EXHIBIT 10d
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "Agreement"), dated as of March
4, 2003 is made and entered by and between Brush Engineered Materials Inc., an
Ohio corporation (the "Company"), and Richard J. Hipple (the "Executive").
WITNESSETH:
WHEREAS, the Executive is a senior executive of the Company or
one or more of its Subsidiaries and has made and is expected to continue to make
major contributions to the short- and long-term profitability, growth and
financial strength of the Company;
WHEREAS, the Company recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined below) exists;
WHEREAS, the Company desires to assure itself of both present
and future continuity of management and desires to establish certain minimum
severance benefits for certain of its senior executives, including the
Executive, applicable in the event of a Change in Control;
WHEREAS, the Company wishes to ensure that its senior
executives are not practically disabled from discharging their duties in respect
of a proposed or actual transaction involving a Change in Control; and
WHEREAS, the Company desires to provide additional inducement
for the Executive to continue to remain in the employ of the Company.
NOW, THEREFORE, the Company and the Executive agree as
follows:
1. Certain Defined Terms. In addition to terms defined
elsewhere herein, the following terms have the following meanings when used in
this Agreement with initial capital letters:
(a) "Affiliate" means with respect to any Person, any holder
of more than 10% of the outstanding shares or equity interests of such Person or
any other Person which directly or indirectly controls, is controlled by or is
under common control with such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the "controlled"
Person, whether through ownership of voting securities, by contract or
otherwise.
(b) "Base Pay" means the Executive's annual base salary rate
as in effect from time to time.
(c) "Board" means the Board of Directors of the Company.
(d) "Cause" means that, prior to any termination pursuant to
Section 3(a)(iii), Section 3(b) or Section 3(c), the Executive shall have:
(i) been convicted of a criminal violation involving
fraud, embezzlement, theft or violation of federal antitrust statutes
or federal securities laws in connection with his duties or in the
course of his employment with the Company or any Affiliate of the
Company;
(ii) committed intentional wrongful damage to
property of the Company or any Affiliate of the Company;
(iii) committed intentional wrongful disclosure of
secret processes or confidential information of the Company or any
Affiliate of the Company; or
(iv) intentionally engaged in any activity in
violation of Section 8;
and any such act shall have been demonstrably and materially harmful to
the Company. For purposes of this Agreement, no act or failure to act
on the part of the Executive shall be deemed "intentional" if it was
due primarily to an error in judgment or negligence, but shall be
deemed "intentional" only if done or omitted to be done by the
Executive not in good faith and without reasonable belief that the
Executive's action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for "Cause" hereunder unless and until there shall
have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three quarters of the
Board then in office at a meeting of the Board called and held for such
purpose, after reasonable notice to the Executive and an opportunity
for the Executive, together with the Executive's counsel (if the
Executive chooses to have counsel present at such meeting), to be heard
before the Board, finding that, in the good faith opinion of the Board,
the Executive had committed an act constituting "Cause" as herein
defined and specifying the particulars thereof in detail. Nothing
herein will limit the right of the Executive or his beneficiaries to
contest the validity or propriety of any such determination.
(e) "Change in Control" means
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of voting securities of the Company
where such acquisition causes such Person to own (X) 20% or more of the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities") without the approval of the
Incumbent Board as defined in (ii) below or (Y) 35% or more of the
Outstanding Voting Securities of the Company with the approval of the
Incumbent Board; provided, however, that for purposes of this
subsection (i), the following acquisitions shall not be deemed to
result in a Change of Control: (A) any acquisition directly from the
Company that is approved by the Incumbent Board (as defined in
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subsection (ii), below), (B) any acquisition by the Company or a
subsidiary of the Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (D) any acquisition by any
Person pursuant to a transaction described in clauses (A), (B) and (C)
of subsection (iii) below, or (E) any acquisition by, or other Business
Combination (as defined in (iii) below) with, a person or group of
which employees of the Company or any subsidiary of the Company control
a greater than 25% interest (a "MBO") but only if the Executive is one
of those employees of the Company or any subsidiary of the Company that
are participating in the MBO; provided, further, that if any Person's
beneficial ownership of the Outstanding Company Voting Securities
reaches or exceeds 20% or 35%, as the case may be, as a result of a
transaction described in clause (A) or (B) above, and such Person
subsequently acquires beneficial ownership of additional voting
securities of the Company, such subsequent acquisition shall be treated
as an acquisition that causes such Person to own 20% or 35% or more, as
the case may be, of the Outstanding Company Voting Securities; and
provided, further, that if at least a majority of the members of the
Incumbent Board determines in good faith that a Person has acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the Outstanding Company
Voting Securities inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares so that such Person
beneficially owns (within the meanings of Rule 13d-3 promulgated under
the Exchange Act) less than 20% of the Outstanding Company Voting
Securities, then no Change of Control shall have occurred as a result
of such Person's acquisition; or
(ii) individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board" (as modified by this clause
(ii)) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director,
without objection to such nomination) shall be considered as though
such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) The consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the acquisition of assets of another
corporation, or other transaction ("Business Combination") excluding,
however, such a Business Combination pursuant to which (A) the
individuals and entities who were the ultimate beneficial owners of
voting securities of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 65% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the entity
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resulting from such Business Combination (including, without
limitation, an entity that as a result of such transaction owns the
Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries), (B) no Person (excluding
any employee benefit plan (or related trust) of the Company, the
Company or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly (X) 20% or more, if such
Business Combination is approved by the Incumbent Board or (Y) 35% or
more, if such Business Combination is not approved by the Incumbent
Board, of the combined voting power of the then outstanding securities
entitled to vote generally in the election of directors of the entity
resulting from such Business Combination and (C) at least a majority of
the members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company except pursuant to a
Business Combination described in clauses (A), (B) and (C) of
subsection (iii), above.
