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Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT between The Carbide/Graphite Group, Inc., a
Delaware corporation (the "Corporation") and Xxxxxxx X. Xxxxxx (the "Executive")
dated as of February 1, 1998 (the "Agreement").
WHEREAS, the Corporation wishes to employ the Executive as Vice
President- Finance/Chief Financial Officer of the Corporation on the terms set
forth herein and the Executive wishes to be employed by the Corporation on such
terms;
IT IS, THEREFORE, AGREED:
1. EMPLOYMENT. The Corporation hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Corporation, for the
period commencing as of the date hereof and ending on January 31, 2000 as its
Vice President- Finance/Chief Financial Officer (the "Employment Period").
2. DUTIES. During the Employment Period, the Executive agrees to devote
his attention full time and during normal business hours to his responsibilities
as Vice President- Finance/Chief Financial Officer of the Corporation and to use
his best efforts to perform faithfully and efficiently such responsibilities.
The Executive shall, subject to the supervision and control of the Chairman/CEO
of the Corporation, perform such duties and exercise such supervision and powers
over and with regar d to the business of the Corporation as are contemplated to
be performed by the Vice President-Finance/CFO pursuant to the By-laws of the
Corporation and such additional duties as may from time to time be prescribed by
the Chairman/CEO and the Board of Directors.
3. BASE COMPENSATION. During the Employment Period, the Executive shall
receive a base salary at an annual rate of at least $190,000 with any increase
thereto to be determined by the Compensation Committee of the Board of Directors
from time to time. The Executive's next salary review is scheduled for June 30,
1998.
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4. ANNUAL INCENTIVE AWARDS. Subject to the terms of the Corporation's
Annual Incentive Bonus Plan, the Executive's participation in the Plan for the
fiscal years ending July 31, 1998, July 31, 1999, and the period August 1, 1999
to January 31, 2000 shall be at a target award level equal to 30% of base pay.
5. TERMINATION. (a) Death or Disability. This Agreement shall terminate
automatically upon the Executive's death. The Corporation may terminate this
Agreement during the Employment Period after having established the Executive's
"Disability" (as defined below), by giving the Executive written notice of its
intention to terminate the Executive's employment. For purposes of this
Agreement, "Disability" means the Executive's inability to substantially perform
his duties and responsibi lities to the Corporation by reason of a physical or
mental disability or infirmity (i) for a continuous period of six months or (ii)
at such earlier time as the Executive submits medical evidence satisfactory to
the Corporation that the Executive has a~ physical or mental disability or
infirmity that will likely prevent the Executive from substantially performing
his duties and responsibilities for six months or longer. The date of Disability
shall be the day on which the Executive receives notice f rom the Corporation
pursuant to this Section 6(a).
(b) Cause. The Corporation shall have the right to terminate
the Executive's employment for "Cause" during the Employment Period. For
purposes of this Agreement, "Cause" shall mean (i) the willful and continued
failure by the Executive to perform substantially his duties to the Corporation
or its subsidiaries (other than any such failure resulting from his Disability)
within a reasonable period of time after a written demand for substantial
performance is delivered to the Executive by the Chairman/CEO, which demand
specifically identifies the manner in which the Chairman/CEO believes that the
Executive has not substantially performed his duties, (ii) embezzlement or theft
from the Corporation or any subsidiary or affiliate by the Executive or the
commission or perpetration by the Executive of any act involving moral
turpitude, or (iii) any material and willful violation by the Executive of his
.obligations under Section 7 hereof.
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(c) Change of Control. The Executive shall have the right to
terminate this Agreement during the Employment Period upon thirty (30) days
prior written notice to the Corporation or a successor of the Corporation, as
the case may be, for "Good Reason" on or subsequent to the consummation of a
"Change of Control." For purposes of this Agreement, (A) "Good Reason" shall
mean (1) a change in the Executive's duties and responsibilities without his
consent such that his duties and responsibil ities are materially reduced or
altered in a manner unfavorable to him or a decrease in the Executive's salary
or a material decrease in his benefits or (2) a change in the location at which
the Executive's duties are principally carried out of more than 20 miles from
the Corporation's principal executive offices in Pittsburgh, Pennsylvania; and
(B) "Change of Control" shall mean (i) a change in control of the Board of
Directors of the Corporation pursuant to which any single Person or two or more
Persons acting in concert acquires control of such Board of Directors or (ii)
the Transfer of at least 51% or more of the voting equity interests in the
Corporation (or any . parent of the Corporation), whether by sale, merger,
consolidation or otherwise, to any single Person or two or more Persons acting
in concert; provided that two or more Persons shall be considered to be acting
in concert for purposes of clauses (i) and (ii) hereof only if such Persons
would have been considered to be acting in concert as a " group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, for such purposes treating
voting equity interests of the Corporation held or acquired by such Persons as
if such voting equity interests were equity securities in respect of which a
Schedule 13D would be required to be filed with the Securities and Exchange
Commission and as if the requisite percentage and other threshold conditions to
such filing were satisfied. "Person" means any individual, corporation,
partnership, joint vent ure, association, joint-stock company,, unincorporated
organization or governmental body. "Transfer" means, sell, transfer, convey,
lease and/or deliver (other tenses of the term have similar meaning) or sale,
transfer, assignment, conveyance, lease and/or delivery, as indicated by the
context.
