EXECUTION COPY
Ex 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of April 17, 2006 (the
"Effective Date"), among RathGibson, Inc. (the "Company") and its affiliated
companies, RGCH Holdings Corp. ("Holdings") and RGCH Holdings LLC (the "LLC"),
and ▇▇▇▇▇ ▇▇▇▇ (the "Executive") (together, the "Parties").
WHEREAS, the Parties wish to establish the terms of the Executive's
employment with the Company.
Accordingly, the Parties agree as follows:
1. Employment and Acceptance. The Company, Holdings and the LLC shall
employ the Executive, and the Executive shall accept employment, subject to the
terms of this Agreement, on the Effective Date.
2. Term. Subject to earlier termination pursuant to Section 5 of this
Agreement, the employment relationship hereunder shall continue from the
Effective Date until the second anniversary of the Effective Date (the "Initial
Term") and shall extend for successive two (2) year terms thereafter, unless any
Party shall have given ninety (90) days written notice to the other, prior to
the expiration of the Initial Term or extended term, that it does not wish to
extend the Term. As used in this Agreement, the "Term" shall refer to the period
beginning on the Effective Date and ending on the date the Executive's
employment terminates in accordance with this Section 2 or Section 5. In the
event that the Executive's employment terminates, the Company's obligation to
continue to pay all Base Salary (defined below in Section 4.1), as adjusted,
"Bonus" (defined below in Section 4.2), and other benefits then accrued shall
terminate except as may be provided for in Section 6 of this Agreement.
3. Duties and Title.
3.1 Title. The Executive shall serve in the capacity of Chief
Financial Officer of the Company, Holdings, and the LLC, and shall report
directly to the Chief Executive Officer of the Company.
3.2 Duties. The Executive will perform such executive duties
customarily performed by a Chief Financial Officer of a company in similar lines
of business as the Company, including such duties as may reasonably be assigned
to the Executive by the Board of Directors of the LLC (the "Board") or the Chief
Executive Officer of the Company. The Executive will devote substantially all
his full business time and attention to the performance of such duties and to
the promotion of the business and interests of the Company, Holdings, the LLC,
and their subsidiaries. This Section 3.2, however, shall not prevent the
Executive, during the Term, from attending to personal matters or from serving
as a member of the board of directors of civic and charitable organizations,
provided that the foregoing do not materially interfere with the Executive's
performance of his duties under this Agreement or conflict with Section 7.3 of
this Agreement.
4. Compensation and Benefits by the Company. As compensation for all
services rendered pursuant to this Agreement, the Company shall provide the
Executive the following during the Term:
4.1 Base Salary. The Company will pay to the Executive an annual
base salary of $275,000 payable in accordance with the customary payroll
practices of the Company ("Base Salary"), less applicable withholdings for
federal, state, and local taxes. The Board will review annually the Executive's
Base Salary for upward adjustment and will not reduce the Executive's Base
Salary during the Term.
4.2 Bonus. The Executive shall be eligible to receive an annual
bonus of up to 100% of Base Salary ("Bonus") under a plan established by the
Company or the Board (or a Committee thereof).
4.3 Participation in Employee Benefit Plans. The Executive shall
be entitled, if and to the extent eligible, to participate in all of the
applicable benefit plans of the Company, which may be available to all other
senior executives of the Company, pursuant to the terms of such plans and on the
same terms as all other senior executives of the Company. Notwithstanding the
foregoing, the Executive shall not, at any time, receive any personal loans from
the Company or any of its affiliates pursuant to any benefit plan or otherwise.
4.4 Vacation. The Executive shall be entitled to twenty (20)
business days of paid vacation each fiscal year of the Company. The carry-over
of vacation days shall be in accordance with the vacation policy of the Company.
The Executive shall not be entitled to payment for unused vacation days upon the
termination of his employment except as set forth in Section 6.2 below.
4.5 Expense Reimbursement. The Executive shall be entitled to
receive reimbursement for all appropriate business expenses incurred by him in
connection with his duties under this Agreement in accordance with the policies
of the Company as in effect from time to time.