(f) "Employee Benefits" means the perquisites, benefits and
service credit for benefits as provided under any and all employee retirement
income and welfare benefit policies, plans, programs or arrangements in which
Executive is entitled to participate, including without limitation any stock
option, performance share, performance unit, stock purchase, stock appreciation,
savings, pension, supplemental executive retirement, or other retirement income
or welfare benefit, deferred compensation, incentive compensation, group or
other life, health, medical/hospital or other insurance (whether funded by
actual insurance or self-insured by the Company or an Affiliate of the Company),
disability, salary continuation, expense reimbursement and other employee
benefit policies, plans, programs or arrangements.
(g) "Incentive Pay" means the annual bonus, incentive or other
payment of compensation under the Management Performance Compensation Plan or,
if such Management Performance Compensation Plan is no longer in effect, the
annual bonus, incentive or other payment of compensation in addition to Base
Pay, made or to be made in regard to services rendered in any year or other
period pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or arrangement
(whether or not funded) of the Company or an Affiliate of the Company, or any
successor thereto.
(h) "Retirement Plans" means the benefit plans of the Company
that are intended to be qualified under Section 401(a) of the Internal Revenue
Code and the Company's Supplemental Retirement Benefit Plan or any other plan
that is a successor thereto if the Executive was a participant in such
Retirement Plan on the date of the occurrence of the Change in Control.
(i) "Severance Period" means the period of time commencing on
the date of the first occurrence of a Change in Control and continuing until the
earlier of (i) the second anniversary of the occurrence of the Change in
Control, or (ii) the Executive's death; provided, however, that commencing on
each anniversary of the Change in Control, the Severance Period
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will automatically be extended for an additional year unless, not later than 90
calendar days prior to such anniversary date, either the Company or the
Executive shall have given written notice to the other that the Severance Period
is not to be so extended.
(j) "Subsidiary" means an entity in which the Company directly
or indirectly beneficially owns 50% or more of the Outstanding Company Voting
Securities.
(k) "Term" means the period commencing as of the date hereof
and expiring on the close of business on December 31, 2004; provided, however,
that (i) commencing on January 1, 2003 and each January 1 thereafter, the term
of this Agreement will automatically be extended for an additional year unless,
not later than September 30 of the immediately preceding year, the Company or
the Executive shall have given notice that it or the Executive, as the case may
be, does not wish to have the Term extended; (ii) if a Change in Control occurs
during the Term, the Term shall expire and this Agreement will terminate at the
expiration of the Severance Period; and (iii) subject to the last sentence of
Section 9, if, prior to a Change in Control, the Executive ceases for any reason
to be an employee of the Company and any Affiliate of the Company, thereupon
without further action the Term shall be deemed to have expired and this
Agreement will immediately terminate and be of no further effect. For purposes
of this Section 1(l), the Executive shall not be deemed to have ceased to be an
employee of the Company and any Affiliate of the Company by reason of the
transfer of Executive's employment between the Company and any Affiliate of the
Company, or among any Affiliates of the Company.
(l) "Termination Date" means the date on which the Executive's
employment is terminated (the effective date of which shall be the date of
termination, or such other date that may be specified by the Executive if the
termination is pursuant to Section 3(b) or Section 3(c)).
2. Operation of Agreement. This Agreement will be effective
and binding immediately upon its execution, but, anything in this Agreement to
the contrary notwithstanding, except as provided in Section 9, this Agreement
will not be operative unless and until a Change in Control occurs. Upon the
occurrence of a Change in Control at any time during the Term, without further
action, this Agreement shall become immediately operative.
