relating to any event
that occurred prior to the date of signing this Agreement, except that, pursuant
to paragraph 12 of this Agreement, Kennametal, Inc. may file a
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demand for arbitration for a breach of any promises or representations contained
in this Agreement. In the event Kennametal, Inc. files such a demand, but
Xxxxxxx is deemed not to have breached any of his promises or representations in
this Agreement, Kennametal, Inc. will pay the reasonable fees and costs incurred
by Xxxxxxx in defending against said claim.
(e) Xxxxxxx agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in this paragraph 5.
6. Xxxxxxx confirms that he is not presently aware of any facts which would
support a claim by anyone against JLK or Kennametal under any federal, state or
local statute, ordinance or common law, including but not limited to claims for
unlawful discrimination or harassment, defamation, breach of contract, common
law fraud, violation of state consumer fraud statutes, securities fraud
(including violation of the Securities Exchange Act of 1934, Securities and
Exchange Commission Rule 10b-5, or similar state laws), or intentional
interference with current or prospective contractual relations.
7. Confidentiality
(a) Xxxxxxx recognizes and acknowledges JLK's and Kennametal's interest in the
confidentiality of this Agreement, and agrees that he shall keep the fact and
the terms of this Agreement and the negotiations leading to this Agreement
completely confidential.
(b) Xxxxxxx further recognizes and acknowledges that his positions at JLK and
his prior employer, Kennametal, were positions of trust and confidence and that
by virtue of his employment in such positions, Xxxxxxx possesses confidential
information and trade secrets regarding JLK and Kennametal, including, but not
limited to information concerning JLK's and Kennametal's sales, customers,
clients, business, personal data, sources of supply or distribution, business
plans, technical secrets, methodologies, know-how, or the compensation, skills,
abilities, training or qualifications of JLK and Kennametal employees, officers
and directors, or other information not generally known to the public, including
information identified in subparagraph 9(a) of Xxxxxxx'x July 1, 1997 Amended
and Restated Officers Employment Agreement, and any tangible embodiments of said
confidential information and trade secrets (collectively "Confidential
Information"). Xxxxxxx recognizes and acknowledges JLK's and Kennametal's
interest in the confidentiality of such Confidential Information.
(c) Xxxxxxx promises and agrees not to disclose, either directly or indirectly,
in any manner whatsoever, any Confidential Information of any kind whatsoever
acquired in the course of his
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employment at JLK or Kennametal, unless compelled by subpoena to give sworn
testimony or to produce documents or other things regarding said Confidential
Information. Xxxxxxx further promises and agrees that if he is compelled by
subpoena to give sworn testimony or produce documents or things regarding said
Confidential Information or to give sworn testimony or produce documents or
things which may include said Confidential Information, Xxxxxxx shall notify
Xxxxx X. Xxxxx, Esquire orally and in writing immediately upon being served the
subpoena or immediately upon being informed of the possibility that he may be
compelled to testify or produce documents or things regarding said Confidential
Information, whichever occurs first. Xxxxxxx shall use his best lawful efforts
not to testify or produce documents or things until JLK and/or Kennametal has a
reasonable opportunity to oppose such testimony or production, if JLK and/or
Kennametal desires to do so.
(d) JLK and Xxxxxxx agree that the July 1, 1997 Amended and Restated Officer's
Employment Agreement signed by Xxxxxxx was valid and enforceable. Xxxxxxx
reaffirms his continuing obligations regarding trade secrets and confidential
information as set forth in paragraph 9 of that employment agreement, and
acknowledges that he has received all to which he is entitled under that
employment agreement and that JLK is not obligated to make any future payments
to Xxxxxxx under that employment agreement.
(e) This paragraph 7 shall not prohibit Xxxxxxx from (i) disclosing the fact and
terms of this Agreement to immediate family members and/or such professional
legal and tax advisors as he may from time to time engage, and/or government
officials or judicial officers for income or tax-reporting purposes in the event
Xxxxxxx is legally required or professionally advised to do so, or (ii) stating
in response to any other inquiry that the terms of his separation from JLK are
confidential. To the extent that Xxxxxxx does disclose the terms of this
Agreement to persons identified in subparagraph 7(e)(i), Xxxxxxx shall advise
said persons that they must not disclose the fact and terms of the Agreement.
(f) **
(g) Xxxxxxx promises and agrees that within ten (10) days of signing this
Agreement, he shall surrender to JLK any and all Confidential Information and
any and all books, records, files, documents, disks and other items relating to
JLK or Kennametal obtained or generated by Xxxxxxx in the course of his
employment by JLK or Kennametal.
