exhibit10_33.htm


    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:

    


    
      	
              A.  

            	
              Hawk
      and the Executive are parties to a Change in Control Agreement dated as of
      _______________ (the “Original
Agreement”).

            


    

    


    
      	
              B.  

            	
              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”).

            


    

    


    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:

    


    
      	
              (a)  

            	
              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):

            


    

    


    
      	
               
      

            	
              (z)

            	
              “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.

            


    

    


    
      	
              (b)  

            	
              Section
      1.1(aa) of the Original Agreement is redesignated in its entirety as
      Section 1.1(bb) of the Amended Original
  Agreement.

            


    

    


    
      	
              (c)  

            	
              Section
      1.1(bb) of the Original Agreement is redesignated in its entirety as
      Section 1.1(cc) of the Amended Original
  Agreement.

            


    

    


    
      	
              (d)  

            	
              Section
      1.1(cc) of the Original Agreement is redesignated in its entirety as
      Section 1.1(dd) of the Amended Original
  Agreement.

            


    

    


    
      	
              (e)  

            	
              Section
      1.1(dd) of the Original Agreement is redesignated in its entirety as
      Section 1.1(ee) of the Amended Original
  Agreement.

            


    

    


    
      	
              (f)  

            	
              Section
      1.1(ee) of the Original Agreement is redesignated in its entirety as
      Section 1.1(ff) of the Amended Original
  Agreement.

            


    

    


    
      	
              (g)  

            	
              Section
      1.1(ff) of the Original Agreement is redesignated in its entirety as
      Section 1.1(gg) of the Amended Original
  Agreement.

            


    

    


    
      	
              (h)  

            	
              The
      following is added in its entirety as Section 1.1(aa) of the Amended
      Original Agreement:

            


    

    


    (aa)           “Severance
Waiver” has the meaning set forth in Section
3.2(b).

    


    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:

    


    
      	
              (a)  

            	
              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):

            


    

    


    (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.

     

    
      
        
        

      

      
        104

        
        

      

      
        
        

      

      
        


        
          	
                  (b)  

                	
                  The
      last two sentences of Section 3.1(c) of the Original Agreement are deleted
      in their entirety.

                


        

        


        
          	
                  (c)  

                	
                  Section
      3.1(d) of the Original Agreement is redesignated in its entirety as
      Section 3.1(e) of the Amended Original
  Agreement.

                


        

        


        
          	
                  (d)  

                	
                  Section
      3.1(e) of the Original Agreement is redesignated in its entirety as
      Section 3.1(f) of the Amended Original
  Agreement.

                


        

        


        
          	
                  (e)  

                	
                  The
      following is added in its entirety as Section 3.1(d) of the Amended
      Original Agreement:

                


        

         

      

    

    
      	
               
      

            	
              (d)

            	
              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.

            


    

    


    
      	
              (f)  

            	
              The
      following is added in its entirety as Section 3.1(g) of the Amended
      Original Agreement:

            


    

    


    (g)           Notwithstanding
the foregoing, to ensure compliance with Section 409A, the Corporation shall
pay:

    


    
      	
              (i)  

            	
              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;

            


    

    


    
      	
              (ii)  

            	
              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;

            


    

    


    
      	
              (iii)  

            	
              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;

            


    

    


    
      	
              (iv)  

            	
              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;

            


    

    


    
      	
              (v)  

            	
              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 year following the taxable
      year in which the related expense was incurred.  The amount of
      any such payments eligible for reimbursement in one year shall not affect
      the payments or expenses that are eligible for payment or reimbursement in
      any other taxable year, and the Executive’s right to such payments or
      reimbursements shall not be subject to liquidation or exchange for any
      other benefit; and

            


    

    


    
      	
              (vi)  

            	
              provided
      that the Executive has executed and delivered the Release and the
      Severance Waiver, any amount payable under Section 3.1(d)
      no later than March 15 of the calendar year following the calendar year in
      which the Qualifying Transaction
occurred.

            


    

    


    4. Changes
to Section 3.2(a) of the Original Agreement.  Hawk and the Executive
hereby agree that Section 3.2(a) is hereby amended as follows:

    


    The second sentence of Section 3.2(a)
is deleted from the OriginalAgreement and is replaced in the Amended Original
Agreement by thefollowing:

    


    The
Release shall not become effective unless and until it has been executed and
delivered by each of the Executive and Hawk; provided that the severance
payments and benefits provided under Sections 3.1(b) through
3.1(f) and, if applicable, Section 3.3 are not
conditioned upon Hawk’s execution or delivery of the Release.

