EXHIBIT 10.19
SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION AGREEMENT (the "Agreement"), made and entered into as of
February 23, 2005, and effective as of September 30, 2005 (the "Effective
Date"), by and between ▇▇▇▇▇▇ International, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has served as the Vice President of Engineering and
Technology of the Company through the date of this Agreement;
WHEREAS, the Employee and the Company have mutually agreed that the
Employee will separate from his employment as of the Effective Date;
WHEREAS, the Employee and the Company have mutually agreed that between the
date of this Agreement and the Effective Date, the Employee will be placed on
special assignment, reporting to the Company's Chief Executive Officer and
performing such assignments as directed by the Chief Executive Officer;
WHEREAS, the parties hereto desire to enter into this Agreement in order to
settle fully and finally all matters between them, including but not limited to
any matters arising out of Employee's employment with the Company, the mutual
decision to separate the Employee's employment with the Company as of the
Effective Date, and the decision to place him on special assignment between the
date of this Agreement and the Effective Date; and
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Employee agree as follows:
1. SPECIAL ASSIGNMENT AND SEPARATION
In exchange for the promises made by the Company in this Agreement, the
Employee agrees that he will be separated from his employment with the Company
as of the Effective Date and that he will be placed on special assignment
between the date of this Agreement and the Effective Date. Employee further
agrees and understands that his continued employment through and including the
Effective Date will be on an at-will basis and may be terminated before that
date with or without cause by either party. Employee further agrees and
understands that his continued employment through such date will be contingent
upon his continued satisfactory performance and compliance with all Company
policies, rules, and standards of behavior. If the Company subsequently elects
to discontinue the Employee's employment prior to the Effective Date, the
Employee will not be entitled to any compensation past his last day of actual
work for the Company.
2. PAYMENTS IN CONNECTION WITH SEPARATION.
(a) In connection with the Employee's separation, the Employee
shall be entitled to receive the following payments and benefits:
(i) payment of accrued but unpaid Base Salary, vacation,
and approved expenses through the Effective Date
(ii) subject to paragraph (b) below and Section 6(b)
hereof, a cash payment equal to seven months of
the Employee's base salary as in effect
immediately prior to the Effective Date, less
state, federal, and local withholdings required by
law. Such amount will be paid in seven equal
monthly installments beginning the first month
following the Release Effective Date (as herein
defined), It is understood and agreed that the
payments and benefits which will be provided to
Employee by Company pursuant to this sub-paragraph
are consideration provided to Employee in addition
to anything of value to which he is already
entitled.
(iii) The Employee's bonus for fiscal year 2005 under
the Management Incentive Plan will be paid in full
at such time as employee bonuses under the
Management Incentive Plan are paid to other
participants in such plan; and
(b) RELEASE. As a condition of the Employee's entitlement to any
of the payments and benefits provided paragraph (a) above, the Employee
shall execute on the Effective Date and shall not have revoked prior to the
Release Effective Date (as hereinafter defined) a release of claims against
the Company substantially in the form attached hereto as EXHIBIT A (the
"Release"). EMPLOYEE ACKNOWLEDGES THAT HE HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THE RELEASE. Employee and
Company agree that Employee has a period of seven (7) days following the
execution of the Release within which to revoke the Release. The parties
also acknowledge and agree that the Release shall not be effective or
enforceable until the seven (7) day revocation period expires. The date on
which this seven (7) day period expires shall be the effective date of the
Release (the "Release Effective Date"). Except as specifically provided in
Section 3(a) or required under applicable law, Employee will not be
eligible to receive any salary, bonus or other compensation described in
Section 3(a) with respect to any future periods after the Effective Date;
provided, however, Employee shall have the right to receive all
compensation that he is entitled under any benefit plans of Company to the
extent he is fully vested as of the Effective Date pursuant to the terms
and conditions of such employee benefit plans.
3. CONFIDENTIALITY. For purposes of this Section 4, the term "Company"
shall include, in addition to Company, its affiliates, subsidiaries and any of
their respective predecessors, successors and assigns.
(a) CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" means any and all confidential, proprietary or
other information, whether or not originated by Employee or Company, which
is in any way related to the past or present Company's Business (as defined
below) and is either designated as confidential or not generally known by
or available to the public. Confidential Information includes, but is not
limited to (whether or not reduced to writing or designated as
confidential) (i) information regarding Company's existing and potential
customers and vendors; (ii) any
contacts (including the existence and contents thereof and parties thereto)
to which Company is a party or is bound; (iii) information regarding
products and services being purchased or leased by or provided to Company;
(iv) information received by Company from third parties under an obligation
of confidentiality, restricted, disclosure or restricted use; (v) personnel
and financial information of Company; (vi) information with respect to
Company's products, services, facilities, business methods, systems, trade
secrets, technical know-how, and other intellectual property; (vii)
marketing and developmental plans and techniques, price and cost data,
forecasts and forecast assumptions, and potential strategies of Company;
and (viii) any other information relating to Company which was obtained by
Employee in connection with his employment by Company, whether before, on
or after the Effective Date.
