1
EXHIBIT 10.59
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 15, 2001, between EAGLE-PICHER INDUSTRIES,
INC. (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive").
1. EMPLOYMENT AND DUTIES. The Company hereby employs the Executive, and
the Executive accepts employment, effective as of July 15, 2001, 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
commence his aforementioned duties on September 22, 2001. The Executive shall
report directly to the Board of Directors of the Company and shall be elected
to the Board on September 22, 2001. 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.
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 $600,000 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. SIGN-ON BONUS. In lieu of a sign-on bonus, payment of the
Executive's Base Salary as provided for in Paragraph 2(a) shall commence on July
15, 2001.
2.c. 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. Said bonus shall be a percentage of the
Executive's Base Salary, which percentage can range in an amount from zero
percent (0%) up to a maximum of one hundred percent (100%) of Base Salary. The
percentage of the Executive's Base Salary to be paid as an annual bonus shall be
determined by the Executive's achievement of the mutually agreed upon annual
objectives. For the fiscal year ending November 30, 2002, the Executive will
receive a guaranteed bonus of at least forty-five percent (45%) of his Base
Salary. 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
2.d. 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.e. LONG TERM BONUS PLAN. The Executive shall participate in a
long-term bonus plan pursuant to the terms and conditions set forth in Appendix
B hereto (the "LTB Plan"). The Executive has been asked by the Board to redesign
the Company's existing equity participation programs. If the Board approves any
new equity participation plan or program to replace one or more of those
currently in place, the Executive shall have the right, at his sole discretion,
to exchange his rights under the LTB Plan for the right to participate in such
new plan(s) for the same aggregate value. If the Executive is still employed
when the last grant is made under the LTB Plan, the Company agrees to negotiate
in good faith with the Executive to establish a new long term bonus program
based on realistic market valuations at such time that is at least as favorable
to the Executive as the LTB Plan.
2.f. 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. The Company has asked the
Executive to redesign the Employee Benefit Plans. If the Company adopts any new
Employee Benefit Plan, whether or not designed by the Executive, the Executive
shall have the option of electing to remain covered by all of the prior plans so
long as the Executive gives notice of such election within three (3) months
following the Board's approval of the new plans. If continuation of the prior
plans is not possible or feasible under applicable law, the Company shall
provide the Executive with the cash or benefits equivalent on an after-tax basis
to the value of those plans that the Executive has lost, i.e., the excess of any
of the value of the prior plans over the value of the new plans.
2.g. 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.h. 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.i. 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
-2-
3
Company's usual rules and regulations, and are reviewed quarterly by the Board
and reimbursement approved by the Chairman of the Board.
2.j. MOVING EXPENSES. In the event that the Executive relocates for
the Company, the Company will reimburse the Executive for all moving and travel
expenses for him and his family to the headquarters' location in accordance with
Appendix C hereto.
2.k. APARTMENT. The Company shall pay for the cost of an apartment for
the Executive in Cincinnati, Ohio, for a total rental of up to $36,000 per annum
and shall also pay all of the Executive's travel costs from his home to
Cincinnati, Ohio.
2.l. 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 right to exercise his vested LTBs after such termination as set
forth in Appendix B.
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-
4
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:
-4-
5
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
Appendix B hereto with respect to the SAR Plan.
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 owns, directly or
indirectly, stock possessing at least a majority of the voting power of
the Company;
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 owning
stock possessing a majority of the voting power, directly or indirectly,
in the surviving entity and the Executive is offered the position of
President, CEO and
-5-
6
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 right to exercise his vested
LTBs after such termination as set forth in Appendix B, 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 Appendix B hereto with respect to the LTB Plan.
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
-6-
7
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
-7-
8
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
-8-
9
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 Restated
Certificate of Incorporation and By-Laws 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 Cincinnati, Ohio 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
-9-
10
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-
11
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. 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 Ohio.
-11-
12
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.
Dated: September 4, 2001
EAGLE-PICHER INDUSTRIES, INC.
----------------------------- By
▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------------------
-12-
13
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 1a 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
A-1
-13-
14
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.
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
A-2
15
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.
