SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXECUTION
COPY
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT
by and between Federal-Mogul Corporation, a Delaware corporation (the
“Company”), and Xxxx Xxxxx Xxxxxxx (the “Executive”), dated as of the 23rd day
of March 2010 (this “Agreement”). This
Agreement as set forth herein constitutes an amendment and restatement of the
Employment Agreement, dated as of the 2nd day of February, 2005,, as amended and
restated as of December 31, 2008, between
the Company’s predecessor, a Michigan
corporation, and the Executive, and is
intended to provide for the extension of
the employment arrangement from March 24, 2010, through the close of business on
March 23, 2013, unless sooner terminated as provided herein (the “Extended
Term”).
WHEREAS,
the Company desires to continue to employ the Executive to serve as President
and Chief Executive Officer of the Company, and the Executive desires to
continue to be employed by the Company, upon the terms and subject to the
conditions set forth herein with such terms and conditions as are set forth
herein applicable to the Extended Term.
NOW,
THEREFORE, in consideration of the promises and the mutual agreements contained
herein, the Company and the Executive hereby agrees as follows:
1.
Employment
Commitment. The Company and the Executive hereby agree that during
the Extended Term:
the
Company and the Executive shall be bound by the terms of this Second Amended and
Restated Employment Agreement.
2.
This Section is intentionally omitted.
3.
Employment
Period. The Company hereby agrees to continue to employ the
Executive and the Executive hereby agrees to continue to provide his services to
the Company, upon the terms and subject to the conditions set forth in this
Agreement. The term of employment of the Executive by the Company pursuant
to this Agreement (the “Employment Period”) shall end at the close of business
on March 23, 2013, (a) unless Executive decides to retire on a date earlier than
March 23, 2013 (in which case, Executive shall be entitled to receive all
retirement benefits due under the KEY Plan as described in Section 4(c)(iv)
hereof, Schedule 4(c)(iv) hereto and the KEY Plan without any deduction or
reduction whatsoever except as expressly provided in Article II of the KEY Plan)
or is no longer employed by the Company on a date earlier than March 23,
2013, in which case it shall terminate on such earlier date or (b) unless
extended by written agreement of the Company and the Executive, in which case it
shall terminate pursuant to the terms of such other written
agreement.
4. Terms of
Employment.
(a)
Position and
Duties. During Extended Term, the Company shall employ Executive as
its President and Chief Executive Officer. The Executive shall report to
the Board of Directors of the Company (the “Board”). During the Extended
Term, the Executive agrees to continue to perform faithfully and loyally and to
the best of the Executive’s abilities the duties assigned to the Executive
hereunder and shall devote the Executive’s full business time, attention and
effort to the affairs of the Company and its subsidiaries and shall use the
Executive’s reasonable best efforts to promote the interests of the Company and
its subsidiaries; provided, however, the Executive may, with the prior approval
of the Board, serve on up to two external corporate boards of
directors.
(b)
Responsibilities.
The Executive shall have the responsibility for the management, operation and
overall conduct of the business of the Company, subject to the supervision and
direction of the Board. The Executive shall also perform such other duties (not
inconsistent with the positions described in Section 4(a) above) on behalf of
the Company and its subsidiaries as may from time to time be authorized or
directed by the Board.
(c)
Compensation.
(i) Base
Salary. During the Extended Term, the Company shall pay to the
Executive an annual base salary (“Annual Base Salary”) at the rate of $1,500,000
per annum, payable in accordance with the Company’s executive payroll
policy.
(ii)
Bonus. The
Executive’s target bonus (“Target Bonus”) shall be $1,500,000 per annum and such
bonus shall be payable solely in cash. The actual bonus shall be
determined by comparing the annual budget determined by the Board of Directors
in consultation with the Executive with the actual results of operations.
