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Exhibit 10.13
CHANGE OF CONTROL AGREEMENT
This Agreement entered into this 14th day of August, 1995, by and
between Amcast Industrial Corporation (the "Company") and John H. Shuey (the
"Executive").
WHEREAS, Executive has performed valuable services to Company in
senior executive positions in the past and;
WHEREAS, it is the desire of the Company to continue to retain the
services of Executive in the future as the Company's chief executive officer
and;
WHEREAS, the Company recognizes that as is the case with most publicly
held corporations, the possibility of a change in control may raise distracting
and disrupting uncertainties especially for the chief executive officer, may
create a conflict and make it difficult for Executive to give his whole-hearted
attention and devotion to the performance of his duties, and may even lead to
his departure, all to the detriment of the best interests of the Company and
its shareholders.
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the best interests of the Company and its shareholders will be
served by assuring Executive, the protection provided by an agreement which
defines the respective rights and obligations of the Company and the Executive
in the event of termination of employment subsequent to a change in control of
the Company and to induce Executive to remain in the employ of the Company.
NOW, THEREFORE, the parties agree that this agreement sets forth the
severance benefits which the Company agrees will be provided to Executive in
the event Executive's employment with the Company [or, in the case of a
transaction described in clause (iv) of paragraph 2, with the successor to the
Company (a "Successor")] is terminated subsequent to a "change in control of
the Company" under the circumstances described below.
Except where the context otherwise indicates, the term "Company"
hereinafter includes the Company and any Successor.
1. OPERATION AND TERM OF AGREEMENT. This agreement, although
effective immediately, shall not become operative unless and until
there has been a change in control of the Company. None of the
provisions of this agreement shall be applicable to any
termination of Executive's employment, however occurring, which is
effective prior to a change in control of the Company. This
agreement shall continue until the later of December 31, 1997 or
two years after the occurrence of a change in control of the
Company, provided such change in control occurs on or before
December 31, 1997, subject to extension beyond that date by mutual
written consent. This agreement will be reviewed with Executive
between January 1, 1997 and July 31, 1997, for the purpose of
determining whether or not an extension beyond December 31, 1997
is mutually agreeable and, if so, on what basis and for how long.
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2. CHANGE IN CONTROL. No benefits shall be payable hereunder unless
there shall have been a change in control of the Company, as set
forth below, and Executive's employment with the Company shall
thereafter have been terminated in accordance with paragraph 3
below. For purposes of this agreement, a "change in control of
the Company" shall mean and be deemed to have occurred on (i) the
date upon which the Company is provided a copy of a Schedule 13D,
filed pursuant to Section 13(d) of the Securities Exchange Act of
1934 (the "1934 Act"), indicating that a group or person, as
defined in Rule 13d-3 under the 1934 Act, has become the
beneficial owner of 20% or more of the outstanding Voting Shares
of the Company or the date upon which the Company first learns
that a person or group has become the beneficial owner of 20% or
more of the outstanding Voting Shares of the Company if a Schedule
13D is not filed; (ii) the date of a change in the composition of
the Board of Directors of the Company such that individuals who
were members of the Board of Directors on the date two years prior
to such change (or who were subsequently elected to fill a vacancy
in the Board, or were subsequently nominated for election by the
Company's shareholders, by the affirmative vote of at least
two-thirds of the directors then still in office who were
directors at the beginning of such two year period) no longer
constitute a majority of the Board of Directors of the Company;
(iii) the date the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the holders
of the Voting Shares of the Company outstanding immediately prior
to the merger or consolidation continuing to own immediately after
the merger or consolidation 80% or more of the Voting Shares of
the Company or the surviving entity, if the Company is not the
surviving entity in the merger or consolidation; or (iv) the date
shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets. "Voting
Shares" means any securities of the Company which vote generally
in the election of directors.
3. TERMINATION FOLLOWING CHANGE IN CONTROL.
(A) If any of the events described in paragraph 2 constituting a
change in control of the Company shall have occurred, then
upon any subsequent termination of Executive's employment at
any time within two years following the occurrence of such
event, Executive shall be entitled to the benefits provided
by this agreement, as set forth in paragraph 5, unless such
termination is (i) by the Company for Cause or because of
Executive's Disability, or (ii) because of Executive's
Retirement, or (iii) by Executive other than for Good
Reason, or (iv) because of Executive's death.