(b) NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.
Employee acknowledges that the Confidential Information of Company is a
valuable, unique asset of Company and Employee's unauthorized use or
disclosure thereof could cause irreparable harm to Company for which no
remedy at law could be adequate. Accordingly, Employee agrees that he shall
hold all Confidential Information of Company in strict confidence and
solely for the benefit of Company, and that he shall not, directly or
indirectly, disclose or use or authorize any third party to disclose or use
any Confidential Information, except (i) with the express written consent
of Company, (ii) to the extent that any such information is in or becomes
in the public domain other than as a result of Employee's breach of any of
his obligations hereunder, or (iii) where required to be disclosed by court
order, subpoena or other government process and in such event, Employee
shall cooperate with Company in attempting to keep such information
confidential. The Company shall reimburse Employee for all reasonable
expenses and costs he may incur as a result of cooperating under this
Section 4(b), upon receipt of proper documentation.
(c) OWNERSHIP OF CONFIDENTIAL INFORMATION. Employee acknowledges
and agrees that all Confidential Information is and shall remain the
exclusive property of Company, whether or not prepared in whole or in part
by Employee and whether or not disclosed to or entrusted to the custody of
Employee. Employee has delivered to Company all documents, tapes, disks, or
other storage media and any other materials, and all copies thereof in
whatever form, in the possession of Employee pertaining to the Company's
Business, including, but not limited to, any containing Confidential
Information.
(d) SURVIVAL. Employee's obligations set forth in this
Section 4, and Company's rights and remedies with respect hereto, shall
survive indefinitely following the Effective Date.
4. RESTRICTIVE COVENANTS.
For purposes of this Section 5, the term "Company" shall include, in
addition to Company, its affiliates, subsidiaries and any of their respective
predecessors, successors and assigns.
(a) NON-COMPETITION. During the Restricted Period and within the
Restricted Area (each as defined in subsection (d) below), Employee shall
not, directly or indirectly, perform on behalf of any Competitor (as
defined in subsection (d) below) the same or
similar services as those that Employee performed for Company during
Employee's employment by Company or otherwise. In addition, Employee shall
not, during the Restricted Period or within the Restricted Area, directly
or indirectly engage in, own, manage, operate, join, control, lend money or
other assistance to, or participate in or be connected with (as an officer,
director, member, manager, partner, shareholder, consultant, employee,
agent, or otherwise), any Competitor.
(b) NON-SOLICITATION. During the Restricted Period, Employee
shall not, directly or indirectly, for himself or on behalf of any Person
(as defined in subsection (d) below), (i) solicit or attempt to solicit any
Customers (as defined in subsection (d) below) or prospective Customers
with whom Employee had contact at any time during Employee's employment by
Company; (ii) divert or attempt to divert any business of Company to any
other Person; (iii) solicit or attempt to solicit for employment, endeavor
to entice away from Company, recruit, hire, or otherwise interfere with
Company's relationship with, any Person who is employed by or otherwise
engaged to perform services for Company (or was employed or otherwise
engaged to perform services for Company, as of any given time, within the
immediately preceding twelve (12) month period); (iv) cause or assist, or
attempt to cause or assist, any employee or other service provider to leave
Company; or (v) otherwise interfere in any manner with the employment or
business relationships of Company or the business or operations then being
conducted by Company.
(c) NON-DISPARAGEMENT. Employee shall not for all time following
the Effective Date make any statement, either written or oral, regarding
the Company, or any of its agents, subsidiaries, affiliates, related
entities, directors, officers, servants or employees, which is disparaging
to the Company, or its agents, subsidiaries, affiliates, related entities,
directors, officers, servants or employees, or which has a tendency to harm
their reputation by lowering them in the estimation of the community or
deterring others from associating or dealing with them. The Company agrees
that its officers, directors or management employees shall not for all time
following the Effective Date make any such disparaging statements
referenced above, either written or oral, pertaining to the Employee.
Notwithstanding the foregoing, nothing, in this Section 5(c) shall prohibit
any person from making truthful statements when required by order of a
court or other body having jurisdiction, or as may otherwise be required by
law or legal process.
(d) DEFINITIONS. For purposes of Section 4 and Section 5
hereof, the following definitions have the following meanings:
(i) "Company's Business" means the business of
developing, manufacturing, selling or distributing high-performance
alloys for service in severe corrosion and high temperature
applications.
(ii) "Competitor" means any Person that engages in a
business that is the same as, or similar to, the Company's
Business.
