Exhibit 99.9
CHANGE IN CONTROL AND EMPLOYMENT AGREEMENT
THIS CHANGE IN CONTROL AND EMPLOYMENT AGREEMENT is entered
into on this _____ day of ________________, 2004, by and between OGLEBAY NORTON
COMPANY, an Ohio corporation (the "Company"), and [NAME] ("Employee").
W I T N E S S E T H:
WHEREAS, Employee is an executive and key employee who has
been employed by Oglebay Norton Management Company (the "Subsidiary") and serves
the Company as its [________________________________];
WHEREAS, the Company desires to assure itself of continuity of
management in the event of any threatened or actual Change in Control (as
hereafter defined);
WHEREAS, the Company desires to assure itself, in the event of
any threatened or actual Change in Control, of the continued performance of
services by Employee on an objective and impartial basis and without distraction
by concern for [his][her] employment status and security;
WHEREAS, Employee is willing to continue in the employ of the
Company but desires assurance that [his][her] responsibilities and status as an
executive of the Company or Subsidiary will not be adversely affected by any
threatened or actual Change in Control;
NOW, THEREFORE, the Company and Employee agree as follows:
1. Operation of Agreement. This Agreement shall be effective
and binding immediately upon its execution, but, anything in this Agreement to
the contrary notwithstanding, this Agreement shall not be operative unless and
until there has been a Change in Control while Employee is in the employ of the
Company. For purposes of this Agreement, a Change in Control shall have occurred
if at any time any of the following events occurs:
(a) a report is filed with the Securities and Exchange
Commission (the "SEC") on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form, or report), each as promulgated pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act"), disclosing
that any "person" (as the term "person" is used in Section 13(d) or
Section 14(d)(2) of the Exchange Act), other than Ingalls & Snyder and
any of their respective affiliates, is or has become a beneficial
owner, directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding securities;
(b) the Company files a report or proxy statement with the SEC
pursuant to the Exchange Act disclosing in response to Item 1 of Form
8-K thereunder or Item 5(f) of Schedule 14A thereunder that a Change in
Control of the Company has or may have
occurred or will or may occur in the future pursuant to any
then-existing contract or transaction;
(c) the Company is merged or consolidated with another
corporation and, as a result thereof, securities representing less than
50% of the combined voting power of the surviving or resulting
corporation's securities (or of the securities of a parent corporation
in case of a merger in which the surviving or resulting corporation
becomes a wholly-owned subsidiary of the parent corporation) are owned
in the aggregate by holders of the Company's securities immediately
prior to such merger or consolidation;
(d) all or substantially all of the assets of the Company are
sold in a single transaction or a series of related transactions to a
single purchaser or a group of affiliated purchasers; or
(e) during any period of 24 consecutive months, individuals
who were Directors of the Company at the beginning of such period cease
to constitute at least a majority of the Company's Board of Directors
(the "Board") unless the election or appointment, or nomination for
election by the Company's shareholders, of more than one half of any
new Directors of the Company was approved by a vote of at least
two-thirds of the Directors of the Company then still in office who
were Directors of the Company at the beginning of such 24 month period.
The first date on which a Change in Control occurs is referred to herein as the
"Change in Control Date." Upon the occurrence of a Change in Control while
Employee is in the employ of the Subsidiary, this Agreement shall become
immediately operative subject, however, to the provisions of Paragraph 2, below.
2. Possible "Undoing" of a Change in Control. If a report is
filed with the SEC disclosing that a person (the "Acquiror") is or has become a
beneficial owner, directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
outstanding securities and, as a result of that filing, a Change in Control, as
defined in Paragraph 1(a), above, occurs, while Employee is in the employ of the
Company, then, as provided in Paragraph 1, above, this Agreement will become
immediately operative. However, if:
(a) a Change in Control as described in Paragraph 1(a) occurs
while Employee is in the employ of the Subsidiary;
(b) the Acquiror subsequently transfers or otherwise disposes
of sufficient securities of the Company in one or more transactions, to
a person or persons other than affiliates of the Acquiror or any
persons with whom the Acquiror has agreed to act together for the
purpose of acquiring, holding, voting or disposing of securities of the
Company, so that, after such transfer or other disposition, the
Acquiror is no longer the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined
voting power of the Company's then outstanding securities;
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(c) at the time of the subsequent transfer or disposition that
reduced the Acquiror's holdings to less than 10% as provided in (b),
immediately above, no other event constituting a Change in Control had
occurred; and
(d) at the time of the subsequent transfer or other
disposition that reduced the Acquiror's holdings to less than 10%,
Employee's employment with the Subsidiary had not been terminated by
the Subsidiary without cause or by Employee for good reason,
then, for all purposes of this Agreement, the filing of the report constituting
a Change in Control under Paragraph 1(a) shall be treated as if it had not
occurred and this Agreement shall return to the status it had immediately before
the filing of the report constituting a Change in Control under Paragraph 1(a).
