Exhibit 10.33
FORM OF
FIRST AMENDMENT
TO CHANGE IN CONTROL AGREEMENT
THIS FIRST AMENDMENT TO CHANGE IN CONTROL
AGREEMENT (the
“Amendment”) is made and entered into as of this ___
day of _________ 20__, by and between ______________________
, an individual residing at __________________________ (the
“Executive”), and HAWK CORPORATION , a Delaware
corporation whose principal address is 200 Public Square,
Suite 1500, Cleveland, Ohio 44114
(“Hawk”).
RECITALS:
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Hawk and the
Executive are parties to a Change in Control Agreement dated as of
_______________ (the “Original Agreement”).
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In order to
ensure compliance with Section 409A of the Internal Revenue Code of
1986, as amended, and the U.S. Department of Treasury regulations
and other interpretive guidance issued thereunder, the parties
desire to amend the Original Agreement as set forth in this
Amendment (the Original Agreement as amended by this Amendment is
referred to herein as the “Amended Original
Agreement”).
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ACCORDINGLY, in consideration of the promises hereinafter set
forth in this Amendment, the parties agree as follows:
1.
Definitions
.
Terms used and not otherwise defined
in this Amendment have the respective meanings given those terms as
set forth in the Original Agreement.
2.
Changes to Section 1.1 of the
Original Agreement . Hawk
and the Executive hereby agree that Section 1.1 of the Original
Agreement is hereby amended as follows:
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Section 1.1(z)
is deleted from the Original Agreement in its entirety and is
replaced in the Amended Original Agreement by the following new
Section 1.1(z):
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“
Section 409A ” means, collectively, Section 409A of
the Code and the Treasury Regulations and other interpretive
guidance issued thereunder, each as in effect from time to
time.
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Section 1.1(aa)
of the Original Agreement is redesignated in its entirety as
Section 1.1(bb) of the Amended Original Agreement.
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Section 1.1(bb)
of the Original Agreement is redesignated in its entirety as
Section 1.1(cc) of the Amended Original Agreement.
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Section 1.1(cc)
of the Original Agreement is redesignated in its entirety as
Section 1.1(dd) of the Amended Original Agreement.
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Section 1.1(dd)
of the Original Agreement is redesignated in its entirety as
Section 1.1(ee) of the Amended Original Agreement.
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Section 1.1(ee)
of the Original Agreement is redesignated in its entirety as
Section 1.1(ff) of the Amended Original Agreement.
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Section 1.1(ff)
of the Original Agreement is redesignated in its entirety as
Section 1.1(gg) of the Amended Original Agreement.
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The following
is added in its entirety as Section 1.1(aa) of the Amended Original
Agreement:
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(aa) “Severance
Waiver” has the meaning set forth in Section 3.2(b)
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3.
Changes to Section 3.1 of the
Original Agreement . Hawk
and the Executive hereby agree that Section 3.1 of the Original
Agreement is hereby amended as follows:
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Section 3.1(b)
is deleted from the Original Agreement in its entirety and is
replaced in the Amended Original Agreement by the following new
3.1(b):
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(b) (i) Within
sixty (60) days after the expiration of the Revocation Period
(as defined in the Release), the Corporation shall make a lump sum
cash payment to the Executive in an amount equal to the CIC
Multiple times the Executive’s Average Compensation (except
to such extent as that amount may be limited by Section 3.3
); and (ii) if the Qualifying Termination is of the nature
described in clause (A) or (B) of Section 1.1(x) , no
such lump sum payment shall be made unless and until the Change in
Control related to the Qualifying Termination shall have
occurred.
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The last two
sentences of Section 3.1(c) of the Original Agreement are deleted
in their entirety.
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Section 3.1(d)
of the Original Agreement is redesignated in its entirety as
Section 3.1(e) of the Amended Original Agreement.
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Section 3.1(e)
of the Original Agreement is redesignated in its entirety as
Section 3.1(f) of the Amended Original Agreement.
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The following
is added in its entirety as Section 3.1(d) of the Amended Original
Agreement:
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In the event
that the Corporation cannot provide coverage under any Welfare
Benefit Plan, as described in Section 3.1(c) , for the
entire Benefit Continuation Period or any portion thereof, for
whatever reason, then the Corporation shall pay the actuarial
equivalent of the present value of such foregone coverage for the
Executive (and his spouse, dependents and beneficiaries, as
applicable) directly to the Executive, in a cash lump sum payment,
within sixty (60) days after the Executive’s return of the
signed Release referred to in Section 3.2(a) and the signed
Severance Waiver. Such determination for each affected
Welfare Benefit Plan shall be made in good faith by the
Compensation Committee of the Board.
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The following
is added in its entirety as Section 3.1(g) of the Amended Original
Agreement:
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(g) Notwithstanding
the foregoing, to ensure compliance with Section 409A, the
Corporation shall pay:
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all amounts
payable under Section 3.1(a)(i) and (ii) no later
than March 15 of the calendar year following the calendar year in
which the Qualifying Transaction occurred;
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any
reimbursements payable under Section 3.1(a)(iii) no later
than December 31 of the calendar year following the calendar year
in which those expenses were incurred;
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provided that
the Executive has executed and delivered the Release and the
Severance Waiver, any amount payable under Section 3.1(b)(i)
no later than March 15 of the calendar year following the calendar
year in which the Qualifying Transaction occurred;
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provided that
the Executive has executed and delivered the Release and the
Severance Waiver, any amount payable under Section
3.1(b)(ii) no later than March 15 of the calendar year
following the calendar year in which the Change in Control
occurred;
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provided that
the Executive has executed and delivered the Release and the
Severance Waiver, to the extent that any continued payments or
reimbursements of Welfare Benefits under Section 3.1(c)
above are deemed to constitute taxable compensation to the
Executive, any such payment due to the Executive shall be paid to
the Executive on or before the last day of the Executive’s
taxable
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