In the event that the actual results are less than 80% of budget in the
following category: [to be determined by the Board of Directors], then no
bonus is payable; in the event that actual results in such category equal or
exceed 80% but are not in excess of 100%, the bonus shall be equal to the
percentage attained multiplied by the Target Bonus. In the event the
results exceed 100%, then an accelerator will be applied up to a maximum of 200%
of the Target Bonus. The formula for determining the Executive’s bonus may
be amended by agreement of the Executive and the Compensation Committee of the
Board. The Executive’s bonus, if any, shall be paid between January 1st and
March 15th of the
year following the year in which such bonus was earned. The Executive
shall be eligible to participate in such bonus programs as may be determined by
the Board for all other senior level management but which take into account his
position as President and Chief Executive Officer. For the avoidance of
doubt, each of the Company and the Executive agree that in no event shall
Executive’s per annum bonus for each or any year during the Extended Term exceed
$1,500,000, including under a Management Incentive Plan, MIP Uplift Plan, or any
other Company bonus plans. Nothing in this subsection (b)(ii) is intended
to limit the value to Executive of bonuses (in whatever form, including
without limitation SARs or deferred cash) granted to him or earned by him in
respect of periods ending prior to January 1, 2010.
(iii)
Stock Options.
Executive and the Company each agree that as of the date hereof, Executive holds
options to purchase 4 million shares of Common Stock of the Company at a strike
price of $19.50 per share and that all of such options have vested as of March
23, 2010, are fully exercisable in accordance with the terms of the Option as of
such date, and the Option is subject to the terms of a Stock Option Agreement
dated February 15, 2008 which is being restated as of the date hereof (the
“Restated Option Agreement”). In addition, Executive is the beneficiary of
an Amended and Restated Deferred Compensation Agreement dated as of the 31st day of
December, 2008, which is being amended and restated as of the date hereof.
If, on any date prior to December 27, 2014, Executive is no longer employed by
the Company, the Option shall remain vested but the provisions of Section 4.2
(c) of the Restated Option Agreement shall govern the expiration date of the
Option.
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(iv)
Other Benefits.
During the Employment Period, the Executive shall be entitled to all other
employment benefits including, but not limited to, vacations, participation in
incentive, savings and retirement plans, welfare plans, reimbursement of all
reasonable expenses incurred by him, office and support staff, and other fringe
benefits, in accordance with the policies, practices and procedures of the
Company in effect for other peer executives
of the Company, in each case, taking into account the fact that Executive is the
President and Chief Executive Officer of the Company; provided, however, that
the Executive’s annual allowance shall be up to 6% of his Annual Base Salary,
net of taxes. Executive shall not receive in any calendar year an
aggregate dollar amount under the benefit plans and fringe benefits described in
this first paragraph of Section 4(c)(iv) greater than 125% of the aggregate 2009
dollar amount of such benefit plans and fringe benefits, as disclosed in the
Company’s proxy statement and computed on a basis consistent with the 2008
amount.
Prior to
the commencement of the Extended Term, Executive has received four years of
service credit (to a maximum of 20 years of service credit) toward his
retirement benefits under the Company’s key executive non-qualified defined
benefit plan (the “KEY
Plan”) for each year he has been employed by the Company prior to the
Extended Term.
For the
avoidance of doubt, the Company and the Executive acknowledge and agree that (A)
the Executive has fully qualified for 20 years of service credit as of Xxxxx 00,
0000, (X) the Executive’s interest in his “Accrued Benefit” (as such term
is defined in the KEY Plan) will therefore become 100% vested as a result of the
Executive having completed 20 “Years of Service” (as such term is defined in the
KEY Plan) as of March 23, 2010, and (C) the Executive may thereafter retire from
the Company and receive benefits under the KEY Plan at any time during the
Extended Term or upon expiration of the Extended Term.