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(h) If Xxxxxxx discloses any information in breach of subparagraphs 7(c) or 7(f)
of this Agreement, or if one or more of Xxxxxxx'x attorneys (with or without
Xxxxxxx'x permission) discloses any information relating to the representation
of Xxxxxxx without being compelled to do so by Rule 1.6(b) of the Pennsylvania
Rules of Professional Conduct, law or court order, to persons not identified in
subparagraph 7(e)(i) of this Agreement, then: (i) Xxxxxxx shall repay to JLK any
payment made or received under subparagraphs 3(a), 3(e), 3(f), and 3(h) of this
Agreement; (ii) JLK shall not be required to make any further payments under
subparagraphs 3(a), 3(e) and 3(h) of this Agreement; (iii) the extended period
during which Xxxxxxx could exercise Kennametal and JLK stock options, as
described in subparagraph 3(b) of this Agreement, shall terminate and be
discontinued immediately; (iv) subparagraph 3(f) of this Agreement, relating to
Change in Control, will immediately be rendered null and void; and (v) the
extended period during which JLK agreed to continue to provide benefits as
described in subparagraph 3(c) of this Agreement, shall terminate and be
discontinued immediately.
(i) Xxxxxxx agrees to pay for any legal fees or costs incurred by JLK or
Kennametal as a result of any breach of his promises in paragraph 7. In the
event JLK or Kennametal pursues a claim against Xxxxxxx pursuant to this
paragraph 7(i), but Xxxxxxx is deemed not to have breached any of his promises
in this paragraph 7, JLK or Kennametal will pay the reasonable fees and costs
incurred by Xxxxxxx in defending against said claim.
(j) In the event that JLK and/or Kennametal take steps to seek relief from an
alleged breach of the foregoing terms of paragraph 7, all of the remaining
provisions of this Agreement shall remain in full force and effect.
8. No Solicitation. Xxxxxxx agrees that, for two (2) years following his
separation from JLK, Xxxxxxx will not, directly or indirectly, solicit or induce
or participate in recruiting, or attempt to solicit, induce, or recruit any
employee, current or future, of JLK or Kennametal, to leave JLK or Kennametal
for any reason whatsoever, or to hire, cause to be hired or assist in the hiring
of any current or future employee of JLK or Kennametal, or to provide
information to any third party to suggest, encourage, aid or facilitate such
solicitation, inducement, recruitment or hiring.
9. **
10. Xxxxxxx represents that he has not heretofore assigned or transferred, or
purported to assign or transfer, to any person or entity any Claim or any
portion thereof or interest therein.
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11. Xxxxxxx represents and acknowledges that in executing this Agreement he does
not rely, and has not relied, upon any representation or statement made by JLK
or Kennametal, or any of their agents, representatives or attorneys with regard
to the subject matter, basis or effect of this Agreement or otherwise.
12. The parties agree that in the event of any future dispute between Xxxxxxx
and JLK or Kennametal, including any claims, counterclaims, cross claims or
third-party claims, whether referring or relating to any term of this Agreement,
disputes about whether or not the dispute is arbitrable, or any other matter
which the parties are unable to resolve between themselves, the dispute must be
submitted to arbitration and must not be filed in any court. Within ten (10)
days after submission of a dispute to arbitration, each party shall choose an
arbitrator and within ten (10) days thereafter the American Arbitration
Association shall be requested to supply a third arbitrator and this request
shall be made by either party. In the event any party does not choose an
arbitrator within ten (10) days, as set forth above, the American Arbitration
Association shall also supply that arbitrator in addition to the third
arbitrator. The arbitration shall be held in Pittsburgh, Pennsylvania, and shall
commence and be completed as soon as possible under the Commercial Arbitration
Rules of the American Arbitration Association then in effect. In the event of
any dispute of any procedural, evidentiary, or substantive matter, including the
arbitrability of the dispute presented, the decision of the majority of the
arbitrators shall be final and conclusive upon the parties on the matter of
dispute.
