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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter the "Agreement") is entered into as
of the 6th day of July, 1999 ("Effective Date"), by and between American Axle &
Manufacturing Holdings, Inc. ("Company") and Xxxxx X. Xxxxx (hereinafter the
"Executive").
BACKGROUND
WHEREAS, the Company desires to employ Executive, and Executive is willing
to accept employment with the Company, upon the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and with the intention of being legally bound hereby, the parties hereby agree
as follows:
1. EMPLOYMENT.
The Company hereby employs Executive, and Executive hereby accepts such
employment during the Employment Term as defined below and on the terms and
subject to the conditions hereinafter set forth.
2. MANAGEMENT DUTIES.
During the Employment Term, Executive shall serve as the Company's Executive
Vice President - Finance and Chief Financial Officer, reporting to the Company's
Chairman, CEO & President.
3. EXTENT OF SERVICES.
During the Employment Term, Executive shall devote substantially his full time
and attention and give his best efforts, skills, and professional abilities to
the management and operations of the Company and its business and in carrying
out the duties of the position set forth in the previous section.
4. COMPENSATION AND BENEFITS.
(a) During the Employment Term, Executive shall receive as compensation for his
services such salary, benefits, and other compensation as are set forth in this
Agreement and Exhibit A hereto, which cash compensation shall be payable in
regular installments in accordance with Company's usual payroll practices.
(b) During the Employment Term, Executive shall be entitled to participate in
all employee benefit plans made available by the Company in its discretion
generally to all other employees of the Company from time to time.
(c) Executive shall be entitled to a vacation during each year of the Agreement,
and such holidays established by the Company from time to time.
(d) All payments made to Executive or his estate which are made pursuant to this
Agreement shall be subject to such withholding as may be required by any
applicable laws, including without limitation any federal, state, and local
taxes as may be required to be withheld pursuant to any applicable law or
regulation.
5. EXPENSE REIMBURSEMENTS.
During the Employment Term, the Company shall promptly reimburse Executive for
all reasonable and itemized out-of-pocket expenses incurred by Executive in the
ordinary course of the Company's business, provided such expenses are incurred,
reported, and approved in accordance with the Company's established written
policies and procedures for Company employees generally or such written policies
and procedures applicable to senior executives of the Company, if the same shall
exist.
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6. TERM.
The period of Executive's employment under this Agreement (the "Employment
Term") shall commence on the Effective Date and, unless sooner terminated
pursuant to Section 10 of this Agreement, shall continue until the close of
business on the day immediately preceding the third anniversary of the Effective
Date.
7. REPRESENTATIONS, WARRANTIES, AND ACKNOWLEDGMENTS OF EXECUTIVE.
(a) Executive represents and warrants that he is not a party to or otherwise
subject to or bound by the terms of any contract, agreement, or understanding
which in any manner would limit or otherwise affect his ability to perform his
obligations hereunder, including without limitation any contract, agreement, or
understanding containing terms and provisions similar in any manner to those
contained herein, and that the execution and delivery of this Agreement and the
performance by Executive of his duties hereunder shall not constitute a breach
of, or otherwise contravene, the terms of any employment agreement or policy to
which Executive is a party or otherwise bound.
