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Exhibit 10.58
RESIGNATION AGREEMENT
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Xxxxxxx X. Xxxxxxxx ("Employee"), an employee of Eagle-Picher
Industries, Inc., an Ohio corporation ("Employer"), desires to voluntarily
resign from employment with Employer and, in exchange for the payments provided
herein, the mutual undertakings, and other good and valuable consideration,
further agrees to resolve all claims arising out of his employment or the
termination of that employment. Accordingly, the parties agree as follows:
1. Employee agrees to resign from employment with Employer, including all
positions as an officer or director of Employer or any of its affiliates,
effective as of July 6, 2001 (the "Resignation Date"). Employer shall pay
Employee according to Employer's ordinary payroll practices for all wages
due up to and including Resignation Date. Employer shall also compensate
Employee on the Resignation Date for 13 unused vacation days. No vacation
pay will be due for any subsequent calendar year. Payments under this
Agreement are contingent upon Employee continuing to perform Employer's
typical services required by Employer up to the Resignation Date.
2. Employee agrees to provide consulting services at the request of Employer
during the first three months of the Severance Period set forth in
paragraph 3 below for purposes of transition and in connection with the
sale of Employer's Construction Equipment Division ("CED"). For the
avoidance of doubt, Employee's severance pay pursuant to paragraph 3 below
will survive any sale of CED.
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3. Employer shall pay or provide to Employee:
a) SEVERANCE PAY: Employer agrees to continue to pay Employee's current
base salary of $330,000 per year in accordance with its normal payroll
practices for one year following the Resignation Date (the "Severance
Period"). For avoidance of doubt, no bonuses will be due to Employee.
b) MEDICAL BENEFITS: Employer will provide Employee and his spouse with
medical benefits under the Employer's Group Medical Plan until (A) the
end of the Severance Period, or (B) Employee obtains employment with
an employer that offers medical coverage for Employee and his spouse
(regardless of any co-pay or contribution requirements for such
medical coverage) and is eligible for such coverage ("New Coverage"),
whichever is sooner. Employee shall give Employer notice of New
Coverage. While covered by the Employer's Group Medical Plan, Employee
will also be entitled to participate in Employer's Dental Plan. The
Employee will be afforded medical and dental benefits under the same
plans and terms as active Senior Vice Presidents of Employer.
c) LIFE INSURANCE: Employer will continue to provide Employee with company
paid life insurance in the amount of $250,000 during the Severance
Period. Following the Severance Period Employee's life insurance
coverage under any plan sponsored by the Employer will terminate
subject to the Employee's right, if any, to convert the coverage to
individual coverage under the terms of the insurance policy or
policies.
d) COMPANY CAR: Within thirty (30) days of the Resignation Date,
Employer, at its cost, shall cause outright ownership of Employee's
leased vehicle to be transferred to Employee.
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The continuation of salary, medical benefits and life insurance and the
transfer of ownership of the leased vehicle and the purchase of Employee's
stock in Eagle-Picher Holdings, Inc. under paragraph 7 below constitute a
special severance allowance. Employee acknowledges that the payments and
benefits under this special severance allowance constitute payments to
which he would not be entitled but for the existence of this Agreement.
Employee further acknowledges that this Agreement provides for payments and
benefits not contemplated under the terms and conditions applicable to his
employment. All lump sum and periodic payments and other benefits and
distributions under this Agreement shall be subject to any withholding and
employment taxes consistent with the character of the payments in
accordance with law. Employee shall pay the income tax costs for the car
being transferred and all other payments and benefits under this Agreement.
4. If Employee dies or becomes disabled before the Resignation Date, the
provisions of this Agreement will be void and of no effect and Employee
will be entitled to only such benefits as he would have received as an
employee of the Employer absent the creation of this Agreement. If Employee
dies after the Resignation Date, the payments and benefits provided under
paragraph 3 shall be provided to his surviving spouse. If Employee is not
survived by a spouse or if Employee and his spouse die in a common
accident, the payments and benefits provided under paragraph 3 shall be
payable to Employee's estate.
