Exhibit 10.19
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT ("Agreement"), dated February 25, 2000, is
entered into by and between TITANIUM METALS CORPORATION, a Delaware corporation
(the "Company"), and Andrew R. Dixey ("Executive").
RECITALS
A. Executive has been an employee and executive officer of the Company,
last serving in the capacity of President & Chief Operating Officer.
B. Executive has agreed to resign his employment with the Company
effective February 4, 2000 (the "Separation Date"), and this Agreement is
intended to memorialize the terms of Executive's separation from the Company.
TERMS AND CONDITION
In consideration of the respective covenants and agreements of the
parties contained in this Agreement, the parties agree as follows:
1. EMPLOYMENT SEPARATION DATE. Executive's last day of active work as a
TIMET employee will be February 4, 2000. On such date, Executive shall resign
from each position as an officer of the Company and any of its subsidiaries or
affiliates. Executive agrees, if requested, to execute and deliver to the
Company a written resignation evidencing the foregoing.
2. SEVERANCE BENEFITS. Upon the effectiveness of this Agreement in
accordance with Section 12, the Company will provide Executive with the payments
and benefits set forth on Exhibit A, attached hereto and incorporated herein by
this reference. Executive acknowledges that the benefits identified in Exhibit A
constitute all benefits to which Executive is entitled under any Company plan or
program, including, without limitation, the Company's Executive Severance Policy
applicable to Executive.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS.
(a) Executive recognizes and acknowledges that the trade
secrets and proprietary information and procedures of the Company and
its affiliates, as they may exist from time to time, are valuable,
special and unique assets of the Company and its affiliates' business,
access to and knowledge of which are essential to the performance of
Executive's duties hereunder. Executive agrees to hold as the Company
and its affiliates' property, all memoranda, books, papers, letters,
formulas and other data, and all copies thereof and therefrom, in any
way relating to the Company and its affiliates' business and affairs,
whether made by him or otherwise coming into his possession, and on
termination of his employment, or on demand of the Company or any of
its affiliates, at any time, to deliver the same to the Company or any
of its affiliates.
(b) Executive hereby agrees he will not at any time during his
employment or thereafter disclose to any third party (other than in the
ordinary course of business of the Company or any of its affiliates) or
use for the benefit of himself or any third party any Confidential
Information (as such term is defined in Section 3(d) below) without
prior written authorization of the Company or one of its affiliates.
(c) Executive hereby sells, transfers and assigns to the
Company all of his entire right, title and interest to the Proprietary
Rights (as such term is defined in Section 3(e) below) and agrees to
promptly take all action and sign and deliver all instruments as the
Company or any of its affiliates may require at any time hereafter: (i)
to vest or perfect in the Company and its successors, assigns and
nominees all right, title and interest in and to the Proprietary
Rights; (ii) to assist the Company or any of its affiliates in filing
or prosecuting any application for registration, in Executive's name,
the Company's name, the name of any of its affiliates or any other
name, in any country, for any patent, trademark, service mark,
copyright, mask work or other registration on the Proprietary Rights,
or any modification, reissue, division, continuation, revival or
extension thereof; or (iii) in conducting any legal or administrative
proceedings for securing, protecting or enforcing any of the foregoing
or otherwise relating to the Proprietary Rights. Executive further
agrees to disclose to the Company or any of its affiliates promptly all
information, details and data pertaining to the Proprietary Rights to
the extent such information, details or data are not presently known to
the Company or any of its affiliates.
(d) As used in this Agreement, "Confidential Information"
shall mean information which is not generally known to the public in
the form available to Executive and which was or is used, developed or
obtained by the Company or any of its affiliates relating to the
business of the Company or any of its affiliates, or research and
development, including, but not limited to, all client or customer
lists, marketing strategies and techniques, trade secrets, engineering
or other know-how or other information pertaining to the financial
condition, business, research and development or prospects of the
Company or any of its affiliates.
(e) As used in this Agreement, "Proprietary Rights" shall mean
any and all inventions, discoveries, research, engineering methods,
systems, formulas, designs, mask works, copyrights, software, data,
processes, products, projects, improvements and developments all
whether or not published, confidential, protected or susceptible of
protection by patent, trademark, service mark, copyright or other form
of legal protection and whether or not any attempt has been made to
secure such protection, which were made, conceived or reduced to
practice at any time by Executive or by any other employee or
consultant of the Company or any of its affiliates, or in whole or in
part at the expense of, on the premises of, or with the assistance of
the employees or consultants of, with the equipment or supplies or
those of the employees or consultants of, the Company or any of its
affiliates, and any and all other Confidential Information.