Accordingly, if and when a new Change in Control occurs, this Agreement will
again become operative on the date of that new Change in Control.
3. Employment, Contract Period.
(a) Subject to the terms and conditions of this Agreement,
upon the occurrence of a Change in Control, the Company shall cause the
Subsidiary to continue to employ Employee and Employee shall continue
in the employ of the Subsidiary for the period specified in Paragraph
3(b) (the "Contract Period"), in the position and with the duties and
responsibilities set forth in Paragraph 4.
(b) The Contract Period shall commence on the date of
occurrence of a Change in Control (the "Change in Control Date") and,
subject only to the provisions of Paragraph 11 below, shall continue
for a period of twelve months to the close of business on the day (the
"Contract Expiration Date") falling twelve months after the Change in
Control Date.
4. Position, Duties, Responsibilities. At all times during
the Contract Period, Employee shall:
(a) hold the same position with substantially the same duties
and responsibilities as an executive of the Subsidiary as Employee held
immediately before the Change in Control Date and as those duties and
responsibilities may be extended, from time to time during the Contract
Period, by the Board with Employee's consent;
(b) adhere to and implement the policies and directives
promulgated, from time to time, by the Board;
(c) observe all Company and Subsidiary policies applicable to
executive personnel of the Company and Subsidiary; and
(d) devote [his][her] business time, energy, and talent to the
business of and to the furtherance of the purposes and objectives of
the Company and the Subsidiary to
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generally the same extent as [he][she] has so devoted [his][her]
business time, energy, and talent before the Change in Control Date,
and neither directly nor indirectly render any business, commercial,
or professional services to any other person, firm, or organization
for compensation without the prior approval of the Board.
Nothing in this Agreement shall preclude Employee from devoting reasonable
periods of time to charitable and community activities or the management of
[his][her] investment assets provided such activities do not materially
interfere with the performance by Employee of [his][her] duties hereunder.
5. Compensation. For services actually rendered by Employee on
behalf of the Subsidiary during the Contract Period as contemplated by this
Agreement, the Company shall cause to be paid to Employee a base salary at a
rate equal to the highest of (a) the rate in effect immediately before the
Change in Control Date or (b) the rate in effect at any time during the two
years preceding the Change in Control Date. The base salary shall be paid to
Employee in the same increments and on the same schedule each month as in effect
immediately before the Effective Date. Employee shall not be entitled to any
base salary during any period when [he][she] is receiving long-term disability
benefits under the disability benefit arrangement provided to Employee by the
Company. In addition, the Company shall also cause to be paid to Employee (a) in
the event the Change in Control Date occurs between January 1 and March 31 of a
calendar year, an annual bonus (if not previously paid) for the year immediately
preceding the year in which the Change in Control Date occurs determined in
accordance with the Company's bonus plan (other than the Management Incentive
Plan) as in effect immediately prior to the Change in Control Date for the
preceding calendar year, such bonus to be paid to Employee no later than the
March 31 first following the Change in Control Date, and (b) an annual bonus for
the year in which the Change in Control Date occurs determined in accordance
with the Company's bonus plan (other than the Management Incentive Plan) as in
effect immediately prior to the Change in Control Date and at a level no less
than the target amount thereunder for the year in which the Change in Control
Date occurs (the "Bonus Amount"), such bonus to be paid to Employee no later
than the March 31 first following the end of the calendar year in which the
Change in Control Date occurs. .
6. Vacation. Employee will be entitled to such periods of
vacation and sick leave allowance each year as are determined by the
Subsidiary's vacation and sick leave policy for executive personnel as in effect
immediately before the Change in Control Date or as may be increased from time
to time thereafter. Neither vacation time nor sick leave allowance will be
accumulated from year to year.
