METALDYNE PERFORMANCE GROUP INC. EMPLOYMENT AGREEMENT
EXHIBIT 10.5
METALDYNE PERFORMANCE GROUP INC.
THIS AGREEMENT is entered into as of August 4, 2014 (the “Effective Date”) between Metaldyne Performance Group Inc., a Delaware corporation (the “Company”), and Xxxxxx X. Xxxxx (“Executive”).
WHEREAS, Executive is currently employed by Metaldyne LLC pursuant to an Employment Agreement by and between Executive and Metaldyne LLC (as assignee of MD Investors Corporation), dated as of November 1, 2012, as amended by that certain Amendment to Employment Agreement, dated as of August 22, 2013 (collectively, the “Prior Agreement”);
Section 2. Position and Duties.
For purposes of this Agreement, “Subsidiaries” or “Subsidiary” shall mean any corporation or other entity of which the securities or other ownership interests having the voting power to elect a majority of the board of directors or other governing body are, at the time of determination, owned by the Company, directly or through one of more Subsidiaries.
Section 3. Compensation and Benefits.
calendar year in accordance with the Company’s policies, which, to the extent accrued but unused as of the end of any calendar year, may be carried over and used during the first six months of the following calendar year. During the Employment Period, Executive shall be entitled to continue receiving the Executive Flex Spending Allowance.
(i) | an amount equal to the Executive’s monthly Base Salary rate (but not as an employee), paid monthly for a period of eighteen (18) months following such termination in accordance with the Company’s general payroll practices in effect from time to time, |
(ii) | subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents), which, for a period of eighteen (18) months following Executive’s termination of employment (the “Severance Period”), will be subsidized by the Company (such that the Executive’s cost of such COBRA coverage will be the same as the Executive would have paid had the Executive remained an employee and an active participant in the group health plan); provided, that the Executive is eligible and remains eligible for COBRA coverage; and provided, further, that in the event that the provision of such payment would result in adverse tax consequences to the Executive under Section 105(h) of the Code or otherwise, the amount of such payment shall be imputed to the Executive as taxable wages and reported on Form W-2. Notwithstanding the foregoing, in the event the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company under this Section 5(a)(ii) shall immediately cease. The Executive shall notify the Company upon becoming employed by a subsequent employer during the Severance Period, and |
(iii) | a pro rata portion of the Annual Bonus Executive otherwise would have received in respect of the fiscal year in which Executive’s employment terminated had the Executive remained continuously employed through the applicable payment date, based on actual performance and calculated by the Board in good faith, payable at the time the Annual Bonus would have otherwise been paid pursuant to Section 3(d) (a “Pro Rata Bonus”). |
Executive shall be entitled to the foregoing severance payments if and only if Executive has executed and delivered to the Company the general release substantially in form and substance as set forth in Exhibit A (the “General Release”) and such release has become effective and is no longer subject to revocation within sixty (60) days following the Executive’s termination of employment, and only so long as Executive has not breached the provisions of the General Release or breached the provisions of Section 7, Section 8, or Section 9 and only if Executive does not apply for unemployment compensation chargeable to the Company or any Subsidiary during the Severance Period. The Executive shall not be entitled to any other salary, compensation or benefits after termination of the Employment Period, except as otherwise specifically provided for under the Company’s employee benefit plans or as expressly required by
applicable law. Notwithstanding any other provision of this Agreement, if following the termination of the Employment Period Executive is entitled to payments or other benefits under this Section 5 but the Company later determines Executive committed an act that constituted Cause (whether prior to or after such termination, which, for the avoidance of doubt, includes, without limitation, a breach of any the provisions of Section 7, Section 8, or Section 9 that occurs during the period during which any payments or other benefits under this Section 5 are being provided), then (i) Executive shall not be entitled to any payments or other benefits pursuant to this Section 5, (ii) any and all payments to be made by the Company or any Subsidiary and any and all benefits to be provided to Executive pursuant to this Section 5 shall cease and (iii) any such payments previously made to Executive shall be returned immediately to the Company by Executive.
