EXHIBIT 10.67
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT DATED DECEMBER 1, 2002
BETWEEN EAGLEPICHER INCORPORATED AND ▇▇▇▇ ▇. ▇▇▇▇▇
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT dated April 9,
2003, between EAGLEPICHER INCORPORATED (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Executive").
1. EMPLOYMENT AND DUTIES. The Company hereby employs the Executive, and
the Executive accepts employment, effective as of December 1, 2002, as President
and Chief Executive Officer of the Company and of Eagle-Picher Holdings, Inc.,
to perform such duties consistent with his position as may be assigned to him by
the Board of Directors of the Company (the "Board"). The Executive shall report
directly to the Board of Directors of the Company. The Executive shall devote
substantially all of his time during normal business hours to the business and
affairs of the Company except for vacation as provided in Paragraph 2(l) herein,
illness or incapacity. The Executive shall not, during his employment pursuant
to the Agreement, engage in any other business activity or occupation for gain,
profit or other pecuniary advantage without the prior consent of the Board;
provided, however, that such a prohibition shall not prohibit the Executive from
investing or trading for his own benefit in stocks, bonds, securities or other
forms of investment. The Company's headquarters shall be located within a 50
mile radius of Executive's current residence set forth below.
2. COMPENSATION; EXPENSES; BENEFITS.
2.a. BASE SALARY. As compensation for his services hereunder
in whatever capacity rendered, the Company shall pay to the Executive a base
salary, payable in equal installments twice a month at such times as is
customary with respect to the Company's executives, at a rate of $650,000 per
year ("Base Salary"). The Executive will not be entitled to any additional
compensation for any position held with an affiliate of the Company or for
representing the Company or its affiliates. The Executive's Base Salary shall be
reviewed annually and subject to increase at the discretion of the Board.
2.b. EXECUTIVE INCENTIVE BONUS. The Executive shall be
entitled to an annual bonus based on his achievement of annual objectives
mutually agreed upon by the Board and the Executive. Any bonus earned shall be
paid no later than five (5) business days following approval by the Board of the
Company's audited financial statements for the fiscal year to which the bonus
relates. The parties agree that the Executive's target bonus shall be sixty
percent (60%), based upon meeting plans and objectives mutually agreed to prior
to each fiscal year.
2.c. PREFERRED STOCK REFINANCING BONUS. If a "Preferred Stock
Refinancing" (as defined in Appendix A hereto) is completed, the Executive shall
be entitled to the Preferred Stock Refinancing Bonus as provided in Appendix A
hereto.
2.d. LONG TERM BONUS PROGRAM. The Executive shall be granted a
minimum of 150,000 units per year under the Company's 2002 Long Term Bonus
Program (the "LTBP") on each December 1 commencing December 1, 2001 until such
plan is terminated or amended, and in such event shall be entitled to equivalent
expected value based on Company performance under an amended or replacement long
term incentive program.
2.e. EMPLOYEE BENEFIT PLANS. The Executive shall be eligible
to participate in all pension, hospitalization, medical, long-term disability,
and life insurance programs and/or other retirement, welfare and fringe benefit
plans, programs or arrangements now or hereafter in effect for executives of the
Company (the "Employee Benefit Plans"), on the same terms as are at any given
time in effect for executives of the Company.
2.f. AUTOMOBILE. The Company shall provide to the Executive,
during the term of this Agreement, the use of an automobile that is comparable
to the Executive's currently leased vehicle (Jaguar Vanden Plas Supercharged
MSRP of $85,000) for which the Company shall pay the cost of insurance, taxes,
maintenance and business related operating expenses upon presentation by the
Executive of documentation supporting such
expenses, plus an additional amount necessary to pay all federal, state, local
and payroll taxes on all payments related to said automobile.
2.g. CLUB FEES. The Company shall pay the Executive's
membership dues for a private luncheon/country club and for the cost of the
Executive's membership in the Young Presidents Organization. The Company shall
reimburse the Executive for his travel expenses related to any meetings of the
Young Presidents Organization.