7. Other Company Plans, Benefits, and Perquisites. During the
Contract Period Employee shall be entitled to participate in the Company's
Pension Plan applicable to salaried employees (the "Salaried Plan"); the
Incentive Savings and Stock Ownership Plan; and every other employee benefit
plan or arrangement not specifically referred to in this Agreement that is
generally available to executive personnel of the Company and Subsidiary
immediately before the Change in Control Date or that is specifically extended
to Employee by the Company or the Subsidiary before the Change in Control Date,
whether or not Employee is eligible to
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participate in such plan or arrangement on the date of this Agreement.
Employee's participation in and benefits under any such plan or arrangement
shall be on the terms and subject to the conditions specified in the governing
document of the particular plan or arrangement as in effect immediately before
the Change in Control Date, which terms and conditions shall not be amended
during the Contract Period unless the benefits to Employee are at least as great
under the plan or arrangement as amended (or under a substitute plan or
arrangement) as were the benefits under the plan or arrangement as in effect
immediately before the Change in Control Date. The Company or the Subsidiary
will also provide Employee with such perquisites during the Contract Period as
the Company or the Subsidiary customarily provided to similarly situated
executive personnel in the period immediately before the Change in Control Date.
8. Additional Benefit. If a Change in Control occurs and this
Agreement becomes operative and thereafter Employee's employment is terminated
by the Subsidiary without cause or by Employee for good reason, whether such
termination occurs before, on, or after the Contract Expiration Date, the
Company shall cause to be paid and provided benefits to or with respect to
Employee in such amounts and at such times so that the aggregate benefits
payable to or with respect to Employee under the Salaried Plan and any Excess
Benefit Plan maintained in connection with the Salaried Plan and under this
Agreement with respect to the Salaried Plan and any such Excess Benefit Plan
will be equal to the aggregate benefits that would have been paid to or with
respect to Employee under the Salaried Plan and any such Excess Benefit Plan if
Employee were exactly five years older than [his][her] actual age and [his][her]
credit under the Salaried Plan and any such Excess Benefit Plan were equal to
the greater of [his][her] actual service or the amount of service [he][she] is
deemed to have under Paragraph 12(a)(B), below. If Employee's employment is
terminated after a Change in Control by the Company without cause or by Employee
for good reason and Employee is entitled to additional benefits by virtue of the
additional five years of deemed age provided for in this Paragraph 8, then the
Company shall directly provide such benefits to Employee in the same manner as
additional benefits are to be provided to Employee under Paragraph 12(a), below.
9. Priority of Paragraphs 2 and 8. Paragraph 2 of this
Agreement shall take precedence over Paragraph 8 of this Agreement so that if a
Change in Control occurs and is subsequently undone under Paragraph 2 of this
Agreement, Employee will thereafter have no rights under Paragraph 8 of this
Agreement unless and until a further Change in Control occurs.
10. Effect of Disability. If during the Contract Period and
before [his][her] employment hereunder is otherwise terminated, Employee becomes
disabled to such an extent that [he][she] is prevented from performing
[his][her] duties hereunder by reason of physical or mental incapacity: (a)
[he][she] shall be entitled to disability and other benefits at least equal to
those that would have been available to [him][her] had the Subsidiary continued,
throughout the period of Employee's disability, all of its programs, benefits,
and policies with respect to disabled employees that were in effect immediately
before the Change in Control; and (b) if [he][she] recovers from [his][her]
disability before the end of the Contract Period, [he][she] shall be reinstated
as an active employee for the remainder of the Contract Period under and subject
to all of the terms of this Agreement including, without limitation, the
Company's right to terminate Employee with or without cause under Paragraph 11.
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11. Termination Following a Change in Control. Following a
Change in Control:
(a) Employee's employment hereunder will terminate without
further notice upon the death of Employee;
(b) The Subsidiary may terminate Employee's employment
hereunder effective immediately upon giving notice of such termination,
pursuant to (i) or (ii):
(i) For "cause," (A) if Employee has an employment
agreement in effect with the Subsidiary which contains a
definition of cause, then the definition of the term "cause"
for purposes of this Agreement shall be as defined in such
employment agreement, or (B) if the Employee does not have an
employment agreement in effect with the Subsidiary which
contains a definition of cause, then "cause" for purposes of
this Agreement shall mean (1) the Employee's material failure
to properly perform the Employee's duties for the Company or
Subsidiary (except due to physical or mental impairment); (2)
the Employee's material violation of Company or Subsidiary
policies as communicated to the Employee; (3) the Employee's
conviction of, or plea of nolo contendere to, a felony under
the laws of the United States or any state or political
subdivision thereof; or (4) the commission of any other
similar act by the Employee that brings the Company or a
Subsidiary into substantial public disgrace or disrepute.
