EMPLOYMENT AGREEMENT
This agreement is between CoorsTek, Inc. ("Coors" or "CTI") and Xxxxxx
Xxxxx, Xx. ("Executive"), and shall be effective as of September 1, 1999 (the
"Effective Date").
1. Appointment. Executive shall serve as CTI's Chief Executive Officer or in
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such position(s) as CTI's Board of Directors (the "Board") shall in their sole
discretion designate from time to time. Executive shall at all times faithfully
and to the best of his abilities and experience, and in accordance with the
standards and ethics of the business in which CTI is engaged, perform all duties
that may be required of him by this agreement, CTI's policies and procedures,
and the directives of CTI's Board.
2. Compensation.
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a. Salary and Salary Review. Executive's base salary shall be $510,000
per year, payable in equal installments in accordance with Coor's standard
payroll practice, less customary or legally required withholdings and any
setoffs necessary to satisfy any debt owed by Executive to CTI.
a. Annual Bonus. Executive shall participate in such bonus programs as Coors
may from time to time make available to its executive employees.
b. Stock Options. Executive shall participate in such equity plans
as CTI may from time to time make available to its executive employees.
3. Fringe benefits.
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a. Insurance. Executive and his dependents shall be eligible for
coverage under the group insurance plans made available from time to time to
CTI's executive and management employees. The premiums for the coverage of
Executive and his dependents under that plan shall be paid pursuant to the
formula in place for other executive and management employees covered by CTI's
group insurance plans.
b. Vehicle Allowance and Miscellaneous Benefits. Coors shall
provide Executive with an allowance of $18,000 per year, payable in equal
installments at the same time Executive's salary installments are paid, and
shall receive any additional fringe benefits that other CTI executive or
management employees may from time to time receive.
c. Expenses. Subject to CTI's policies and procedures for the
reimbursement of business expenses incurred by its executive and management
employees, CTI shall reimburse Executive for all reasonable and necessary
expenses incurred by Executive in connection with his performance of his duties
under this agreement.
4. Paid Leave. During each year of Executive's continuous, full-time
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employment, he shall earn 25 days of paid vacation time per year.
This paid leave shall be subject to the terms and conditions of any
Coors' vacation plan or policy that may from time to time apply to
CTI's executive employees.
5. Conflicting Activities. During the term of this agreement, Executive
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shall not engage in any activity that conflicts with, appears to conflict with,
or is detrimental or appears to be detrimental to Coor's best interests, as
determined by CTI in its sole discretion.
6. Source of Payments. All payments to be made to Executive under this
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agreement shall be paid from Coor's general funds. No special or separate fund
shall be established and no other segregation of assets shall be made to assure
payment. Neither this agreement nor any action taken hereunder shall be
construed to create a trust of any kind. To the extent that any person has any
right to receive payments from CTI under this agreement, that right shall be no
greater that the right of any unsecured creditor of Coors.
7. Relationship Between this Agreement and Other Coors Publications. In
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the event of any conflict between any term of this agreement and any CTI
contract, policy, procedure, guideline or other publication, the terms of this
agreement shall control.
8. Term and Termination.
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a. Term. The term of this agreement shall be 3 years.
b. Termination by Consent. This agreement may be terminated at any
time by the parties' mutual agreement, expressed in writing.
c. Termination Without Cause.
i. CTI may in its sole discretion terminate this agreement at
any time without cause. If CTI does so, after Executive executes a legal
release in the form attached to this agreement, as that legal release may be
modified or amended from time to time to ensure a final, complete and
enforceable release of all claims that Executive has or may have against CTI
relating to or arising in any way from Executive's employment with CTI, and
provided that Executive does not thereafter revoke that legal release as
permitted by its terms, CTI shall pay Executive severance compensation equal to
the greater of the amount that would be payable to Executive pursuant to
paragraph 2 for the remainder of the term of this Agreement OR 12 months of
Executive's base salary under paragraph 2, above, in a lump-sum, less legally
required withholdings, no later than thirty days after the termination date. In
addition, CTI shall pay Executive up to $25,000 in outplacement services
provided to Executive by a third-party outplacement consultant or consulting
service. Executive shall reasonably select the outplacement provider and
contract for outplacement services, and shall forward invoices for outplacement
services to CTI, which shall promptly pay the invoiced amount directly to the
outplacement provider.