2.h. BUSINESS EXPENSES. The Executive shall be entitled to
reimbursement for his ordinary and necessary business expenses incurred in the
performance of his duties hereunder including all office expenses such as rent,
first class travel for all flights of three (3) hours or more, reimbursement for
reasonable upgrade charges and business related entertainment expenses, provided
that his claims therefor are documented in accordance with the Company's usual
rules and regulations, and are reviewed quarterly by the Board and reimbursement
approved by the Chairman of the Board.
2.i. VACATION. The Executive shall be entitled to four (4)
weeks vacation each calendar year.
3. TERMINATION OF EMPLOYMENT. Notwithstanding any other provision of
this Agreement, the Executive's employment may be terminated as follows:
3.a. CAUSE. Cause means any of the following: (i) the
Executive's commission of any crime involving an act or acts of dishonesty that
constitute a felony and result or were intended to result directly or indirectly
in gain to or personal enrichment of the Executive or engages in misconduct that
constitutes a serious felony; or (ii) the Executive's material willful breach of
his duties under this Agreement which breach is not cured by the Executive
within ten (10) days of receipt of written notice of such breach from the Board
to the Executive. The Company shall give the Executive three (3) business days'
written notice of its decision to terminate the Executive under clause (i) above
and shall specify the event relied upon for the termination. In the event the
Executive is terminated for cause pursuant to this Paragraph, the Company's
obligations to pay compensation expenses and benefits described in Paragraph 2
of this Agreement shall cease on the date of termination for cause, except for
unpaid salary or benefits for the period prior to the termination and the
Executive's rights under the LTBP.
3.b. BY COMPANY WITHOUT CAUSE. By the Company, other than
pursuant Paragraphs 3(a), 3(e) or 3(f), in which event the Executive's
employment hereunder shall be deemed terminated as of the ninetieth (90th) day
following the giving of written notice to the Executive of the Company's
decision to terminate pursuant to this Paragraph. The Company may elect to
suspend the Executive following the giving of notice hereunder up to the date of
termination, subject to the Company's continuing obligation to pay the
Executive's compensation and benefits under Paragraph 2. If the Company
terminates the Executive's employment hereunder, the Executive shall be entitled
to the payments set forth under Paragraph 3(c)(ii) of this Agreement.
3.c. BY EXECUTIVE WITH GOOD REASON.
3.c.i. By the Executive, upon the occurrence of any
of the following events:
3.c.i.(1) Failure to elect or reelect the Executive
to, or removal of the Executive from, the offices referred to in
Paragraph 1.
3.c.i.(2) A significant diminution in the nature or
scope of the essential authorities, powers, functions, duties or
responsibilities attached to the positions referred to in Paragraph 1
or a reduction in the compensation, expenses or benefits described in
Paragraph 2, which in either event is not remedied within thirty (30)
days after receipt by the Company of written notice from the Executive.
3.c.i.(3) Within two (2) years of a Change in
Control, as defined below, the Executive gives written notice to the
Company of his determination made in his discretion that, as a result
of a Change in Control:
3.c.i.3.(A) he is unable to carry out the
authorities, powers, functions, duties or responsibilities
related to the positions described in Paragraph 1; or
3.c.i.3.(B) his working conditions otherwise have
become unacceptable and, in the discretion of the Executive,
the Situation is not remedied to his satisfaction within
thirty (30) days after receipt by the Company of written
notice from the Executive of such determination, outlining the
Executive's objections and proposed solutions that have not
been implemented by the Company.
3.c.i.(4) A breach by the Company of any provisions
of this Agreement not embraced within the foregoing clauses (1), (2)
and (3), which is not remedied within thirty (30) days after receipt by
the Company of written notice from the Executive of the breach.