The
benefit formula of the KEY Plan is intended to provide the Executive with a
total pension benefit (inclusive of benefits under other Company plans and from
predecessor employers) at age 62, assuming 20 years of credited service, equal
to 50% of his average annual compensation (i.e. base salary and bonus) during
the three consecutive years in which he has earned the highest compensation in
his last five years of service with the Company, or his total period of
employment with the Company, if shorter. Notwithstanding the foregoing
sentence or any other term contained in the KEY Plan, the Company acknowledges
and agrees that the Executive shall be entitled upon retirement at any time
during the Extended Term or upon expiration of the Extended Term under the Key
Plan to receive retirement benefits under the KEY Plan equal to the retirement
benefits to which he would have been entitled pursuant to and/or as described in
the Amended and Restated Employment Agreement dated December 31, 2008 and the
KEY Plan except that for purposes of determining “Final Average Compensation”
(as such term is defined in the KEY Plan) the period for determining the three
consecutive years in which the Executive earned the highest compensation shall
commence on the Effective Date (as such term was defined in the Amended and
Restated Employment Agreement dated December 31, 2008) of his employment with
the Company and shall terminate on March 23, 2010.
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The
Company and the Executive acknowledge and agree that Schedule 4(c)(iv) attached
to this Second Amended and Restated Employment Agreement fully and accurately
sets forth the retirement benefits the Executive will receive under the Key Plan
if he retires prior to or upon attaining the age of 62. The Company and the
Executive further acknowledge and agree that Schedule 4(c)(iv) does not set
forth the amounts of the deductions from the KEY Plan retirement benefits to be
calculated pursuant to and in accordance with Section 2.1.2 of the KEY Plan that
result from other retirement benefits to which the Executive is entitled from
other Company defined benefit plans and from Predecessor Employer Plans (as such
term is defined in the KEY Plan). For the avoidance of doubt, subject to the
provisions of the next paragraph, the Company acknowledges and agrees that it
shall pay to the Executive the amount of the retirement benefits set forth in
Schedule 4(c)(iv) hereto upon his retirement at the times provided in the KEY
Plan. For the avoidance of doubt, references in the KEY Plan to (A) the
“Employment Agreement” are references to the Employment Agreement dated as of
the 2nd day of
February 2005 between the Executive and the Company and are not, and shall not
be deemed or otherwise construed as, references to this Second Amended and
Restated Employment Agreement, and (B) “the five (5) year term of the Employment
Agreement” are references to the five year period ending at the close of
business on March 23, 2010 and are not, and shall not be deemed or otherwise
construed as, references to the Extended Term.
Notwithstanding
the immediately preceding paragraph, in all events, retirement benefits which
the Executive receives from other Company defined benefit retirement plans and
Predecessor Employer Plans (as such term is defined in the KEY Plan) will as set
forth in Section 2.1.2 of the KEY Plan be deducted from the retirement benefits
which he receives under the KEY Plan. The Executive represents and
warrants that he is not now and will not become entitled to receive any
retirement benefits under the qualified and non-qualified defined benefit
pension plans or retirement agreements of any of his predecessor employers,
including those identified on Schedule A to the Key Plan, a copy of which is
attached hereto, and that he will provide to the Company at its request the
means, reasonably satisfactory to the Company, of verifying such representation
and warranty with respect to such predecessor employers.
(d)
Location, Residence and
Travel. The Executive shall perform the services required under
this Agreement in the Detroit, Michigan metropolitan area, subject to travel
requirements consistent with his position, unless otherwise approved by the
Board. and shall maintain such residency throughout the Extended
Term.
5.
Termination of
Employment.
(a)
Death or
Disability. The Executive’s employment shall terminate
automatically upon the Executive's death during the Extended Term. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Extended Term (pursuant to the definition of Disability set
forth below), it may give to the Executive written notice in accordance with
Section 12(b) of this Agreement of termination of the Executive’s employment, in
which event, the Executive’s employment with the Company shall terminate
effective on the 10th day
after receipt of such notice by the Executive (the “Disability Effective
Date”). For purposes of this Agreement; “Disability” shall mean the
absence of the Executive from the Executive’s duties with the Company on a
full-time basis for 90 consecutive days as a result of incapacity due to mental
or physical illness, or such longer period of time that is determined to be
permissible by the Board.