4. COVENANT NOT TO COMPETE AND NON-SOLICITATION COVENANT. Executive
agrees to abide by the following covenants and promises for a period from the
Separation Date and continuing for a period of two (2) years following the
Separation Date:
(a) Executive will not engage in, represent, furnish
consultant services to, be employed by, or have any interest (whether
as owner, principal, director, officer, partner, agent, consultant,
stockholder, or otherwise) in any business that is engaged in
manufacture or sale of titanium or titanium alloy products. Such
restrictions shall apply in the specific geographic and customer
markets served by the Company or any of its affiliates at any time
during the period of this covenant's effectiveness (which shall
include, but not be limited to, the United States, the United Kingdom,
Italy, Germany, and France). This Section 4(a) shall not prevent
Executive from owning up to one percent (1%) of the outstanding stock
of any publicly traded company which competes with the Company provided
Executive does not participate in the business of such entity.
(b) Executive will not:
(i) solicit, offer employment to, otherwise attempt to hire, or assist in
the hiring of, any employee of the Company or any of its affiliates,
(ii) encourage, induce, assist, or assist others in
inducing any such person to terminate his or her employment
with the Company or any of its affiliates, or
(iii) in any way interfere with the relationship
between the Company or any of its affiliates and their
respective employees to terminate such employees' employment
with the Company or such affiliate.
Executive agrees that the foregoing covenants are reasonable with respect to
duration, geographic area and scope. It is the desire and intent of the parties
that the provisions of this Section 4 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular portion of this
Section 4 shall be adjudicated to be invalid or unenforceable, this Section 4
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of this Section 4 in the particular jurisdiction in which such
adjudication is made.
5. NON-DISPARAGEMENT COVENANT. Executive will not make any disclosure,
issue any public statements or otherwise cause to be disclosed any information
which is designed, intended or might reasonably be anticipated to disparage the
Company or its reputation or to discourage suppliers or customers of the Company
or any of its affiliates from doing business with the Company or any of its
affiliates, or that might otherwise have a negative impact or adverse effect on
the Company or any of its affiliates. Executive will not contact or solicit, or
direct or assist others to contact or solicit, for the purpose of promoting any
person's or entity's attempt to compete with the Company or any of its
affiliates, in any business carried on by the Company or any of its affiliates,
any customers, suppliers or any other business associates of or to the Company
or any of its affiliates (or any of the foregoing type of entity that was
identified as prospective during Executive's employment by the Company) with a
view to interfering in the relationship between the Company or such affiliate
and such customer, supplier or business associate.
6. FURTHER ASSISTANCE. Following the Separation Date, Executive will
provide such assistance as may be reasonably requested by the Company in
connection with actions taken by Executive during Executive's employment by the
Company, including but not limited to assistance in connection with any lawsuits
or other claims against the Company arising from events during Executive's
employment by the Company.