5. Employee releases, holds harmless, and covenants not to xxx or bring any
charge or other claim against Employer and it affiliates and the officers,
directors, shareholders, owners, employees and agents of Employer and its
affiliates (collectively, the "Released Parties") in connection with any
matter relating to, connected with, or arising out of his employment by
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Employer (other than personal injury) or the termination of that
employment. Further, Employee expressly waives any rights under any
Employer severance plan, or, except as expressly provided herein, any other
Employer benefit plan. Specifically, but without limitation, Employee
releases Employer and the Released Parties from, and agrees that he will
not bring any action against Employer or any of the Released Parties based
on, any claim or denial of equal employment opportunity or discrimination
in violation of any statute or regulation governing employment practices
and specifically releases any such claim or action relating to age
discrimination, including any claim under the federal Age Discrimination in
Employment Act. Further, also without limitation, Employee agrees that he
will not bring any action or other claim against Employer or any Released
Party based on any theory of wrongful termination, intentional or negligent
infliction of mental distress or other tort, breach of express or implied
contract, or promissory estoppel. Any rights Employee is entitled to under
his employment with Employer that are not specifically enumerated in this
Agreement are canceled upon the Resignation Date. This paragraph shall not
preclude Employee from bringing an action to enforce the terms of this
Agreement.
6. Employee will be entitled to benefits under the Eagle-Picher Salaried Plan,
the Eagle-Picher Supplemental Executive Retirement Plan ("SERP"), and the
Eagle-Picher Salaried 401(k) Plan in accordance with the terms of those
plans. Benefits under each of those plans will be calculated utilizing the
Resignation Date as the date of the Employee's termination of employment.
Employee specifically acknowledges and accepts the amendments to the SERP
made as of March 27, 2001. For the avoidance of doubt, the severance pay
provided in paragraph 3.a above constitutes "Salary" under Section 2.15(c)
of the SERP. If Employer
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takes action generally with respect to active employees who are SERP
participants to set aside amounts for payment of vested benefits under the
SERP or otherwise secure or fund payment of vested SERP benefits, then to
the extent permitted under then applicable laws and regulations Employee
shall be included in such action, but Employee shall not in any event be
entitled to receive a benefit as a result of such action that is greater
than that received by active employees or that prefers Employee over active
employees.
7. Within thirty (30) days of the date that this Agreement becomes
irrevocable, Employee shall sell and Employer shall purchase 6,250 shares
of Class A Common Stock of Eagle-Picher Holdings, Inc. (the "Shares")
awarded to him under the Second Amended and Restated Incentive Stock Plan
of Eagle-Picher Industries, Inc. (the "Stock Plan") at the current share
price of $94.06 for a total purchase price of $587,875. The Shares shall be
sold free and clear of any and all liens, pledges or encumbrances of any
kind. Employee shall deliver to EPI the voting trust certificate
representing the Shares duly endorsed for transfer. Employee acknowledges
and agrees that such payment is all that is due to him under the Stock Plan
and satisfies in full any and all obligations of Employer under the Stock
Plan.
8. Employee shall hold all Confidential Information (as defined below) in
strict confidence and not disclose any Confidential Information except as
expressly provided herein and shall not use any Confidential Information
for his own benefit or otherwise against the best interests of Employer. As
used herein, "Confidential Information" shall mean any information
regarding Employer and/or its affiliates (whether written, oral or
otherwise), received or obtained before, on or after the date hereof,
including without limitation any product design, specification or other
technical information, manufacturing or other process information,
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financial information, customer information, general business information,
or market information, WHETHER OR NOT marked or designated as
"Confidential," "Proprietary" or the like, in any form, including
electronic or optical data storage and retrieval mechanisms, and including
all forms of communication, including but not limited to physical
demonstrations, in-person conversations and telephone conversations, email
and other means of information transfer such as facility tours, regardless
of whether any such information is protected by applicable trade secret or
similar laws. The term "Confidential Information" shall not include
information which: (i) is or becomes generally available to the public
other than as a result of the disclosure by Employee or another person
bound by a confidentiality agreement with, or other legal or fiduciary or
other obligation of secrecy or confidentiality to, Employer or another
party with respect to such information; or (ii) becomes available to
Employee from a source other than Employer or any of its directors,
officers, employees, agents, affiliates, representatives, or advisors,
provided that such source is not bound by a confidentiality agreement with,
or other legal or fiduciary or other obligation of secrecy or
confidentiality to, Employer or another party with respect to such
information. The term "Confidential Information" shall also not include (i)
general know-how of Employee regarding manufacturing processes and
procedures that is not unique or proprietary to Employer, or (ii) the
identity of contact persons at customers of Employer's Hillsdale Tool &
Manufacturing Company subsidiary or Wolverine Gasket division. If Employee
shall be required by subpoena or similar government order or other legal
process ("Legal Process") to disclose any Confidential Information, then
Employee shall provide Employer with prompt written notice of such
requirement and cooperate if requested with Employer in efforts to resist
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disclosure or to obtain a protective order or similar remedy. Subject to
the foregoing, if Confidential Information is required by Legal Process to
be disclosed, then Employee may disclose such Confidential Information but
shall not disclose any Confidential Information for a reasonable period of
time, unless compelled under imminent threat of penalty, sanction, contempt
citation or other violation of law, in order to allow Employer time to
resist disclosure or to obtain a protective order or similar remedy. If
Employee discloses any Confidential Information, then Employee shall
disclose only that portion of the Confidential Information which, in the
opinion of counsel, is required by such Legal Process to be disclosed.
