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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter the "Agreement") is entered into
as of the 30th day of September, 2000 ("Effective Date"), by and between
American Axle & Manufacturing Holdings, Inc. ("Company") and Xxxx Xxxxxxx
(hereinafter the "Executive").
BACKGROUND
WHEREAS, the Company desires to continue 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 initially as the Company's
Vice President Manufacturing Services, reporting to the Company's Vice President
Manufacturing & Procurement Services.
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 prescribed 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 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 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.
6. TERM.
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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 "works made for hire" as defined and used in the Copyright Act of
1976, 17 U.S.C. ss. 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 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 Vice President Manufacturing Services
or, if such requirement or request is learned by Executive following the
Employment Term, Executive shall provide the Company with
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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, 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.
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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);
(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) 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;
(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
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(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 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.
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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: Xxxx Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
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 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.
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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.
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/ Xxxx Xxxxxxx
------------------------ By: /s/ Xxxxx X. Xxxxxx
Xxxx Xxxxxxx ------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Vice-President Human Resources
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EXHIBIT A
Compensation Package for Xxxx Xxxxxxx
Position: Vice President Manufacturing Services of
American Axle & Manufacturing Holdings, Inc.
Base Monthly Salary: $16,667.00(1)
Incentive Compensation (Bonus): Eligibility for annual bonus up to 100% of
base salary bonus program 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, Inc. 1999 Stock Incentive Plan
to purchase 100,000 shares at market price on
date of grant to be earned out over three
years - 1/3 each year.
Company Vehicle: In accordance with the corporate vehicle
program for American Axle & Manufacturing,
Inc., as the same may be amended from time to
time
Vacation Eligibility: Four (4) weeks effective 2001
Other: Relocation package
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(1) Eligible for annual merit increase in accordance with corporate policies
and practice
(2) Based on overall performance of American Axle & Manufacturing, Inc.
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