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6. EFFECT OF TERMINATION. (a) Upon termination of the Executive's
employment during the Employment Period, because of death or Disability as
provided in subsection 6(a), following termination of the Executive's
employment, the Corporation shall continue to pay the Executive or his estate or
other personal representative as severance (x) the amount of the Executive's
salary as provided in Section 3 at the rate in effect immediately prior to
termination of his employment for a period of twen ty-four months less the
amount of any disability payments made by the Corporation or any Corporation
plan and (y) in the case of a Disability termination will afford to the
Executive at the Corporation's expense, health insurance benefits (including
medical and dental) and life insurance equivalent to the benefits enjoyed by the
Executive at the date of termination (the "Insurance Benefits") for a period of
twenty-four months from he date of such termination.
(b) If the Executive's employment is terminated by the
Corporation during the Employment Period (other than for death, Disability or
Cause or other than by virtue of a Change of Control pursuant to subsection 5
(c)), or in the event the Corporation is unwilling to extend the Executive's
employment at the expiration of this Agreement upon terms at least as favorable
to the Executive as the terms set forth herein, the Corporation shall continue
the Executive's salary for the remainder of the Employment Period or twenty-
four (24) months, whichever is longer and shall continue to maintain the
Insurance Benefits for such period.
(c) If the Executive's employment is terminated by the
Executive during the Employment Period pursuant to subsection 5 (c), the
Corporation shall pay to the Executive a cash amount as severance in a lump sum
equal to a 2.99 times the Executive's base salary then in effect pursuant to
Section 3; provided that such payment under this subsection 6 (c) shall be
limited to an amount which would not constitute an "excess parachute payment"
under Section 280G of the Federal Internal Revenue C ode. Such lump sum payment
shall be paid within 45 days after the date of termination provided for in
subsection 5 (c).
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(d) Nothing herein shall be deemed to restrict or reduce the
Executive's vested benefits under the Compensation Deferral Plan, the Savings
Incentive Plan or the Annual Incentive Bonus Plan as determined in accordance
with the provisions of such plans.
(e) No continued salary or severance shall be paid if the
Executive's employment terminates for any reason during the Employment Period
other than as set forth above in this Section 6.
7. CONFIDENTIAL INFORMATION; NON-COMPETITION. (a) For a three-year
period commencing on the date on which the Executive's employment with the
Corporation, or any of its affiliates, terminates for whatever reason (the "Date
of Termination"), (i) the Executive shall hold in a fiduciary capacity for the
benefit of the Corporation all secret or confidential information, knowledge or
data relating to the Corporation or its affiliates, and their respective
businesses which shall not be public knowledge (other than information which
becomes public as a result of acts of the Executive or his representatives in
violation of this Agreement), including without limitation, customer lists,
bids, proposals, contracts, matters subject to litigation, technology or
financial information of the Corporation or its subsidiaries and other know-how,
and (ii) the Executive shall not, without the prior written consent of the
Corporation, communicate or divulge any such information, knowledge or data to
anyone o ther than the Corporation and those designated by it in writing.
(b) For a three-year period commencing on the Date of
termination, the Executive will not, directly or indirectly, (i) own, manage,
operate, control or participate in the ownership, management or control of, or
be connected as an officer, employee, partner, director, or consultant or
otherwise, with, or have any financial interest in (except for (A) ownership of
the date hereof, (B) any ownership in the common stock of the Corporation, or
(C) any ownership of less than 5% of th e outstanding equity interest in any
entity) (I) the manufacture of graphite electrodes, (II) the manufacture of
specialty carbon and graphite products, or (III) the refining of products
required for production of, or the production of,
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needle coke, or the manufacture or marketing of calcium carbide and its direct
derivatives, in each case, in any market in which the Corporation or its
affiliates conducts or solicits business or (ii) solicit or contact any employee
of the Corporation or its affiliates with a view to inducing or encouraging such
employee to leave the employ of the Corporation or its affiliates for the
purpose of being employed by the Executive, an employer affiliated with the
Executive, or any competitor of the Corporation or any affiliate thereof;
provided that the provisions of subsection (b) (i) shall be limited to a period
of two years in the event the Corporation is unwilling to extend the Executive's
employment at the expiration of this Agreement upon terms at least as favorable
to the Executive as set forth in this Agreement or the termination by the
Corporation of the Executive's employment during the Employment Period other
than for Cause or Disability.
(c) The Executive acknowledges that the provisions of this
Section 7 are reasonable and necessary for the protection of the Corporation and
that the Corporation will be irrevocably damaged if such provisions are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Corporation may be entitled in the form of actual
or punitive damages, the Corporation shall be entitled to seek and obtain
injunctive relief from a court of competen t jurisdiction (without the posting
of a bond therefor) for the purposes of restraining the Executive from any
actual or threatened breach of such provisions.
8. SUCCESSORS. (a) This Agreement is personal to the Executive and
without the prior written consent of the Corporation shall not be assignable by
the Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Corporation and its successors.
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(c) This Agreement supersedes the employment agreement dated
March 1, 1995 between the Executive and the Corporation which prior agreement is
no longer in force.
9. MISCELLANEOUS. (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
If to the Corporation:
The Carbide/Graphite Group, Inc.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(c) The Corporation may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
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(d) The Corporation's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision hereof. The Executive's failure to insist upon strict
compliance with any provision hereof shall not be deemed to be a waiver or such
provision or any other provision hereof.
(e) This Agreement embodies the entire agreement between the
parties with respect to the Executive's employment, and may not be changed or
terminated orally.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and
pursuant to the authorization from its Board of Directors, the Corporation has
caused these presents to be executed in its name and on its behalf, all as of
the day and year first above written.
THE CARBIDE/GRAPHITE GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chairman and CEO
/s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Date: 4/20/98
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