(B) As used in this agreement, the terms "Cause", "Retirement",
"Good Reason", and "Disability" shall have the meanings set
forth below:
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CHANGE OF CONTROL AGREEMENT
(i) CAUSE. "Cause" shall mean (a) the willful and continued
failure by Executive to substantially perform
Executive's duties with the Company (other than any such
failure resulting from Executive's physical or mental
illness or other physical or mental incapacity), after a
demand for substantial performance is delivered to
Executive by the Board which specifically identifies the
manner in which the Board believes that Executive has
not substantially performed Executive's duties, or (b)
the willful engaging by Executive in gross misconduct
which is materially and demonstrably injurious to the
Company resulting or intended to result, directly or
indirectly, in substantial personal gain or substantial
personal enrichment at the expense of the Company. For
purposes of this subparagraph, no act, or failure to
act, on Executive's part shall be considered "willful"
unless done, or omitted to be done, by Executive not in
good faith and without reasonable belief that
Executive's action or omission was in the best interests
of the Company. Notwithstanding the foregoing, Cause
shall not be deemed to exist unless and until there
shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of not
less than three-fourths of the number of directors then
in office at a meeting of the Board called and held for
that purpose (after reasonable notice to Executive and
an opportunity for Executive, together with Executive's
counsel, to be heard before the Board), finding that in
the good faith opinion of the Board Executive is guilty
of conduct set forth above in clauses (a) or (b) of the
first sentence of this subparagraph and specifying the
particulars thereof in detail.
(ii) RETIREMENT. "Retirement" shall meacessation of
Executive's employment in accordance with the Company's
retirement policy (including early retirement) generally
applicable to salaried employees, or in accordance with
any retirement arrangement with respect to Executive
established with Executive's consent.
(iii) GOOD REASON. "Good Reason" shall mean:
(a) The assignment to Executive of any duties
inconsistent with Executive's position, duties,
responsibilities and status with the Company
immediately prior to a change in control of the
Company, or a change in Executive's
responsibilities, as in effect immediately prior to
a change in control of the Company, which
materially diminishes Executive's responsibilities
with the Company when considered as a whole, or any
removal of Executive from or any failure to
re-elect Executive to any of such positions or
offices; provided, however, that the foregoing
shall not constitute Good Reason if done in
connection with termination of Executive's
employment because of Executive's Retirement, or by
the
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CHANGE OF CONTROL AGREEMENT
Company for Cause or because of Executive's
Disability, or by Executive other than for Good
Reason.
(b) A reduction by the Company of Executive's then
current annual base salary or, if higher,
Executive's annual base salary as in effect at the
time of the change in control of the Company.
(c) Failure by the Company to continue in effect any
benefit, incentive compensation, pension, employee
stock ownership, stock option, life insurance,
medical, health and accident, or disability plan in
which Executive is participating at the time of a
change in control of the Company or plans providing
Executive with substantially similar benefits, or
the taking of any action by the Company which would
adversely affect Executive's participation in or
materially reduce Executive's benefits under any of
such plans or deprive Executive of any material
fringe benefit enjoyed by Executive at the time of
the change in control of the Company, or the
failure by the Company to provide Executive with
the number of paid vacation days to which Executive
would then be entitled in accordance with the
Company's vacation policy in effect at the time of
the change in control of the Company.
(d) The relocation of the Company's principal executive
offices to a location outside Montgomery County,
Ohio, if at the time of a change in control of the
Company Executive is based at the Company's
principal executive offices.
(e) The Company requires Executive to be based anywhere
other than the location where Executive is based at
the time of a change in control of the Company, if
the same requires Executive to relocate Executive's
principal residence; or, in the event Executive
consents to being based anywhere other than such
location, the failure by the Company to pay (or
reimburse Executive for) all reasonable moving
expenses incurred by Executive relating to a change
of Executive's principal residence in connection
with such relocation and to indemnify Executive
against any loss [defined as the difference between
the higher of (1) Executive's aggregate investment
in such residence or (2) the fair market value of
such residence, as determined by a real estate
appraiser designated by Executive and reasonably
satisfactory to the Company, and the actual sale
price of such residence after the deduction of all
real estate brokerage charges and related selling
expenses] realized upon the sale of such residence
in connection with any such change of residence.