4.6 Relocation Expenses.
(a) The Company shall reimburse the Executive, within ten
(10) business days of demand, for all reasonable relocation expenses
directly incurred by the Executive in relocation to the Janesville,
Wisconsin area including, but not limited to, (i) all costs of
transportation, lodging and meals related to no more than two (2) trips
taken by the Executive and his spouse to the new location to search for a
new house, (ii) the total costs of moving the Executive's household
possessions and automobiles to the new location, and (iii) an amount equal
to the sum of the closing costs relating to the selling of his primary
residence in New Jersey (including, but not limited to, attorney's fees,
brokerage fees, etc.), (iv) an amount equal to the sum of the closing costs
relating to the purchase of his new home in the Janesville, Wisconsin area
(including, but not limited to, attorney's fees, mortgage points, etc.) and
(v) the cost of temporary living expenses of the Executive's choice for up
to ninety (90) days as approved by the Chief Executive Officer of the
Company.
(b) The Company shall reimburse the Executive for taxes
payable in respect of any payments and reimbursements made to the Executive
under Section 4.6(a) hereof by paying to the Executive additional amounts
under this Section 4.6 so that the total amount paid ("X") equals the
amount otherwise paid or reimbursable to the Executive under this Section
4.6 ("Reimbursement") divided by one (1) minus the
-2-
Executive's effective federal, state and local income, employment and
excise tax rate (including interest and penalties thereon) ("TR") by use of
the following formula:
X= Reimbursement.
--------------
1 - TR
4.7 Dependent College Scholarship Program. The Company and the
Executive agree that the one-year waiting period otherwise imposed under the
Company's dependent college scholarship program shall be waived with respect to
the Executive's children.
5. Termination of Employment.
5.1 Death. The Executive's employment hereunder shall terminate
immediately upon his death.
5.2 Disability. The Company may immediately terminate the
Executive's employment due to his "Disability." For purposes of this Agreement,
"Disability" shall mean a good faith determination by the Board in accordance
with applicable law that as a result of a physical or mental injury or illness,
the Executive is unable to perform the essential functions of his job with or
without reasonable accommodation for a period of (i) ninety (90) consecutive
days or (ii) one hundred eighty (180) days in any twelve (12) month period.
5.3 By the Company for Cause. The Company may immediately
terminate the Executive's employment, for "Cause" (as defined below), by action
of the Board, upon written notice by the Board to the Executive identifying the
act or acts constituting Cause. For purposes of this Agreement, "Cause" means:
(i) the Executive's willful and continued failure (other than as a result of
incapacity due to mental or physical impairment) to substantially perform his
duties hereunder, which is not remedied within ten (10) days after receipt of
written notice from the Board specifying such failure; (ii) the Executive's
failure to carry out, or comply with, any lawful and reasonable directive of the
Board or the Chief Executive Officer of the Company, which is not remedied
within thirty (30) days after receipt of written notice from the Board or the
Chief Executive Officer specifying such failure; (iii) the Executive's
conviction of or plea of nolo contendre to any felony or other crime involving
moral turpitude; (iv) the Executive's knowing unlawful use or possession of
illegal drugs; or (v) the Executive's commission of a material bad faith act of
fraud, embezzlement, misappropriation, willful misconduct, gross negligence, or
breach of fiduciary duty, in each case against the Company, Holdings, the LLC,
or any of their subsidiaries.
5.4 By the Company without Cause. The Company may immediately
terminate the Executive's employment without Cause at any time without prior
notice.
5.5 By the Executive. The Executive may terminate his employment
hereunder at any time, with or without "Good Reason" (as defined below), upon
thirty (30) days prior written notice to the Company. The Executive's employment
shall terminate as of thirty (30) days from the date notice is given, unless,
with respect to a notice regarding a termination based on Good Reason, the
Company corrects the circumstances constituting Good Reason within such thirty
(30) day period. For purposes of this Agreement, "Good Reason" means, without
the Executive's consent, (i) a reduction in Base Salary or (ii) a material
adverse reduction in the Executive's employee benefits; provided, however, that
Good Reason shall not include acts
-3-
which are cured by the Company within thirty (30) days following the Company's
receipt of written notice from the Executive of the existence of circumstances
constituting Good Reason. Any notice of termination for Good Reason must be
given within thirty (30) days following the Executive's learning of
circumstances constituting Good Reason.