7. RELEASE. In consideration of the payments to be made to Executive
under Section 2, Executive knowingly, voluntarily, and irrevocably releases and
forever discharges the Company and its affiliates and the respective officers,
directors, shareholders, and employees of each of the foregoing, of and from all
actions or causes of action, suits, debts, covenants, contracts, agreements,
promises, obligations, damages, judgments, executions, liabilities, claims for
attorney's fees and costs or disbursements, and any other claims or demands of
whatever kind or nature, whether known or unknown, suspected or unsuspected,
which Executive or Executive's heirs, executors, or administrators ever had, now
have, or may have against the Company or any of such other persons or entities,
including, but not limited to, all claims under the Age Discrimination in
Employment Act of 1967 ("ADEA"), Title VII of the Civil Rights Act of 1964, the
Americans With Disabilities Act, the Family and Medical Leave Act, the
Occupational Safety and Health Act, the Employee Retirement Income Security Act
of 1974, (except for vested benefits), the Older Workers Benefit Protection Act
("OWBPA") as all of such laws have been heretofore amended, or any relevant
state law, also all claims of breach of contract, all claims sounding in tort,
all claims of wrongful discharge, and all other federal, state, or local
constitutional, statutory, or common law claims or actions which in any way
refer to or arise out of: (a) Executive's employment with or separation of
employment from the Company, or (b) any other claim which Executive has or may
have which arises, IN WHOLE OR IN PART, OUT OF ANY INCIDENT OR CONDUCT WHICH
OCCURRED PRIOR TO THE SEPARATION DATE; PROVIDED, however, that the foregoing
shall not apply with respect to (i) any claims arising under this Agreement or
(ii) any claims that Executive may have had prior to the Separation Date under
any benefit plan sponsored by the COMPANY. BY SIGNING THIS AGREEMENT, EXECUTIVE
EXPRESSLY AGREES AND UNDERSTANDS THAT EXECUTIVE IS GIVING TO THE COMPANY AND
CERTAIN OTHER PERSONS AND ENTITIES IDENTIFIED ABOVE A GENERAL RELEASE OF ANY AND
ALL CLAIMS THAT EXECUTIVE MAY HAVE AGAINST SUCH PERSONS OR ENTITIES.
8. EXECUTIVE'S ACKNOWLEDGEMENTS. For purposes of the waiver and release
set forth in Section 7, Executive acknowledges and agrees that:
(a) the severance allowance and certain other benefits
Executive is receiving in exchange for his waiver and release are in
addition to any benefits or anything of value to which Executive is
otherwise entitled;
(b) Executive has been advised to consult with an attorney prior to signing
this Agreement;
(c) Executive has been given at least forty-five (45) days
after this Agreement was first provided to him to sign and deliver this
Agreement to the Company (although Executive may choose to do so sooner
than that);
(d) Executive has received the information to which he is
entitled under Section 7(f)(1)(H) of the ADEA (attached to this
Agreement as Exhibit B, and incorporated herein by this reference); and
(e) Executive has been given a period of seven (7) days after
the date of delivery of this signed Agreement to the Company to void
his signature and the provisions of this Agreement and to revoke the
waiver and release set forth above. Executive acknowledges and
understands that this Agreement will not be effective or enforceable
until such seven (7) day period has expired and Executive has not
voided, revoked or rescinded this Agreement during such period.
9. COMPANY PROPERTY. Executive agrees to return to the Company on or
prior to the Separation Date any and all Company property in Executive's
possession, including without limitation, all Company computers, telephones,
records, manuals and other documents, credit cards, and telephone calling cards
and any and all property belonging to any customer of the Company.
10. NO MITIGATION REQUIREMENT. Executive is not required to seek other
employment or otherwise mitigate the amount of any payments to be made by the
Company pursuant to this Agreement. The payments provided in this Agreement
shall not be reduced by any compensation earned by Executive as the result of
employment by another employer after the Separation Date, or otherwise.
11. BENEFIT PLANS AND PROGRAMS.
(a) Nothing herein shall be construed to in any way limit the
right of the Company (or any sponsor of any plan in which the Company
participates), acting in its sole discretion and in its own interests,
to (i) modify, at any time and from time to time, any of the terms and
conditions of any plan or program that it maintains for the benefit of
its employees, (ii) eliminate any such plan or program altogether, or
(iii) modify, at any time and from time to time, the terms of the
Company's participation in any such plan or program maintained by
another, in each such case subject only to any provisions of such plan
or program governing its amendment or termination. All rights of
Executive under this Agreement, insofar as they relate to Executive's
participation in one or more such plans or programs, are expressly made
subject to the foregoing rights of the Company (or other plan sponsor).
(b) Any amounts payable to Executive under this Agreement
pursuant to the terms of any Company plan or policy shall be paid in
accordance with the terms of such plan or policy and the Company's
customary practice and timing with respect to any such payments. All
such amounts shall be subject to applicable withholding requirements.
12. EFFECTIVE DATE; RIGHT OF RESCISSION. Prior to execution by
Executive, this Agreement constitutes the Company's offer of a severance
benefits package to Executive. Upon Executive's execution of this Agreement,
Executive's signature will evidence that Executive has voluntarily accepted the
Company's offer of this severance benefits package, on the terms and conditions
described herein. Executive understands that he may rescind and revoke the
Agreement for a period of seven (7) days following execution and delivery
thereof to the Company. Providing Executive does not revoke or rescind the
Agreement within seven (7) days following delivery of this executed Agreement to
the Company, this Agreement will then be in full force and effect (and the date
on which that seven (7)-day period ends shall be the Agreement's "Effective
Date").