    


    5. Changes
to Section 3.2(b) of the Original Agreement.  Hawk and the
Executive hereby agree that Section 3.2(b) is hereby deleted from the Original
Agreement in its entirety and is replaced in the Amended Original Agreement by
the following new Section 3.2(b):

     

    
      
        
        

      

      
        105

        
        

      

      
        
        

      

      
        
          


          (b)           The
severance payments and benefits provided under Sections 3.1(b) through
3.1(f) and, if applicable, Section 3.3
shall be subject to, and conditioned upon, the waiver of any other cash
severance payment or other benefits provided by the Corporation pursuant to any
other severance agreement between the Corporation and the Executive (the
“Severance Waiver”).  No amount shall be payable under this Agreement
to, or on behalf of, the Executive unless and until the Executive has executed
and delivered the Severance Waiver, in a form established by the
Corporation.

          


          6. Changes
to Section 3.3 of the Original Agreement. Hawk and the Executive
hereby agree that Section 3.3 of the Original Agreement is hereby amended as
follows:



        
          	
                  (a)  

                	
                  Section
      3.3(c) is deleted from the Original Agreement in its
    entirety:

                


        

        


        
          	
                  (b)  

                	
                  Section
      3.3(d) of the Original Agreement is redesignated in its entirety as
      Section 3.3(c) of the Amended Original
  Agreement.

                


        

        


        
          	
                  (c)  

                	
                  Section
      3.3(e) of the Original Agreement is redesignated in its entirety as
      Section 3.3(d) of the Amended Original
  Agreement.

                


        

        


        
          	
                  (d)  

                	
                  Section
      3.3(f) of the Original Agreement is redesignated in its entirety as
      Section 3.3(e) of the Amended Original
  Agreement.

                


        

        


        
          	
                  (e)  

                	
                  The
      following is hereby added in its entirety as the last sentence of Section
      3.3(c) of the Amended Original
Agreement:

                


        

         

      

      
        To ensure
compliance with Section 409A, provided that the Executive has executed and
delivered the Severance Waiver, all payments under this Section 3.3(c) shall
be paid no later than March 15 of the calendar year following the calendar year
in which those legal fees and expenses were incurred by the
Executive.

         

      

    

    7. Changes
to Section 3.6 of the Original Agreement. Hawk and the Executive
hereby agree that the following is hereby added in its entirety as the last
sentence of Section 3.6:

    


    To ensure
compliance with Section 409A, provided that the Executive has executed and
delivered the Severance Waiver, all payments under this Section 3.6 shall be
paid no later than March 15 of the calendar year following the calendar year in
which those fees and expenses were incurred by the Executive.

    


    8. Changes
to Article VI of the Original Agreement. Hawk and the Executive
hereby agree that Article VI of the Original Agreement is hereby amended as
follows:

    


    
      	
              (a)  

            	
              Article
      VI of the Amended Original Agreement is designated as “SECTION
      409A.”

            


    

    


    
      	
              (b)  

            	
              The
      following is added in its entirety as Section 6.1 of the Amended Original
      Agreement:

            


    

    


    6.1           To
the extent applicable, this Agreement shall be interpreted in accordance with
Section 409A.  The parties’ intent in entering into this Agreement is
that none of the payment arrangements hereunder constitute a “deferral of
compensation” under Section 409A, and this Agreement shall be interpreted in a
manner consistent with that intent.

    


    
      	
              (c)  

            	
              The
      following is added in its entirety as Section 6.2 of the Amended Original
      Agreement:

            


    

    


    6.2           If
the Executive is a “specified employee” (within the meaning of Treasury
Regulation Section 1.409A-1(i)), as determined by the Corporation in accordance
with Section 409A, as of the date of the Executive’s separation from service
(within the meaning of Treasury Regulation Section 1.409A-1(h)), to the extent
that any payments or benefits under this Agreement are subject to Section 409A
and the delayed payment or distribution of all or any portion of such amounts to
which the Executive is entitled under this Agreement is required in order to
avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, then
such portion deferred under this Section 6.2 shall be
paid or distributed (without interest) to the Executive in a lump sum on the
earlier of (a) the date that is six (6) months following termination of the
Executive’s employment, (b) a date that is no later than thirty (30) days after
the date of the Executive’s death or (c) the earliest date as is permitted under
Section 409A.  For purposes of clarity, the six (6) month delay shall
not apply in the case of severance pay contemplated by Treasury Regulation
Section 1.409A-1(b)(9)(iii) to the extent of the limits set forth
therein.  Any remaining payments due under this Agreement shall be
paid as otherwise provided herein.