In any event set forth in this Paragraph, the Executive shall give
written notice to the Board that he has elected to terminate his
employment, which notice shall be given not less than thirty (30) days
prior to the termination. Said written notice will be given within
three (3) calendar months after (A) the Executive's failure to be
elected or reelected, or his removal, or (B) expiration of the
thirty-day cure period, if applicable. The Company may elect to suspend
the Executive following receipt of the Executive's Notice of
Termination from the date of the Company's receipt of said Notice, up
to the date of termination, subject to the Company's continuing
obligation to pay the Executive's compensation and benefits under
Paragraph 2 herein. If the Executive elects to terminate his employment
pursuant to Paragraph 3.c.i.3, he shall not be entitled to any benefit
or right resulting from such Change in Control, except for the benefits
and rights provided pursuant to this Agreement, and he shall reimburse
the Company or its successor for any such benefit or right (other than
benefits or rights provided pursuant to this Agreement) received prior
to his election to terminate pursuant to Paragraph 3.c.i.3.
3.c.ii. In the event that the Executive terminates his
employment pursuant to Paragraph 3(c)(i) or the Company terminates his
employment pursuant to Paragraph 3(b) of this Agreement:
3.c.ii.(1) The Company shall pay the Executive for
eighteen (18) months (the "Severance Period") an amount equal to the
then-existing Base Salary provided in Paragraph 2(a). At the Company's
option, said payment can be made monthly or in a lump sum.
3.c.ii.(2) The Company shall pay the Executive a pro
rata share of the annual bonus described in Paragraph 2.c for the year
in which termination occurred, which shall be calculated by multiplying
the number of full and partial months of employment for the year of
termination preceding the termination by one-twelfth (1/12) of the
Executive's annual bonus for the contract year preceding the year of
termination, which pro rata bonus shall be paid as described in
Paragraph 2.c. In addition, for the Severance Period, the Executive
shall be paid one hundred fifty percent (150%) of the Executive's
annual bonus for the fiscal year proceeding the year of termination,
which shall be paid in a lump sum no later than five (5) business days
after the effective date of termination or in equal monthly
installments during the Severance Period, at the election of the
Company.
3.c.ii.(3) During the Severance Period in addition to
payment of the Base Salary, the Executive shall continue to be entitled
to all benefits and perquisites provided for in Paragraph 2 (f), as if
the Executive had not been terminated, unless expressly prohibited by
applicable law.
3.c.ii.(4) To the extent set forth in Appendix A
hereto, the Executive shall be entitled to a Preferred Stock
Refinancing Bonus if a Preferred Stock Refinancing is completed during
the Severance Period.
3.c.ii.(5) The Executive shall have the rights set
forth in the LTBP.
3.c.iii. For purposes of this Agreement, a "Change of Control" of the
Company shall be deemed to have occurred as a result of any of the following:
3.c.iii.(1) Granaria Holdings no longer controls, directly or
indirectly, at least a majority of the voting power of the Company in
the election of directors;
3.c.iii.(2) The Company's gross sales are less than $500
million for a period of at least one fiscal year as a result of the
sale of the Company's assets (excluding the sale of CED);
3.c.iii.(3) The Board approves a consolidation or merger of
the Company with another corporation and such consolidation or merger
is consummated, unless such consummation results in Granaria Holdings
controlling a majority of the voting power, directly or indirectly, in
the election of directors in the surviving entity and the Executive is
offered the position of President, CEO and member of the Board of
Directors of the surviving entity on terms and conditions at least as
favorable as those set forth herein; or
3.c.iii.(4) A change in the Board occurs with the result that
the members of the Board on the date hereof ("Incumbent Directors") no
longer constitute a majority of such Board; provided, that any person
becoming a director whose election or nomination for election was
supported by a majority of the Incumbent Directors shall be considered
an Incumbent Director for purposes hereof; and provided, further, that
any director whose appointment or nomination occurs and is required and
made by any person other than the Company and its affiliates (including
Granaria Holdings and ABN-AMRO) in connection with an acquisition of
Common Stock of the Company pursuant to a merger, consolidation,
purchase of shares or similar transaction involving the Company shall
not be treated as an Incumbent Director. Upon his election to the
Board, the Executive shall be an Incumbent Director.