5.6 Removal from any Boards and Position. If the Executive's
employment is terminated for any reason under this Agreement, he shall be deemed
to resign (i) if a member, from the Board or any other board to which he has
been appointed or nominated by or on behalf of the Company, Holdings or the LLC
or any of their subsidiaries and (ii) from any position with the Company,
Holdings, the LLC, or any of their subsidiaries, including, but not limited to,
an officer of the Company.
6. Obligations upon Termination.
6.1 By the Company for Cause or by the Executive Without Good
Reason or Due to Death or Disability. If (i) the Executive's employment with the
Company terminates due to his death; (ii) the Company terminates the Executive's
employment with the Company for Cause; (iii) the Company terminates the
Executive's employment with the Company due to the Executive's Disability; or
(iv) the Executive terminates his employment with the Company without Good
Reason, the Executive or the Executive's legal representatives (as appropriate),
shall be entitled to receive the following within ten (10) business days
following such termination of employment:
(a) the Executive's accrued but unpaid Base Salary and
benefits set forth in Section 4.3, if any, to the date of termination (the
"Accrued Benefits"); and
(b) expenses reimbursable under Section 4.6 incurred but not
yet reimbursed to the Executive to the date of termination.
6.2 By the Company Without Cause or By the Executive for Good
Reason. If the Company terminates the Executive's employment without Cause or if
the Executive terminates his employment for Good Reason, the Executive shall be
entitled to receive the following, upon execution without revocation of a valid
general release of all claims against the Company, Holdings, the LLC, and ▇▇▇▇▇▇
▇▇▇▇▇▇ Partners IV, L.P., and other affiliates, substantially in the form
attached hereto as EXHIBIT A:
(a) within ten (10) business days following such termination
of employment, the Accrued Benefits and expenses reimbursable under Section
4.6 incurred but not yet reimbursed to the Executive to the date of
termination;
(b) within ten (10) business days following such termination
of employment, the Executive's accrued but unpaid vacation, if any, to the
date of termination;
(c) continued Base Salary for twelve (12) months after the
date of termination, payable in monthly installments; and
-4-
(d) continued coverage under the Company's medical and
dental plans for twelve (12) months after the date of termination;
provided, that the Company may provide such coverage through reimbursement
of the cost of continuation of group health coverage, pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1986, to the extent the
Executive is eligible and subject to the terms of the plan and the law.
6.3 Election Not to Extend the Term. In the event that any Party
elects not to extend the Term pursuant to Section 2 of this Agreement, unless
the Executive's employment with the Company is earlier terminated pursuant to
Section 5 of this Agreement, the Executive's termination of employment hereunder
(whether or not the Executive continues as an employee of the Company
thereafter) shall be deemed to occur on the close of business on the day
immediately preceding the next scheduled date on which the extension begins, and
the Executive shall be entitled to receive the Accrued Benefits and expenses
reimbursable under Section 4.6 incurred but not yet reimbursed to the Executive
to the date of termination. In addition to such amounts, the Executive shall
also be entitled to receive, upon execution without revocation of a valid
general release of all claims against the Company, Holdings, the LLC, and ▇▇▇▇▇▇
▇▇▇▇▇▇ Partners IV, L.P., substantially in the form attached hereto as EXHIBIT
A, continued Base Salary for six (6) months after the date of termination,
payable in monthly installments, in the event that the Company elects not to
extend the Term pursuant to Section 2 of this Agreement.
6.4 Nondisparagement. Except in connection with any legal dispute
between the Parties or an order of a court or governmental agency with
jurisdiction, the Executive shall not at any time (whether during or after the
Term) publish or communicate to any person or entity any "Disparaging" (as
defined below) remarks, comments or statements concerning the Company, Holdings,
the LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., their parents, subsidiaries and affiliates, and
their respective present and former members, partners, directors, officers,
shareholders, employees, agents, attorneys, successors and assigns, and the
Company, Holdings, the LLC, and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. shall not at any time
(whether during or after the Term) publish or communicate to any person or
entity any Disparaging remarks, comments or statements concerning the Executive
and shall instruct their respective present members, partners, directors, and
officers to not at any time publish or communicate to any person or entity any
Disparaging remarks, comments or statements concerning the Executive.