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(f) The Company's requiring Executive to perform duties
or services which necessitate absence overnight
from Executive's place of residence, because of
travel involving the business or affairs of the
Company, to a degree not substantially consistent
with the extent of such absence necessitated by
such travel during the period of twelve months
immediately preceding a change in control of the
Company.
(g) The failure of the Company to obtain the assumption
of this agreement by any Successor as provided in
paragraph 7 hereof.
(h) The Company's termination of Executive's employment
without satisfying any applicable requirements of
paragraph 4 and subparagraph 3B (i) above.
(iv) DISABILITY. "Disability" shall mean Executive's
inability to perform the duties required of Executive on
a full-time basis for a period of six consecutive months
because of physical or mental illness or other physical
or mental disability or incapacity, followed by the
Company giving Executive thirty days' written notice of
its intention to terminate Executive's employment by
reason thereof, and Executive's failure because of
physical or mental illness or other physical or mental
disability or incapacity to resume the full-time
performance of Executive's duties within such period of
thirty days and thereafter perform the same for a period
of two consecutive months.
(C) During any period of time subsequent to a change in control
of the Company, if Executive fails to perform Executive's
duties as a result of physical or mental illness or other
physical or mental disability or incapacity, Executive shall
continue to receive Executive's full salary at Executive's
annual base salary rate then in effect, together with
Incentive Compensation (as defined in paragraph 5A accrued
but not paid prior to Executive's Date of Termination) as
defined in paragraph 4 until Executive returns to work or
Executive's employment with the Company is terminated;
provided, however, that any amount otherwise payable for any
period of time pursuant to this subparagraph (C) shall be
reduced by any payment or payments Executive receives for
such period of time under any employee salary continuation
plan or employee disability insurance plan maintained by the
Company no part of the cost of which was paid or is payable
by Executive.
(D) If subsequent to a change in control of the Company
Executive's employment is terminated by the Company for
Cause, the Company shall pay Executive's full salary
through the Date of Termination at Executive's annual base
salary rate in effect at the time Notice of Termination is
given, and Executive shall also receive all accrued or
vested benefits of any kind to which Executiveis, or would
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otherwise had been, entitled through the Date of Termination
(as defined in paragraph 4), and the Company shall thereupon
have no further obligation to Executive under this
agreement.
4. NOTICE AND DATE OF TERMINATION.
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(A) Any termination of Executive's employment subsequent to a
change in control of the Company shall be consummated by
written Notice of Termination given to the other party. For
purposes of this agreement, "Notice of Termination" shall
mean a notice which indicates the specific termination
provision or provisions in this agreement relied upon, if
any, and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment.
(B) "Date of Termination" shall mean (i) if Executive's
employment is terminated by the Company for Cause, the date
specified in the Notice of Termination or the date on which
the meeting of the Board referred to in subparagraph 3(B)(i)
is concluded, whichever date is the later; or (ii) if
Executive's employment is terminated for any other reason,
the date on which Notice of Termination is given or the
effective date specified in the Notice, whichever is later.
For purposes of this agreement, termination of Executive's
employment shall be deemed to have occurred within two years
following the occurrence of a change in control of the
Company if the Date of Termination is within such two year
period.
5. COMPENSATION AND BENEFITS UPON TERMINATION.
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(A) "Incentive Compensation" shall mean the annual cash payment
awarded under the Annual Incentive Program (AIP) or other
plan which replaces the AIP but not including any awards
under any stock option, stock grant, stock rights, or
similar plan or any award under any company sponsored profit
sharing, pension, 401k, or similar savings plan.
(B) "Long Term Incentive Compensation" shall mean compensation
payable under the terms of the Amcast (LTIP) or any other
plan which replaced the LTIP.
(C) The compensation and benefits to be provided to Executive
pursuant to paragraph 3 of this agreement upon termination
of Executive's employment with the Company under specified
circumstances within two years following a change in control
of the Company include the following:
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(i) Subject to the provisions of paragraph 8 hereof, the
Company shall pay to Executive as severance pay in a
lump sum in cash on the first day following the Date of
Termination, the following amounts:
(a) Executive's full salary through the Date of
Termination at Executive's annual base salary rate
in effect at the time Notice of Termination is
given; and also the amount of Incentive
Compensation and Long Term Incentive Compensation
to any completed period or periods which has been
earned by or awarded to Executive but which has
not yet been paid to Executive.
