Exhibit
10.1


 


SEPARATION AND GENERAL RELEASE AGREEMENT


 


Caution: Read Carefully


This Is A Release Of All Claims


 


THIS
SEPARATION AND GENERAL RELEASE AGREEMENT (“Agreement”) is voluntarily entered
into as of the date(s) set forth below by and between the undersigned
individual, August A. Cijan and Haynes International, Inc. (“Company”).


 


WHEREAS, Cijan
and the Company previously entered into a Termination Benefits Agreement (the “Termination
Benefits Agreement”) dated August 31, 2004, whereby the rights and obligations
of Cijan and the Company in the event of a termination of employment under
certain circumstances were set forth; and


 


WHEREAS, Cijan
and the Company desire to supersede and make such Termination Benefits
Agreement null and void and of no force or effect and to set forth the rights
and obligations of the parties with respect to a termination of Cijan’s
employment with the Company under the terms set forth in this Agreement; and


 


WHEREAS, Cijan and the Company have reached
mutual agreement on the termination of Employee’s employment effective as of December 31,
2008 (“Separation Date”);


 


NOW,
THEREFORE, in consideration of the mutual understandings, covenants, and the
release contained in this Agreement, Company and Cijan hereby voluntarily agree
as follows:


 


1.                                       Definitions.  Specific terms used in this Agreement have
the following meanings: (a) words such as “I,” “me,” and “my” include both
the undersigned and anyone who has or obtains any legal right or claims through
me; and (b) “Company” means Haynes International, Inc., all of its
past and present officers, directors, employees, trustees, parent corporations,
agents, members, affiliates, insurers, any and all employee benefit plans (and
any fiduciary of such plans) sponsored by such entities, and such each entity’s
subsidiaries, predecessors, successors, and assigns, and all other entities,
persons, firms, or corporations liable or who might be claimed to be liable,
none of whom admit any liability to me, but all of whom expressly deny any such
liability.


 


2.                                       My Claims.  The claims I am releasing (“My Claims”)
include all of my rights to any relief of any kind from the Company, including
without limitation, all claims I have now, whether or not I now know about the
claims.  These claims, which I hereby
release, include, but are not limited to the following:


 


(a) all claims relating to my employment with Company, or the
termination of that employment, including, but not limited to, any claims
arising under the Fair Labor Standards Act; Title VII of the Civil Rights Act
of 1964; the Civil Rights Act of 1866; the Age Discrimination in Employment Act
(“ADEA”); the Older Worker Benefits Protection Act (“OWBPA”); the Employee
Retirement Income Security Act; the Family and Medical Leave Act (“FMLA”); the
Americans with Disabilities Act; the applicable state civil rights laws; and/or
any other federal, state or local law;


 

















 


(b) all claims under any principle of common law or equity,
including but not limited to, claims for alleged unpaid compensation or any
other monies; commissions; any tort; breach of contract; and any other
allegedly wrongful employment practices; and


 


(c) all claims for any type of relief from the Company, including
but not limited to, claims for damages, costs and attorney’s fees.


 


In addition to these claims being released, I acknowledge that I have
not suffered any physical or mental injuries arising out of my employment with
Company or the termination of that employment.


 


3.                                         Termination Benefits Agreement and Any Other
Agreement Superseded; All Claims Released.  I understand and agree that this Agreement
constitutes the entire agreement between me and the Company with regard to the
subject matter covered and that any rights, benefits and obligations upon
termination of my employment shall be governed solely and exclusively by this
Agreement and that any rights, benefits or obligations of any kind under the
Termination Benefits Agreements or any other agreement of any kind which
purports to set forth terms or conditions regarding my separation from
employment or providing any payment, benefits or rights in connection with a
termination of my employment are null and void and are of no force or
effect.  This Agreement is intended to
and will completely replace and supersede the Termination Benefits Agreement
and any other termination, separation or severance agreement and all prior
understandings or arrangements, oral or written, previously entered into or
agreed between me and the Company.  By
signing this document I release and discharge the Company from any and all
claims, causes of action, demands, lawsuits or other matters of any kind
whatsoever, known or unknown, directly or indirectly related to the Termination
Benefits Agreement.