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
----------
LONG-TERM BONUS PLAN
1. ANNUAL GRANTS.
-------------
1.a. The Executive shall be granted long-term bonus percentages
("LTBPs") in accordance with the terms and conditions of this Appendix B, as
follows:
GRANT DATE 3-YEAR VESTING 4-YEAR VESTING
September 22, 2001 .625% .6875%
September 22, 2002 .625% .6875%
September 22, 2003 .625% .6875%
September 22, 2004 .625% .6875%
1.b. The Executive shall be entitled to a grant of an LTBP on each of
the Grant Dates if he is still employed on such date or such Grant Date falls
with the Severance Period (as defined in Paragraph 3(c)(ii) of the Employment
Agreement) and the Executive's employment was 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).
2. VESTING DATES.
-------------
2.a. On or before each annual Grant Date, the Executive shall be
entitled to elect whether the LTBP to be granted on such date will be a ".625%
LTBP" subject to "3-Year Vesting," or a ".6875% LTBP" subject to "4-Year
Vesting." Once such a grant is made, such election may not be changed for such
grant, but may be changed for future grants.
2.b. Except as otherwise provided herein or in the attached Employment
Agreement, (i) each .625% LTBP subject to 3-Year Vesting shall vest and become
exercisable in equal tranches on each of the first three anniversaries of the
Grant Date, and (ii) each .685% LTBP subject to 4-Year Vesting shall vest and
become exercisable in equal tranches on each of the first four anniversaries of
the Grant Date.
2.c. Notwithstanding anything herein or in the Employment Agreement
to the contrary, all LTBPs previously granted to the Executive shall immediately
become vested and exercisable, if (i) a change in control (as defined in the
Employment Agreement) occurs, or (ii) the Executive's 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).
2.d. If the Executive's employment is terminated for disability or
as a result of his death (pursuant to Paragraph 3(e) or 3(f) of the Employment
Agreement, respectively), a pro rata portion of each tranche of outstanding
LTBPs that would become vested
B-1
17
on the next vesting date shall immediately become vested and exercisable based
on the number of days the Executive was employed since the prior vesting date.
3. EXERCISE/TERMINATION DATE.
3.a. Except as otherwise provided herein, the Executive shall be
entitled to exercise any LTBP at any time on or after the date such LTBP (or any
portion thereof) becomes vested and before the Termination Date of such LTBP.
3.b. The "Termination Date" of each LTBP shall be the tenth
anniversary of the Grant Date, subject to earlier termination as provided
herein.
3.c. Notwithstanding anything herein or in the Employment Agreement
to the contrary, all outstanding unvested LTBPs shall terminate immediately if
the Executive's employment is terminated by the Company for cause (pursuant to
Paragraph 3(a) of the Employment Agreement), and all vested LTBP's shall remain
outstanding and exercisable until the earlier of their respective Termination
Dates or the second anniversary of such termination, provided that the Company
may restrict the periods during which such LTBPs may be exercised.
3.d. If the Company terminates the Executive's employment without
cause (pursuant to Paragraph 3(b) of the Employment Agreement) or the Executive
terminates his employment for good reason (pursuant to Paragraph 3(c) of the
Employment Agreement), all outstanding LTBPs (and those granted during the
Severance Period pursuant to Paragraph 1(b) above) shall remain outstanding and
exercisable until the earlier of their respective Termination Dates or the first
anniversary of such termination.
3.e. If the Executive terminates his employment without good reason
(pursuant to Paragraph 3(d) of the Employment Agreement), all unvested LTBPs
shall terminate immediately and all vested LTBPs shall remain outstanding and
exercisable until the earlier of their respective Termination Dates or the
second anniversary of such termination, provided that the Company may restrict
the periods during which such LTBPs may be exercised.
3.f. If the Executive's employment is terminated for disability or
as a result of his death (pursuant to Paragraph 3(e) or 3(f) of the Employment
Agreement, respectively,) all unvested LTBPs shall terminate immediately and all
vested LTBPs shall remain outstanding and exercisable until the earlier of their
respective Termination Dates or the first anniversary of such termination.