3. Termination Following a Change in Control.
(a) In the event of the occurrence of a Change in Control, the
Executive's employment may be terminated by the Company or an Affiliate of the
Company during the Severance Period and the Executive shall be entitled to the
benefits provided by Section 4 unless such termination is the result of the
occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive becomes permanently disabled within
the meaning of, and begins actually to receive disability benefits
pursuant to, the long-term disability plan in effect for, or applicable
to, Executive immediately prior to the Change in Control; or
(iii) Cause.
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If, during the Severance Period, the Executive's employment is terminated by the
Company or any Affiliate of the Company other than pursuant to Section 3(a)(i),
3(a)(ii) or 3(a)(iii), the Executive will be entitled to the benefits provided
by Section 4 hereof.
(b) In the event of the occurrence of a Change in Control, if
(but only if) the Board determines that this Section 3(b) shall be operative
following such Change in Control, the Executive may terminate employment with
the Company and any Affiliate of the Company during the Severance Period with
the right to severance compensation as provided in Section 4 upon the occurrence
of one or more of the following events (regardless of whether any other reason,
other than Cause as hereinabove provided, for such termination exists or has
occurred, including without limitation other employment):
(i) Failure to elect or reelect or otherwise to maintain
the Executive in the office or the position, or a substantially
equivalent or better office or position, of or with the Company and/or
an Affiliate of the Company (or any successor thereto by operation of
law or otherwise), as the case may be, which the Executive held
immediately prior to a Change in Control, or the removal of the
Executive as a Director of the Company and/or an Affiliate of the
Company (or any successor thereto) if the Executive shall have been a
Director of the Company and/or an Affiliate of the Company immediately
prior to the Change in Control;
(ii) (A) A significant adverse change in the nature or
scope of the authorities, powers, functions, responsibilities or duties
attached to the position with the Company and any Affiliate of the
Company which the Executive held immediately prior to the Change in
Control, (B) a reduction in the aggregate of the Executive's Base Pay
and Incentive Pay received from the Company and any Affiliate of the
Company, or (C) the termination or denial of the Executive's rights to
Employee Benefits or a reduction in the scope or value thereof, any of
which is not remedied by the Company within 10 calendar days after
receipt by the Company of written notice from the Executive of such
change, reduction or termination, as the case may be;
(iii) The liquidation, dissolution, merger, consolidation
or reorganization of the Company or the transfer of all or
substantially all of its business and/or assets, unless the successor
or successors (by liquidation, merger, consolidation, reorganization,
transfer or otherwise) to which all or substantially all of its
business and/or assets have been transferred (by operation of law or
otherwise) assumed all duties and obligations of the Company under this
Agreement pursuant to Section 11(a);
(iv) The Company relocates its principal executive offices
(if such offices are the principal location of Executive's work), or
requires the Executive to have his principal location of work changed,
to any location that, in either case, is in excess of 50 miles from the
location thereof immediately prior to the Change in Control, or
requires the Executive to travel away from his office in the course of
discharging his responsibilities or duties hereunder at least 20% more
(in terms of aggregate days in any calendar year or in any calendar
quarter when annualized for purposes of comparison to any prior year)
than was required of Executive in any of the three full years
immediately prior to the Change in Control without, in either case, his
prior written consent; or
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(v) Without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any
successor thereto which is not remedied by the Company within 10
calendar days after receipt by the Company of written notice from the
Executive of such breach.
(c) Notwithstanding anything contained in this Agreement to
the contrary, in the event of a Change in Control, the Executive may terminate
employment with the Company and any Affiliate of the Company for any reason, or
without reason, during the 30-day period immediately following the first
anniversary of the first occurrence of a Change in Control with the right to
severance compensation as provided in Section 4.
(d) A termination by the Company pursuant to Section 3(a) or
by the Executive pursuant to Section 3(b) or Section 3(c) will not affect any
rights that the Executive may have pursuant to any agreement, policy, plan,
program or arrangement of the Company or an Affiliate of the Company providing
Employee Benefits, which rights shall be governed by the terms thereof.
4. Severance Compensation.
(a) If, following the occurrence of a Change in Control, the
Company or an Affiliate of the Company terminates the Executive's employment
during the Severance Period other than pursuant to Section 3(a)(i), 3(a)(ii) or
3(a)(iii), or if the Executive terminates his employment pursuant to Section
3(b) (if Section 3(b) is operative) or Section 3(c), the Company will pay to the
Executive the amounts described in Annex A within five business days after the
Termination Date and will continue to provide to the Executive the benefits
described in Annex A for the periods described therein.
(b) Without limiting the rights of the Executive at law or in
equity, if the Company fails to make any payment or provide any benefit required
to be made or provided hereunder on a timely basis, the Company will pay
interest on the amount or value thereof at an annualized rate of interest equal
to the so-called composite "prime rate" as quoted from time to time during the
relevant period in the Midwest Edition of The Wall Street Journal, plus 4%. Such
interest will be payable as it accrues on demand. Any change in such prime rate
will be effective on and as of the date of such change.