have accrued or become payable after the termination of the Employment Period shall cease upon such termination or expiration, other than those expressly required under applicable law (such as COBRA). Nothing contained herein is intended to limit or otherwise restrict the availability of any COBRA benefits to Executive required to be provided pursuant to Section 601 of Title I of the Employee Retirement Income Security Act of 1974 and Section 4980B of the Internal Revenue Code of 1986, as amended and the regulations and guidance promulgated thereunder (the “Code”). Except as otherwise provided in Section 13 the Company may offset any amounts Executive owes it or its Subsidiaries against any amounts it or its Subsidiaries owes Executive hereunder.
(f) “Cause” shall mean that Executive has (i) continually failed to perform in a material manner, was materially negligent or committed willful misconduct in the performance of, Executive’s duties to the Company or its Subsidiaries for a period of thirty (30) days after written notice was delivered to Executive by or on behalf of the Board specifying the manner in which Executive failed to perform (and which such failure or other performance default remains uncured after such time); (ii) materially breached any material provisions in any written agreement between Executive and the Company or one of its Subsidiaries for a period of thirty (30) days after written notice was delivered to Executive by or on behalf of the Board specifying the manner in which Executive breached (and which breach remains uncured after such time), (iii) developed or pursued interests materially adverse to the Company or any of its subsidiaries or willfully failed to observe any material written policies of the Company or any of its Subsidiaries applicable to Executive for a period of thirty (30) days after written notice was delivered to Executive by or on behalf of the Board specifying the manner in which Executive failed to observe (and which failure remains uncured after such time); (iv) materially breached any non-competition, non-solicitation, or confidentiality agreement or covenant with the Company or any applicable Subsidiary, (v) engaged in theft, embezzlement, fraud, or misappropriation of any of the Company’s or any of its Subsidiaries’ property; or (vi) been convicted of or entered a guilty or no contest plea with respect to a felony (other than a vehicular felony or through vicarious liability not related to the Company or any of its affiliates) or a misdemeanor involving moral turpitude or fraud.
(g) “Disability” shall mean Executive’s inability to perform the essential duties, responsibilities and functions of Executive’s position with the Company and its Subsidiaries for a total of one hundred eighty (180) days during any twelve (12) month period as a result of any mental or physical illness, disability or incapacity even with reasonable accommodations for such illness, disability or incapacity provided by the Company and its Subsidiaries or if providing such accommodations would be unreasonable and which condition is expected to last for a continuous period of not less than twelve (12) months, all as determined by the Board in its reasonable good faith judgment. Executive shall cooperate in all respects with the Company if a question arises as to whether Executive has become disabled (including, without limitation, submitting to reasonable examinations by one or more medical doctors and other health care specialists selected by the Company and authorizing such medical doctors and other health care specialists to discuss Executive’s condition with the Company). Nothing herein shall be construed as a waiver or limitation with respect to the rights afforded to Executive under applicable law, including, without limitation of the foregoing, the Americans With Disabilities Act and the Family Medical Leave Act.
(h) “Good Reason” shall mean if Executive resigns from employment with the Company and its Subsidiaries prior to the end of the Employment Period as a result of one (1) or more of the following reasons: (i) the Company reduces the amount of the Executive’s Base Salary, (ii) the Company changes Executive’s titles or reduces Executive’s responsibilities materially inconsistent with the positions Executive then holds, (iii) the Company changes Executive’s place of work to a location more than thirty five (35) miles from Executive’s present place of work, other than any relocation to the current business headquarters of any of the Metaldyne, HHI, or Grede businesses, or to any location within five (5) miles of any such headquarters, or (iv) a successor to substantially all of the business and/or assets of the Company does not (A) expressly assume and agree to perform this Agreement, and (B) provide Executive with the same or comparable position, duties, Base Salary, target Annual Bonus (based on the target percentage stated in Section 3(d)) and benefits under Sections 3(b) and 3(c) as provided in this Agreement; provided, in each case, that in order for Executive’s resignation with Good Reason to be effective pursuant to any event that Executive believes constitutes Good Reason (x) written notice of Executive’s resignation for Good Reason must be delivered to the Company within thirty (30) days after the occurrence of any such event, (y) the Company shall be given thirty (30) days from the receipt of such notice to cure any such event, and (z) Executive must actually terminate Executive’s employment citing Good Reason within sixty (60) days following the expiration of such cure period if the Company does not cure such Good Reason default.