3.d. BY EXECUTIVE WITHOUT GOOD REASON. By the Executive, at any time
and for any reason, in which event the Executive's employment hereunder shall be
deemed terminated as of the ninetieth (90th) day following the giving of written
notice to the Company of the Executive's decision to terminate pursuant to this
Paragraph. The Company may elect to suspend the Executive following receipt of
the Executive's Notice of Termination from the date of the Company's receipt of
the Notice, up to the date of the termination, subject to the Company's
continuing obligation to pay the Executive's compensation and benefits under
Paragraph 2 herein. In the event the Executive terminates his employment
pursuant to this Paragraph, the Company's obligations to pay compensation
expenses and benefits described in Paragraph 2 of this Agreement shall cease on
the date of such termination, except for unpaid salary or benefits for the
period prior to the termination and the Executive's rights under the LTBP, and
all entitlements to the Refinancing Bonus as provided in Appendix A.
3.e. DISABILITY. In case of the Executive's disability, which for this
purpose shall mean that, as a result of illness or injury, the Executive is
unable substantially to perform his duties hereunder for a period of at least
twelve (12) consecutive months, the Company may terminate the Executive's
employment hereunder by giving him at least thirty (30) days' notice of
termination. The Executive agrees that in the event of any dispute under this
Paragraph to submit to a physical examination by a licensed physician selected
by the Company. If the Company terminates the Executive's employment pursuant to
the foregoing, for the duration of his disability, the Executive will be
entitled to receive payments under the Company's long-term disability policy.
Except as specifically provided in Paragraph 1(b) of Appendix A hereto, the
Executive shall not be entitled to a Preferred Stock Refinancing Bonus with
respect to any Preferred Stock Refinancing completed after the date his
employment is terminated for disability. The Executive shall have the rights set
forth in the LTBP.
3.f. DEATH. Upon the death of the Executive, the Company shall continue
to make payments under Paragraphs 2(a) ("Base Salary") and 2(f) ("Employee
Benefit Plans") for three (3) months from the date death and proceeds shall
become payable under the death benefit plans described in Paragraph 2(f) in
accordance with their terms. Except as specifically provided in Paragraph 1(b)
of Appendix A hereto, if the Executive dies before the completion of a Preferred
Stock Refinancing, the Company shall have no obligation to pay a Preferred Stock
Refinancing Bonus with respect to such refinancing. The Executive's estate shall
have the rights set forth in Appendix B hereto with respect to the LTB Plan.
3.g. EXCISE TAX GROSS UP.
3.g.i. In the event any payment that is either received by the
Executive or paid by the Company on his behalf or any property or any
other benefit provided to him under this Agreement or under any other
plan, arrangement or agreement with the Company or any member of the
Company's affiliated group (as
defined in Section 280G(d)(5) of the Internal Revenue Code (the
"Code"))(collectively the "Company Payments"), will be subject to the
tax (the "Excise Tax") imposed by Code Section 4999 or any
substantially similar tax that may hereafter be imposed by any taxing
authority, the Company shall pay to the Executive an additional amount
(the "Gross-up Payment") such that the net amount retained by the
Executive, after deduction of any Excise Tax on the Company Payments
and any federal, state, and local income and payroll taxes upon the
Gross-up Payment provided for by this Paragraph before deduction for
any federal, state, and local income and payroll taxes on the Company
Payments, shall be equal to the Company Payments. In no event shall the
Company have any obligation to make any other payment to the Executive
with respect to any federal, state or local income, payroll or other
tax with respect to the Company Payments.