(c) Notwithstanding any provision of this Agreement to the
contrary, the parties' respective rights and obligations under this Section 4
and under Sections 5, 7, 8 and 9 will survive any termination or expiration of
this Agreement or the termination of the Executive's employment following a
Change in Control for any reason whatsoever.
(d) Unless otherwise expressly provided by the applicable
plan, program or agreement, after the occurrence of a Change in Control, the
Company shall pay in cash to the Executive a lump sum amount equal to the value
of any annual bonus (including, without limitation, incentive-based annual cash
bonuses and performance units, but not including any equity-based compensation
or compensation provided under a qualified plan) earned or accrued with respect
to the Executive's service during the performance period or periods that
includes the date on which the Change in Control occurred, disregarding any
applicable vesting requirements;
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provided that (i) such amount shall be calculated at the plan target or payout
rate, but prorated to base payment only on the portion of the Executive's
service that had elapsed during the applicable performance period; and (ii) such
amount shall be reduced by any amount actually paid to the Executive under the
terms of such Plan. Such payment shall take into account service rendered
through the payment date and shall be made at the earlier of (i) the date
prescribed for payment pursuant to the applicable plan, program or agreement, or
(ii) within five business days after the Termination Date.
(e) Notwithstanding any provision to the contrary in any
applicable plan, program or agreement, upon the occurrence of a Change in
Control, all equity incentive awards held by the Executive shall become fully
vested and all stock options held by the Executive shall become fully
exercisable.
5. Limitation on Payments and Benefits. Notwithstanding any provision
of this Agreement to the contrary, if any amount or benefit to be paid or
provided under this Agreement would be an "Excess Parachute Payment," within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or any successor provision thereto, but for the application of this
sentence, then the payments and benefits to be paid or provided under this
Agreement shall be reduced to the minimum extent necessary (but in no event to
less than zero) so that no portion of any such payment or benefit, as so
reduced, constitutes an Excess Parachute Payment; provided, however, that the
foregoing reduction shall be made only if and to the extent that such reduction
would result in an increase in the aggregate payments and benefits to be
provided, determined on an after-tax basis (taking into account the excise tax
imposed pursuant to Section 4999 of the Code, or any successor provision
thereto, any tax imposed by any comparable provision of state law, and any
applicable federal, state and local income taxes). The determination of whether
any reduction in such payments or benefits to be provided under this Agreement
or otherwise is required pursuant to the preceding sentence shall be made at the
expense of the Company, if requested by the Executive or the Company, by the
Company's independent accountants. The fact that the Executive's right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 5 shall not of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In the event that any
payment or benefit intended to be provided under this Agreement or otherwise is
required to be reduced pursuant to this Section 5, the Executive shall be
entitled to designate the payments and/or benefits to be so reduced in order to
give effect to this Section 5. The Company shall provide the Executive with all
information reasonably requested by the Executive to permit the Executive to
make such designation. In the event that the Executive fails to make such
designation within 10 business days of the Termination Date, the Company may
effect such reduction in any manner it deems appropriate.
6. No Mitigation Obligation. The Company hereby acknowledges that it
will be difficult and may be impossible for the Executive to find reasonably
comparable employment following the Termination Date. Accordingly, the payment
of the severance compensation by the Company to the Executive in accordance with
the terms of this Agreement is hereby acknowledged by the Company to be
reasonable, and the Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor will any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of
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the Executive hereunder or otherwise, except as expressly provided in the last
sentence of Paragraph 3 set forth on Annex A.
7. Legal Fees and Expenses.
(a) It is the intent of the Company that the Executive not be required
to incur legal fees and the related expenses associated with the interpretation,
enforcement or defense of Executive's rights under this Agreement by litigation
or otherwise because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Executive hereunder.
Accordingly, if it should appear to the Executive that the Company has failed to
comply with any of its obligations under this Agreement or in the event that the
Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other
action or proceeding designed to deny, or to recover from, the Executive the
benefits provided or intended to be provided to the Executive hereunder, the
Company irrevocably authorizes the Executive from time to time to retain counsel
of Executive's choice, at the expense of the Company as hereafter provided, to
advise and represent the Executive in connection with any such interpretation,
enforcement or defense, including without limitation the initiation or defense
of any litigation or other legal action, whether by or against the Company or
any Director, officer, stockholder or other person affiliated with the Company,
in any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to the Executive's entering into an attorney-client relationship with
such counsel, and in that connection the Company and the Executive agree that a
confidential relationship shall exist between the Executive and such counsel.
