Exhibit 10.(B)4
December 31, 2008
Ms. Dee Ann Johnson
c/o Ampco-Pittsburgh Corporation 600 Grant St.,
Suite 4600
Pittsburgh, Pennsylvania 15219
Dear Dee Ann:
This Agreement amends and restates
in its entirety your Agreement of July 19, 1999 as amended by
the letter of February 28, 2002 with Ampco-Pittsburgh
Corporation (the “Corporation”).
The Corporation recognizes that your
contribution to the success of the Corporation has been substantial
and desires to assure the Corporation of your continued employment.
In this connection, the Board of Directors of the Corporation (the
“Board”) recognizes that, as is the case with other
publicly held corporations, the possibility of a change in control
may exist and that such possibility, and the uncertainty that it
may raise among the Corporation’s management, may result in
the departure or distraction of management personnel to the
detriment of the Corporation and its stockholders.
The Board has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the
Corporation’s management, including you, to their assigned
duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control
of the Corporation.
In order to induce you to remain in
the employ of the Corporation, the Corporation agrees that you
shall receive the severance benefits set forth in this letter
agreement (“Agreement”) in the event your employment
with the Corporation is terminated subsequent to a “Change in
Control” (as defined in Section 2 hereof) under the
circumstances described below.
1. Term of Agreement . This
Agreement will commence on the date hereof and shall continue in
effect for twenty-four (24) months from the date hereof;
provided , however , that commencing on
December 31, 2008 and on each anniversary thereafter, the term
of this Agreement shall automatically be extended for one
(1) additional year unless, not later than thirty
(30) days prior to such date, the Corporation shall have given
notice that it does not wish to extend this Agreement;
provided , further , however , that if a
Change in Control shall have occurred during the original or
extended term of this Agreement, this Agreement cannot be
cancelled.
2. Change in Control
.
(a) No benefits shall be payable
hereunder unless there shall have been a Change in Control as set
forth below. For purposes of this Agreement, a “Change in
Control” shall be deemed to have occurred if:
(i) any “Person” (as
defined in Sections 13(d) and 14(d) of the Exchange Act) other than
the persons or the group of persons in control of the Corporation
on the date hereof is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly,
of securities of the corporation representing
fifty percent (50%) or more of the combined voting power of
the Corporation’s then outstanding securities;
(ii) within any
period of two (2) consecutive years (not including any period
prior to the execution of this Agreement) there shall cease to be a
majority of the Board comprised as follows: individuals who at the
beginning of such period constitute the Board and any new
director(s) whose election was approved by a vote of at least
two-thirds ( 2/ 3 ) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved;
(iii) the shareholders of the
Corporation approve a merger of, or consolidation involving, the
Corporation in which (A) the Corporation’s Common Stock,
par value one dollar ($1.00) per share (such stock, or any other
securities of the Corporation into which such stock shall have been
converted through a reincorporation, recapitalization or similar
transaction, hereinafter called “Common Stock of the
Corporation”), is converted into shares or securities of
another corporation, or into cash or other property, or
(B) the Common Stock of the Corporation is not converted as
described in Clause (A), but in which more than forty percent
(40%) of the Common Stock of the surviving corporation in the
merger is owned by shareholders other than those who owned such
amount prior to the merger; or any other transaction after which
the Corporation’s Common Stock is no longer to be publicly
traded; in each case, other than a transaction solely for the
purpose of reincorporating
the Corporation in another jurisdiction or
recapitalizing the Common Stock of the Corporation; or
(iv) the shareholders of the
Corporation approve a plan of complete liquidation of the
Corporation, or an agreement for the sale or disposition by the
Corporation of all or substantially all the Corporation’s
assets, either of which is followed by a distribution of all or
substantially all of the proceeds to the shareholders.
3. Agreement of Employee .
You agree that in the event of a Potential Change in Control of the
Corporation, you will not terminate employment with the Corporation
for any reason until the occurrence of a Change in Control of the
Corporation.
For purposes of this Agreement, a
“Potential Change in Control of the Corporation” shall
be deemed to have occurred if (i) the Corporation enters into
an agreement, the consummation of which would result in the
occurrence of a Change in Control, (ii) any person (including
the Corporation) publicly announces an intention to take or to
consider taking actions which if consummated would constitute a
Change in Control, or (iii) the Board adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change
in Control of the Corporation has occurred.