ii. If CTI terminates this agreement at any time without cause
under this subparagraph, pays Executive all salary and vacation compensation
earned and unpaid as of the termination date, and offers to pay Executive
severance compensation in the amount and on the terms specified above, Coor's
acts in doing so shall be in complete accord and satisfaction of any claim that
Executive has or may at any time have for compensation or payments of any kind
from CTI arising from or relating in whole or part to Executive's employment
with CTI and/or this agreement.
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a. d. Termination for Cause. CTI may terminate this agreement
effective immediately, with Coor's only obligation being the payment of salary
and accrued, unused vacation compensation earned as of the date of termination
and without liability for severance compensation of any kind, if Executive
violates any term of this agreement or commits a material violation of any CTI
policy, procedure or guideline, of which Executive had prior written notice, or
engages in any of the following forms of misconduct: conviction of any felony or
of any misdemeanor involving dishonesty or moral turpitude; theft or misuse of
CTI's property or time; use of alcohol or controlled substances on CTI's
premises or appearing on such premises while intoxicated or under the influence
of drugs not prescribed by a physician, or after having abused prescribed
medications; illegal use of any controlled substance; discriminatory or
harassing behavior, whether or not illegal under federal, state or local law;
willful misconduct; or falsifying any document or making any false or misleading
statement relating to Executive's employment by CTI.
e. Termination for Change of Control. In the event that Executive's
employment is terminated other than for cause, or Executive's total compensation
package and/or responsibilities are substantially reduced, within one year of a
Change of Control as defined in CoorsTek, Inc.'s Stock Option and Incentive
Plan, as that Plan may be amended from time to time, after Executive executes a
legal release in the form attached to this agreement, as that legal release may
be modified or amended from time to time to ensure a final, complete and
enforceable release of all claims that Executive has or may have against CTI
relating to or arising in any way from Executive's employment with CTI, and
provided that Executive does not thereafter revoke that legal release as
permitted by its terms, CTI shall pay Executive severance compensation equal to
24 months of Executive's current base salary, in a lump-sum, less legally
required withholdings, no later than thirty days after the termination date. In
addition, CTI shall pay Executive up to $25,000 in outplacement services
provided to Executive by a third-party outplacement consultant or consulting
service. Executive shall reasonably select the outplacement provider and
contract for outplacement services, and shall forward invoices for outplacement
services to CTI, which shall promptly pay the invoiced amount directly to the
outplacement provider.
9. Successors and Assigns. CTI, its successors and assigns may in their
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sole discretion assign this agreement to any person or entity, with or without
Executive's consent. This agreement thereafter shall bind, and inure to the
benefit of, CTI's successor or assign. Executive shall not assign either this
agreement or any right or obligation arising thereunder.
10. Miscellaneous.
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a. Governing Law. This agreement, and all other disputes or issues
arising from or relating in any way to CTI's relationship with Executive, shall
be governed by the internal laws of the State of Colorado, irrespective of the
choice of law rules of any jurisdiction.
b. Severability. If any court of competent jurisdiction declares any
provision of this agreement invalid or
unenforceable, the remainder of the
agreement shall remain fully enforceable. To the extent that any court
concludes that any provision of this agreement is void or voidable, the court
shall reform such provision(s) to render the
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provision(s) enforceable, but only
to the extent absolutely necessary to render the provision(s) enforceable.
c. Integration. This agreement constitutes the entire agreement of
the parties and a complete merger of prior negotiations and agreements and,
except as provided in the preceding subparagraph, shall not be modified by word
or deed, except in a writing signed by Executive and CTI's Board of Directors.
d. Waiver. No provision of this agreement shall be deemed waived,
nor shall there be an estoppel against the enforcement of any such provision,
except by a writing signed by the party charged with the waiver or estoppel.