(b) Executive recognizes and acknowledges that (i) in the course of Executive's
employment by the Company it will be necessary for Executive to acquire
information which could include, in whole or in part, information concerning the
Company's or any parent's, subsidiary's, or affiliate's experimental and
development plans, trade secrets, secret procedures, information relating to
ideas, improvements, inventions, manufacturing processes, customers, software,
computer programs, disclosures, processes, systems, formulas, composition,
patents, patent applications, machinery, materials research activities and
plans, customers or vendors and prospective customers, the Company's or any
parent's, subsidiary's, or affiliate's product costs, the Company's or any
parent's, subsidiary's, or affiliate's prices, profits, and volume of sales, and
future business plans, and other confidential or proprietary information
belonging to the Company or any parent, subsidiary, or affiliate or relating to
the Company's or any parent's, subsidiary's, or affiliate's affairs, even if
such information has been disclosed to one or more third parties pursuant to
licensing or customer agreements or other agreements entered into by the Company
or any of its affiliates (collectively, such information is referred to herein
as the "Confidential Information"); (ii) the Confidential Information is the
property of the Company and/or any parent, subsidiary, or affiliate, as the case
may be; (iii) the use, misappropriation or disclosure of the Confidential
Information would cause irreparable injury to the Company; and (iv) it is
essential to the protection of the Company's good will and to the maintenance of
the Company's competitive position that the Confidential Information be kept
secret and that Executive not disclose the Confidential Information to others or
use the Confidential Information to Executive's own advantage or the advantage
of others (except as may be necessary for the performance of Executive's duties
hereunder or as may otherwise be provided for herein). The term "Confidential
Information" shall not include information which is or becomes generally
available to the public other than as a result of a disclosure by Executive in
violation of this Agreement.
(c) Executive further recognizes and acknowledges that his duties at the Company
may include the preparation of materials, including written or graphic
materials, and that any such materials conceived or written by him shall be done
as "work made for hire" as defined and used in the Copyright Act of 1976, 17
U.S.C. Section 1 et seq. In the event of publication of such materials,
Executive acknowledges that since the work is "work made for hire," the Company
will solely retain and own all rights in such materials, including right of
copyright and any associated goodwill.
8. EXECUTIVE'S COVENANTS AND AGREEMENTS.
(a) During the Employment Term, Executive shall not engage in any other
business, profession, or occupation for compensation or otherwise which would
conflict with the rendition of such services, either directly or indirectly,
without the prior written consent of the Company.
(b) Executive agrees to hold and safeguard the Confidential Information in
trust for the Company and any parent, subsidiary, or affiliate, and its and
their successors and assigns and agrees that he shall not, without the prior
written consent of the Company, disclose or make available to anyone for use
outside the Company's organization at any time, either during his employment
with the Company or thereafter, any of the Confidential Information, whether or
not developed by Executive, except as required in the performance of
Executive's duties to the
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Company. The foregoing notwithstanding, the Company acknowledges that Executive
may be required by applicable law or regulation or requested in connection with
any judicial, administrative, or governmental proceeding to disclose or
otherwise make available some or all of the Confidential Information. In any
such event, Executive shall treat such requirement or request consistent with
his position as Executive Vice President - Finance and Chief Financial Officer
or, if such requirement or request is learned by Executive following the
Employment Term, Executive shall provide the Company with written notice of such
requirement or request as soon as practicable after learning of same, shall
furnish only that portion of the Confidential Information which Executive is
advised by his counsel is legally required, and shall reasonably cooperate with
the Company in the event the Company seeks a protective order for such
disclosure.
(c) Executive shall disclose promptly to the Company any and all Company
Inventions (as defined below) authorized, conceived, or made by Executive during
the period of Executive's employment by the Company and related to the business
or activities of the Company, and hereby assigns and agrees to assign all of his
right, title, and interest, together with any and all associated goodwill,
world-wide in all Company Inventions and in all intellectual property rights
based upon Company Inventions to the Company. Whenever requested to do so by the
Company, Executive shall execute any and all applications, assignments, or other
instruments which the Company shall deem reasonably necessary to apply for and
obtain letters patent, mask works, trademarks, service marks, or copyrights of
the United States or any foreign country or to otherwise protect the Company's
interest therein or to evidence the assignments thereof to the Company. Such
obligations shall continue beyond the termination of Executive's employment with
the Company, regardless of the reason for such termination, with respect to
Company Inventions authored, conceived, or made by Executive during the period
of Executive's employment by the Company, and shall be binding upon Executive's
assigns, executors, administrators, and other legal representatives. The Company
shall be responsible for the preparation of any such instruments, documents,
papers, and the like and for the prosecution of any proceedings and shall
promptly reimburse Executive for all reasonable expenses incurred by him in
compliance with this Section. In the event that the Company is unable for any
reason to secure Executive's signature to any lawful and necessary document
required to apply for or execute any patent, mask work, trademark, service xxxx,
copyright, or other applications with respect to any Company Inventions
(including but not limited to any renewals, extensions, continuations,
divisions, or continuations in part thereof), Executive hereby irrevocably
appoints the Company and its duly authorized officers and agents as his agents
and attorneys in fact to execute and file any such application and to do all
other lawfully permitted acts to further the prosecution and issuance of
patents, mask works, trademarks, service marks, copyrights, or other rights
relating to such Company Inventions with the same legal force and effect as if
executed by Executive.