"Disparaging" remarks, comments or statements are those that impugn the
character, honesty, integrity or morality or business acumen or abilities in
connection with any aspect of the operation of business of the individual or
entity being disparaged.
7. Restrictions and Obligations of the Executive.
7.1 Confidentiality. (a) During the course of the Executive's
employment by the Company, the Executive has had and will have access to certain
trade secrets and confidential and proprietary information relating to the
Company, Holdings, the LLC, and their subsidiaries (the "Protected Parties")
which is not readily available from sources outside the Company. The
confidential and proprietary information and, in any material respect, trade
secrets of the Protected Parties are among their most valuable assets, including
but not limited to, their customer, supplier and vendor lists; databases;
competitive strategies; computer programs, frameworks, or models; marketing
programs; sales, financial, marketing, training and technical information;
product development (and proprietary product data); and any other information,
whether communicated orally, electronically, in writing or in other tangible
forms, concerning
-5-
how the Protected Parties create, develop, acquire or maintain their products
and marketing plans, target their potential customers and operate their retail
and other businesses. The Protected Parties invested, and continue to invest,
considerable amounts of time and money in their process, technology, and
know-how; obtaining and developing the goodwill of their customers; their other
external relationships; their data systems and data bases; and all the
information described above (hereinafter collectively referred to as
"Confidential Information"), and any misappropriation or unauthorized disclosure
of Confidential Information in any form would irreparably harm the Protected
Parties. The Executive acknowledges that such Confidential Information
constitutes valuable, highly confidential, special and unique property of the
Protected Parties. The Executive shall hold in a fiduciary capacity for the
benefit of the Protected Parties all Confidential Information relating to the
Protected Parties and their businesses, which shall have been obtained by the
Executive during the Executive's employment by the Company, Holdings or the LLC
and which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
Except as required by law, subpoena or an order of a court or governmental
agency with jurisdiction, the Executive shall not, during the period the
Executive is employed by the Company or at any time thereafter, disclose any
Confidential Information, directly or indirectly, to any person or entity for
any reason or purpose whatsoever, nor shall the Executive use it in any way,
except in the course of the Executive's employment with, and for the benefit of,
the Protected Parties or to enforce any rights or defend any claims hereunder,
provided that such disclosure is relevant to the enforcement of such rights or
defense of such claims and is only disclosed in the formal proceedings related
thereto. The Executive shall take all reasonable steps to safeguard the
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. The Executive understands and agrees that the
Executive shall acquire no rights to any such Confidential Information.
(b) All files, records, documents, drawings, specifications,
data, computer programs, intangible property (including but not limited to
trade names, registered and unregistered trademarks and service marks,
brand names, patents, and copyrights) and similar items relating thereto or
to the business carried on by the Company, Holdings, the LLC, and their
subsidiaries, as well as all customer lists, specific customer information,
compilations of product research and marketing techniques of the Company,
Holdings, the LLC, and their subsidiaries, whether prepared by the
Executive or otherwise, coming into the Executive's possession, shall
remain the exclusive property of the Company, Holdings, the LLC, and their
subsidiaries, and the Executive shall not remove any such items from their
premises, except in furtherance of the Executive's duties under this
Agreement.
(c) It is understood that while employed by the Company, the
Executive will promptly disclose to it, and assign to it the Executive's
interest in any invention, improvement or discovery made or conceived by
the Executive, either alone or jointly with others, which arises out of the
Executive's employment with the Company. At the Company's request and
expense, the Executive will assist the Company, Holdings, the LLC, and
their subsidiaries during the Term and thereafter in connection with any
controversy or legal proceeding relating to such invention, improvement or
discovery and in obtaining domestic and foreign patent or other protection
covering the same.
