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EXHIBIT 10.15
NN BALL & ROLLER
800 Tennessee Road
Erwin, TN 37650
August 28, 1997
Mr. James J. Mitchell
14 Sunsent View
Asheville, NC 28804
Dear Jim:
This letter sets forth the agreement between you and NN Ball
& Roller, Inc. (the "Company") relating to your resignation as the President,
Chief Operating Officer and a director of the Company effective July 28, 1997.
In consideration of your agreements set forth herein, the
Company agrees to: (i) continue payment of your current salary of $16,667 per
month until January 31, 1998; (ii) continue to provide group health and dental
insurance benefits to you and your wife under the terms of the Company's group
plans until January 31, 1998, provided that the terms of any such plans shall
be subject to amendment during such period to the extent such amendments apply
to the Company's executive officers generally; and (iii) provide you with a
lump sum payment of $10,000 on the date hereof to be used by you, if you so
choose, to retain an employment search firm. This letter agreement shall not
amend or otherwise affect the provisions of, or your rights under, the
Company's disability insurance plan, life insurance plan or 401(K) plan or
under any options held by you under the Company's stock incentive plan and, for
purposes of each of those plans, you shall be deemed to have resigned from the
Company's employ as of July 28, 1997.
In partial consideration for the Company's promises in the
preceding paragraph, you hereby reconfirm and agree to continue to be bound in
all respects by and comply with the terms of that certain Non-Competition and
Confidentiality Agreement, dated January 27, 1994, between you and the Company,
a copy of which is attached as Exhibit A. You further agree that any public
statements made by you with respect to the termination of your employment will
be subject to the prior approval of the Company.
You represent and agree that, as of your execution hereof,
you have returned to the Company all copies in your possession of written and
other physical materials and computer files and software that were generated or
acquired by you in connection with your employment with the Company. You agree
that all inventions, know-how, ideas, improvements, trade secrets,
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Mr. James J. Mitchell
August 28, 1997
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developments or confidential information (collectively, "Discoveries") that
relate to the business, research or development of the Company and which arose
in connection with, or of which you acquired knowledge during, your employment
with the Company belong to the Company, whether or not patent applications have
been filed thereon. You further agree that you have disclosed to the Company
all such Discoveries and that, if requested by the Company, you shall execute
appropriate documents assigning ownership of such Discoveries to the Company.
In exchange for and in partial consideration of the
agreements of the Company set forth in this letter agreement, you hereby
unconditionally release, acquit and discharge the Company and its past and
present officers, directors, employees, agents and consultants of and from all
actions, causes of action, claims, demands, obligations, liabilities, or
controversies known or unknown, which you may have against the Company by
reason of or relating to any cause, action or event whatsoever from the
beginning of the world to the date hereof, including, without limitation, any
actions, causes of action, claims, demands, obligations, liabilities or
controversies arising out of, or relating to, your employment with the Company
and the termination thereof. You understand and agree that this release shall
bind and inure to the benefit of the assigns, heirs, executors, subsidiaries
and affiliates of the Company and its directors, officers, employees, agents
and consultants. This release shall not include any claims you may have due to
the non-performance of the Company's obligations set forth in this letter
agreement.
You understand that as a consequence of your signing this
agreement you are giving up, with respect to your employment and the
termination of that employment, any and all rights you might otherwise have
under (1) the Age Discrimination in Employment Act of 1967, as amended; (2) all
other federal, state or municipal laws prohibiting discrimination in employment
on the basis of sex, race, national origin, religion, age, handicap or other
invidious factor; and (3) any and all theories of contract or tort law, whether
based on common law or otherwise. You acknowledge and agree that: (1) the
Company advised you in writing to consult with an attorney prior to signing
this agreement; (2) you were given a period of at least 21 days within which to
consider this agreement; and (3) the Company has advised you of your statutory
right to revoke your acceptance of this agreement at any time within seven (7)
days of you signing of this agreement. In the event you decide to exercise your
right to revoke within seven (7) days of your acceptance of this agreement, you
warrant and represent that you will do the following: (1) notify the Company in
writing of your intent to revoke the agreement, and (2) simultaneously return
in full any
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Mr. James J. Mitchell
August 28, 1997
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consideration previously received from the Company under this agreement (with
no further consideration being payable by the Company to you pursuant to the
terms hereof).