13. Xxxxxxx promises and agrees that if JLK or Kennametal shall, in the future,
require Xxxxxxx'x assistance or cooperation in preparation for, or the conduct
of, litigation or any proceeding, or for periodic consultation generally,
involving matters or events which occurred during Xxxxxxx'x employment by JLK or
Kennametal, or as to which Xxxxxxx'x knowledge or testimony may be important to
JLK or Kennametal, Xxxxxxx shall furnish such assistance, cooperation, and
consultation to JLK or Kennametal as they shall reasonably request, as does not
unreasonably interfere with Xxxxxxx'x efforts to obtain alternative employment,
and as is within Xxxxxxx'x capability, provided that JLK or Kennametal shall
reimburse Xxxxxxx for any expense Xxxxxxx incurs in furnishing such assistance
and shall provide reasonable compensation for time expended on the matter by
Xxxxxxx, except that: (a) JLK and Kennametal will not provide compensation to
Xxxxxxx for time spent by Xxxxxxx providing the assistance, cooperation or
consultation discussed in this paragraph 13 during the period in which
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Xxxxxxx is receiving payments under subparagraph 3(a) of this Agreement; and (b)
no compensation shall be paid for testimony in any litigation or proceeding.
14. Should any provision of this Agreement be declared or determined by any
court or arbitration panel to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this Agreement. If a court or arbitration panel determines paragraph 4 or
paragraph 5 of this Agreement (or any subpart thereof) to be illegal or invalid,
then: (i) Xxxxxxx shall repay to JLK the payments made or received under
subparagraphs 3(a), 3(e), 3(f), and 3(h) of this Agreement; (ii) JLK shall not
be required to make any further payments under subparagraphs 3(a), 3(e) and 3(h)
of this Agreement; (iii) the extended period during which Xxxxxxx could exercise
Kennametal and JLK stock options, as described in paragraph 3(b) of this
Agreement, shall terminate and be discontinued immediately; (iv) subparagraph
3(f) of this Agreement, relating to Change in Control, will immediately be
rendered null and void; and (v) the extended period during which JLK agreed to
continue to provide benefits as described in subparagraph 3(c) of this
Agreement, shall terminate and be discontinued immediately.
15. Xxxxxxx agrees that he has been advised by JLK and Kennametal to consult
with an attorney of his choice and that he has done that, consulting with his
attorneys, Xxxxxx X. Xxxxxxx, Esquire, Xxxxx X. Xxxxxxxx, Esquire, Xxxxxx X.
Xxxxxx, Esquire, and Xxxxxxxx X. Xxxx, Esquire concerning his lawful remedies
and rights as well as the meaning and significance of this Agreement. Further,
Xxxxxxx confirms that he has carefully read and fully understands the provisions
of this Agreement, including the release and waiver of claims of any nature, and
that he has been given twenty-one (21) days to consider the terms of this
Agreement before signing the Agreement. Xxxxxxx may revoke acceptance of the
release and waiver of Claims arising under the Age Discrimination in Employment
Act and the Older Workers Benefit Protection Act contained in subparagraph 5(a)
of this Agreement by delivering a written revocation to Xxxxx X. Xxxxx, Esquire
of Kennametal, Inc., X.X. Xxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000, within seven (7)
days after executing the Agreement. JLK's obligation to render payments under
subparagraphs 3(a), 3(e), 3(f), and 3(h) shall not commence until the seven (7)
day period set forth herein has expired without Xxxxxxx'x revocation. Xxxxxxx
acknowledges that his execution of this Agreement is knowing and voluntary.
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16. As used in this Agreement, the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires. Whenever a
provision is stated in the disjunctive, it shall also be taken in the
conjunctive and vice versa. The use of any tense of any verb shall be considered
to include within its meaning all other tenses of the verbs so used.
17. The parties agree that this Agreement is the entire agreement between them,
supersedes all previous agreements between them, and represents their full and
complete understanding. No prior or contemporaneous oral agreements may be
offered to alter the terms of this Agreement. This Agreement shall be binding
upon the parties hereto and the parties' heirs, successors and assigns. This
Agreement may not be modified except in writing signed by both parties.
18. This Agreement may be executed in counterparts, and when each party has
signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with other signed counterparts,
shall constitute one Agreement, which shall be binding upon and effective as to
all parties. For the purposes of this paragraph 18, a counterpart may be
delivered by facsimile.
19. This Agreement shall be governed by and interpreted in accordance with the
laws of the Commonwealth of Pennsylvania.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
WITNESS: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Xxxxxx X. Xxxxxxx
Date: February 15, 1999
JLK DIRECT DISTRIBUTION INC.
Date: February 15, 1999 By: /s/ H. Xxxxxxx Xxxxxxx
--------------------------- -----------------------
Director
KENNAMETAL, INC.
Date: February 15, 1999 By: /s/ H. Xxxxxxx Xxxxxxx
--------------------------- -----------------------
Vice President
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