Without respect to whether the Executive prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys' and related fees and expenses
incurred by the Executive in connection with any of the foregoing.
(b) Without limiting the obligations of the Company pursuant to Section
7(a) hereof, in the event a Change in Control occurs, the performance of the
Company's obligations under this Agreement, including, without limitation, this
Section 7 and Annex A, shall be secured by amounts deposited or to be deposited
in trust pursuant to certain trust agreements to which the Company shall be a
party providing that the benefits to be provided hereunder and the fees and
expenses of counsel selected from time to time by the Executive pursuant to
Section 7(a) shall be paid, or reimbursed to the Executive if paid by the
Executive, either in accordance with the terms of such trust agreements, or, if
not so provided, on a regular, periodic basis upon presentation by the Executive
to the trustee of a statement or statements prepared by such counsel in
accordance with its customary practices. Any failure by the Company to satisfy
any of its obligations under this Section 7(b) shall not limit the rights of the
Executive hereunder. Subject to the foregoing, the Executive shall have the
status of a general unsecured creditor of the Company and shall have no right
to, or security interest in, any assets of the Company or any Affiliate of the
Company.
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8. Competitive Activity; Confidentiality; Nonsolicitation.
(a) Acknowledgements and Agreements. The Executive hereby acknowledges
and agrees that in the performance of the Executive's duties to the Company
during the Term, the Executive will be brought into frequent contact, either in
person, by telephone or through the mails, with existing and potential customers
of the Company throughout the United States. The Executive also agrees that
trade secrets and confidential information of the Company, more fully described
in Section 8(j) of this Agreement, gained by the Executive during the
Executive's association with the Company, have been developed by the Company
through substantial expenditures of time, effort and money and constitute
valuable and unique property of the Company. The Executive further understands
and agrees that the foregoing makes it necessary for the protection of the
business of the Company that the Executive not compete with the Company during
the Term and not compete with the Company for a reasonable period thereafter, as
further provided in the following subsections.
(b) Covenants During the Term. During the Term and prior to the
Termination Date, the Executive will not compete with the Company anywhere
within the United States. In accordance with this restriction, but without
limiting its terms, during the term of the Executive's employment, the Executive
will not:
(i) enter into or engage in any business which competes
with the business of the Company;
(ii) solicit customers, business, patronage or orders for,
or sell, any products and services in competition with, or for any
business that competes with, the business of the Company;
(iii) divert, entice or otherwise take away any customers,
business, patronage or orders of the Company or attempt to do so; or
(iv) promote or assist, financially or otherwise, any
person, firm, association, partnership, corporation or other entity
engaged in any business which competes with the business of the
Company.
(c) Covenants Following Termination. For a period of one (1) year
following the Termination Date, if the Executive has received or is receiving
benefits under this Agreement, the Executive will not:
(i) enter into or engage in any business which competes
with the Company's business within the Restricted Territory (as defined
in Section 8(g));
(ii) solicit customers, business, patronage or orders for,
or sell, any products and services in competition with, or for any
business, wherever located, that competes with, the Company's business
within the Restricted Territory;
(iii) divert, entice or otherwise take away any customers,
business, patronage or orders of the Company within the Restricted
Territory, or attempt to do so; or
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(iv) promote or assist, financially or otherwise, any
person, firm, association, partnership, corporation or other entity
engaged in any business which competes with the Company's business
within the Restricted Territory.
(d) Indirect Competition. For the purposes of Sections 8(b)
and 8(c), inclusive, but without limitation thereof, the Executive will be in
violation thereof if the Executive engages in any or all of the activities set
forth therein directly as an individual on the Executive's own account, or
indirectly as a partner, joint venturer, employee, agent, salesperson,
consultant, officer and/or director of any firm, association, partnership,
corporation or other entity, or as a stockholder of any corporation in which the
Executive or the Executive's spouse, child or parent owns, directly or
indirectly, individually or in the aggregate, more than five percent (5%) of the
outstanding stock.
(e) The Company. For the purposes of this Section 8, the
Company shall include any and all direct and indirect subsidiary, parent,
affiliated, or related companies of the Company for which the Executive worked
or had responsibility at the time of termination of the Executive's employment
and at any time during the two (2) year period prior to such termination.
(f) The Company's Business. For the purposes of Sections 8(b),
8(c), 8(k) and 8(l), inclusive, the Company's business is defined to be the
manufacture, marketing and sale of high performance engineered materials serving
global telecommunications, computer, automotive electronics, industrial
components and optical media markets, as further described in any and all
manufacturing, marketing and sales manuals and materials of the Company as the
same may be altered, amended, supplemented or otherwise changed from time to
time, or of any other products or services substantially similar to or readily
substitutable for any such described products and services.