Notwithstanding the foregoing, "cause" shall not be deemed to
exist under clause (B)(1), (B)(2) or (B)(4) unless the Company
or Subsidiary provides the Employee with specific written
notice of the facts relating to the event and the Employee
does not cure such conduct within ten (10) business days after
the receipt of such notice.
(ii) Without cause at any time.
(c) Employee may terminate [his][her] employment hereunder
effective immediately upon giving of notice of such termination:
(i) without cause at any time; or
(ii) for "good reason," which, for purposes of this
Agreement shall mean the occurrence of any of the following:
(A) any reduction in base salary or position
or any material reduction in responsibilities or duties
contemplated for Employee under this Agreement or any material
reduction in the aggregate of employee benefits, perquisites,
or fringe benefits contemplated for Employee under this
Agreement, provided that any particular reduction described in
this clause (A) shall constitute "good reason" only if
Employee terminates [his][her] employment within six months of
the date of the reduction;
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(B) any good faith determination by Employee
that, as a result of fundamental differences of opinion
between Employee and the Board as to the goals of the Company
or the Subsidiary, Employee is unable to carry out the
responsibilities and duties contemplated for Employee under
this Agreement, provided that any determination by Employee
described in this clause (B) shall constitute "good reason"
only if Employee terminates [his][her] employment within six
months of the Change in Control Date; or
(C) any material change in the geographic
location of Employee's principal place of employment (e.g., if
Employee's principal place of employment is in Cleveland,
Ohio, a change to a location outside of the greater Cleveland
metropolitan area), provided that any such change described in
this clause (C) shall constitute "good reason" only if
Employee terminates [his][her] employment within six months of
the date of the Employee receives notice of the change in
location.
12. Severance Compensation.
(a) If, before the Contract Expiration Date, Employee's
employment is terminated by the Subsidiary without cause or by Employee
for good reason, then, except as provided in Paragraph 12(b), 12(c), or
12(d), the Company shall cause to be paid and provided to Employee (i)
base salary at the highest monthly rate payable to Employee during the
Contract Period through the last to occur of (x) the expiration of six
months after the effective date of the termination, and (y) the
Contract Expiration Date (such last-to-occur date is hereinafter
referred to as the "Severance Benefits Termination Date") and a bonus
award accrued for the year in which such termination occurs determined
in accordance with the Company's bonus plan as in effect immediately
prior to the Change in Control Date and at a level no less than the
target amount thereunder for the year in which such termination occurs;
and (ii) the following benefits for a period of twelve months following
the Contract Expiration Date:
(A) coverage under the Company's medical insurance
plan, short-term disability plan, long-term disability plan,
salary continuation arrangement, disability benefit
arrangement, and executive life insurance benefit (provided
that [he][she] became eligible to participate therein prior to
the date [his][her] employment is terminated), each as in
effect on the Change in Control Date (or, if subsequently
amended to increase benefits to Employee or [his][her]
dependents, as so amended) and each as if Employee's
employment had continued through the Severance Benefits
Termination Date; and
(B) coverage and service credit under the Salaried
Plan and any Excess Benefit Plan maintained in connection with
the Salaried Plan under which [he][she] is eligible to
participate so that the aggregate benefits payable to or with
respect to the Employee under the Salaried Plan and any such
Excess Benefit Plan
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will be equal to the aggregate benefits that would have been
paid to or with respect to Employee under the Salaried Plan
and any such Excess Benefit Plan if Employee's employment had
continued through the Severance Benefits Termination Date.
If any of the benefits to be provided under one or more of the plans,
agreements, or arrangements specified above cannot be provided through
that plan, agreement, or arrangement to Employee following termination
of [his][her] employment, the Company shall cause the full equivalent
of such benefits to Employee. For example, since it is not possible to
provide additional service credit directly through the Salaried Plan,
if Employee becomes entitled to an additional 18 months of service
credit under the Salaried Plan pursuant to (B) above, the Company will
be required to cause payment to Employee, from its general assets or
those of its Subsidiary, on each date on which Employee receives a
payment from the Salaried Plan, a supplemental payment equal to the
amount by which that particular payment under the Salaried Plan would
have been increased if Employee's total service credit under the
Salaried Plan were 18 months greater than is actually the case. In
addition, if in these circumstances any payments become due under the
Salaried Plan with respect to Employee following [his][her] death, the
Company will be obligated to cause similar supplemental payments with
respect to Employee to be made on the dates on which payments are made
with respect to Employee under the Salaried Plan.