(iii) "Customer" means any Person which, as of any given
date, used or purchased or contracted to use or purchase any
services or products from Company within the immediately preceding
twelve (12) month period.
(iv) "Person" means any individual, corporation,
partnership, joint venture, association, limited liability company,
joint-stock company, trust, or
unincorporated organization, or any governmental agency, officer,
department, commission, board, bureau, or instrumentality thereof.
(v) "Restricted Area" means, because the market for
Company's Business is global, or has the potential of being global,
and is not dependent upon the physical location or presence of the
Company, Employee, or any individual or entity that may be in
violation of this Agreement, the broadest geographic region
enforceable by law (excluding any location where this type of
restriction is prohibited by law) as follows: (A) everywhere in the
world that has access to Company's Business because of the
availability of the Internet; (B) everywhere in the world that
Employee has the ability to compete with Company's Business through
the Internet; (C) each state, commonwealth, territory, province and
other political subdivision located in North America; (D) each
state, commonwealth, territory and other political subdivision of
the United States of America; (E) Indiana and any state in which
Employee has performed any services for Company; (F) any
geographical area in which Company has performed any services or
sold any products; (G) any geographical area in which Company or
any of its subsidiaries have engaged in the Company's Business,
which has resulted in aggregate sales revenues of at least $25,000
during any year in the five (5) year period immediately preceding
the commencement of the Restricted Period; (H) any state or other
jurisdiction where Company had an office at any time during
Employee's employment by Company; (I) within one hundred (100)
miles of any location in which Company had an office at any time
during Employee's employment by Company; and (J) within one hundred
(100) miles of any location in which Employee provided services for
Company.
(vi) "Restricted Period" means the period commencing as
of the Effective Date through the first (1st) anniversary of the
Effective Date. In the event of a breach of this Agreement by
Employee, the Restricted Period will be extended automatically by
the period of the breach.
(e) SURVIVAL. Employee's obligations set forth in this
Section 5, and Company's rights and remedies with respect thereto, will
remain in full force and effect during the Restricted Period and until full
resolution of any dispute related to the performance of Employee's
obligations during the Restricted Period.
(f) PUBLIC COMPANY EXCEPTION. The prohibitions contained in
Sections 4 and 5 do not prohibit Employee's ownership of stock which is
publicly traded, provided that (1) the investment is passive, (2) Employee
has no other involvement with the company, (3) Employee's interest is less
than five (5%) percent of the shares of the company, and (4) Employee makes
full disclosure to Company of the stock at the time that Employee acquires
the shares of stock.
5. GENERAL.
(a) REASONABLENESS. Employee has carefully considered the
nature, extent and duration of the restrictions and obligations contained
in this Agreement, including, without limitation, the geographical coverage
contained in Section 5, the time periods contained in SECTION 4 and SECTION
5, and acknowledges and agrees that such restrictions
are fair and reasonable in all respects to protect the legitimate interests
of Company and that these restrictions are designed for the reasonable
protection of Company's Business.
(b) REMEDIES. Employee recognizes that any breach of this
Agreement shall cause irreparable injury to Company, inadequately
compensable in monetary damages. Accordingly, in addition to any other
legal or equitable remedies that may be available to Company, Employee
agrees that Company shall be able to seek and obtain injunctive relief in
the form of a temporary restraining order, preliminary injunction, or
permanent injunction, in each case without notice or bond, against Employee
to enforce this Agreement. Company shall not be required to demonstrate
actual injury or damage to obtain injunctive relief from the courts. To the
extent that any damages are calculable resulting from the breach of this
Agreement, Company shall also be entitled to recover damages, including,
but not limited to, any lost profits of Company and/or its affiliates or
subsidiaries. For purposes of this Agreement, lost profits of Company shall
be deemed to include all gross revenues resulting from any activity of
Employee in violation of this Agreement and all such revenues shall be held
in trust for the benefit of Company. Any recovery of damages by Company
shall be in addition to and not in lieu of the injunctive relief to which
Company is entitled. In no event will a damage recovery be considered a
penalty in liquidated damages. In addition, in any action at law or in
equity arising out of this Agreement, the prevailing party shall be
entitled to recover, in addition to any damages caused by a breach of this
Agreement, all costs and expenses, including, but not limited to,
reasonable attorneys' fees, expenses, and court costs incurred by such
party in connection with such action or proceeding. Without limiting
Company's rights under this SECTION 6(c) or any other remedies of Company,
if a court of competent jurisdiction determines that Employee breached any
of the provisions of SECTIONS 4 OR 5, Company shall have the right to cease
making any payments or providing any benefits otherwise due to the Employee
under the terms and conditions of this Agreement.