13. COMPLETE AGREEMENT; SEVERABILITY. This Agreement, those documents
expressly referred to herein and other documents executed by the parties of even
date embody the complete agreement between the parties in respect to the subject
matter of this Agreement, and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way, including without
limitation, (a) any prior agreement or arrangement between the Company and
Executive with respect to the Company's providing benefits to Executive upon any
termination of Executive's employment with the Company and (b) any other
severance plan, program, or policy maintained by the Company or any of its
affiliates for salaried employees generally. The provisions herein shall be
regarded as divisible, and if any of such provisions or any part thereof are
declared invalid or unenforceable, the validity and enforceability of the
remainder of such provisions or parts thereof and the applicability thereof
shall not be affected thereby. By virtue of this Agreement, neither Executive
nor his beneficiaries shall have any interest in or rights against any specific
assets of the Company, and Executive and his spouse or other beneficiary shall
have only the rights of a general unsecured creditor of the Company.
14. COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and each of
their respective successors and assigns; provided that in no event shall
Executive's obligations under this Agreement be delegated or transferred by
Executive, nor shall Executive's rights be subject to encumbrance or to the
claims of Executive's creditors. This Agreement is for the sole benefit of the
parties hereto and shall not create any rights in third parties other than the
Company's affiliates.
16. REMEDIES. The Company will be entitled to enforce its rights under
this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights to which it may be
entitled. Executive agrees and acknowledges that money damages may not be an
adequate remedy for breach of the provisions of this Agreement and that the
Company may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
17. CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the internal law, and
not the law of conflicts, of the State of Colorado.
18. MODIFICATIONS AND WAIVERS. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by the
parties hereto. No waiver by any party hereto of any breach by any other party
hereto of any term or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar terms or provisions at
the time or at any prior or subsequent time.
19. HEADINGS. The headings contained herein are solely for the purpose of
reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
20. NOTICES. Except as otherwise expressly set forth in this Agreement,
all notices, requests and other communications to be given or delivered under or
by reason of the provisions of this Agreement shall be in writing and shall be
given (and, except as otherwise provided in this Agreement, shall be deemed to
have been duly given if so given) in person, by cable, telegram, facsimile
transmission, mailed by first class registered or certified mail, postage,
prepaid or sent by overnight courier to the parties at the following addresses
(or such other address as shall be furnished in writing by like notice,
provided, however, that notice of change of address shall be effective only upon
receipt):
NOTICES TO EXECUTIVE:
Andrew R. Dixey
Hill House
Bloxham, Banbury
Oxon OX15 4PH
England
NOTICES TO THE COMPANY:
Titanium Metals Corporation
1999 Broadway, Suite 4300
Denver, Colorado 80202
Attn.: General Counsel
21. EXPENSES. Each party will pay its own expenses in connection with this
Agreement and the performance of the transactions and obligations contemplated
by this Agreement.