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(b)
Cause. The
Company may terminate the Executive’s employment during the Extended Term for
Cause. For purposes of this Agreement, “Cause” shall mean:
(i)
Executive’s conviction of, plea of guilty to, or plea
of nolo contendere to
any felony,
(ii)
Executive’s conviction of, plea of guilty to, or plea
of nolo contendere to
any misdemeanor or other crime involving fraud, dishonesty or moral
turpitude,
(iii)
Executive’s intentional violation of the Company's
integrity policy,
(iv)
Executive’s breach of this Agreement, or
(v)
Executive’s intentional neglect of a request by a
majority of the Board, which results in material corporate damage.
If
Executive agrees to resign from his employment with the Company in lieu of being
terminated for Cause, he may be deemed to have been terminated for Cause for
purposes of this Agreement.
Prior to
any such termination under clauses 4 or 5 above, the Board of Directors must
make a written demand on Executive (“Cause Notice”) stating that the Board
believes that Executive’s performance fails to meet the requirements of this
Agreement and specifics thereof. The Executive shall have 10 days after the
Cause Notice is given to cure such failure. If the Executive so effects a
cure, the Cause Notice shall be deemed rescinded and of no force or
effect.
(c)
No
Cause. Subject to the obligations of the Company set forth in
Section 6(a), the Company may in its sole and absolute discretion, at any time,
without Cause, terminate the employment of the Executive by sending notice
thereof to the Executive.
(d)
Good Reason.
The Executive may terminate his employment for Good Reason if (1) the Executive
has given the Company a Notice of Termination for Good Reason (as defined below)
in accordance with Section 12(b) of this Agreement within 90 days of the initial
existence of the condition, event or circumstance that constitutes Good Reason
and (2) the Company has not cured such failures within 30 days of receipt of the
Notice of Termination for Good Reason. For purposes of this
Agreement, a “Notice
of Termination for Good Reason” means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, and
(ii) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated. The failure by the Executive
to set forth in the Notice of Termination for Good Reason any fact or
circumstance which contributes to a showing of Good Reason or any other fact or
circumstance shall not waive any right of the Executive hereunder or preclude
the Executive from asserting such fact or circumstance in enforcing the
Executive’s rights hereunder. For purposes of this Agreement, “Good Reason” shall
mean:
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(i)
any failure by the Company (x) to comply with any of
the provisions of Section 4(c) of this Agreement or (y) the failure of the
reorganized Company to grant the Options described in Section 4(c)(iii) of this
Agreement, unless the Company provides the Executive with equivalent benefits;
or,
(ii)
a material alteration or change to Executive’s duties
that results in a diminution of the Executive’s position as President and Chief
Executive Officer.
(e)
Notice of
Termination. Any termination by the Company with or without Cause
shall be communicated by Notice of Termination to the Executive given in
accordance with Section l2(b) of this Agreement. For purposes of this Agreement,
a “Notice of Termination” means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the date of termination is other than the
date of receipt of such notice, specifies the termination date. The
failure by the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause or any other fact or
circumstance shall not waive any right of the Company hereunder or preclude the
Company from asserting such fact or circumstance in enforcing the Company’s
rights hereunder or in defending any claim by any person.
(f)
The cessation of employment of the Executive shall not be
deemed to be for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the entire membership of the Board (excluding the
Executive if the Executive is a member of the Board) at a meeting of the Board
called and held for such purpose, finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in Section 5(b)
above.
6.
Obligations of the Company
on Termination.