(g) Restricted Territory. For the purposes of Section 8(c),
the Restricted Territory shall be defined as and limited to:
(i) the geographic area(s) within a one hundred (100) mile
radius of any and all Company location(s) in, to, or for which the
Executive worked, to which the Executive was assigned or had any
responsibility (either direct or supervisory) at the time of
termination of the Executive's employment and at any time during the
two (2) year period prior to such termination; and
(ii) all of the specific customer accounts, whether within
or outside of the geographic area described in (i) above, with which
the Executive had any contact or for which the Executive had any
responsibility (either direct or supervisory) at the time of
termination of the Executive's employment and at any time during the
two (2) year period prior to such termination.
(h) Extension. If it shall be judicially determined that the
Executive has violated any of the Executive's obligations under Section 8(c),
then the period applicable to each obligation that the Executive shall have been
determined to have violated shall automatically be extended by a period of time
equal in length to the period during which such violation(s) occurred.
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(i) Non-Solicitation. The Executive will not directly or
indirectly at any time solicit or induce or attempt to solicit or induce any
employee(s), sales representative(s), agent(s) or consultant(s) of the Company
and/or of its parent, or its other subsidiary, affiliated or related companies
to terminate their employment, representation or other association with the
Company and/or its parent or its other subsidiary, affiliated or related
companies.
(j) Further Covenants.
(i) The Executive will keep in strict confidence, and will
not, directly or indirectly, at any time during or after the
Executive's employment with the Company, disclose, furnish,
disseminate, make available or, except in the course of performing the
Executive's duties of employment, use any trade secrets or confidential
business and technical information of the Company or its customers or
vendors, including without limitation as to when or how the Executive
may have acquired such information. Such confidential information shall
include, without limitation, the Company's unique selling,
manufacturing and servicing methods and business techniques, training,
service and business manuals, promotional materials, training courses
and other training and instructional materials, vendor and product
information, customer and prospective customer lists, other customer
and prospective customer information and other business information.
The Executive specifically acknowledges that all such confidential
information, whether reduced to writing, maintained on any form of
electronic media, or maintained in the Executive's mind or memory and
whether compiled by the Company, and/or the Executive, derives
independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value
from its disclosure or use, that reasonable efforts have been made by
the Company to maintain the secrecy of such information, that such
information is the sole property of the Company and that any retention
and use of such information by the Executive during the Executive's
employment with the Company (except in the course of performing the
Executive's duties and obligations to the Company) or after the
termination of the Executive's employment shall constitute a
misappropriation of the Company's trade secrets.
(ii) The Executive agrees that upon termination of the
Executive's employment with the Company, for any reason, the Executive
shall return to the Company, in good condition, all property of the
Company, including without limitation, the originals and all copies of
any materials which contain, reflect, summarize, describe, analyze or
refer or relate to any items of information listed in Section 8(j)(i)
of this Agreement. In the event that such items are not so returned,
the Company will have the right to charge the Executive for all
reasonable damages, costs, attorneys' fees and other expenses incurred
in searching for, taking, removing and/or recovering such property.
(k) Discoveries and Inventions; Work Made for Hire.
(i) The Executive hereby assigns and agrees to assign to
the Company, its successors, assigns or nominees, all of the
Executive's rights to any discoveries, inventions and improvements,
whether patentable or not, made, conceived or suggested, either solely
or jointly with others, by the Executive while in the Company's
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employ, whether in the course of the Executive's employment with the
use of the Company's time, material or facilities or that is in any way
within or related to the existing or contemplated scope of the
Company's business. Any discovery, invention or improvement relating to
any subject matter with which the Company was concerned during the
Executive's employment and made, conceived or suggested by the
Executive, either solely or jointly with others, within one (1) year
following termination of the Executive's employment under this
Agreement or any successor agreements shall be irrebuttably presumed to
have been so made, conceived or suggested in the course of such
employment with the use of the Company's time, materials or facilities.
Upon request by the Company with respect to any such discoveries,
inventions or improvements, the Executive will execute and deliver to
the Company, at any time during or after the Executive's employment,
all appropriate documents for use in applying for, obtaining and
maintaining such domestic and foreign patents as the Company may
desire, and all proper assignments therefor, when so requested, at the
expense of the Company, but without further or additional
consideration.
(ii) The Executive acknowledges that, to the extent
permitted by law, all work papers, reports, documentation, drawings,
photographs, negatives, tapes and masters therefor, prototypes and
other materials (hereinafter, "items"), including without limitation,
any and all such items generated and maintained on any form of
electronic media, generated by the Executive during the Executive's
employment with the Company shall be considered a "work made for hire"
and that ownership of any and all copyrights in any and all such items
shall belong to the Company. The item will recognize the Company as the
copyright owner, will contain all proper copyright notices , e.g.,
"(creation date) [Company Name], All Rights Reserved," and will be in
condition to be registered or otherwise placed in compliance with
registration or other statutory requirements throughout the world.