3.g.ii. The determination of whether any of the Company
Payments and the Gross-up Payment (collectively the "Total Payments")
will be subject to the Excise Tax and the amount of such Excise Tax
will be made by the Company's independent certified public accountants
appointed prior to any change in ownership (as defined under Code
Section 280G(b)(2)) or tax counsel selected by such accountants or the
Company, provided that such counsel advised the Company with regard to
tax matters prior to any such change in ownership (the "Accountants").
The value of any non-cash benefits or any deferred payment or benefit
shall be determined by the Accountants in accordance with the
principles of Code Section 280G. Any determination by the Accountants
shall be binding upon the Company and the Executive. Any Gross-Up
Payment will be paid to the Executive within ten (10) business days of
the Accountant's determination of the amount of such payment. If the
Internal Revenue Service makes a claim that would require the payment
of Excise Tax in an amount greater than that calculated by the
Accountants, the provisions of Paragraph 3.g.v. shall control the
determination of the amount of the Excise Tax.
3.g.iii. For purposes of determining the amount of the
Gross-up Payment, the Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation
applicable to the Executive in the calendar year in which the Gross-up
Payment is to be made and state and local income taxes at the highest
marginal rate of taxation applicable to the Executive in the state and
locality of the Executive's residence for the calendar year in which
the Company Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained by the Executive from
deduction of such state and local taxes if paid in such year.
3.g.iv. In the event that the Excise Tax ultimately paid by
the Executive, taking into account any refund amount, is less than the
amount taken into account hereunder at the time the Gross-up Payment is
made, the Executive shall repay to the Company, at the time that the
Excise Tax is paid or the refund is received, as applicable, the
portion of the prior Gross-up Payment attributable to such reduction
(plus the portion of the Gross-up Payment attributable to the Excise
Tax and federal, state and local income tax imposed on the portion of
the Gross-up Payment being repaid by the Executive if such repayment
results in a reduction in Excise Tax or federal, state and local income
tax deduction), plus interest on the amount of such repayment at the
rate provided in Code Section 1274(b)(2)(B).
3.g.v. The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would
require the payment of any Excise Tax in excess of the amount
determined under Paragraph 3.g.ii. Such notification shall be given as
soon as practicable but no later than five business days after the
Executive is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim before the
expiration of the 30-day period following the date on which it gave
such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing before the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith to
contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim.
The Company shall bear and pay directly all costs and expenses
(including additional interest, deemed interest with respect to interest-free
advances and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Paragraph 3.g, the
Company shall control all proceedings taken in connection with such contest and,
at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay the
tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine. If the Company directs the
Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance. Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
4. INDEMNIFICATION. The Company will indemnify the Executive (and his
estate) to the fullest extent permitted by the laws of the State of Ohio that
are in effect at the time of the subject act or omission, or the Amended and
Restated Articles of Incorporation and Regulations of the Company, as in effect
at such time or on the effective date of this Agreement, whichever affords or
afforded greater protection to the Executive (including payment of expenses in
advance of final disposition of a proceeding). Furthermore, the Executive shall
be entitled to the protection of any insurance policies the Company may elect to
maintain generally for the benefit of its directors and officers, against all
costs, charges and expenses whatsoever incurred or sustained by him or his legal
representatives in connection with any action, suit or proceeding to which he
(or his legal representatives or other successors) may be made a party by reason
of his being or having been a director, officer or employee of the Company or
his serving or having served any other enterprise as a director, officer or
employee at the request of the Company.
5. ARBITRATION. In case of any dispute or disagreement arising out of
or in connection with this Agreement, the parties hereto hereby agree to submit
said dispute or disagreement under the National Rules for the Resolution of
Employment Disputes ("Rules") of the American Arbitration Association ("AAA").
The hearings will be held in Phoenix, Arizona and will be conducted pursuant to
the Rules of the AAA. The dispute will be submitted to a panel of arbitrators
selected in accordance with the Rules of the AAA. The panel or arbitrators'
award shall be issued within one hundred twenty (120) days following submission
of the dispute to the AAA. Any decision or award of said arbitration panel shall
be final and binding on the Company and the Executive.