4. Termination Following a Change
in Control .
(a) If any of the events described
in Section 2 hereof constituting a Change in Control shall
have occurred, you shall be entitled to
the benefits provided in Section 5(d) upon
the termination of your employment within twenty-four
(24) months after the Change in Control has occurred, unless
such termination is (i) because of your death or Disability,
(ii) by the Corporation for Cause, or (iii) by you other
than for Good Reason.
(b) For purposes of this Agreement,
“Disability” shall mean that if, as a result of your
incapacity due to physical or mental illness, you shall have been
absent from the full-time performance of your duties with the
Corporation for six (6) consecutive months, and within thirty
(30) days after written notice of termination shall have been
given to you, you shall not have returned to the full-time
performance of your duties.
(c) For purposes of this Agreement,
termination by the Corporation of your employment for
“Cause” shall mean termination upon:
(i) the willful and
continued failure by you to substantially perform duties consistent
with your position with the Corporation (other than any such
failure resulting from incapacity due to physical or mental illness
or termination by you for Good Reason), after a demand for
substantial performance is delivered to you by the Board, together
with a copy of the resolution of the Board that specifically
identifies the manner in which the Board believes that you have not
substantially performed your duties, which resolution must be
passed by at least two-thirds ( 2 / 3 ) of the entire Board at a
meeting called for the purpose and after an opportunity for you and
your counsel to be heard by the Board, and you have failed
to
resume substantial performance of your duties on
a continuous basis within fourteen (14) days of receiving such
demand,
(ii) the willful
engaging by you in conduct that is demonstrably and materially
injurious to the Corporation, monetarily or otherwise, as set forth
in a resolution of the Board, which resolution must be passed by at
least two-thirds ( 2 / 3 ) of the entire Board at a
meeting called for the purpose and after an opportunity for you and
your counsel to be heard by the Board, or
(iii) your conviction of a felony,
or conviction of a misdemeanor involving assets of the
Corporation.
For purposes of this
Section 4(c), no act, or failure to act, on your part shall be
deemed “willful” unless done, or omitted to be done, by
you not in good faith and without reasonable belief that your
action or omission was in the best interest of the
Corporation.
(d) For purposes of this Agreement,
“Good Reason” shall mean, without your express written
consent, the occurrence after a Change in Control of any one or
more of the following conditions, which condition continues without
timely and complete remedy by the Corporation after notice, as
provided below:
(i) the assignment to you of duties
inconsistent with your duties, responsibilities and status
immediately before the Change in Control or a reduction or
alteration in the nature or status of your
responsibilities
from those in effect immediately before the
Change in Control;
(ii) a reduction by the Corporation
in your base salary as in effect immediately before the Change in
Control, a failure to increase such base salary at the same
intervals as prevailed before the Change in Control in an amount at
least equal to the same percentage increase as the last increase
prior to the Change in Control, or a reduction in bonus after the
Change in Control over the last bonus paid before the Change in
Control unless there are equivalent reductions in bonuses for all
executives of the Corporation;
(iii) the requirement that you be
based at a location in excess of twenty-five (25) miles from
the location where you are currently based;
(iv) the failure by the Corporation
to continue in effect any of the Corporation’s employee
benefit plans, policies, practices or arrangements in which you
participate or under which you are entitled to benefits, or the
failure by the Corporation to continue your participation therein
or benefits thereunder on substantially the same basis, both in
terms of the amount of benefits provided and the level of your
participation relative to other participants, as existed
immediately prior to the Change in Control; or
(v) the breach of this Agreement by
the Corporation because of the Corporation’s failure to
obtain a satisfactory agreement from any successor to the
Corporation to assume and agree to perform this Agreement, as
contemplated in Section 6.
The foregoing notwithstanding, you shall notify
the corporation within ninety (90) days of the initial
existence of a particular condition described above in this
Section 4(d), and the Corporation shall have thirty
(30) days from such notice completely to remedy such
particular condition so that you are in the same position as if the
condition had never occurred. If the Corporation timely and
completely remedies the condition as required above, then the
particular occurrence of the particular condition for which you
gave notice shall no longer constitute Good Reason. If the
Corporation does not timely and completely remedy the particular
occurrence of the particular condition for which you gave notice,
you shall be deemed to terminate employment for G