22. AGREEMENT CONFIDENTIAL. Executive agrees to keep the facts and
terms of, and the amounts to be paid under, this Agreement confidential and
refrain from disclosing any of these details to any person (except members of
Executive's immediate family or his legal or accounting advisors).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
EXECUTIVE
/s/ Andrew R. Dixey 2-18-00
ANDREW R. DIXEY
TITANIUM METALS CORPORATION
By:/s/ Robert E. Musgraves
Its:Vice President
EXHIBIT A
ANDREW R. DIXEY
SEVERANCE BENEFITS
1. SEPARATION DATE--February 4, 2000
2. EARNED WAGES--on the Separation Date, the Company will pay
Dixey for all accrued but unpaid salary through the Separation
Date
3. SEPARATION ALLOWANCE--in accordance with Dixey's terms and
conditions of employment, as modified, the Company will pay
Dixey a separation allowance equal to $496,512 (equal to 1.5x
Dixey's current base salary plus unapproved supplemental
pension contributions; an additional 0.5x base salary plus
unapproved pension funding payable for covenant not to
compete--see #9 below); this amount will be payable in
bi-weekly installments by TIMET UK (in British Pounds
Sterling) on TIMET UK's regular payroll days, starting with
the first payroll day following the Separation Date
4. 1999 & 2000 BONUS--none
5. UK PENSION SCHEME--the Company will contribute to the TIMET UK
approved Pension Scheme on behalf of Dixey (but not the
unapproved, supplemental scheme) on the same basis as it
currently contributes for two years following the Separation
Date
6. COMPANY WELFARE BENEFIT PROGRAMS--the Company will continue
the participation of Dixey and his eligible dependants in all
TIMET UK welfare benefit programs (e.g., medical, dental, and
vision plans; life, travel, accidental death and
dismemberment, and long-term disability insurance programs) in
which Dixey is (or his eligible dependants are) enrolled as of
the Separation Date, other than any short-term disability
program, through the earlier of (a) two years following the
Separation Date or (b) the date Dixey becomes eligible to
participate in the healthcare programs of another employer;
Dixey's continued participation in these programs will be on
the same terms and conditions as these programs are made
available generally to directors of TIMET UK during this
period; Dixey will be obligated to make any required employee
contributions, premium payments, or co-payments as required by
any such plan
7. STOCK-BASED PROGRAMS--any stock options granted by the Company
to Dixey will continue for two years following the Separation
Date, but only to the extent vested as of the Separation Date;
any such stock options that are not vested as of the
Separation Date will lapse as of the Separation Date
8. OUTPLACEMENT ASSISTANCE--the Company will provide Dixey with
six months of outplacement assistance through Sanders &
Sidney, not to exceed $40,000; program may be extended at
Company's option
9. COVENANT NOT TO COMPETE--covenant by Dixey not to compete in
the titanium industry for two years; in consideration, the
Company will pay Dixey the sum of $165,504; this amount will
be payable in bi-weekly installments on the Company's regular
payroll days, starting with the first payroll day following
the 18-month anniversary of the Separation Date (providing a
total of 24-months of salary and unapproved pension
continuation)
10. RELOCATION ASSISTANCE--Company will pay or reimburse for
reasonable costs for selling Dixey Denver loft (i.e., broker's
commission, customary seller's closing costs), not to exceed
$30,000; Company will pay or reimburse for reasonable costs
associated with shipping contents of loft back to the UK, not
to exceed $20,000
11. TAX ASSISTANCE--Company will provide assistance in the
preparation of US tax returns for 1999 and 2000 tax years,
not to exceed $7,000
12. STOCK LOAN PROGRAM--the Company will permit Dixey to defer
payment of principal and interest on his outstanding loan
under the Executive Stock Loan Program for up to five years
after the Separation Date; unpaid interest will be rolled into
principal on a quarterly basis; the loan will become due prior
to the end of such five year period if the stock securing the
loan could be sold and the loan fully repaid from the proceeds
without incurring any loss
13. DIRECTORSHIPS--Dixey agrees to stay on the TIMET UK Pension
Committee and the Boards of Special Metals and ValTimet until
such time as Company requests resignation; current plan is to
replace Dixey on Pension Committee by May 2000, Special Metals
Board by May 2000, and ValTimet Board by March 2000
14. MISCELLANEOUS--Dixey will be required to sign standard release
and waiver (including a waiver of any claim to vacation pay),
confidentiality, non-disparagement, etc. provisions
- 2 -
Exhibit B
The following information is provided to you in accordance with the Age
Discrimination in Employment Act, as amended, 29 U.S.C. Sec. 626(f)(1)(H).
A. 29 U.S.C. Sec. 626(f)(1)(H)(i):
1. The class, unit, or group of individuals covered by this program are as
follows: President & Chief Operating Officer
2. The eligibility factors for this program are as follows: Having the
position identified in item 1.
3. The time limits applicable to this program are as follows: January 2000
corporate restructuring.
B. 29 U.S.C. Sec. 626(f)(1)(H)(ii):
1. The job titles, numbers and ages of all individuals eligible or selected
for the program are as follows:
Job Title Number of Employees Age
President & Chief 1 49
Operating Officer
2. The job titles, ages, and number of individuals in the same job
classification or organizational unit who were not eligible or selected for the
program are as follows:
Job Title Number of Employees Age
N/A
B-1