(b) In lieu of any further salary payments to
Executive for periods subsequent to the Date of
Termination, an amount (the "Additional
Compensation Payment") equal to three hundred
percent (300%) of the sum of Executive's annual
base salary at the rate in effect as of the Date
of Termination (or, if higher, at the rate in
effect at the time of the change in control) plus
an amount equal to three times the average annual
amount awarded to Executive as Incentive
Compensation for the two years immediately
preceding the year during which the Date of
Termination occurs (whether or not fully paid).
(c) All amounts due Executive under the terms of the
LTIP as a result of a change of control.
(d) An amount in cash equal to the aggregate spread
between the exercise prices of all options granted
to Executive under the Company's existing stock
option plans or any stock option plan adopted by
the Company subsequent to the date hereof
("Options") which are then outstanding, whether or
not then fully exercisable, and the higher of (a)
the Fair Market Value of Common Share of the
Company ("Company Shares") on the Date of
Termination or (b) the average price per Company
Share actually paid by the acquiring party in
connection with any change in control of the
Company. As used in this subparagraph, "Fair
Market Value" shall mean (1) in the event the
Company Shares are listed on any exchange or in
the NASD National Market System, the last sale
price on such exchange or System on the Date of
Termination (or last trading date prior thereto)
or, if there are no sales on such date, the mean
between the representative bid and asked prices
for Company Shares on such exchange or System at
the close of business on such date or (2) in the
event that there is then no public market for the
Company Shares or that trading in the Company
Shares is sporadic and the mean between any bid
and asked prices is not representative of fair
market value, the fair market value of the Company
Shares determined in accordance with
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Section 2031-2(f) of the Treasury Regulations or
any successor provision thereto. Any Option for
which payment is made as prescribed in this
subparagraph (c) shall be canceled effective upon
the making of such payment.
(e) All legal fees and expenses reasonably incurred by
Executive in good faith as a result of such
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
such termination or in seeking to obtain or
enforce any right or benefit provided by this
agreement).
(f) Interest at a rate equal to three percent (3%) per
annum plus the per annum rate announced from time
to time by the First National Bank of Chicago as
its "prime rate", compounded daily from the due
date of any payment required to be made by the
company under any provision of the agreement
through the date such payment is actually made.
(ii) The Company shall, at its expense, continue to provide to
Executive financial planning and tax preparation services
the same or similar to those provided to Executive prior to
the change of control and to continue to maintain in full
force and effect for Executive's continued benefit all life
insurance, medical, health, and accident plans, programs and
arrangements in which Executive was entitled to participate
at the time of the change in control, provided that
Executive's continued participation is possible under the
terms of such plans, programs and arrangements. In the
event that the terms of any such plan, program, or
arrangement do not permit Executive's continued
participation or that any such plan, program or arrangement
has been or is discontinued or the benefits thereunder have
been or are materially reduced, the Company shall arrange to
provide, at its expense, benefits to Executive which are
substantially similar to those which Executive was entitled
to receive under such plan, program or arrangement at the
time of the change in control. The Company's obligation
under this subparagraph (ii) shall terminate on the earliest
of the following dates: (a) the third anniversary date of
the Date of Termination, (b) the date an essentially
equivalent and no less favorable benefit is made available
to Executive by a subsequent employer or (c) the date that
would have been Executive's normal retirement date under the
Company's defined benefit pension plan for salaried
employees had Executive's remained employed by the Company.
(iii) In the event that because of their relationship to
Executive, members of Executive's family or other individuals
are covered by any plan, program, or arrangement described in
subparagraph (ii) above immediately prior to the Date of
Termination, the provisions set forth in subparagraph (ii)
shall apply
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equally to require the continued coverage of such persons;
provided, however, that if under the terms of any such
plan, program or arrangement any such person would have
ceased to be eligible for coverage during the period in
which the Company is obligated to continue coverage for
Executive, nothing set forth herein shall obligate the
Company to continue to provide coverage for such person
beyond the date such coverage would have ceased even if
Executive had remained an employee of the Company.