(a)
Termination by Executive for
Good Reason or by the Company Without Cause. If, during the
Extended Term, the Executive incurs a “Separation from Service” within the
meaning of Section 409A of the Code (a “Separation from Service”) by reason of
(i) the Company‘s termination of the Executive’s employment without Cause or
(ii) the Executive’s resignation from employment for Good Reason, as
compensation for services rendered to the Company and in consideration of the
covenants set forth in Sections 7 and 9 hereof, the Company shall pay to the
Executive the aggregate of the following amounts:
(i)
in a lump sum in cash (1) during the seventh month
following the date of Separation from Service (the date of Separation from
Service is referred to herein as the “Date of Termination”), the sum of the
Executive’s Annual Base Salary through the Date of Termination to the
extent not theretofore paid, and any accrued and banked vacation pay, and (2)
during the seventh month following the Date of Termination, any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) or, if payment would commence later, as otherwise provided
under the applicable plan, program, policy, practice, contract or agreement (the
sum or the amounts described in clauses (1), and (2) shall be hereinafter
referred to as the “Accrued
Obligations”);
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(ii)
in a lump sum in cash during the seventh month
following the Date of Termination, an amount equal to twice the sum of the
Annual Base Salary and the Target Bonus; and
(iii)
in a lump sum in cash during the seventh month following
the Date of Termination, or as otherwise provided under the applicable plan,
program, policy or practice or contract or agreement, the Company shall timely
pay or provide to the Executive any other amounts or benefits, including
retirement benefits, required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the “Other
Benefits”).
Notwithstanding
the foregoing, in the event of the Executive’s death prior to the payment
of any amounts pursuant to this Section 6(a), the Executive’s
beneficiaries shall receive such amounts in a lump sum in cash as soon as
practicable after the Executive’s death but no later than 90 days
thereafter.
(b)
Death or
Disability. If the Executive incurs a Separation from Service by
reason of the Executive’s death or Disability during the Extended Term, the
Executive, Executive’s estate and/or beneficiaries, whichever is applicable,
shall be entitled to receive, (x) all the benefits due under the KEY Plan set
forth in Section 4(c)(iv) above, and (y) all other benefits at least equal to
the most favorable benefits provided by the Company and affiliated companies to
the estates and beneficiaries of peer executives of the Company and such
affiliated companies under such plans, programs, practices and policies relating
to death or disability (whichever is applicable) benefits, if any, as in effect
with respect to other peer executives and their beneficiaries at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, Executive’s estate and/or the Executive's
beneficiaries, as in effect on the date of the Executive’s death or Disability
with respect to other peer executives of the Company and its affiliated
companies and their beneficiaries. The benefits to be paid pursuant to
clause (x) of the preceding sentence shall be paid in accordance with the terms
of the KEY Plan and the benefits to be paid pursuant to clause (y) of the
preceding sentence shall be paid within 90 days after the Date of Termination in
the case of a Separation from Service by reason of the Executive’s death and
during the seventh month following the Date of Termination in the case of a
Separation from Service by reason of the Executive’s Disability; provided,
however, in the event of the Executive’s death prior to the payment of any
amounts following the Executive’s Separation from Service by reason of the
Executive’s Disability, the Executive’s beneficiaries shall receive such amounts
in a lump sum in cash as soon as practicable after the Executive’s death but no
later than 90 days thereafter.
(c)
Cause; Other than for Good
Reason. If the Executive incurs a Separation from Service by reason
of (i) the Company’s termination of Executive’s employment for Cause during the
Extended Term or (ii) the Executive’s resignation during the Extended Term other
than for Good Reason, this Agreement shall terminate without further obligations
to the Executive other than the obligation to pay to the Executive (i) the
Accrued Obligations in accordance with the payment provisions of Section 6(a)(i)
above and (ii) the Other Benefits in accordance with the payment provisions of
Section 6(a)(iii) above.
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(d)
Exclusivity.
Payments made and benefits provided to the Executive pursuant to this Section 6
shall be in lieu of any amount of severance payment or any other payment or
obligation that would otherwise be paid and any severance benefits or other
benefits or amounts that would otherwise be provided to the Executive upon
termination of employment under any other employment or severance agreement,
plan, policy or arrangement of the Company or its affiliates or otherwise.