No waiver shall be deemed continuing unless specifically stated therein, and the
written waiver shall operate only as to the specific term or condition waived,
and not for the future or as to any act other than that specifically waived.
e. Construction. Headings in this agreement are for convenience
only and shall not control the meaning of this agreement. Whenever applicable,
masculine and neutral pronouns shall equally apply to the feminine genders; the
singular shall include the plural and the plural shall include the singular.
The parties have reviewed and understand this agreement, and each has had a
full opportunity to negotiate the agreement's terms and to consult with counsel
of their own choosing. Therefore, the parties expressly waive all applicable
common law and statutory rules of construction that any provision of this
agreement should be construed against the agreement's drafter, and agree that
this agreement and all amendments thereto shall be construed as a whole,
according to the fair meaning of the language used.
f. Disputes. Any action arising from or relating any way to this
agreement, or otherwise arising from or relating to Executive's employment with
CTI, shall be tried only in the state or federal courts situated in Denver,
Colorado. The parties consent to jurisdiction and venue in those courts to the
greatest extent possible under law.
EXECUTIVE COORSTEK, INC.
/s/ Xxxxxx Xxxxx, Xx. By: /s/ Xxxx X. Xxxxx
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Xxxxxx Xxxxx, Xx. Xxxx X. Xxxxx
As its: President
Date: 9/1/99 Date: 9/1/99
_____________________ _____________________
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LEGAL RELEASE
This Legal Release ("Agreement") is between Xxxxxx Xxxxx, Xx. ("Executive")
and CoorsTek, Inc., its subsidiaries, affiliates and predecessors, and their
respective officers, directors, employees, agents, representatives and insurers
(collectively "CTI").
1. Executive acknowledges that CTI has offered to provide Executive the
severance compensation (the "Benefit") specified by the employment contract
between CTI and Executive (the "Employment Contract"), in part in order to
resolve all claims that Executive has or may have against CTI, and that
Executive understands the terms and conditions of the Benefit.
2. Executive agrees that he wishes to receive the Benefit, that his decision
to do so is entirely voluntary, that he has not been pressured into accepting
the Benefit, and that he has enough information about the Benefit to decide
whether to sign this Agreement. If, for any reason, Executive believes that the
his acceptance of the Benefit is not entirely voluntary, or if he believes that
he does not have enough information, then he should not sign this Agreement.
3. Executive agrees that by signing this Agreement he will give up his right
to bring any legal claim against CTI of any nature, including all claims
relating in any way, directly or indirectly, to Executive's employment
relationship with CTI, including his separation from employment. Executive
agrees that this Agreement is intended to be interpreted in the broadest
possible manner in favor of CTI, including all actual or potential legal claims
that Executive has or may have against CTI, except as specifically provided
otherwise in this Agreement. Specifically, Executive agrees that he fully and
forever releases all of his legal rights and claims against CTI, whether or not
presently known to him, including future legal rights and claims, if based in
whole or part on acts or omissions occurring before Executive delivers this
signed Agreement to CTI, in any way relating to Executive's employment with CTI,
including his separation from employment, except for his right to the Benefit,
his vested rights, if any, in any CTI-sponsored pension plan, and his rights
under COBRA, if any, to continued participation, at his expense, in certain
employee benefit plans sponsored by CTI. Executive agrees that the legal rights
and claims that he is giving up include, but are not limited to, his rights, if
any, under all federal, state and local statutes, rules and regulations that
prohibit discrimination on the basis of gender, race, national origin, religion,
disability and age, such as the Age Discrimination in Employment Act of 1987,
Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), the
Rehabilitation Act of 1973, the Americans With Disabilities Act, the Family and
Medical Leave Act, the Equal Pay Act, and any other federal, state or local
civil rights statute or ordinance that applies or may apply to Executive or CTI,
as well as all common law rights and claims, such as breach of contract, express
or implied, tort, whether negligent or intentional, wrongful discharge,
defamation, infliction of emotional distress, and any claim for fraud, omission
or misrepresentation concerning the Benefit. Executive also states and agrees
that he has not experienced any illness, injury, or disability relating to or
arising in whole or part from his employment with CTI that is or may be
compensable under the worker's compensation laws of any state, and that he will
not file a worker's compensation claim asserting the existence of any such
illness, injury, or disability.