 


4.                                         Severance Plan Not Applicable; All Claims Released.  I understand and agree that any rights,
benefits and obligations upon termination of my employment shall be governed
solely and exclusively by this Agreement and that any rights, benefits or
obligations of any kind that are or could have been available to me under the
Company’s Severance Plan are superseded by this Agreement and that I shall have
no right, interest or ability to receive any payment, benefit or other
consideration of any kind under the Severance Plan.  By signing this document I release and
discharge the Company from any and all claims, causes of action, demands,
lawsuits or other matters of any kind whatsoever, known or unknown, directly or
indirectly related to the Severance Plan.


 


5.                                         Exclusions From Release.  I understand that My Claims released
under this Agreement do not include any rights or claims that may arise after
the Effective Date of this Agreement (which is that date occurring on the
eighth (8th) day after I sign this Agreement, provided that I do not
revoke this Agreement as described below).  
I understand I do not waive future claims. Also, I further understand
that nothing in this Agreement shall in
any way adversely affect whatever vested rights I may have to benefits under
any retirement or other employee benefit 


 


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plan or adversely affect my ability to
exercise vested stock options as described in paragraph 6, below.  In addition, I acknowledge that this
Agreement is not intended to (a) prevent me from filing a charge or
complaint including a challenge to the validity of this Agreement, with the
EEOC; (b) prevent me from participating in any investigation or proceeding
conducted by the EEOC; or (c) establish a condition precedent or other
barrier to exercising these rights. 
While I have the right to participate in an investigation, I understand
that I am waiving my right to any monetary recovery arising from any
investigation or pursuit of claim on my behalf. 
I acknowledge that I have the right to file a charge alleging a
violation of the ADEA with any administrative agency and/or to challenge the
validity of the waiver and release of any claim I might have under the ADEA
without either: (a) repaying to the Company the amounts paid by it to me
or on my behalf under this Agreement; or (b) paying to the Company any
other monetary amounts (such as attorney’s fees and/or damages).


 


6.                                       Company’s Agreement to Make Payment to Me .  In exchange for my release and other promises
made by me in this Agreement, the Company agrees that it shall make a
separation payment to me in the amount of One Hundred Seventy Thousand Dollars
($170,000), less taxes and other required deductions and withholdings (“Separation
Payment”).  I understand that the
Separation Payment described above shall be paid to me in a lump sum on the
Company’s regular payroll date as soon as practical after all of the following
have occurred: (i) the Separation Date has passed; (ii) I have signed
and returned the Agreement, and (iii) the seven (7) day revocation
period described in this Agreement expires. 
In addition, I acknowledge that any unvested Company stock options held
by me as of the Separation Date will terminate and be forfeited as of such
Separation Date and that any outstanding vested Company stock options held by
me as of the Separation Date shall continue to be exercisable by me or my
estate for six (6) months
following my Separation Date, but in no event later than the expiration date of
the stock options as specified in the applicable grant letter.  I acknowledge that the payment described above
and the continued limited exercisability of my vested Company stock options
constitute full and fair consideration for the release of My Claims, that the
Company is not otherwise obligated to make these payments to me, and that they
are in addition to any other sums to which I am otherwise due.  I also acknowledge that I have received all
other forms of compensation, of whatever kind, that may be due to me by the
Company, including, without limitation, amounts earned by me prior to the
Separation Date and that I am not entitled to any other payments under any
other agreement with the Company, including but not limited to any Stock Option
Agreement and the Termination Benefit Agreement.


 


7.                                       Return of Company Property.  I hereby represent and warrant that I have
returned to the Company all of its property that was ever in my possession or
control.  This property includes, but is
not limited to, financial and other business records, personnel records, office
and other keys, directories, computer hardware and software, books, documents,
memoranda, and all other records, and copies of all such items.


 


8.                                       Termination of Relationship.  I acknowledge that my employment has been
separated as of the date referenced in the introductory paragraphs to this
Agreement.  I further agree not to apply
for future employment with the Company, or any of its affiliates or
successors.  I acknowledge that neither the
Company nor its successors have any obligation, contractual or 


 


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otherwise, to
rehire, reemploy, recall, or hire me in the future.  I understand that this Agreement does not
constitute an admission of wrongdoing by any party.


 


9.                                       Consultation with Attorney.  I acknowledge that the Company has advised me
that it is up to me as to whether I consult an attorney prior to signing this
Agreement, and that the Company has advised that I should do so.