The Company’s obligations of payment pursuant to Section 6(a) through 6(c) above
are conditioned upon the receipt by the Company of, and the Company shall have
no obligation to make such payments until it has received, a full and complete
release of the Company, its affiliates and their respective members, officers,
directors, managers and equity holders from all matters, facts and things from
the beginning of time until the date of such release, all in a form satisfactory
to the Company, other than those rights of the Executive expressly set forth to
survive such termination or set forth in Section 6 and his rights in respect of
the Options as expressly set forth herein (the “Employee
Release”). The Executive shall be required to execute the Employee
Release and return to the Company within thirty (30) days following the Date of
Termination or forfeit the Executive’s right to benefits under Section
6.
(e)
Notwithstanding Section 6(d) above, the Executive shall be
entitled to receive any amounts due, if applicable, under the Change in Control
Employment Agreement being executed simultaneously herewith by the Executive and
the Company; provided, however, any payments and benefits provided to the
Executive under this Agreement shall be offset, applied to and credited against
any payments and benefits due under such Change in Control Employment
Agreement.
(f)
In the event that the Extended Term shall expire in
accordance with the terms hereof and Executive incurs a Separation from Service
or in the event that the Executive retires and incurs a Separation from Service
at any time during the Extended Term or upon expiration of the Extended Term,
the Executive shall be entitled to payment of Accrued Obligations in accordance
with the payment provisions of Section 6(a)(i) above and any applicable Other
Benefits in accordance with the payment provisions of Section
6(a)(iii)above.
(g)
For the avoidance of doubt, since the Executive has fully
qualified for 20 years of service credit as of March 23, 2010 under the KEY
Plan, upon the occurrence thereafter of any event described in Section 6(a),
6(c) or 6(f), the Company acknowledges and agrees that the Executive shall be
entitled to receive all retirement benefits due under the KEY Plan as described
in Section 4(c)(iv) above, Schedule 4(c)(iv) hereto and the KEY Plan without any
deduction or reduction whatsoever except as expressly provided in Article II of
the KEY Plan.
7.
Non-Competition;
Non-Solicitation.
(a)
The Executive acknowledges that in the course of his employment with the Company
he has and will continue to become familiar with trade secrets and customer
lists of, and other confidential information concerning, the Company and its
subsidiaries, affiliates and clients and that his services have been and will be
of special, unique and extraordinary value to the Company.
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(b)
The Executive agrees that, for so long as he is employed by
the Company and for a period of two years after the Date of Termination of his
employment with the Company (the “Noncompetition
Period”) he shall not, without the express consent of the Board, in any
manner, directly or indirectly, through any person, firm, corporation or
enterprise, alone or as a member of a partnership or as an officer, director,
stockholder, investor or the employee of or advisor or consultant to any person,
firm, corporation or enterprise or otherwise, engage or be engaged, or assist
any other person, firm, corporation or enterprise in engaging or being engaged,
in any business in direct competition with the Company or any of its
subsidiaries or affiliates as of the Date of Termination in any geographic area
in which the Company or any of its subsidiaries or affiliates is then conducting
such business.
(c)
Nothing in this Section 7 shall prohibit the Executive from
being (i) a stockholder in a mutual fund or a diversified investment company, or
(ii) a passive owner of not more than two percent of the outstanding
publicly-traded common stock of any corporation so long as the Executive has no
active participation in the business of such corporation.
(d)
If, at any time of enforcement of this Section 7, a court or
an arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(e)
The Executive acknowledges that the Company would be damaged
irreparably in the event that any provision of this Section 7 or Section 9
hereof were not performed in accordance with its terms or were otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, the Executive agrees that the
Company and its successors and permitted assigns shall be entitled, in addition
to other rights and remedies existing in their favor, to an injunction or
injunctions to prevent any breach or threatened breach of any of such provisions
and to enforce such provisions specifically (without posting a bond or other
security). The Executive agrees that the Executive will submit to the
personal jurisdiction of the courts of the State of Michigan in any action by
the Company to obtain injunctive or other relief contemplated by this Section
7.
8.
No Mitigation.
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and such amounts shall not be
reduced whether or not the Executive obtains other employment.