(b) Notwithstanding the foregoing provisions of Paragraph
12(a), the Company shall cause any benefit to which Employee becomes
entitled pursuant to the provisions of Paragraph 8 or 12(a) under the
Salaried Plan or the Excess Benefit Plan including, in the event
Employee is not fully vested under the provisions of either, the
present value of any otherwise forfeitable benefit thereunder, to be
paid in a single sum to Employee as soon as practicable, but not more
than thirty days following [his][her] termination of employment, with
present value determination to be made based on actuarial factors for
single sum payments set forth in the Salaried Pension Plan.
Employee shall have no duty to mitigate the amount of
any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to
payments or benefits under Paragraph 12(a) Employee materially and
willfully breaches [his][her] agreement with respect to confidential
information set forth in Paragraph 13 hereof and such breach directly
causes the Company or the Subsidiary substantial and demonstrable
damage, then the Company will be relieved of its obligations under
Paragraph 12(a) hereof as of the first day of the month immediately
following the date of such material breach.
(d) If Employee dies on or before the Severance Benefits
Termination Date or, with respect to benefits, the Contract Expiration
Date, and immediately before [his][her] death [he][she] is entitled to
payments or benefits under Paragraph 12(a), the Company will be
relieved of its obligations under Paragraph 12(a) with respect to base
salary and
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bonus payments as of the first day of the month immediately following
the month in which Employee dies and thereafter the Company will cause
to be provided to Employee's beneficiaries and dependents salary
continuation payments, benefits under any Excess Benefits Plan (as
supplemented by item (B) of Paragraph 12(a)), and continuing medical
and dental benefits to the same extent (subject to reduction for
payments or benefits from a new employer under Paragraph 12(c)) as if
Employee's death had occurred while Employee was in the active employ
of the Subsidiary.
13. Confidential Information. Employee agrees that [he][she]
will not, during the term of the Agreement or at any time thereafter, either
directly or indirectly, disclose or make known to any other person, firm, or
corporation any confidential information, trade secret, or proprietary
information of the Company or the Subsidiary that Employee may acquire in the
performance of Employee's duties hereunder. Upon the termination of Employee's
employment with the Subsidiary, Employee agrees to deliver forthwith to the
Subsidiary any and all literature, documents, correspondence, and other
materials and records furnished to or acquired by Employee during the course of
such employment.
14. Costs of Enforcement. The Company shall pay and be solely
responsible for any and all costs and expenses (including attorneys' fees)
incurred by Employee in seeking to enforce the Company's obligations under this
Agreement unless and to the extent a court of competent jurisdiction determines
that the Company was relieved of those obligations because (a) the Subsidiary
terminated Employee for cause (as determined under Paragraph 11(b)(i) hereof),
(b) Employee voluntarily terminated [his][her] employment other than for good
reason (as determined under Paragraph 11(c)(ii) hereof), or (c) Employee
materially and willfully breached [his][her] agreement with respect to
confidential information and such breach directly caused substantial and
demonstrable damage to the Company. The Company shall forthwith pay directly or
reimburse Employee for any and all such costs and expenses upon presentation by
Employee or by counsel selected from time to time by Employee of a statement or
statements prepared by Employee or by such counsel of the amount of such costs
and expenses. If and to the extent a court of competent jurisdiction renders a
final binding judgment determining that the Company was relieved of its
obligations for any of the reasons set forth in (a), (b), or (c) above, Employee
shall repay the amount of such payments or reimbursements to the Company. In
addition to the payment and reimbursement of expenses of enforcement provided
for in this Paragraph 14, the Company shall pay to Employee in cash, as and when
the Company makes any payment on behalf of, or reimbursement to, Employee, an
additional amount sufficient to pay all federal, state, and local taxes (whether
income taxes or other taxes) incurred by Employee as a result of (x) payment of
the expense or receipt of the reimbursement, and (y) receipt of the additional
cash payment. The Company shall also pay to Employee interest (calculated at the
Base Rate from time to time in effect at National City Bank, Cleveland, Ohio,
compounded monthly) on any payments or benefits that are paid or provided to
Employee later than the date on which due under the terms of this Agreement.