6. SURVIVAL OF OBLIGATIONS. The obligations under Paragraphs 4
(Indemnification) and 5 (Arbitration) shall survive the termination of this
Agreement for any reason, whether such termination is by the Company, by the
Executive, upon the expiration of this Agreement or otherwise.
7. SEVERABILITY. In case any one or more of the provisions or part of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect any
other jurisdiction or any other provision or part of a provision of this
Agreement, but this Agreement shall be reformed and construed in such
jurisdiction as if such provision or part of a provision held to be invalid or
illegal or unenforceable had never been contained herein and such provision or
part reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible.
8. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the Company and the Executive with respect to the subject
matter hereof and supersedes all prior written agreements. This Agreement may
not be amended, waived, changed, modified or discharged except by an instrument
in writing
executed by or on behalf of the party against whom any amendment, waiver,
change, modification or discharge is sought.
9. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, postage prepaid, first class as follows:
(a) TO THE COMPANY: (b) TO THE EXECUTIVE:
Chairman of the Board ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
and/or to such other persons and addresses as either party shall have specified
in writing to the other.
10. NO RAID; NON-COMPETITION. The Executive agrees that he will not,
for a period of eighteen (18) months following his termination of employment,
for any reason whatsoever, do any of the following:
10.a. solicit, entice, persuade, encourage or otherwise induce any
individual or entity (including any subsidiary or affiliate of such individual
or entity and any officer, stockholder, partner, employee or other
representative of such individual or entity) that was a customer of the Company
(whether or not the Executive provided services for such customer) at any time
Executive was an employee of the Company (i) to refrain from purchasing products
manufactured by the Company or using the services of the Company or (ii) to
purchase products and services available from the Company from any person or
entity other than the Company;
10.b. hire or otherwise engage the services of any officer or employee
of the Company or any of its subsidiaries or affiliates;
10.c. solicit, entice, persuade, encourage or otherwise induce any
employee of the Company (including any of its subsidiaries or affiliates) to
terminate such employment or to become employed by any person or entity other
than the Company; or
10.d. own, manage, control or participate in the ownership, management
or control, or be employed or engaged by or otherwise affiliated or associated
as an employee, consultant, independent contractor, director, agent, or
otherwise with any other corporation, partnership, proprietorship, firm,
association or other business entity in the world that manufactures or sells any
product that competes with or is a substitute for any product manufactured or
sold by the Company on the date of the Executive's termination of employment;
provided, however, that the Executive may own up to one percent (1%) of any
class of publicly traded securities of any such entity, and provided further,
that if a court determines that the foregoing restriction is not enforceable
because the territorial scope is too broad, then the restrictions shall be
limited to businesses that sell a material amount of competitive products or
substitutes into any country or countries as to which the Company or one of its
subsidiaries sold a material amount of products during the twelve months
preceding termination of Executive's employment. Notwithstanding the foregoing,
the Executive may own, participate in or be employed by any entity that
manufactures or sells any product that competes with or is a substitute for any
product manufactured or sold by the Company on the date of the Executive's
termination of employment if, and only if, the aggregate annual revenue
contributed by all of such competitive or substitute products to such other
entity is not greater than five percent (5%) of such entity's total annual
revenue and the Executive does not have any direct management responsibility for
such competitive as substitute products manufactured or sold by such other
entity. For purposes of this Paragraph 10.d, the term "direct management
responsibility" means that the management of the manufacture or sale of
competitive or substitute products comprises a material part the Executive's
duties
11. CONFIDENTIALITY. The Executive agrees that he will not, following
his termination of employment, for any reason whatsoever; use, disclose, furnish
or make accessible, directly or indirectly, in any manner or for any purpose
unauthorized by the Company, any trade secrets, confidential or proprietary
information or any information, documents or materials owned, developed or
possessed by the Company, whether in tangible or intangible form, pertaining to
the business of the Company, including, without limitation, identities of
clients and
prospective clients, identities of individual contacts at business entitles
which are clients or prospective clients, and business relationships provided,
that this Paragraph 11 shall not apply to information generally known to the
public.