Upon your execution of this agreement, it will be binding
upon you and the Company and your and the Company's respective successors and
assigns; provided, however, that you shall not assign any of your rights
hereunder without the Company's prior written consent. This letter agreement
shall be construed and enforced according to the laws of the State of Tennessee
(irrespective of its conflicts of law provisions). In the event that any
provision of this letter agreement shall be invalid and legally unenforceable,
such provision shall not affect in any respect the validity and enforceability
of the remainder of this letter agreement.
The Company shall have the right to deduct from all amounts
payable hereunder all federal, state, local and other taxes required by law to
be withheld with respect to such payments. The Company also shall have the
right to set-off against amounts payable hereunder cash advances previously
made to you in the amount of $1,957.08 with respect to travel which you did not
ultimately undertake.
This letter agreement embodies the entire agreement and
understanding between you and the Company with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof. By execution of this letter agreement, you certify that
you have read and fully understand the meaning and intent of its terms and have
had the opportunity to review it with legal counsel. You agree that you have
entered into this agreement voluntarily and knowingly, without coercion and
with full knowledge of the nature and consequences of signing it.
If the foregoing is acceptable to you, please sign the
enclosed copy of this letter and return it to me.
Very truly yours,
/s/ Richard D. Ennen
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Richard D. Ennen
Chairman
Accepted:
/s/ James J. Mitchell
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James J. Mitchell
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EXHIBIT A
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY AGREEMENT ("Agreement") is
made as of January 27, 1994, by James J. Mitchell ("Employee") in favor of NN
Ball & Roller, Inc., a Delaware corporation (the "Company").
WITNESSETH
WHEREAS, the Company manufactures and supplies precision
steel balls and rollers to anti-friction bearing manufacturers, automotive
original equipment manufacturers and the automotive aftermarket, the gas and
mining industries, producers of drilling bits for oil, gas, and water wells and
producers of stainless steel valves and pumps (the "Business"), and its
customers are located in more than 25 different countries;
WHEREAS, Employee is an employee "at will" with the Company
and currently holds a management or executive position with the Company;
WHEREAS, the Company is requiring that the Employee, as a
condition to and in consideration of his continued employment, enter into this
Agreement; and
WHEREAS, the Employee desires to enter into this Agreement in
order to maintain his employment with the Company.
NOW, THEREFORE, in consideration of the foregoing premises, the
continued employment of the Employee and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Employee
hereby agrees with the Company as follows:
1. TERM. For purposes of this Agreement, the "Term" shall mean the
period commencing on the date hereof and continuing through the second
anniversary of the date of the Employee's termination of employment with the
Company for any reason.
2. COVENANT NOT TO COMPETE.
2.1 EMPLOYEE'S KNOWLEDGE. Employee acknowledges and agrees that he
occupies a position of trust and confidence with Company and, in the course of
his engagement with the Company, has become and will continue to become
familiar with proprietary and
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confidential information concerning the Company. Employee acknowledges and
agrees that his services are of a special, unique and extraordinary value to
the Company and that the Company would be irreparably damaged if Employee were
to provide similar services to any person or entity in violation of the
provisions of this Agreement.
2.2 NON-COMPETE. Employee hereby agrees that, during the Term, he
shall not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity,
own, operate, manage, control, engage in, invest in or participate in any
manner in, act as a consultant or advisor to, render services for (alone or in
association with any person, firm, corporation or entity), or otherwise assist
any person or entity that engages in or owns, invests in, operates, manages or
controls any venture or enterprise that competes in the Business anywhere in
the world (the "Territory"); provided, however, that nothing contained herein
shall be construed to prevent Employee from investing in the stock of any
competing corporation listed on a national securities exchange or traded in the
over-the-counter market, but only if Employee is not involved in the business
of said corporation and if Employee does not own more than an aggregate of two
(2%) percent of the stock of such corporation.