(l) Communication of Contents of Agreement. During the
Executive's employment and for one (1) year thereafter, the Executive will
communicate the contents of this Agreement to any person, firm, association,
partnership, corporation or other entity which the Executive intends to be
employed by, associated with, or represent and which is engaged in a business
that is competitive to the business of the Company.
(m) Relief. The Executive acknowledges and agrees that the
remedy at law available to the Company for breach of any of the Executive's
obligations under this Agreement would be inadequate. The Executive therefore
agrees that, in addition to any other rights or remedies that the Company may
have at law or in equity, temporary and permanent injunctive relief may be
granted in any proceeding which may be brought to enforce any provision
contained in Sections 8(b), 8(c), 8(i), 8(j), 8(k) and 8(l), inclusive, of this
Agreement, without the necessity of proof of actual damage.
(n) Reasonableness. The Executive acknowledges that the
Executive's obligations under this Section 8 are reasonable in the context of
the nature of the Company's business and the competitive injuries likely to be
sustained by the Company if the Executive was to violate such obligations. The
Executive further acknowledges that this Agreement is made in consideration of,
and is adequately supported by the agreement of the Company to perform its
13
obligations under this Agreement and by other consideration, which the Executive
acknowledges constitutes good, valuable and sufficient consideration.
9. Employment Rights. Nothing expressed or implied in this Agreement
will create any right or duty on the part of the Company or the Executive to
have the Executive remain in the employment of the Company or any Affiliate of
the Company prior to or following any Change in Control. Any termination of
employment of the Executive or the removal of the Executive from the office or
position in the Company or any Affiliate of the Company that occurs following
the commencement of any discussion with a third person that ultimately results
in a Change in Control, shall be deemed to be a termination or removal of the
Executive after a Change in Control for purposes of this Agreement.
10. Withholding of Taxes. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any applicable law, regulation or
ruling.
11. Successors and Binding Agreement.
(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form
and substance reasonably satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. This
Agreement will be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any persons acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company" for the purposes of
this Agreement), but will not otherwise be assignable, transferable or delegable
by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in Sections 11(a) and 11(b). Without limiting the generality or effect
of the foregoing, the Executive's right to receive payments hereunder will not
be assignable, transferable or delegable, whether by pledge, creation of a
security interest, or otherwise, other than by a transfer by Executive's will or
by the laws of descent and distribution and, in the event of any attempted
assignment or transfer contrary to this Section 11(c), the Company shall have no
liability to pay any amount so attempted to be assigned, transferred or
delegated.
12. Notices. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand
14
delivered or dispatched by electronic facsimile transmission (with receipt
thereof orally confirmed), or five business days after having been mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, or three business days after having been sent by a nationally
recognized overnight courier service such as FedEx, UPS, or Purolator, addressed
to the Company (to the attention of the Secretary of the Company) at its
principal executive office and to the Executive at his principal residence, or
to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
13. Governing Law. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Ohio, without giving effect to the
principles of conflict of laws of such State.
14. Validity. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
15. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. References to Sections are to Sections of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
17. Prior Agreement. This Agreement supersedes, as of the date first
above written, the Agreement, dated as of March 2, 1999 (the "Prior Agreement"),
between Brush Wellman Inc. and the Executive, as amended for the purpose of
substituting Brush Engineered Materials Inc. for Brush Wellman Inc. as a party
to the Prior Agreement. Executive agrees that he or she has no further rights
under the Prior Agreement, and that Brush Wellman Inc. shall be a third party
beneficiary of this Section 17.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the date first above written.
BRUSH ENGINEERED MATERIALS INC.
By: /s/ Gordon D. Harnett
------------------------------------
Gordon D. Harnett
Chairman of the Board, President and
Chief Executive Officer
/s/ Richard J. Hipple
---------------------------------------
Richard J. Hipple
16
Annex A
SEVERANCE COMPENSATION
(1) A lump sum payment in an amount equal to two times the sum
of (A) Base Pay (at the highest rate in effect for any period prior to the
Termination Date), plus (B) Incentive Pay (in an amount equal to not less than
the higher of (1) the highest aggregate Incentive Pay earned in any fiscal year
ending after the Change in Control or in any of the three fiscal years
immediately preceding the year in which the Change in Control occurred or (2)
the plan target for the year in which the Change in Control occurred).
