FIRST AMENDMENT TO RESTATED WAGE CONTINUATION AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO RESTATED
THIS
FIRST AMENDMENT TO RESTATED WAGE CONTINUATION AGREEMENT (the “First Amendment”)
is made and entered into the 9th
day of
November, 2005, as of the first day of June, 2005, by and among HAWK
CORPORATION, a Delaware corporation (“Hawk” or the “Company”), and XXXXXX X.
XXXXXXX, individually (“Xxxxxxx”).
RECITALS:
A. WHEREAS,
the parties and Friction Products Co. (“Friction”) are parties to the Amended
and Restated Wage Continuation Agreement dated as of December 31, 2001
(the
“Restated Agreement”);
B. WHEREAS,
Friction is no longer a necessary party; and
C. WHEREAS,
the remaining parties desire to further amend the Restated Agreement in
accordance with the terms set forth in this First Amendment.
NOW
THEREFORE, in consideration of the premises and of the mutual promises herein
contained, the parties hereto agree as follows:
1. Consideration.
Section
1(a) of the Restated Agreement is hereby deleted and replaced in its entirety
with the following:
(a) In
consideration of Xxxxxxx remaining in its employ as a Senior Advisor, the
Company agrees that (i) in the event of death of Xxxxxxx while Xxxxxxx
is
in the active employ of the Company under the Senior Advisor Agreement by and
between the Company and Xxxxxxx dated 11th
day of
October, 2005, as of June 1, 2005 (the “Advisor Agreement”), or
(ii) in the event of death of Xxxxxxx at any time after he had been
receiving “Disability Wage Continuation Payments” (as such term is defined in
the Advisor Agreement), the Company shall pay to the Spouse a monthly payment
equal to the Tentative Payment Amount divided by sixty percent (60%)
(the
“Wage Continuation Payment”) less any applicable withholding taxes. The term
“Tentative Payment Amount” shall equal Twelve Thousand Five Hundred Dollars
($12,500) less the After-Tax Monthly Spousal Annuity and in no event shall
be
less than zero; the term “After-Tax Monthly Spousal Annuity” shall mean the
Monthly Spousal Annuity less Taxes Payable; and the term “Taxes Payable” shall
mean the portion of the Monthly Spousal Annuity subject to federal income taxes
multiplied by forty percent (40%); provided further that the foregoing
monthly payment shall be reduced (but not below zero) by the amount of any
disability insurance payments made to Xxxxxxx or his spouse under any insurance
plans provided and paid for by the Company or any of its affiliates and any
payments made to Xxxxxxx or his spouse under any non-contributory defined
benefit plan maintained by the Company or any of its affiliates. The phrase
“mentally or physically disabled” shall have the meaning ascribed to it in the
Advisor Agreement. If the Trustee makes a determination not to purchase the
Monthly Spousal Annuity upon the death of Xxxxxxx while the Spouse is living
or
if Xxxxxxx designates someone other than the Spouse directly or indirectly
through the Trust as the beneficiary of the Insurance Benefit, the Monthly
Spousal Annuity will be deemed to equal the monthly annuity amount that could
otherwise have been purchased by the Trustee for the Spouse if such a
determination had not been made. The Wage Continuation Payment shall be payable
to the Spouse in equal monthly installments commencing with the first day of
the
first month following the month of Xxxxxxx’x death and shall continue monthly
until the death of the Spouse.
2. Termination.
Section 2A of the Restated Agreement is hereby deleted and replaced
in its
entirety with the following:
A. The
employment of Xxxxxxx by the Company is terminated for any reason other than
his
(i) death or (ii) Xxxxxxx becoming mentally or physically disabled.
Nothing contained herein shall be construed to be a contract of employment
for
any term of years, nor as conferring upon Xxxxxxx the right to continue in
the
employ of the Company in any capacity. It is expressly understood by the parties
thereto that this Agreement relates exclusively to salary continuation benefits
in return for Xxxxxxx’x services and is not intended to be an employment
contract.
3. Express
Changes Only.
Except
as set forth in this First Amendment, all of the terms and provisions of the
Restated Agreement shall remain unmodified and in full force and
effect.
4. Captions.
The
captions in this First Amendment are included for convenience only and shall
not
in any way affect the interpretation or construction of any provision
hereof.
5. Governing
Law.
This
First Amendment shall be governed by, and construed and enforced in accordance
with, the laws of the State of Ohio.
6. Submission
to Jurisdiction.
The
Company may enforce any claim arising out of or relating to this First
Amendment, or arising from or related to the employment relationship existing
in
connection with this First Amendment in any state or federal court having
subject matter
45
jurisdiction
and located in Cleveland, Ohio. For the purpose of any action or proceeding
instituted with respect to any such claim, Xxxxxxx hereby irrevocably submits
to
the jurisdiction of such courts and irrevocably consents to the service of
process out of said courts by mailing a copy thereof, by registered mail,
postage prepaid, to Xxxxxxx and agrees that such service, to the fullest
extent
permitted by law, (i) shall be deemed in every respect effective service
of
process upon him in any such suit, action or proceeding, and (ii) shall
be
taken and held to be valid personal service upon and personal delivery to
him.
Nothing herein contained shall affect the right of the Company to serve process
in any other manner permitted by law or preclude the Company from bringing
an
action or proceeding in respect hereof in any other country, state or place
having jurisdiction over such action. Xxxxxxx irrevocably waives, to the
fullest
extent permitted by law, any objection which he has or may have to the laying
of
the venue of any such suit, action or proceeding brought in any such court
located in Cleveland, Ohio, and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient
forum.
7. Counterparts.
This
First Amendment may be executed in any number of counterparts, each of which
when executed and delivered shall be deemed to be an original and all such
counterparts together, shall constitute one and the same instrument. The
execution and delivery of facsimiles of this First Amendment shall be binding
on
the parties hereto.
8. Entire
Agreement, Amendments and Waivers.
There
are and were no oral or written representations, warranties, understandings,
stipulations, agreements, or promises made by any party, or by any agent,
employee, or other representative of any party, pertaining to the subject matter
of this First Amendment which have not been incorporated into this First
Amendment. This First Amendment shall not be modified, changed, terminated,
amended, superseded, waived, or extended except by a written instrument executed
by the party or parties against whom enforcement is sought.
[Signature
Page Follows]
HAWK
CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X.
Xxxxxxxx
Its:
President and Chief Executive Officer
Attested
to:
By:
/s/
Xxxxx X. Xxxxxx
Xxxxx
X.
Xxxxxx
Its:
Secretary
FRICTION
PRODUCTS CO.
By:
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X.
Xxxxxxxx
Its:
President and Chief Executive Officer
Attested
to:
By:
/s/
Xxxxx X. Xxxxxx
Xxxxx
X.
Xxxxxx
Its:
Secretary
By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
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