12. ASSIGNABILITY. In the event that the Company shall be merged with,
or consolidate into, any other entity, or in the event that it shall sell and
transfer substantially all of its assets to another entity, and if, in the case
of either event, regardless of whether or not the transaction results in a
"Change in Control" under the provisions of this Agreement referred to in
Paragraph 3(c)(iii) (Change in Control), the terms of this Agreement shall inure
to the benefit of, be assumed by, and be binding upon, the entity resulting from
such merger or consolidation, or to which the Company's assets shall be sold and
transferred; provided, however, that in the event that this Agreement is
assigned by the Company, in connection with such a merger, consolidation or sale
or transfer, or otherwise, the Executive and his dependents, beneficiaries,
estate and surviving spouse shall be entitled to exactly the same compensation,
benefits, perquisites, payments and other rights as would have been their
entitlement had this Agreement not been assigned. This Agreement shall not be
assignable by the Executive, but it shall be binding upon, and shall inure to
the benefit of, his heirs, executors, administrators and legal representatives.
13. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Arizona.
14. WAIVER AND FURTHER AGREEMENT. Any waiver of any breach of any terms
or conditions of this Agreement shall not operate as a waiver of any other
breach of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
15. MISCELLANEOUS; TAXES.
15.a. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
15.b. Notwithstanding anything herein to the contrary, except as
otherwise specifically provided in this Agreement (including the Appendices) or
any other written agreement between the Company and the Executive, the Executive
shall be liable for paying all taxes of any kind imposed on him with respect to
the amounts and benefits payable to him hereunder.
15.c. This Agreement is the entire agreement of the parties, and
supersedes any other agreements or understandings, written or oral, with respect
to its subject matter. Without limiting the generality of the foregoing, this
Agreement amends and restates in its entirety the Executive Employment Agreement
dated as of July 15, 2001 between Executive and the Company (then known as
Eagle-Picher Industries, Inc.).
EAGLEPICHER INCORPORATED
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
APPENDIX A
PREFERRED STOCK REFINANCING BONUS
The Company hereby represents that: As of the date hereof, 51.8% of the
outstanding Preferred Stock of the Company is owned by Dakruiter, a special
purpose vehicle based in Luxembourg (the "SPV"), which is owned by ABN AMRO
("AA") and Granaria Holdings ("GH"). AA and GH have entered into a Shareholders'
Agreement, dated March 23, 2001, the material terms of which have been disclosed
to the Executive (the "Shareholders' Agreement").
1. AMOUNT OF PREFERRED STOCK BONUS.
1.a. Upon completion of each Preferred Stock Refinancing, (the
"Completion Date"), the Executive shall be entitled to a cash bonus, calculated
as follows:
Completion Date is: Percentage of SPV Profit
Prior to March 31, 2005 5%
Prior to April 30, 2006 4%
After April 30, 2006 3%
1.b. The Executive shall be entitled to receive the cash bonus
described in this Appendix A if he is still employed by the Company on the
Completion Date, provided that, if substantial actions have been put in motion
prior to the Executive's date of termination that result in a Preferred Stock
Refinancing, the Executive (or his estate, if applicable) shall be entitled to
the following percentage of the bonus: (i) 100%, if the Completion Date occurs
within the Severance Period if his employment is terminated by the Company
without cause (pursuant to Paragraph 3(b) of the Employment Agreement) or by the
Executive for good reason (pursuant to Paragraph 3(c) of the Employment
Agreement), or (ii) 50%, if the Completion Date occurs on or before the first
anniversary of the termination of his employment as a result of the Executive's
disability or death (pursuant to Paragraph 3(e) or (f), respectively, of the
Employment Agreement). The Executive shall not be entitled to the cash bonus
described in this Appendix A if the Completion Date occurs after the Executive's
termination for cause (pursuant to Paragraph 3(a) of the Employment Agreement)
or voluntary termination (pursuant to paragraph 3(d) of the Employment
Agreement).