(d) As used in this Agreement: (i) "Inventions" means any new or useful art,
discovery, contribution, finding, and improvement thereof or know-how related
thereto, whether patentable or not, including but not limited to contributions,
concepts, ideas, developments, discoveries, processes, formulas, methods,
composition, techniques, articles, machines, designs, programs or software, and
mask works; and (ii) "Company Inventions" means all Inventions conceived or made
by Executive, alone or with others, which (1) relate or may relate in any manner
to the Business or its research and development, (2) were conceived or made, in
whole or in part, on the Company's time or with any of the Company's or any
parent's, subsidiary's, or affiliate's equipment, supplies, facilities or
Confidential Information of the Company or any parent, subsidiary, or affiliate,
or (3) result from tasks assigned to Executive by the Company.
(e) Upon the termination of Executive's employment with the Company for any
reason, Executive shall promptly deliver to the Company all correspondence,
drawings, blueprints, manuals, letters, notes, notebooks, reports, flow-charts,
programs, proposals, price lists, customer lists, potential customer contact
lists, Company vehicles, access cards, confidential directories, documents
containing, summarizing, or otherwise reflecting non-public financial or other
information, and any documents concerning the Company's customers or concerning
products or processes used by the Company and, without limiting the foregoing,
will promptly deliver to the Company any and all other documents or materials
containing or constituting Company Inventions or Confidential Information.
(f) Executive acknowledges and agrees that the remedies of Company and/or any
parent, subsidiary, or affiliate at law for a breach or threatened breach of any
of the provisions of sections 7, 8, and 11 would be inadequate and, in
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach,
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in addition to any remedies at law, the Company, and any parent, subsidiary, or
affiliate, without posting any bond, shall be entitled to cease making any
payments or providing any benefit otherwise required by this Agreement and
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction, or any other equitable
remedy which may then be available.
9. WAIVER OF BREACH.
The waiver by the Company of a breach of any provision of this Agreement by
Executive shall not operate or be construed as a waiver of any other or
subsequent breach by Executive of such or any other provision. No delay or
omission by the Company or Executive in exercising any right, remedy, or power
hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy, or power may be exercised by the Company or
Executive from time to time and as often as may be deemed expedient or necessary
by the Company or Executive in its or his sole discretion.
10. TERMINATION.
(a) Notwithstanding the Employment Term set forth in Section 6 hereof, this
Agreement shall terminate upon the earliest to occur of the following:
(i) the close of business on the last day of the Employment Term;
(ii) the Executive's death;
(iii) delivery of a written notice by either party to terminate
Executive's employment hereunder because of Executive's Disability (as
defined below); or
(iv) delivery by the Company to Executive of a written notice of the
Company's election to terminate Executive's employment hereunder for
Cause (as defined below).
(b) For purposes of this Agreement:
(i) "Executive's Disability" shall have the same meaning as such term
is used in such Company provided benefit plan(s) in which Executive is a
plan participant at the time of such claimed Executive Disability, provided
such plan(s) which is/are designed to provide benefits to Executive in the
event of a disability as defined therein. In the absence of such plan(s) or
in the event of any ambiguity of definition, "Disability" shall mean that
Executive is unable for a period of six (6) consecutive months or for an
aggregate of nine (9) months in any twelve (12) month period to
substantially perform Executive's duties as defined herein. Any question as
to the existence of the Disability of Executive as to which Executive and
Company cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Executive and Company. If
Executive and Company cannot agree upon a qualified independent physician,
each shall appoint such a physician and those two physicians shall select a
third who shall make such determination in writing. The determination of
Disability made in writing to the Company and Executive by such three
physicians shall be final and conclusive for all purposes of this
Agreement.