(iv) The Company shall enable Executive to purchase the
automobile, if any, which the Company was providing for
Executive's use at the time Notice of Termination was given
at the wholesale value as set out in the latest Black Book
published by National Auto Research Division of Hearst
Business Media Corporation, of such automobile at such
time.
(D) If an event constituting Good Reason shall occur, Executive
shall be entitled to the compensation and benefits described
in (A) above only if Executive give a Notice of Termination
with respect thereto within 180 days after the occurrence of
such event, regardless of whether there has been an
intervening termination of Executive's employment by the
Company or otherwise.
(E) In the event that any payment to the Executive (whether
pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose
actions result in a change of control or any person
affiliated with the Company or such persons) shall be
subject to the tax (the "Excise Tax") imposed by Section
4999 of the Internal revenue Code of 1954, as amended (the
"Code") or any successor provision, the Company shall pay to
the Executive, prior to the date upon which the Executive is
required to pay the Excise Tax, an additional amount (the
"Gross-Up Payment"), appropriately calculated by the
Company's independent auditor, equal to the Excise Tax on
such payment and any additional federal, state, local tax
and additional Excise Tax incurred by the Executive in
respect of such Gross-Up Payment. For purposes of
determining whether any payment to the Executive is subject
to the Excise Tax (i) all payments received or to be
received by the Executive in connection with a change of
control of the Company or the termination of employment of
the Executive (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with
the Company, any person whose action results in a change of
control or any person affiliated with the Company or such
persons) shall be treated as "parachute payments" within the
meaning of Section 280(G)(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280
(G)(b)(i) shall be treated as subject to the Excise Tax and
(ii) the value of any noncash benefits on any deferred
payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of
Sections 280 (G)(d)(3) and (7) of the Code. For purposes of
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determining the amount of the Gross-Up Payment, unless the
Executive notifies the Company's independent auditor to the
contrary the Executive shall be deemed to pay federal income
taxation at the maximum applicable individual rate in the
calendar year in which the Gross-Up Payment is to be made
and taxes at the maximum applicable rate in the state and
locality of the Executive's residence on the Date of
Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state
and local taxes. In the event that the Excise Tax is
subsequently finally determined to be less than the amount
taken into account hereunder at the time of termination of
the Executive's employment, the Executive shall repay to the
Company at the time that the amount of such reduction in
Excise Tax is finally determined the portion of the Gross-Up
Payment attributable to such reduction plus interest on the
amount of such repayment at the then current prime rate.
(F) Executive shall not be required to mitigate the amount of
any payment provided for in this agreement by seeking other
employment or otherwise; provided, however, that in the
event that Executive shall obtain other employment at any
time within three years immediately following Executive's
Date of Termination, 20% of all earnings obtained by reason
of such other employment during the three year period
immediately following Executive's Date of Termination shall
be payable to the Company in full satisfaction of any
obligation Executive has to mitigate payment made to
Executive by the Company. Upon obtaining any such other
employment, Executive, within thirty (30) days thereof,
shall notify the Company in writing of such other employment
and the aggregate compensation (including Incentive
Compensation, bonuses and all other forms of cash and
contingent remuneration) to which Executive will be
entitled. During each of the three years immediately
following Executive's Date of Termination, Executive shall
provide the Company, on or before April 15 of each year
following such year, a photostatic copy of Executive's
federal income tax return (including all schedules and
exhibits thereto), as filed with the Internal Revenue
Service for the preceding calendar year.
6. RIGHTS AS FORMER EMPLOYEE. Nothing contained in this agreement
shall be construed as preventing Executive, and shall not prevent
Executive, following any termination of Executive's employment
whether pursuant to this agreement or otherwise, from thereafter
participating in any benefit or insurance plans, programs or
arrangements (including without limitation, any retirement plans
or programs) in the same manner and to the same extent that
Executive would have been entitled to participate as a former
employee of the Company had this agreement not have been executed,
except, however, Executive shall not be entitled to any severance
payments under any severance pay programs of the Company (other
than this agreement) if Executive is paid the benefits provided
for under this agreement.