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4. Executive agrees that the Benefit that he is accepting by signing this
Agreement has value to him, that he would not be entitled to the Benefit without
signing this Agreement, that he will receive the Benefit in exchange for the
benefit that will accrue to CTI from Executive's execution of this Agreement,
and that when CTI pays him the Benefit, CTI will withhold all applicable
federal, state and local taxes.
5. Executive agrees that the only benefit that he is to receive by signing
this Agreement is the Benefit, and that in signing this Agreement he did not
rely on any information, oral or written, from anyone other than the information
set forth in this Agreement and the Employment Contract, and the advice, if any,
of Executive's counsel.
6. Executive agrees that, if he brings any kind of legal claim against CTI
that he has given up by signing this Agreement, then he will be violating this
Agreement and therefore must pay all legal fees, other costs and expenses
incurred by CTI in defending against all such claims.
7. Executive represents that he has not previously assigned or transferred any
of the legal rights and claims that he has given up by signing this Agreement,
and agrees that this Agreement also binds all persons who might assert a legal
right or claim on his behalf, such as his heirs, personal representatives and
assigns, now and in the future.
8. Executive agrees that CTI will not provide him with recall rights or any
other right to future employment at CTI or any affiliate, and that Executive
will not be given any preference or priority with respect to any future job
openings that may arise. Executive also agrees that if he later is rehired by
CTI, CTI may in its sole discretion require Executive to return to CTI all or a
portion of the Benefit as a condition of the rehiring.
9. Executive understands and agrees that by signing this Agreement he is
giving up the right to xxx CTI for age discrimination. Executive has up to
twenty-one days after he receives this Agreement to consider whether to sign
this Agreement. During that time Executive understands that he should consider
whether he wishes to sign this Agreement, and may wish to review the terms of
the Benefit set forth above and in the Employment Contract. Executive agrees
that, after he has signed and delivered this Agreement to CTI, this Agreement
will not be effective or enforceable until the end of a seven (7) day revocation
period beginning the day that Executive delivers this Agreement to CTI, and that
he will not receive the Benefit until that seven-day period has expired. During
that seven-day period, Executive may revoke this Agreement, without reason and
in his sole judgment, but he may do so only by delivering a written statement of
revocation to CTI. If CTI does not receive such a written statement of
revocation by the end of the revocation period, then this Agreement will become
legally enforceable and Executive may not thereafter revoke this Agreement.
10. Executive agrees that: (a) this Agreement and the Employment Contract
constitute the entire agreement between Executive and CTI concerning severance
compensation and the other subjects raised therein, without regard to any other
oral or written information that Executive may have received about this
Agreement; (b) if any part of this Agreement is declared to be unenforceable,
all other provisions of this Agreement shall remain enforceable; and (c) this
Agreement shall be governed by federal law and by the internal law of the State
of Colorado, irrespective of the choice of law rules of any jurisdiction.
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Acknowledgment
Executive's signature below acknowledges that he has read this document fully,
that he understands and agrees to its contents, that he understands that it is a
legally binding document, and that he has been advised to consult a lawyer of
his choosing before signing this Agreement, and has had a full and fair
opportunity to do so.
Signed: /s/ Xxxxxx Xxxxx, Xx.
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Xxxxxx Xxxxx, Xx.
Date: 9/1/99
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