(ii) "Cause" shall mean any of the following:
(1) any breach by Executive of the terms of this Agreement,
including violation of any Company policy(ies), as the same may
be altered, amended, instituted, or adopted from time to time,
which shall not have been cured within ten (10) business days
following a written demand for performance from the Company's
board of directors or its designee which identifies the manner in
which the Executive is alleged to have breached this Agreement;
(2) Executive's commission of any act of dishonesty in
rendering services hereunder, including without limitation
falsification of records, expense accounts, and other reports;
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(3) Executive's willful malfeasance, nonfeasance, or
willful misconduct in connection with his duties hereunder or any
act or omission which is materially injurious to the financial
condition or business reputation of the Company or any of its
parent corporations, affiliates, or subsidiaries;
(4) Executive's conviction of a felony or other crime
involving moral turpitude, fraud, embezzlement, or theft,
including without limitation any felony under the laws of the
United States of America, Canada, or Mexico, or any state or
province thereof; or
(5) drunkenness or other substance abuse while rendering
services hereunder or that impairs Executive's ability to perform
his duties hereunder or renders Executive unfit to serve as an
Executive of the Company in the capacity contemplated hereby.
(iii) Any termination of employment by the Company or by Executive
which is required by written notice shall be communicated in accordance
with section 12 hereof.
(c) Following any termination of Executive's employment hereunder, all
obligations of the Company under this Agreement (other than any obligations with
respect to the payment of accrued and unpaid salary, accrued and unpaid
vacation, and expense reimbursement under Section 5 hereof through the date of
Executive's termination of Employment hereunder) shall terminate.
11. NON-COMPETE; NON-SOLICITATION.
(a) Executive agrees that during the Employment Term and for eighteen (18)
months thereafter, Executive will not directly or indirectly do any of the
following:
(i) engage (whether as principal, agent, officer, director, employee,
consultant, partner, shareholder, individual proprietor, or otherwise,
whether alone or in association with any other person or entity) in any
business, enterprise, endeavor, or activity (other than the Company) which
(i) manufactures or markets products or services which are similar to or
compete with those produced or sold by Company or any parent, subsidiary,
or affiliate of Company, including without limitation any businesses or
endeavor which the Company or any parent, subsidiary, or affiliate have
specific plans to conduct in the future and as to which Executive is aware
of such planning, or (ii) is in competition with or substantially similar
to the business conducted by Company or any parent, subsidiary, or
affiliate of Company prior to the date hereof;
(ii) solicit, divert, or take away, or attempt to solicit, divert or
take away the trade of, or trade with, any customer, client, account, or
supplier, or prospective customer, client, account or supplier of Company
or any parent, subsidiary, or affiliate thereof, for any purpose other than
for the benefit of the Company;
(iii) recruit, solicit, or induce or attempt to recruit, solicit, or
induce, any employee of the Company or any parent, subsidiary, or affiliate
thereof, to leave his employment for any reason whatsoever, nor offer or
provide employment, either on a full time or part time or consulting basis,
to any person who then currently is, or who within one year prior thereto
had been, employed by the Company or any parent, subsidiary, or affiliate
thereof;
(iv) interfere with business relationships (whether formed before or
after the date of this Agreement) between the Company or any parent,
subsidiary, or affiliate and its/their customers, suppliers, and/or joint
venture partners;
(v) interfere with employment relationships between Company or any
parent, subsidiary, or affiliate and its/their employees, agents, or
consultants.
Should any provision of this Section be adjudged to any extent invalid by any
competent tribunal or court, such provision shall be deemed modified to the
extent necessary to make it enforceable. It is expressly understood and agreed
that although Executive and the Company consider the restrictions contained in
this section 11 to be fair and reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or
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any other restriction contained in this Agreement is an unenforceable
restriction against Executive, the provisions of this Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time and
territory and to such maximum extent as such court may judicially determine or
indicate to be enforceable.