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7. SUCCESSORS. 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 Executive, 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. Failure of the Company to obtain such
agreement prior to the effectiveness of such succession shall be a
breach of this agreement and shall entitle Executive to
compensation from the Company in the same amount and on the same
terms as Executive would be entitled hereunder if Executive
terminated Executive's employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination.
This agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts would still
be payable to Executive hereunder if Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be
paid to such beneficiary or beneficiaries as Executive shall have
designated by written notice delivered to the Company prior to
Executive's death or, failing such written notice, to Executive's
estate.
8. UNAUTHORIZED DISCLOSURE; INVENTIONS.
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(A) During the period of Executive's employment hereunder, and
for a period of five (5) years following the termination of
such employment, Executive hereby agrees that Executive will
not, without the written consent of the Board or a person
authorized thereby, disclose to any person, other than an
employee of the Company, a person to whom disclosure is
reasonably necessary or appropriate in connection with the
performance by Executive of Executive's duties as an
executive of the Company or pursuant to any order or process
of any court or regulatory agency, any material confidential
information obtained by Executive while in the employ of the
Company with respect to any of the Company's products,
improvements, formulae, designs or styles, processes,
customers, methods of distribution or methods of
manufacture; provided, however, that confidential
information shall not include any information known
generally to the public (other than as a result of
unauthorized disclosure by Executive) or any information of
a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that
conducted by the Company.
(B) INVENTIONS. Any and all inventions made, developed or
created by Executive (whether at the request or suggestion
of the Company or otherwise, whether alone or in conjunction
with others, and whether during regular hours of work or
otherwise) during the period of Executive's employment by
the Company, which
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may be directly or indirectly useful in, or relate to, the
business of or tests being carried out by the Company or any
of its subsidiaries or affiliates, will be promptly and
fully disclosed by Executive to an appropriate executive
officer of the Company and shall be the Company's exclusive
property as against Executive, and Executive will promptly
deliver to an appropriate executive officer of the Company
all papers, drawings, models, data and other material
relating to any invention made, developed or created by
Executive as aforesaid.
Executive will, upon the Company's request and without any
payment therefor, execute any documents necessary or
advisable in the opinion of the Company's counsel to direct
issuance of patents to the Company with respect to such
inventions as are to be the Company's exclusive property as
against Executive under this subsection (b) or to vest in
the Company title to such inventions as against the
Executive, the expense of securing any patent, however, to
be borne by the Company.
(C) The foregoing provision of this Section 8 shall be binding
upon the Executive's heirs, successors and legal
representatives.
9. NOTICES. All notices required or permitted to be given under this
agreement shall be in writing and shall be mailed (postage prepaid
by either registered or certified mail) or delivered, if to the
Company, addressed to
Amcast Industrial Corporation
7887 Washington Village Drive
Dayton, Ohio 45459
Attention: Secretary
and if to Executive, addressed to:
John H. Shuey
696 Uplands Camp Road
Dayton, Ohio 45419
Either party may change the address to which notices to such party
are to be directed by giving written notice of such change to the
other party in the manner specified in this paragraph. All
notices, including without limitation, any Notice of Termination,
shall be deemed to have been given upon the date of actual receipt
of the recipient party.
10. ARBITRATION. Any dispute or controversy arising out of or
relating to this agreement shall be settled by arbitration in
Dayton, Ohio, in accordance with the rules then obtaining of the
American Arbitration Association, and judgment may be entered
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on the arbitrator's award in any court having jurisdiction. The
decision of such arbitrator shall be final, binding, and not
appealable.
11. 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 Executive and such
officer of the Company as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach
by the other party hereto of, or of compliance by such other party
with, any condition or provision of this agreement to be performed
by such other party shall 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, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this agreement.
12. GOVERNING LAW. The validity, interpretation, construction and
performance of this agreement shall be governed by the laws of the
State of Ohio, without giving effect to the principles of
conflicts of law thereof.
13. VALIDITY. The invalidity or unenforceability of any provision of
this agreement shall no affect the validity or enforceability of
any other provision, which shall remain in full force and effect.
EXECUTIVE AMCAST INDUSTRAL CORPORATION
John H. Shuey By /s/ William G. Roth
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John H. Shuey Title: Chairman, Compensation Committee
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8/14/95 8/4/95
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Date Date
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