(d) As requested by the Company and at the Company's
expense, from time to time and upon the termination of the Executive's
employment with
-6-
the Company for any reason, the Executive will promptly deliver to the
Company all copies and embodiments, in whatever form, of all Confidential
Information in the Executive's possession or within his control (including,
but not limited to, memoranda, records, notes, plans, photographs, manuals,
notebooks, documentation, program listings, flow charts, magnetic media,
disks, diskettes, tapes and all other materials containing any Confidential
Information) irrespective of the location or form of such material. If
requested by the Company, the Executive will provide the Company with
written confirmation that all such materials have been delivered to the
Company as provided herein.
7.2 Non-Solicitation or Hire. During the Term and for a period of
twelve (12) months following the termination of the Executive's employment for
any reason, the Executive shall not directly or indirectly (a) solicit or
attempt to solicit or induce, directly or indirectly, any party who is a
customer or client of the Company, Holdings, the LLC, or any of their
subsidiaries, or who was a customer or client of the Company, Holdings, the LLC,
or any of their subsidiaries at any time during the twelve (12) month period
immediately prior to the date the Executive's employment terminates, for the
purpose of marketing, selling or providing to any such party any services or
products offered by or available from the Company, Holdings, the LLC, or any of
their subsidiaries. (b) interfere with or attempt to interfere with any business
relationships (whether formed during, or after the Term) of the Company,
Holdings, the LLC, or any of their subsidiaries with their suppliers, or (c)
hire or solicit or attempt to hire or solicit or induce, directly or indirectly,
any employee of the Company, Holdings, the LLC, or any of their subsidiaries or
any person, who was an employee of the Company, Holdings, the LLC, or any of
their subsidiaries during the six (6) month period immediately prior to the date
the Executive's employment hereunder terminates, to terminate such employee's
employment relationship with the Company, Holdings, the LLC, or any of their
subsidiaries in order to enter into a similar relationship with the Executive,
or any other person or entity; provided however, that advertising for employment
in any online careers website, newspaper, trade journal or other publication
available for general distribution to the public without specific reference to
any particular employees shall not constitute a breach of this Section 7.2.
7.3 Non-Competition. During the Term and for a period of twelve
(12) months following the termination of Executive's employment for any reason,
the Executive shall not, whether individually as a director, manager, member,
stockholder, partner, owner, employee, consultant or agent of any business, or
in any other capacity, other than on behalf of the Company, organize, establish,
own, operate, manage, control, engage in, participate in, invest in, permit his
name to be used by, act as a consultant or advisor to, render services for
(alone or in association with any person, firm, corporation or business
organization), or otherwise assist any person or entity that engages in or owns,
invests in, operates, manages or controls any venture or enterprise which
engages or proposes to engage in any business conducted by the Company,
Holdings, the LLC, or any of their subsidiaries (x) on the date of the
Executive's termination of employment (including, without limitation, any
business which the Company, Holdings, the LLC, or any of their subsidiaries has
specific plans to conduct in the future and as to which the Executive is aware)
or (y) within twelve (12) months prior to the Executive's termination of
employment with the Company in the geographic locations where the Company,
Holdings, the LLC, or any of their subsidiaries engages or proposes to engage in
such business (the "Competitive Business"). Notwithstanding the foregoing, the
Executive may, directly or indirectly own, solely as an investment, securities
of any firm, partnership, joint venture,
-7-
association, corporation or other business organization, entity or enterprise
engaged in the business of the Company which are publicly traded on a national
or regional stock exchange or on the over-the-counter market if the Executive is
not a controlling person of, or a member of a group which controls, such entity
and does not directly or indirectly own 5% or more of any class of securities of
such entity.
7.4 Property. The Executive acknowledges that all originals and
copies of materials, records and documents generated by him or coming into his
possession during his employment are the sole property of the Company, Holdings,
the LLC, or any of their subsidiaries ("Company Property"). During the Term, and
at all times thereafter, the Executive shall not remove, or cause to be removed,
from the premises of the Company, Holdings, the LLC, or any of their
subsidiaries, copies of any record, file, memorandum, document, or equipment, or
any other item relating to the business of the Company, Holdings, the LLC, or
any of their subsidiaries, except in furtherance of his duties under the
Agreement. When the Executive's employment terminates, or upon request of the
Company at any time, the Executive shall promptly deliver to the Company all
Company Property in his possession or control.