(b) The provisions of this section 11 shall not be construed to prohibit the
ownership by Executive of up to 3% of any class of securities of any corporation
that has a class of securities registered pursuant to the Securities Exchange
Act of 1934, as amended.
12. NOTICES.
All notices required or permitted hereunder shall be made in writing by
hand-delivery, certified or registered first class mail, or air courier
guaranteeing overnight delivery to the other party at the following addresses:
To the Executive: Xxxxx X. Xxxxx
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To Company: Vice President - Human Resources
American Axle & Manufacturing, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
copy to: General Counsel
American Axle & Manufacturing, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
or to such other address as either of such parties may designate in a written
notice served upon the other party in the manner provided herein. All notices
required or permitted hereunder shall be deemed duly given and received when
delivered by hand, if personally delivered; on the third business day after the
date of mailing if sent by certified or registered first-class mail; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
13. SEVERABILITY.
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be held invalid or unenforceable by
a court of competent jurisdiction, the remainder of this Agreement or the
application of any such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. If any of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to duration, scope, activity or subject, it shall be construed by limiting
and reducing it so as to be valid and enforceable to the extent compatible with
the applicable law or the determination by a court of competent jurisdiction.
14. GOVERNING LAW.
The implementation and interpretation of this Agreement shall be governed by and
enforced in accordance with the laws of the State of Michigan, U.S.A., without
giving effect to the conflicts of laws provisions thereof.
15. BINDING EFFECT AND ASSIGNABILITY.
The rights and obligations of the parties under this Agreement shall inure to
the benefit of, shall be binding upon, and shall be enforceable by, their
respective heirs, successors, assigns, personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. Executive's rights under this Agreement shall
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not, in any voluntary or involuntary manner, be assigned or assignable and may
not be pledged or hypothecated without the prior written consent of the Company.
16. COUNTERPARTS; SECTION HEADINGS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
but one and the same instrument. The section headings of this Agreement are for
convenience of reference only.
17. SURVIVAL.
Except as expressly provided herein, notwithstanding the termination or
expiration of this Agreement or Executive's employment hereunder for any reason,
Sections 7(b), 7(c), 8, 11, 14, 15, and 17 hereof shall survive any such
expiration or termination.
18. ENTIRE AGREEMENT.
This instrument constitutes the entire agreement with respect to the subject
matter hereof between the parties hereto and replaces and supersedes as of the
date hereof any and all prior oral or written agreements and understandings
between the parties hereto. This Agreement may only be modified or amended by a
written agreement executed by the both the Executive and the Company, provided
execution by the Company.
19. AGREEMENT TO CONTROL.
In the event of any conflict or inconsistency between the terms of this
Agreement and the terms of any other agreement, plan, or arrangement to which
Executive is a party, or which apply to or benefit the Executive, the terms of
this Agreement shall control.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement the date first written above.
EXECUTIVE: COMPANY:
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
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Title: Vice President - Human Resources
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Exhibit A
Compensation Package
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Position: Executive Vice President - Finance and Chief
Financial Officer ("CFO") of American Axle &
Manufacturing Holdings, Inc.
Base Salary: $225,000.00(1)
Incentive Compensation (Bonus): Eligibility for annual bonus consistent with
American Axle & Manufacturing, Inc., Incentive
Compensation (Bonus) Plan, as the same is
adopted or amended from time to time (2)
Stock Option Plan: Inclusion in the American Axle & Manufacturing
Holdings, Inc. 1999 Stock Incentive Plan to
purchase 100,000 shares at market price on date
of grant to be earned out over 3 years -- 1/3
each year (currently under development) (3)
Vacation Eligibility: Four (4) weeks
Company Vehicle: In accordance with the corporate vehicle
program for American Axle & Manufacturing,
Inc., as the same may be amended from time to
time
Other: Relocation package
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(1) Eligible for annual merit increase consideration in accordance with
corporate policies and practice.
(2) Based on overall performance of American Axle & Manufacturing, Inc.
(3) Subject to approval of AAM Board of Directors.