 


10.                                 Non-Defamation and Confidentiality.
In further consideration of the payments and benefits set forth above, I  agree, consistent with applicable law,  to protect the Company from intrusion into
its business by not disclosing to any third-party any confidential information
or trade secrets of the Company. Such information includes, but not limited to,
confidential information regarding the credit and collection activities of the
Company, and information regarding the Company’s employees, services, marketing
strategies, business plans,  operations,
costs, research and development efforts, technical data and know-how, financial
information, internal procedures, forecasts, methods, trade secrets, software
programs, project requirements, inventions, trademarks, trade names, and
similar information regarding the Company’s business (collectively referred to
as “Confidential Information”).  I agree
that all such Confidential Information is and shall remain the sole and
exclusive property of the Company. 
Except as may be expressly authorized by the Company in writing, or as
may be required by law after providing due notice thereof to the Company, I
agree not to disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party as long as such information remains
confidential (or as limited by applicable law) and I agree not to make use of
any such Confidential Information for my own purpose or for the benefit of any
other entity or person.   I agree to
refrain from making any defamatory comments to anyone (including, but not
limited to, the Company’s customers) concerning the Company, its employees,
agents, operations, or plans.   I agree
that any inquiries concerning the Company shall be directed to the Personnel
Department of Company for response.  In
further protection of the interests of the Company, I agree that, as to any
matters currently pending, or which arise relating to my employment with the
Company, I will cooperate with the Company and its attorneys in connection with
any proceeding involving the Company before a court, an administrative agency,
governmental organization, or an arbitrator. I further understand that it is an
essential and material condition of this Agreement that the existence and terms
of this Agreement are to remain strictly confidential and shall not be
disclosed by me to any person other than to my attorney, my accountant or my
spouse, if any, or as required by law.


 


11.                                 Violation of Agreement.  If any legal action or other proceeding is
brought for the enforcement of this Agreement, the non-breaching party shall be
able to recover from the breaching party its reasonable attorney’s fees, court
costs and all expenses (including, without limitation, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be
entitled.  In addition, in the event of a
violation of the provisions of paragraphs 10 and 16-17 of this Agreement, it is
understood that precise calculation of damages may be difficult, but that the
Company will suffer significant harm in the event a violation occurs.  Consequently, not as a penalty, but as
reasonable approximation of the actual harm incurred, the parties agree to 


 


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liquidated
damages of five thousand dollars ($5,000.00) per violation by me, in addition
to any other remedies otherwise available in law or equity.


 


12.                                 Miscellaneous.  I understand and agree that no provision of
this Agreement may be modified, waived or discharged unless a waiver,
modification or discharge is agreed to in writing and is signed by the Company
and by me.  I understand and agree that
no waiver by either party at any time of any breach by the other party of, or
compliance with, any condition or provision of this Agreement, to be performed
by the other party shall be deemed a wavier of similar or dissimilar provision
or condition at the same or an any prior or subsequent time.  I understand and agree that this is the
entire agreement between me and the Company with regard to the subject matter
covered in this Agreement and no agreement or representation, oral or
otherwise, express or implied, with respect to the subject matter of this
Agreement may be made by either party which are not expressly set for this in
this Agreement.


 


13.                                 Severability.  I understand, and it is my intent, that in
the event this Agreement is ever held to be invalid or unenforceable (in whole
or in part) as to any particular type of claim or charge or as to any
particular circumstances, it shall remain fully valid and enforceable as to all
other claims, charges, and circumstances.


 


14.                                 Applicable Law.  I agree that this Agreement has been made and
entered into in the State of Indiana and that it will be governed by and
construed in accordance with the laws of the State of Indiana.  I agree that any action in law or in equity
brought by either party arising from or in connection with this Agreement or
arising from or in connection with the performance by either party of its
obligations under this Agreement shall be brought only in the United States
District Court for the Southern District of Indiana, Indianapolis Division or
the Circuit Court of Howard County, Indiana, and that I consent to the
jurisdiction of those courts.


 


15.                                 Internal Revenue Code Section 409A.


 


(a)                          All
payments to be made to me as a result of my termination of employment under
this Agreement may only be made upon a “separation from service” under section
409A of the Internal Revenue Code (“Code”). 
In no event may I, directly or indirectly, designate the calendar year
of a payment.


 


(b)                         Separation/severance
benefits under this Agreement are intended to be exempt from section 409A of
the Code under the “separation pay exception,” to the maximum extent
applicable.  Any payments hereunder that
qualify for the “short-term deferral” exception or another exception under
section 409A of the Code shall be paid under the applicable exception.