(2) A lump sum payment in an amount equal to the present value
of the bonuses the Executive would have received under any Long Term Cash
Incentive Plan of the Company for performance periods in effect at the time of
the termination of the Executive's employment had he continued to be employed
through the period covered by any such plan, assuming payout under such plans at
the plan target rate, reduced by any amounts actually paid to the Executive
under the terms of any such plan. In determining present value for this purpose,
there shall be applied a discount factor equal to the coupon rate on general
full-faith-and-credit obligations of the U.S. Treasury having a maturity of five
years and issued on the date of the termination of the Executive's employment.
(3) For a period of 24 months following the Termination Date
(the "Continuation Period"), the Company will arrange to provide the Executive
with Employee Benefits that are welfare benefits including, without limitation,
retiree medical and life insurance (but not perquisites, stock option,
performance share, performance unit, stock purchase, stock appreciation or
similar compensatory benefits or benefits covered by (4) below) substantially
similar to those that the Executive was receiving or entitled to receive
immediately prior to the Termination Date (or, if greater, immediately prior to
the reduction, termination, or denial described in Section 3(b)(ii)). If and to
the extent that any benefit described in this Paragraph 3 is not or cannot be
paid or provided under any policy, plan, program or arrangement of the Company
or any Affiliate of the Company, as the case may be, then the Company will
itself pay or provide for the payment to the Executive, his dependents and
beneficiaries, of such Employee Benefits along with, in the case of any benefit
described in this Paragraph 3 which is subject to tax because it is not or
cannot be paid or provided under any such policy, plan, program or arrangement
of the Company or any Affiliate of the Company, an additional amount such that
after payment by the Executive, or his dependents or beneficiaries, as the case
may be, of all taxes so imposed, the recipient retains an amount equal to such
taxes. Notwithstanding the foregoing, or any other provision of the Agreement,
for purposes of determining the period of continuation coverage to which the
Executive or any of his dependents is entitled pursuant to Section 4980B of the
Code (or any successor provision thereto) under the Company's medical, dental
and other group health plans, or successor plans, the Executive's "qualifying
event" shall be the termination of the Continuation Period. Further, for
purposes of the immediately preceding sentence and for any other purpose
including, without limitation, the calculation of service or age to determine
Executive's eligibility for benefits under any retiree medical benefits
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or life insurance plan or policy, the Executive shall be considered to have
remained actively employed on a full-time basis through the termination of the
Continuation Period. Without otherwise limiting the purposes or effect of
Section 6, Employee Benefits otherwise receivable by the Executive pursuant to
this Paragraph 3 will be reduced to the extent comparable welfare benefits are
actually received by the Executive from another employer during the Continuation
Period following the Executive's Termination Date, and any such benefits
actually received by the Executive shall be reported by the Executive to the
Company.
(4) In addition to the retirement income and other benefits to
which Executive is entitled under the Company's Retirement Plans with respect to
Executive's employment through the Termination Date, a lump sum payment in an
amount equal to the present value of the excess of (x) the retirement income and
other benefits that would be payable to the Executive under the Retirement Plans
if Executive had continued to be employed as an active participant in the
Company's Retirement Plans through the Continuation Period given the Executive's
Base Pay and Incentive Pay (as determined in Paragraph 1) (without regard to any
amendment to the Retirement Plans made subsequent to a Change in Control which
reduces the retirement income or other benefits thereunder), over (y) the
retirement income and other benefits that the Executive is entitled to receive
(either immediately or on a deferred basis) under the Retirement Plans. For
purposes of this Paragraph 4, present value shall be determined by applying a
discount factor equal to the annual rate of interest on 30-year U.S. Treasury
securities issued on the date of the termination of the Executive's employment
(or, if no such securities are issued on such date, on the most recent date
preceding the date of the termination of the Executive's employment on which
such securities are issued), and by using the 1983 Group Annuity Mortality Table
(50% male/50% female).
(5) If the Executive is entitled to receive or has received,
during the year in which the Termination Date occurs, cash payments from the
Company in connection with which the Executive agreed to receive current cash
payments in lieu of benefits under the Company's Supplemental Retirement Benefit
Plan (SERP), a lump sum payment in an amount equal to two times the aggregate
amount paid or payable to the Executive by the Company in lieu of benefits under
the SERP.
(6) If the Executive is receiving or has been granted cash
payments from the Company which have been designated by the Board as special
awards, a lump sum payment equal to two times the aggregate award designated by
the Board of Directors for the year in which the Termination Date occurs.
(7) A lump sum payment equal to the cash value of the club
dues and financial counseling benefits that the Executive would have been
entitled to receive during the Continuation Period based on the annual value of
such club dues and financial counseling benefits immediately before the
Termination Date or, if greater, immediately before the Change in Control;
provided that the Executive must have been receiving such benefits immediately
prior to either the Termination Date or the date of the Change in Control.
(8) Reasonable fees for outplacement services, by a firm
selected by the Executive, at the expense of the Company in an amount not in
excess of $20,000.
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