8. Remedies; Specific Performance. The Parties acknowledge and agree
that the Executive's breach or threatened or attempted breach of any of the
covenants or restrictions set forth in Section 7 will result in irreparable and
continuing damage to the Protected Parties for which there may be no adequate
remedy at law and that the Protected Parties shall be entitled to equitable
relief, including but not limited to, specific performance and injunctive relief
as remedies for any such breach or threatened or attempted breach. The Executive
also agrees that such remedies shall be in addition to any and all remedies,
including damages, available to the Protected Parties against him for such
breaches or threatened or attempted breaches. In addition, without limiting the
Protected Parties' remedies for any breach by the Executive of any covenants or
restrictions set forth in Section 7, in the event of such breach, (i) the
Executive shall not be entitled to any payments set forth in Section 6 hereof,
except as required by law, and (ii) the Company will have no obligation to pay
any of the amounts that remain payable by the Company under Section 6.
9. Other Provisions.
9.1 Notices. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid or overnight mail and shall be deemed given when so delivered
personally or sent by facsimile transmission or, if mailed, four (4) days after
the date of mailing or one (1) day after overnight mail, as follows:
(a) If to the Company, to:
RathGibson, Inc.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-8-
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Executive, to the Executive's home address
reflected in the Company's records.
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
9.2 Entire Agreement. This Agreement contains the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
9.3 Representations and Warranties by the Executive. The
Executive represents and warrants that he is not a party to or subject to any
restrictive covenants, legal restrictions or other agreements in favor of any
entity or person which would in any way preclude, inhibit, impair or limit the
Executive's ability to perform his obligations under this Agreement, including,
but not limited to, non-competition agreements, non-solicitation agreements or
confidentiality agreements.
9.4 Waiver and Amendments. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
Parties or, in the case of a waiver, by the Party waiving compliance. No delay
on the part of any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
9.5 Governing Law, Dispute Resolution and Venue.
(a) This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements
made and/or to be performed entirely within that State, without regard to
conflicts of laws principles.
-9-
(b) The Parties agree irrevocably to submit to the exclusive
jurisdiction of the federal courts or, if no federal jurisdiction exists,
the state courts, located in the City of New York, Borough of Manhattan,
for the purposes of any suit, action or other proceeding brought by any
Party arising out of any breach of any of the provisions of this Agreement
and hereby waive, and agree not to assert by way of motion, as a defense or
otherwise, in any such suit, action, or proceeding, any claim that it is
not personally subject to the jurisdiction of the above-named courts, that
the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is improper, or that the
provisions of this Agreement may not be enforced in or by such courts. In
addition, the Parties agree to the waiver of a jury trial.
9.6 Assignment. This Agreement, and all of the Executive's rights
and duties hereunder, shall not be assignable or delegable by the Executive. Any
purported assignment or delegation by the Executive in violation of the
foregoing shall be null and void ab initio and of no force and effect. This
Agreement may be assigned by the Company, Holdings or the LLC to a person or
entity which is an affiliate or a successor in interest to substantially all of
the business operations of the Company, Holdings or the LLC. Upon such
assignment, the rights and obligations of the Company, Holdings or the LLC
hereunder shall become the rights and obligations of such affiliate or successor
person or entity; provided that, in the event such affiliate person or entity is
unable to satisfy the obligations owed to the Executive under this Agreement,
the Company shall remain liable for such obligations.
9.7 Successors; Binding Agreement. This Agreement shall inure to
the benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto.
9.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
9.9 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
9.10 Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. The Executive acknowledges that the
restrictive covenants contained in Section 7 are a condition of this Agreement
and are reasonable and valid in temporal scope and in all other respects.
9.11 Judicial Modification. If any court determines that any of
the covenants in Section 7, or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court determines that any of such covenants, or any part
thereof, is invalid or unenforceable because of the geographic or temporal scope
of such provision, such court shall reduce such scope to the minimum extent
necessary to make such covenants valid and enforceable.
-10-
9.12 Tax Withholding. The Company is authorized to withhold from
any benefit provided or payment due hereunder, the amount of withholding taxes
due any federal, state or local authority in respect of such benefit or payment
and to take such other action as may be necessary in the opinion of the Board to
satisfy all obligations for the payment of such withholding taxes.