 


(c)                          Notwithstanding
the foregoing or anything to the contrary contained in any other provision of
this Agreement, if I am a “specified employee” at the time of my “separation
from service” within the meaning of section 409A of the Code, then any payment 


 


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hereunder designated as being subject to section 409A shall not be made
until the first business day after (i) the expiration of six (6) months
from the date of my separation from service, or (ii) if earlier, the date
of my death (the “Delayed Payment Date”). 
On the Delayed Payment Date, there shall be paid to me or, if I have
died, to my estate, in a single cash lump sum, an amount equal to aggregate
amount of the payments delayed pursuant to the preceding sentence.


 


(d)                         The
term “specified employee” shall mean any individual who, at any time during the
twelve (12) month period ending on the identification date (as determined by
the Company or its delegate), is a specified employee under section 409A of the
Code, as determined by the Company (or its delegate).  The determination of “specified employees,”
including the number and identity of persons considered “specified employees”
and identification date, shall be made by the Company (or its delegate) in
accordance with the provisions of sections 416(i) and 409A of the Code.


 


16.                                 Period to Consider Agreement and Expiration of Offer.  As required by the ADEA and the OWBPA, I
understand that I have twenty-one (21) calendar days from the day that I
receive this Agreement, not counting the day upon which I received it, to
consider whether I wish to sign it.  If I
sign this Agreement before the end of the twenty-one (21) calendar day period,
it will be my personal and voluntary decision to do so.  I also understand that if I fail to deliver
this Agreement to the Company within said period of time, it shall expire and
be deemed withdrawn by the Company.


 


17.                                 Right to Revoke Agreement.  I understand that I may revoke this Agreement
at any time within seven (7) calendar days after I sign it, not counting
the day upon which I sign it. This Agreement will not become effective or
enforceable unless and until the seven (7) calendar day revocation period
has expired without my revoking it, i.e. on the eighth (8th)
calendar day after I sign this Agreement.


 


18.                                 Procedure to Accept or Revoke.  To accept this Agreement, I must deliver the
Agreement, after it has been signed and dated by me, to the Company, by hand or
by reliable overnight delivery, and it must be received by the Company within
the twenty-one (21) calendar day period that I have to consider this Agreement.  To revoke my acceptance, I must deliver a
written, signed statement that I revoke my acceptance to the Company by hand or
by reliable overnight delivery and any such notice of revocation must be
received by the Company within seven (7) calendar days after I signed the
Agreement.  All deliveries shall be made
to the Company at the following address, marked “Personal and Confidential”:
Jean C. Neel, 1020 West Park Ave., P.O. Box 9013, Kokomo, IN
46904-9013.  If I choose to deliver my
acceptance or revocation notice by reliable overnight delivery, it must be
received by the above-named individual at the Company within the applicable
period stated above.


 


19.                                 My Representations.  I HAVE READ THIS AGREEMENT CAREFULLY, I HAVE
HAD AN ADEQUATE OPPORTUNITY TO CONSULT AN ATTORNEY, AND I UNDERSTAND ALL OF ITS
TERMS. IN AGREEING TO SIGN THIS AGREEMENT, I HAVE NOT RELIED ON ANY STATEMENTS
OR EXPLANATIONS MADE BY THE COMPANY, EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT.  I ALSO 


 


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UNDERSTAND AND AGREE THAT THIS AGREEMENT CONTAINS ALL OF THE AGREEMENTS
BETWEEN THE COMPANY AND ME RELATING TO THE MATTERS INCLUDED IN THIS
AGREEMENT.  I ALSO AGREE THAT THIS
AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, ALL OF WHICH, TAKEN
TOGETHER, SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.


 


	
   

  	
  Date: January 5, 2009

  
	
   

  	
   

  
	
   

  	
  Printed Name: August A. Cijan

  
	
   

  	
   

  
	
   

  	
  Signature:

  	
  /s/ AUGUST A. CIJAN

  
	
   

  	
   

  
	
   

  	
  Witness:

  
	
   

  	
  /s/ JEAN
  NEEL

  
	
   

  	
  Signature

  
	
   

  	
  Jean Neel

  
	
   

  	
  Printed Name

  
	
   

  	
   

  
	
   

  	
  Received and agreed to by Haynes International, Inc. on behalf
  of itself and all other persons and entities released herein:

  
	
   

  	
   

  
	
   

  	
  By: Jean Neel

  
	
   

  	
   

  
	
   

  	
  /s/ JEAN NEEL

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
  Date: January 5, 2009

  



 


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