1.c. Notwithstanding Paragraph 1.a above, the Executive's
Preferred Stock Bonus shall not be less than $2.5 million (or $2.5 million times
the percentage of Preferred Stock transferred if less than all of the Preferred
Stock of the SPV is transferred) if the Preferred Stock Refinancing is at one
hundred percent (100%) of the present face value of the shares (which is $10,000
each) or the applicable percentage between one hundred percent (100%) and
eighty-three percent (83%) if the Completion Date is prior to March 1, 2003.
1.d. If a Preferred Stock Refinancing occurs, and the
Executive and the Company cannot agree whether the Executive is entitled to a
Preferred Stock Refinancing Bonus and/or the amount thereof, the Company shall
provide the Executive with a true and complete copy of the Shareholders'
Agreement (including all amendments thereto) within three days of Executive's
request therefor and the dispute shall be resolved through arbitration pursuant
to Paragraph 5 above.
2. DEFINITIONS.
2.a. "SPV Profit" shall be determined in accordance with the
following formula:
Shares Transferred
SPV Profit = Proceeds - Aggregate Cost x ------------------
Shares Owned
Where:
"Proceeds" means the proceeds of the Preferred Stock Refinancing received by SPV
in cash or other liquid assets plus dividends paid with respect to the Preferred
Stock
"Aggregate Cost" means the aggregate price paid by SPV to acquire the Preferred
Stock plus all brokerage fees and similar costs related to the acquisition and
transfer of the Preferred Stock
"Shares Transferred" means the number of shares of Preferred Stock transferred
by SPV in the Preferred Stock Refinancing
"Shares Owned" means the number of shares of Preferred Stock owned by the SPV at
the time of the Preferred Stock Refinancing
SPV Profit will not be reduced by any interest cost or taxes payable by the SPV.
2.b. "Preferred Stock Refinancing" shall mean any transaction
as a result of which all or any portion of the Preferred Stock owned by the SPV
is transferred to a third party (including the Company but excluding GH, AA and
Residex) in exchange for cash or other liquid assets. The date as of which the
assets received are fully and unconditionally liquid shall determine the date
that such refinancing has been completed.
3. PAYMENT.
3.a. The Company shall pay the Executive a Preferred Stock
Refinancing Bonus in cash within thirty (30) days after the Completion Date;
provided, however, that if the SPV does not receive all of the Proceeds (as
defined above) of the Preferred Stock Refinancing on the Completion Date, the
Company shall pay the Executive a pro rata portion of the Preferred Stock
Refinancing Bonus, which pro rata portion shall be determined by multiplying the
amount of the Preferred Stock Refinancing Bonus by a fraction, the numerator of
which is the Proceeds received by the SPV on the Completion Date and the
denominator of which is the total Proceeds. Thereafter, the Company shall pay
the Executive the remainder of the Preferred Stock Refinancing Bonus or a pro
rata portion thereof, as Proceeds are received by the SPV, within thirty (30)
days of the SPV's receipt of such Proceeds; provided, however, that if any
Proceeds are received by the SPV at any time after the third anniversary of the
Executive's termination of employment under this Agreement, the Executive shall
not be entitled to any further amount of the Preferred Stock Refinancing Bonus
with respect to such Proceeds and the Company shall have no further obligation
to pay the remainder of the Preferred Stock Refinancing Bonus with respect to
such Proceeds.
3.b. If the exact value of the Preferred Stock Refinancing
Bonus cannot be determined prior to the date for payment, the Company shall make
an interim payment to the Executive based on a good-faith estimate on the date
for payment. Thereafter, within five business days after the amount is
determined (but in no event more than sixty (60) days after the Completion
Date), the Company shall pay the Executive any additional amount due, and the
Executive shall return to the Company any amount paid to him by the Company to
which he was not entitled.