9.13 Conformance with Code Section 409A. The Parties hereto agree
to negotiate in good faith should any amendment to the Agreement be required in
order to comply with Section 409A of the Internal Revenue Code (the "Code"). To
the extent required by Code Section 409A, and notwithstanding any other
provision of this Agreement to the contrary, no payment or benefit will be
provided to, or with respect to, the Executive on account of his separation from
service until the first to occur of (i) the date of the Executive's death or
(ii) the date which is the six (6) month anniversary of his separation from
service, and in either case only if he is a "specified employee" (as defined
under Section 409A(a)(2)(B)(i) of the Code and the regulations promulgated
thereunder) in the year of his separation from service. Any payment that is
delayed pursuant to the provisions of the immediately preceding sentence shall
instead be paid in a lump sum promptly following the first to occur of the two
dates specified in such immediately preceding sentence.
9.14 Certain Legal Expenses. Within ten (10) business days of
demand, the Company shall reimburse the Executive for fifty percent (50%) of the
first Seven Thousand Three Hundred Dollars ($7,300.00) of his legal expenses,
including fees and disbursements, incurred in connection with the negotiation
and preparation of the agreements governing his employment hereunder, including,
without limitation, this Agreement.
-11-
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the day and year first above
mentioned.
EXECUTIVE
/s/ ▇▇▇▇▇ ▇▇▇▇
________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
RATHGIBSON, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO
RGCH HOLDINGS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
RGCH HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
With respect to Section 6.4,
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
EXHIBIT A
SEPARATION AGREEMENT AND GENERAL RELEASE
RathGibson, Inc. (the "Company") and its affiliated companies, RGCH
Holdings Corp. ("Holdings") and RGCH Holdings LLC (the "LLC"), and [INSERT NAME]
(the "Executive") (together, the "Parties") entered into an employment
agreement, effective [__________] (the "Employment Agreement"). The Parties
hereby agree that this Separation Agreement and General Release (the
"Agreement") sets forth their complete agreement and understanding regarding the
termination of the Executive's employment with the Company.
1. Separation Date. The Executive's employment with the Company will
terminate effective [_______________] (the "Separation Date"). The Executive
agrees to return all property belonging to the Company, Holdings, the LLC, and
any of their subsidiaries no later than the Separation Date. Except as
specifically provided below, the Executive shall not be entitled to receive any
benefits of employment following the Separation Date.
2. Consideration of the Company. In consideration for the releases and
covenants by the Executive in this Agreement, the Company will provide the
Executive with the following: [INSERT CONSIDERATION AS SET FORTH IN THE
EMPLOYMENT AGREEMENT]
3. Executive Release of Rights. The Executive (defined for the purpose of
this Paragraph 3 as the Executive and the Executive's agents, representatives,
attorneys, assigns, heirs, executors, and administrators) irrevocably, fully,
and unconditionally releases the Released Parties (defined as the Company,
Holdings, the LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., and
each of their affiliated companies, parents, subsidiaries, predecessors,
successors, assigns, divisions, related entities and any of their past or
present employees, officers, agents, insurers, attorneys, administrators,
officials, directors, shareholders, employee benefit plans, and the sponsors,
fiduciaries, or administrators of the Company's employee benefit plans) from any
and all liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of money, agreements, promises, damages, back and front
pay, costs, expenses, attorneys' fees, and remedies of any type, arising or that
may have arisen out of or in connection with the Executive's employment with or
termination of employment from the Company, from the beginning of time to the
date hereof, including but not limited to claims, actions or liability under:
(1) Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Civil Rights Act of 1866, the Age Discrimination in Employment Act, the
Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the
Workers' Adjustment and Retraining Notification Act, the Employee Retirement
Income Security Act of 1974, the New York State Human Rights law, or the
Administrative Code of the City of New York, all as amended; (2) any other
federal, state or local statute, ordinance, or regulation regarding employment,
termination of employment, or discrimination in employment, and (3) the common
law relating to employment contracts, wrongful discharge. defamation, or any
other matter.