2.3 NON-SOLICITATION. Without limiting the generality of the
provisions of Section 2.2 above, Employee hereby agrees that during the Term he
will not, directly or indirectly, solicit (or participate as employee, agent,
consultant, stockholder, director, partner or in any other individual or
representative capacity in any business which solicits), business from any
person, firm, corporation or other entity that is a customer of the Company at
the time of such solicitation, or from any successor in interest to any such
person, firm, corporation or other entity, for the purpose of securing business
or contracts relating to the Business.
2.4 INTERFERENCE WITH RELATIONSHIPS. During the Term, Employee shall
not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity: (a)
employ or engage, or solicit for employment or engagement, any person employed
or engaged by the Company, or otherwise seek to influence or alter any such
person's relationship with the Company, or (b) solicit or encourage any
customer of the Company to terminate or otherwise alter his, her or its
relationship with the Company.
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3. CONFIDENTIAL INFORMATION. (a) During the Term and at all times
thereafter, Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of the Company, furnish, make
available or disclose to any third party or use for the benefit of himself or
any third party, any "Confidential Information." As used in this Agreement,
Confidential Information shall mean any information held in confidence by the
Company and not freely available to the public which gives the Company an
advantage over competitors in the Business, including, without limitation,
sales or earnings figures, personnel matters, supplier and customer data and
information relating to the Company's manufacturing processes, equipment and
customer servicing methods; provided, however, that Confidential Information
shall not include any information which otherwise is in the public domain or
becomes known in the ball and roller industry through no wrongful act on the
part of Employee. Employee acknowledges that the Confidential Information is
vital, sensitive, confidential and proprietary to the Company.
(b) Employee hereby represents and warrants to the Company
that at all times prior to the date hereof he has kept secret and retained in
strictest confidence, and has not furnished, made available or disclosed to any
third party or used for the benefit of himself or any third party, any
Confidential Information.
4. JUDICIAL MODIFICATION. If any court of competent jurisdiction shall
at any time deem the Term or any covenant contained herein too lengthy, or the
Territory too extensive, the other provisions of this Agreement shall
nevertheless stand, the Term shall be deemed to be the longest period
permissible by law under the circumstances and the Territory shall be deemed to
comprise the largest territory permissible by law under the circumstances. The
court in each case shall reduce the time period and/or Territory to permissible
duration or size.
5. REMEDIES. Employee acknowledges and agrees that the covenants set
forth in the Agreement are reasonable and necessary for the protection of the
Company's business interests, that irreparable injury will result to the
Company if Employee breaches any of the terms of said covenants, and that in
the event of Employee's actual or threatened breach of any such covenant, the
Company will have no adequate remedy at law. Employee accordingly agrees that
in the event of any actual or threatened breach by him of any of the covenants
contained herein, the Company shall be entitled to immediate temporary
injunctive and other equitable relief, without bond and without
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the necessity of showing actual monetary damages, subject to hearing as soon
thereafter as possible. Nothing contained herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of any damages which
it is able to prove.
6. CONDITION OF EMPLOYMENT. The Company shall have no obligation to
retain the Employee in its employ as a result of this Agreement, there shall be
no inference as to the length of employment implied hereby, and the Company
reserves the same rights to terminate the employment of the Employee as existed
prior to the date hereof.
7. MISCELLANEOUS. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes any other agreements between the parties, written or oral,
relating to the subject matter hereof. No amendment or modification of this
Agreement and no waiver by any party of the breach of any covenant contained
herein shall be binding unless executed in writing by the party against whom
enforcement of such amendment, modification or waiver is sought. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original without production of the others. This Agreement shall be governed by
and construed in accordance with the laws of the State of Tennessee, without
regard to its choice of law provisions. In the event any provision or portion
of any provision of this Agreement is held invalid or unenforceable by a court
of competent jurisdiction as applied to any fact or circumstance, the remaining
provisions and portions of this Agreement and the same provision as applied to
any other fact or circumstance shall not be affected or impaired thereby, and
shall remain valid and enforceable. The terms "he", "his" and "him" are used
herein generically for convenience only, and may, as appropriate, be considered
to represent the terms "she", "hers" and "her".
IN WITNESS WHEREOF, the Employee has caused this agreement to be duly
executed in favor of the Company on the day and year first above written.
By: /s/ James J. Mitchell
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Employee
ACKNOWLEDGED
NN BALL & ROLLER, INC.
By: /s/ Leonard Bowman
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