(c) CLAIMS BY EMPLOYEE. Employee acknowledges and agrees that
any claim or cause of action by Employee against Company shall not
constitute a defense to the enforcement of the restrictions and covenants
set forth in this Agreement and shall not be used to prohibit injunctive
relief.
(d) AMENDMENTS. This Agreement may not be modified, amended, or
waived in any manner except by an instrument in writing signed by both
parties to this. Agreement.
(e) WAIVER. The waiver by either party of compliance by the
other party with any provision of this Agreement shall not operate or be
construed as a waiver of any other provision of this Agreement (whether or
not similar), or a continuing waiver, or a waiver of any subsequent. breach
by a party of any provision of this Agreement.
(f) GOVERNING LAW; JURISDICTION. The laws of the State of
Indiana shall govern the validity, performance, enforcement,
interpretation, and other aspects of this Agreement, notwithstanding any
state's choice of law provisions to the contrary. The parties intend the
provisions of this Agreement to supplement, but not displace, their
respective obligations and responsibilities under the Indiana Uniform Trade
Secrets Act. Any proceeding to enforce, interpret, challenge the validity
of', or recover for the breach of any provision of, this Agreement may be
filed in the courts of the State of Indiana or the United States District
Court sitting in Indianapolis, Indiana, and the parties hereto
expressly waive any and all objections to personal jurisdiction, service of
processor venue in connection therewith.
(g) COMPLETE AGREEMENT. This Agreement constitutes a complete
and total integration of the understanding of the parties with respect to
the subject matter hereof and thereof and supersedes all prior or
contemporaneous negotiations, commitments, agreements, writings, and
discussions with respect to the subject matter of this Agreement, including
but not limited to the Severance Agreement and the Offer Letter.
(h) SEVERABILITY. If a court having proper jurisdiction holds a
particular provision of this Agreement unenforceable or invalid for any
reason, that provision shall be modified only to the extent necessary in
the opinion of such court to make it enforceable and valid and the
remainder of this Agreement shall be deemed valid and enforceable and shall
be enforced to the greatest extent possible under the then existing law. In
the event the court determines such modification is not possible, the
provision shall be deemed severable and deleted, and all other provisions
of this Agreement shall remain unchanged and in full force and effect.
(i) ENFORCEABILITY IN JURISDICTIONS. The parties hereto intend
to and hereby confer jurisdiction to enforce the covenants contained in
Sections 4 and 5 above upon the courts of any state within the geographical
scope of such covenants. If the courts of any one or more of such states
shall hold any of the previous covenants unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of the parties
hereto that such determination not bar or in any way affect the Company's
rights to the relief provided above in the courts of any other states
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, the above covenants as
they relate to each state being, for this purpose, severable into diverse
and independent covenants.
(j) COUNTERPARTS. This Agreement may be executed in two (2)
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same Agreement. Facsimile
transmission of the executed version of this Agreement or any counterpart
hereof shall have the same force and effect as the original.
(k) HEADINGS. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction of this Agreement.
(l) THIRD PARTY BENEFICIARIES. Company's affiliates and
subsidiaries are expressly made third party beneficiaries of this
Agreement.
(m) NOTICES. Any notice required or permitted hereunder shall be
personally delivered or mailed by certified mail, return receipt requested,
to the addresses of the parties set out on the signature pages hereto, or
as changed from time to time by notice as provided herein.
(n) SUCCESSORS AND ASSIGNS. Employee shall not assign or
transfer any of his rights or obligations under this Agreement to any
individual or entity. Company may assign its rights hereunder to any of its
affiliates or to any individual or entity who or that shall acquire or
succeed to, by operation of law or otherwise, all or substantially all of
the assets of Company or Company's Business. All provisions of this
Agreement are binding
upon, shall inure to the benefit of, and are enforceable by or against, the
parties and their respective heirs, executors, administrators or other
legal representatives and permitted successors and assigns.
(o) OPPORTUNITY TO CONSULT COUNSEL. EMPLOYEE ACKNOWLEDGES THAT
HE HAS CAREFULLY READ THIS AGREEMENT AND HAS BEEN GIVEN ADEQUATE
OPPORTUNITY, AND HAS BEEN ENCOURAGED BY COMPANY, TO CONSULT WITH LEGAL
COUNSEL OF HIS CHOICE CONCERNING THE TERMS HEREOF BEFORE EXECUTING THIS
AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have made this Agreement effective
as of the Effective Date.
"COMPANY"
▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Printed: ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Vice President - Corporate Affairs
------------------------------------
▇▇▇▇▇▇ International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
"EMPLOYEE"
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Exhibits A, Release of Claims, has been omitted from this Agreement as filed
with the Securities and Exchange Commission (the "SEC"). The omitted information
is considered immaterial from an investor's perspective. The Registrant will
furnish supplementally a copy of the omitted exhibit to the SEC upon request
from the SEC.]