    


    
      	
              (d)  

            	
              The
      following is added in its entirety as Section 6.3 of the Amended Original
      Agreement:

            


    

    


    6.3           To
the maximum extent permitted by applicable law, the amounts payable to the
Executive under this Agreement shall be made in reliance upon Treasury
Regulation Section 1.409A-1(b)(9) (with respect to separation pay plans) or
Treasury Regulation Section 1.409A-1(b)(4) (with respect to short-term
deferrals).

    


    
      	
              (e)  

            	
              The
      following is added in its entirety as Section 6.4 of the Amended Original
      Agreement:

            


    

     

    
      
        
        

      

      
        106

        
        

      

      
        
        

      

      
        
          
            
              6.4           As
provided in Internal Revenue Notice 2007-86, notwithstanding any other provision
of this Agreement, with respect to an election or amendment to change a time and
form of payment under this Agreement that is subject to Section 409A made on or
after January 1, 2008 and on or before December 31, 2008, the election or
amendment may apply only to amounts that would not otherwise be payable in 2008
and may not cause an amount to be paid in 2008 that would not otherwise be
payable in 2008.

              


              
                	
                        9.  

                      	
                        Addition
      of New Article VII to the Amended Original Agreement. Hawk and the Executive
      hereby agree that Article VII of the Amended Original Agreement is hereby
      added in its entirety as
follows:

                      


              



            
              	
                      (a)  

                    	
                      Article
      VII of the Amended Original Agreement is designated as
      “MISCELLANEOUS.”

                    


            

            


            
              	
                      (b)  

                    	
                      Section
      6.1 of the Original Agreement is redesignated in its entirety as Section
      7.1 of the Amended Original
Agreement.

                    


            

            


            
              	
                       
      

                    	
                      (c)

                    	
                      Section
      6.2 of the Original Agreement is redesignated in its entirety as Section
      7.2 of the Amended Original
Agreement.

                    


            

            


            
              	
                      (c)  

                    	
                      Section
      6.3 of the Original Agreement is redesignated in its entirety as Section
      7.3 of the Amended Original
Agreement.

                    


            

            


            
              	
                      (d)  

                    	
                      Section
      6.4 of the Original Agreement is redesignated in its entirety as Section
      7.4 of the Amended Original
Agreement.

                    


            

            


            
              	
                      (e)  

                    	
                      Section
      6.5 of the Original Agreement is redesignated in its entirety as Section
      7.5 of the Amended Original
Agreement.

                    


            

            


            
              	
                      (f)  

                    	
                      Section
      6.6 of the Original Agreement is redesignated in its entirety as Section
      7.6 of the Amended Original
Agreement.

                    


            

             

          

          
            	
                    (g)  

                  	
                    Section
      6.7 of the Original Agreement is redesignated in its entirety as Section
      7.7 of the Amended Original
Agreement.

                  


          

           

        

        
          	
                  (h)  

                	
                  Section
      6.8 of the Original Agreement is redesignated in its entirety as Section
      7.8 of the Amended Original
Agreement.

                


        

         

      

      
        
          	
                  (i)  

                	
                  Section
      6.9 of the Original Agreement is redesignated in its entirety as Section
      7.9 of the Amended Original
Agreement.

                


        

        


        
          	
                  (j)  

                	
                  Section
      6.10 of the Original Agreement is redesignated in its entirety as Section
      7.10 of the Amended Original
Agreement.

                


        

         

      

    

    10. Full
Force and Effect.  Except to the
extent specifically modified in this Amendment, each and every provision of the
Original Agreement remains in full force and effect in the Amended Original
Agreement.

    


    11. Miscellaneous.  This Amendment
and all rights hereunder shall be governed by, and construed and interpreted
with, the laws of the State of Ohio applicable to contracts made and to be
performed entirely within that State.  Subject to Section 3.1(g) of
the Amended Original Agreement, the parties intend to and hereby do confer
exclusive jurisdiction upon the courts of any jurisdiction located within
Cuyahoga County, Ohio to determine any dispute arising out of or related to this
Amendment, including the enforcement and the breach hereof.  In the
event of any conflict between the original terms of the Original Agreement and
this Amendment, the terms of this Amendment shall prevail.


    


     

    IN WITNESS WHEREOF, the
Executive has executed this Amendment, and Hawk has caused this Amendment to be
duly executed on its behalf, as of the date first written above.

    


    HAWK
CORPORATION

    (“Hawk”)

    


    


    By:                                                                           

    Its:                                                                           

    


    


    


    


    _____________________________ (“Executive”)

    


    
 

     

     

     

    107