9.
Confidential
Information.
(a)
The Executive shall hold in confidence, for use only for the
benefit of the Company, all secret or confidential information, knowledge or
data relating to the Company or any of its subsidiaries, its officers,
directors, agents and stockholders, and their respective businesses, which shall
have been obtained by the Executive during the Executive’s employment by the
Company or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). During the Extended Term and
after termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it.
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(b)
All processes, technologies, investments, contemplated
investments, business opportunities, valuation models and methodologies, and
inventions (collectively, “Inventions”), including without limitation new
contributions, improvements, ideas, business plans, discoveries, trademarks and
trade names, conceived, developed, invented, made or found by Executive, alone
or with others, during the period that Executive has been and will be employed
by the Company, whether or not patentable and whether or not on the
Company’s time or with the use of the Company’s facilities or materials, shall
be the property of the Company and shall be promptly and fully disclosed by
Executive to the Company. Executive shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory
assignments, documents, or instruments requested by the Company) to vest title
to any such Invention in the Company and to enable the Company, at its expense,
to secure and maintain domestic and/or foreign patents or any other rights for
such Inventions.
10.
Representations and
Warranties.
(a)
The Executive represents and warrants to the Company that: (x) the execution,
delivery and performance of this Agreement by the Executive, (y) the activities
and duties conducted by the Executive in connection with his employment
hereunder, and (z) any other action or activity of the Executive whether
hereunder, on behalf of Employer or its affiliates or otherwise, in the case of
(x), (y) and (z), whether occurring prior to, on or after the date of this
Agreement, have not and will not result in or constitute a breach of or conflict
with, any term, covenant or provision of any commitment, contract or other
agreement or instrument, including, without limitation, any other employment
agreement, to which the Executive is or has been a party, or result in or
constitute a breach or violation of any fiduciary or other duty or obligation
applicable to the Executive including, without limitation any duties owed by the
Executive to the his present or former employers and/or its stockholders or
affiliated entities, or result in any liability, duty or obligation of the
Company or its affiliates with respect to, arising out of, relating to or based
on any of the matters referred to above.
(b)
The Company represents and warrants to the Executive that: (x) the execution,
delivery and performance of this Agreement by the Company, (y) the activities
and duties conducted by the Company in connection with this Agreement, and (z)
any other action or activity of the Company whether hereunder, on behalf of
Executive or otherwise, in the case of (x), (y) and (z), whether occurring prior
to, on or after the date of this Agreement, have not and will not result in or
constitute a breach of or conflict with, any term, covenant or provision of any
commitment, contract or other agreement or instrument, including, without
limitation, any other employment agreement, to which the Company is or has been
a party, or result in or constitute a breach or violation of any fiduciary or
other duty or obligation applicable to the Company including, without
limitation, any duties owed by the Company to its stockholders or affiliated
entities, or result in any liability, duty or obligation of the Executive with
respect to, arising out of, relating to or based on any of the matters referred
to above.
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11.
Successors.
(a)
This Agreement is personal to the Executive and without the prior written
consent of the Company shall not be assignable by the Executive otherwise than
by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive’s legal
representatives.
(b)
This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
12.
Miscellaneous.
(a)
This Agreement constitutes the whole agreement between the parties and any oral
or other agreement not incorporated herein is void and of no force and
effect. The Executive has had an opportunity to have counsel of his choice
review this Agreement and has read this Agreement and understands its
terms. The Executive has not relied upon the advice of the Company or
counsel to the Company as to laws that may apply to this Agreement or the
financial implications to the Executive. This Agreement shall be governed
by and construed in accordance with the laws of the State of Michigan, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b)
All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by nationally
recognized overnight courier, addressed as follows:
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If
to the Executive:
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||
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Xxxx
Xxxxx Xxxxxxx
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0000
Xxxxx Xxxxx Xxxxx
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Xxxxxxxxxx
Xxxxx, XX 00000
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If
to the Company:
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Attention:
General Counsel
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Federal-Mogul
Corporation
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00000
Xxxxxxxxxxxx Xxxxxxx
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||
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Xxxxxxxxxx,
XX 00000
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or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective when
actually received by the addressee.