15. Excise Tax Gross-Up Payments.
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(a) In the event it shall be determined following a Change in
Control that any payment or distribution by the Company or the
Subsidiary or other amount with respect to the Company to or for the
benefit of Employee, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under
this Paragraph 15 (a "Payment"), is (or will be) subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") or any interest or penalties are (or will be)
incurred by Employee with respect to the excise tax imposed by Section
4999 of the Code with respect to the Company (the excise tax, together
with any interest and penalties, are hereinafter collectively referred
to as the "Excise Tax"), Employee shall be entitled to receive an
additional cash payment (an "Excise Tax Gross-Up Payment") from the
Company in an amount equal to the sum of the Excise Tax and an amount
sufficient to pay the cumulative Excise Tax and all cumulative income
taxes (including any interest and penalties imposed with respect to
such taxes) relating to the Excise Tax Gross-Up Payment so that the net
amount retained by Employee is equal to all payments received pursuant
to the terms of this Agreement or otherwise less income taxes (but not
reduced by the Excise Tax).
(b) Subject to the provisions of Paragraph 15(c), all
determinations required to be made under this Paragraph 15, including
whether and when an Excise Tax Gross-Up Payment is required and the
amount of such Excise Tax Gross-Up Payment and the assumptions to be
utilized in arriving at the determination, shall be made by a
nationally recognized certified public accounting firm designated by
Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Employee within 30 days
after the receipt of notice from Employee that there has been a
Payment, or such earlier time as is requested by the Company. In the
event that at any time relevant to this Agreement the Accounting Firm
is serving as accountant or auditor for the individual, entity or group
or person effecting the Change in Control, Employee shall appoint
another nationally recognized certified public accounting firm to make
the determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any Excise
Tax Gross-Up Payment, as determined in accordance with this Paragraph
15, shall be paid by the Company to Employee within five days after the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by Employee, it shall so
indicate to Employee in writing. Any determination by the Accounting
Firm shall be binding upon the Company and Employee. As a result of
uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm, it is possible
that Excise Tax Gross-Up Payments that the Company should have made
will not have been made (an "Underpayment"), consistent with the
calculations required to be made hereunder. In the event the Company
exhausts its remedies in accordance with Paragraph 15(c) and Employee
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of Underpayment that has
occurred and the Underpayment shall be promptly paid by the Company to
or for the benefit of Employee.
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(c) Employee shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require an
Excise Tax Gross-Up Payment (that has not already been paid by the
Company). The notification shall be given as soon as practicable but no
later than ten business days after Employee is informed in writing of
the claim and shall apprise the Company of the nature of the claim and
the date on which the claim is requested to be paid. Employee shall not
pay the claim prior to the expiration of the 30-day period following
the date on which Executive gives notice to the Company or any shorter
period ending on the date that any payment of taxes with respect to the
claim is due. If the Company notifies the Employee in writing prior to
the expiration of the 30-day period that it desires to contest the
claim, Employee shall:
(i) give the Company any information reasonably
requested by the Company relating to the claim;
(ii) take any action in connection with contesting
the claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting
legal representation with respect to the claim by an attorney
reasonably selected by the Company;
(iii) cooperate with the Company in good faith in
order effectively to contest the claim; and
(iv) permit the Company to participate in any
proceedings related to the claim.
The Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection
with the contest and shall indemnify and hold Employee 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 the
representation and payment of costs and expenses. Without limitation of
the foregoing provisions of this Paragraph 15, the Company shall
control all proceedings taken in connection with the 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 the claim and may, at its sole option, either
direct Employee to pay the tax claimed and sue for a refund or contest
the claim in any permissible manner, and Employee agrees to prosecute
the 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 Employee to pay the
claim and sue for a refund, the Company shall advance the amount of
payment to Employee, on an interest-free basis, and shall indemnify and
hold Employee harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto)
imposed with respect to the advance or with respect to any imputed
income with respect to the advance; and any extension of the statute of
limitations relating to payment of taxes for the taxable year of
Employee with respect to which the contested amount is claimed to be
due shall be limited solely to the contested amount. The Company's
control of the
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contest shall be limited to issues with respect to which an Excise Tax
Gross-Up Payment would be payable hereunder and Employee 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.