4. Waiver of Reinstatement. The Executive waives any reinstatement or
future employment with the Company, Holdings or the LLC and agrees never to
apply for employment or otherwise seek to be hired, rehired, employed,
re-employed, or reinstated by the Company, Holdings, the LLC, or any of its
affiliated companies or corporations.
-13-
5. No Encouragement of Claims. The Executive agrees not to encourage or
assist any person who files a lawsuit, charge, claim or complaint against the
Released Parties unless the Executive is required to render such assistance
pursuant to a lawful subpoena or other legal obligation.
6. Cooperation of the Executive. The Executive agrees to cooperate with the
Company, Holdings, the LLC, or any of their subsidiaries in any reasonable
manner as the Company, Holdings, the LLC, or any of their subsidiaries may
request, including but not limited to furnishing information to and otherwise
consulting with the Company; and assisting the Company in any litigation or
potential litigation or other legal matters, including but not limited to
meeting with and fully answering the questions of the Company or its
representatives or agents, and testifying and preparing to testify at any
deposition or trial. The Company agrees to reimburse the Executive for any
reasonable out of pocket expenses incurred as a result of such cooperation.
7. Non-admission/Inadmissibility. This Agreement does not constitute an
admission by the Company, Holdings, the LLC, or any of their subsidiaries that
any action it took with respect to the Executive was wrongful, unlawful or in
violation of any local, state, or federal act, statute, or constitution, or
susceptible of inflicting any damages or injury on the Executive, and the
Company, Holdings, the LLC, and their subsidiaries specifically deny any such
wrongdoing or violation. This Agreement is entered into solely to resolve fully
all matters related to or arising out of the Executive's employment with and
termination from the Company, and its execution and implementation may not be
used as evidence, and shall not be admissible in a subsequent proceeding of any
kind, except one alleging a breach of this Agreement.
8. Severability. The provisions of this Agreement shall be severable and
the invalidity of any provision shall not affect the validity of the other
provisions.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws and judicial decisions of the State of New York,
without regard to its principles of conflicts of laws.
10. Scope of Agreement. The Executive understands that he and the Company
remain bound to those provisions in the Employment Agreement, which survive the
termination of the Executive's employment, including but not limited to, those
provisions in Sections 6, 7 and 9 of the Employment Agreement. Except as
specifically set forth in such provisions, this Agreement contains the entire
agreement and understanding between the Executive and the Company concerning the
matters described herein, and supersedes all prior agreements, discussions,
negotiations, understandings and proposals of the Parties. The terms of this
Agreement cannot be changed except in a subsequent document signed by both
Parties.
11. Revocation Period. The Executive has the right to revoke this Agreement
for up to seven (7) days after he signs it. In order to revoke this Agreement,
the Executive must sign and send a written notice of the decision to do so,
addressed to [NAME] at [INSERT TITLE, AND ADDRESS], and that written notice must
be received by the Company no later than the eighth (8th) day after the
Executive signed this Agreement. If the Executive revokes this Agreement, the
Executive will not be entitled to any of the consideration from the Company
described in paragraph 2 above, except to the extent required by law.
-14-
12. Voluntary Execution of Agreement. The Executive acknowledges that:
a. the Executive has carefully read this Agreement and fully
understands its meaning;
b. the Executive had the opportunity to take up to twenty one (21)
days after receiving this Agreement to decide whether to sign it;
c. the Executive understands that the Company is hereby advising
him, in writing, to consult with an attorney before signing it;
d. the Executive is signing this Agreement, knowingly, voluntarily,
and without any coercion or duress; and
e. everything the Executive is receiving for signing this Agreement
is described in the Agreement itself or in his Employment
Agreement, and no other promises or representations have been
made to cause the Executive to sign it.
13. Nondisclosure. The Executive shall not disclose the contents or
substance of this Agreement to any third parties, other than the Executive's
attorneys, accountants, or as required by law and shall instruct each of the
foregoing not to disclose the same.
EXECUTIVE
----------------------------------------
Name:
RATHGIBSON, INC.
By:
------------------------------------
Name:
Title:
RGCH HOLDINGS CORP.
By:
------------------------------------
Name:
Title:
RGCH HOLDINGS LLC
By:
------------------------------------
Name:
Title:
-15-