4. PAYMENT OF LTBPS.
----------------
4.A. Upon the exercise of an LTBP, the Executive shall be entitled to
receive a cash bonus payment equal to the "Exercise Value" of such LTBP on the
exercise date minus its "Entrance Value."
4.b. "Entrance Value" of each LTBP shall be deemed to be the lower
of (i) $1 or (ii) the Exercise Value that the vested portion of such LTBP would
have had if based on the Company's 2001 financial results.
B-2
18
4.c. "Exercise Value" of each LTBP for these purposes shall be deemed
to be:
the vested portion of the LTBP
TIMES
(i) the product of 6.54 TIMES the Company's EBITDA for the
fiscal year preceding the year in which the exercise
occurs, MINUS (ii) the sum of the Company's Debt and the
book value of all the then outstanding Preferred Stock,
determined as of the end of such preceding fiscal year.
4.d. "EBITDA" for these purposes shall mean EBITDA for the relevant
fiscal year of the Company as determined by the Company's independent certified
public accountants in accordance with the standard U.S. GAAP rules, as adjusted
pursuant to clause f. below.
4.e. "Debt" for these purposes shall mean the Company's outstanding
interest bearing debt, as adjusted pursuant to clause f. below.
4.f. For purposes of calculating the Entrance Value and the Exit
Value, the following adjustments shall be applied to the EBITDA and Debt figures
included in the Company's U.S. GAAP financial statements:
i. all off-balance sheet financings (such as accounts receivable
securitizations, sales and leasebacks) shall be added back to the net
Debt;
ii. non-recurring or one-time cost and income items shall be
subtracted from EBITDA;
iii. EBITDA of divisions sold or eliminated during a fiscal year
shall be subtracted from EBITDA to the extent that [the proceeds from
such sales are reflected in a reduction in the net Debt for such year].
If the Executive and the Company cannot agree whether an item should be an
adjustment to EBITDA or Debt for these purposes, or either shall propose an
additional adjustment, the issue shall promptly be referred for decision to the
independent certified public accountants who prepared the Company's U.S. GAAP
financial statements for such year. Such decision shall be made within two weeks
of such referral, and shall be binding on all parties.
4.g. The bonus payments provided by this Plan shall be determined
solely by the express terms of this Plan and do not depend on any increase in
the equity value of the Company.
5. PAYMENT.
5.a. The Company shall pay the Executive the cash bonus payment to
which he is entitled upon exercise of any LTBP within thirty (30) days of the
exercise thereof.
B-3
19
5.b. If the exact cash bonus payment to which Executive is entitled
upon exercise of an LTBP cannot be determined prior to the date for payment
because the Company's financial statements for the prior fiscal year have not
been finalized, the Company shall make an interim payment to the Executive of
the estimated cash bonus payment on the date for payment based on the most
recent available figures. Thereafter, within five business days after the
financial statements have been approved by the Board, the Company shall pay the
Executive any additional cash bonus due, and the Executive shall return to the
Company any cash bonus paid to him by the Company to which he was not entitled.
B-4
20
APPENDIX C
----------
RELOCATION PROGRAM ▇▇▇▇ ▇▇▇▇▇
EELIGIBILITY |X| In accordance with IRS criteria
MISCELLANEOUS ALLOWANCE |X| 2 months' new base salary
|X| cost of new appliances, registering cars in
new state, installation of cost of phones,
TV, drapes, etc
HOMESALE AND MORTGAGE |X| in accordance with EP' existing plan; if
this does not exist, then in accordance with
below:
|X| All costs of sale of old house
|X| All costs of obtaining mortgage on new house
|X| Loss on Sale
- 50% reimbursed by EP
- Maximum of $20,000
DESTINATION ASSISTANCE |X| Househunting Trip for employee and one
additional person
- 1 trip, 7 days
- Travel, lodging, meals, and childcare
TRANSITION |X| Temporary Living
- Up to 30 days for employee and family
|X| Final Move Trip
- Travel, lodging and meals
HOUSEHOLD GOODS |X| Shipment
- Packing, loading and transporting
- Insurance
|X| Vehicle Shipment
|X| Storage - Up to 60 days
TAX ASSISTANCE |X| Tax gross-up provided where applicable
C-1