(d) If, after the receipt by Employee of an amount advanced by
the Company pursuant to Paragraph 15(c), Employee becomes entitled to
receive any refund with respect to the claim, Employee shall, subject
to the Company's compliance with the requirements of Paragraph 15(c),
promptly pay to the Company the amount of the refund (together with any
interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by Employee of an amount advanced by the Company
pursuant to Paragraph 15(c), a determination is made that Employee
shall not be entitled to any refund with respect to the claim and the
Company does not notify the Employee in writing of its intent to
contest the denial of refund prior to the expiration of 30 days after
the determination, then the advance shall be forgiven and shall not be
required to be repaid and the amount of the advance shall offset, to
the extent thereof, the amount of Excise Tax Gross-Up Payment required
to be paid.
16. Withholding Taxes. Any payments provided for hereunder
shall be paid net of any applicable withholding required under federal, state,
or local law and any additional withholding to which Employee has agreed.
17. Outplacement. Following any termination of employment
occurring after a Change in Control other than for cause as described in
Paragraph 11(b), whether such termination occurs during or after the Contract
Period, the Company shall provide to Employee at its expense full executive
level outplacement services to assist Employee in securing suitable employment,
such outplacement services to be provided by a party selected by Employee,
provided that Employee must select and commence use of such services within six
months of [his][her] date of termination of employment with the Subsidiary and
all other affiliates of the Company.
18. Employment Rights. Nothing expressed or implied in this
Agreement shall create any right or duty on the part of the Company, the
Subsidiary, or Employee to have Employee remain in the employ of the Subsidiary
before any Change in Control and Employee shall have no rights under this
Agreement if [his][her] employment with the Subsidiary is terminated for any
reason or for no reason before any Change in Control. Nothing expressed or
implied in this Agreement shall create any duty on the part of the Company or
the Subsidiary to continue in effect, or continue to provide to Employee, any
plan or benefit unless and until a Change in Control occurs. If, before a Change
in Control, the Company or the Subsidiary ceases to provide any plan or benefit
to Employee, nothing in this Agreement shall be construed to require the Company
or the Subsidiary to reinstitute that plan or benefit to Employee upon the later
occurrence of a Change in Control.
19. Notices. For purposes of this Agreement, all
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or when
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mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed to the Company (Attention: President) at its
principal executive office and to Employee at [his][her] principal residence, or
to such other address as either party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
20. Assignment, Binding Effect.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company and the Company's successors and assigns.
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially
all of the business and or assets of the Company, by agreement in form
and substance satisfactory to Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession
had taken place.
(b) This Agreement shall be binding upon Employee and this
Agreement and all rights of Employee hereunder shall inure to the
benefit of, and be enforceable by, Employee and [his][her] personal or
legal representatives, executors, or administrators. No right, benefit,
or interest of Employee hereunder shall be subject to assignment,
anticipation, alienation, sale, encumbrance, charge, pledge,
hypothecation, or to execution, attachment, levy, or similar process;
except that Employee may assign any right, benefit, or interest
hereunder if such assignment is permitted under the terms of any plan
or policy of insurance or annuity contract governing such right,
benefit, or interest.
21. Invalid Provisions.
(a) Any provision of this Agreement that is prohibited or
unenforceable shall be ineffective to the extent, but only to the
extent, of such prohibition or unenforceability without invalidating
the remaining portions hereof and such remaining portions of this
Agreement shall continue to be in full force and effect.
(b) In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable, the
parties will negotiate in good faith to replace such provision with
another provision that will be valid or enforceable and that is as
close as practicable to the provision held invalid or unenforceable.
22. Modification. No modification, amendment, or waiver of
any of the provisions of the Agreement shall be effective unless in writing,
specifically referring hereto, and signed by both parties.
23. Waiver of Breach. The failure at any time to enforce any
of the provisions of this Agreement or to require performance by the other party
of any of the provisions of this Agreement shall in no way be construed to be a
waiver of such provisions or to affect either the
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validity of this Agreement or any part of this Agreement or the right of either
party thereafter to enforce each and every provision of this Agreement in
accordance with the terms hereof.
24. Entire Agreement. This Agreement forms the entire
agreement between the parties hereto with respect to the subject matter
contained in this Agreement and, except as otherwise provided herein, shall
supersede all prior agreements, promises and representations regarding
employment, compensation, severance or other payments contingent upon
termination of employment, whether in writing or otherwise.
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25. Governing Law. This Agreement has been made in and shall
be governed and construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the Company and Employee have executed
this Agreement on the day and year first above written.
OGLEBAY NORTON COMPANY
By:
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Michael D. Lundin,
President and Chief Executive Officer
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[NAME]
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