Employee represents and warrants to Employer that as of the date this
Agreement becomes irrevocable, Employee will not have in his possession or
in the possession of any of his family members any Confidential Information
in tangible form (including electronic computer files). Employee also
agrees not to disparage Employer or any of its shareholders, directors,
officers or employees and Employer agrees not to disparage Employee.
9. If Employee brings an action or other claim against Employer or any
Released Party in violation of paragraph 5 or otherwise materially breaches
this Agreement, in addition to any and all damages to which Employer or a
Released Party may be entitled, all payments and benefits to Employee set
forth in paragraph 3 above shall cease (excepting any benefit received in
accordance with the requirements of C.O.B.R.A.). Employer shall give
Employee notice of a claim that Employee has materially breached this
Agreement and Employee shall have a period of thirty (30) days to cure such
breach if it is capable of cure (provided that Employer may seek immediate
injunctive relief for a breach or threatened breach of this Agreement).
Employee acknowledges and agrees that in the event of any
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breach or threatened breach of this Agreement by Employee, then Employer
shall be entitled to specific performance and injunctive relief as a remedy
for any such breach or threatened breach hereof without necessity of
posting bond or other security, the requirement for which is expressly
waived. Employee agrees not to raise and hereby waives any defense to
injunctive relief based on lack of irreparable harm or sufficiency of
monetary damages. Such remedy shall not be deemed to be the exclusive
remedy for any breach of this Agreement, but shall be in addition to all
other remedies available to Employer at law or in equity.
10. Employee recognizes that the release and waiver provisions of this
Agreement may surrender valuable legal rights. He acknowledges full
awareness of the extinguishment of such rights in exchange for the
consideration provided under this Agreement. Employee further acknowledges
that he has been advised by Employer to consult an attorney with respect to
this Agreement prior to executing it. Further, Employee acknowledges that
he has been given twenty-one (21) calendar days from initial presentation
of this Agreement on June 29, 2001 in order to consult an attorney.
11. This Agreement shall be binding upon Employer as of the date of its
execution and presentation by Employer if it is executed by the Employee
within twenty-one (21) calendar days of presentation by Employer and not
later rescinded as provided herein. If Employee does not execute this
Agreement and deliver it to Employer within twenty-one (21) calendar days
of presentation by Employer, it shall be voidable at the option of
Employer. Employee, at his sole election and option, shall be entitled to
rescind and withdraw from this Agreement without further obligation at
anytime within seven (7) calendar days from the date Employee executes the
Agreement. Employee shall evidence any withdrawal and rescission by giving
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written notice to Employer's Senior Vice President and General Counsel, 000
X. 0xx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxx 00000, telecopy (000) 000-0000,
with a written notice stating that Employee rescinds the Agreement and
withdraws from it. If Employee has not given Employer such written notice
on or before the expiration of such seven (7) calendar days from the date
Employee executes the Agreement, this Agreement shall be irrevocable.
Executed and presented as of the 29th day of June 2001.
EAGLE-PICHER INDUSTRIES, INC.
By:
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President
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Executed and agreed to this _____ day of July, 2001.
By:
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Xxxxxxx X. Xxxxxxxx
WITNESSED BY: --------------------------------------
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