(c)
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d)
The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
11
(e)
The Executive’s or the Company’s failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder shall not be deemed to
be a waiver of such provision or right or any other provision or right of this
Agreement. Any such waiver shall be effective only in writing signed by the
party to be bound.
13.
Section 409A of the Code.
(a)
This Agreement and all other agreements referred to herein
or contemplated hereby in connection with the Executive’s employment are
intended to meet the requirements of Section 409A of the Code, and shall be
interpreted and construed consistent with that intent.
(b)
Notwithstanding any other provision of this Agreement or any
other agreements referred to herein or contemplated hereby in connection with
the Executive’s employment, to the extent that the right to any payment
(including the provision of benefits) hereunder provides for the "deferral of
compensation" within the meaning of Section 409A(d)(1) of the Code, the payment
shall be paid (or provided) in accordance with the following:
(i)
If the Executive is a "Specified Employee"
within the meaning of Section 409A(a)(2)(B)(i) of the Code on the Date of
Termination, then no such payment shall be made or commence during the period
beginning on the Date of Termination and ending on the date that is six months
following the Date of Termination or, if earlier, on the date of the Executive's
death, if the earlier making of such payment would result in tax penalties being
imposed on the Executive under Section 409A of the Code. The amount of any
payment that would otherwise be paid to the Executive during this period shall
instead be paid to the Executive on the first business day following the date
that is six months following the Date of Termination or, if earlier, the date of
the Executive's death.
(ii)
Payments with respect to reimbursements or payments
of expenses shall be made promptly, but in any event on or before the last day
of the calendar year following the calendar year in which the relevant expense
is incurred. The amount of expenses eligible for reimbursement or payment,
or in-kind benefits provided, during a calendar year may not affect the expenses
eligible for reimbursement, or in-kind benefits provided, in any other calendar
year, except for any limit on the amount of expenses that may be reimbursed
under an arrangement described in Section 105(b) of the Code, and the
Executive’s right to reimbursement or in-kind benefits may not be liquidated or
exchanged for any other benefit. If the Executive is a 'Specified
Employee' under Code Section 409A, the full cost of any continuation or
provision of employee benefit plans or programs following the Date of
Termination (other than any cost of medical or dental benefit plans or programs
or the cost of any other plan or program that is exempt from Code Section 409A)
shall be paid by the Executive until the earlier to occur of the Executive's
death or the date that is six months and one day following the Executive's Date
of Termination, and such cost shall be reimbursed by the Company to, or on
behalf of, the Executive in a lump sum cash payment on the earlier to occur of
the Executive's death or the date that is six months and one day following the
Executive's Date of Termination. In addition, if the Executive is a 'Specified
Employee' under Code Section 409A on the Executive's Date of Termination, any
payment or reimbursement of Executive's expenses, or in-kind benefits provided,
that constitutes a 'deferral of compensation' within the meaning of Section
409A(d)(1) of the Code, shall not be paid or provided, as applicable, until the
earlier to occur of the Executive's death or the date that is six months and one
day following the Executive's Date of Termination.
12
(c) The
time or schedule of any payment or amount scheduled to be paid pursuant to the
terms of this Agreement or any other agreements referred to herein or
contemplated hereby in connection with the Executive's
employment, including but not limited to any restricted stock unit or
other equity-based award, payment or amount that provides for the 'deferral of
compensation' within the meaning of Section 409A(d)(1) of the Code, may not be
accelerated except as otherwise permitted under Code Section 409A and the
guidance and Treasury regulations issued thereunder.
13
IN
WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
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FEDERAL-MOGUL
CORPORATION
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxx
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Title: Chairman,
Compensation Committee
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EXECUTIVE
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/s/
Xxxx
Xxxxx Xxxxxxx
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14