Section 7. Confidential Information.
any other person to whom Executive has an obligation of confidentiality, and shall not bring onto the premises of any member of the Company Group any unpublished documents or any property belonging to any former employer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing by the former employer or other person. Executive shall use in the performance of Executive’s duties under this Agreement only information that is (i) generally known and used by persons with training and experience comparable to Executive’s and common knowledge in the industry or is otherwise legally in the public domain, (ii) otherwise provided or developed by any member of the Company Group or (iii) in the case of materials, property or information belonging to any former employer or other person to whom Executive has an obligation of confidentiality, approved for such use in writing by such former employer or person.
Section 9. Non-Compete, Non-Solicitation.
(a) Non-competition. As additional consideration for the compensation to be paid to Executive under this Agreement, Executive acknowledges that during the course of Executive’s employment with the Company and its Subsidiaries Executive shall have access to and shall become familiar with, and prior hereto during Executive’s employment with Metaldyne LLC Executive has become familiar with, the Company’s and its Subsidiaries’ trade secrets and with other Confidential Information concerning the Company Group and that Executive’s services shall be of special, unique and extraordinary value to the Company and its Subsidiaries, and therefore, Executive agrees that, during the Employment Period and for eighteen (18) months thereafter (the “Noncompete Period”), Executive shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed by, or in any manner engage in, any person, business or entity competing with any member of the Company Group as such businesses exist or are in process during the Employment Period or on the date of the termination or expiration of the Employment Period, within any geographical area in which any member of the Company Group engage or plan to engage in such businesses (a “Competitive
Business”). Nothing herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation, and Executive may, without violating this Section 9(a), serve as an employee, consultant or independent contractor to any person or business engaging in a Competitive Business through any division or subsidiary provided such Competitive Business generates less than 20% of the annual revenue of such person or business and provided that Executive does not participate in, work for or provide any services to such person or business in connection with such Competitive Business.
valuable consideration as set forth in this Agreement. Executive also acknowledges that (i) the restrictions contained in Section 7, Section 8, or Section 9 do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive’s ability to earn a living, (ii) the business of the Company and its Subsidiaries will be international in scope and without geographical limitation and (iii) notwithstanding the jurisdiction of formation or principal office of the Company or residence of any of its executives or employees (including Executive), it is expected that the Company and its Subsidiaries will have business activities and have valuable business relationships within its industry throughout the world. Executive agrees and acknowledges that the potential harm to the Company and its Subsidiaries resulting from the non-enforcement of Section 7, Section 8, or Section 9 outweighs any potential harm to Executive of the enforcement of such provisions by injunction or otherwise. Executive acknowledges that Executive has carefully read this Agreement and has given careful consideration to the restraints imposed upon Executive by this Agreement and is in full agreement regarding their necessity for the reasonable and proper protection of the business goodwill, competitive positions and confidential and proprietary information of the Company and its Subsidiaries now existing or to be developed in the future and that each and every restraint imposed by this Agreement is reasonable with respect to subject matter, time period and geographical area.
Section 12. Executive’s Representations. Executive hereby represents and warrants to the Company that (i) the execution, delivery and performance of this Agreement by Executive do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which Executive is bound (including, without limitation, any prior or current employment, settlement, termination, severance or similar agreement), (ii) Executive is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other person, business or entity or any agreement or contract requiring Executive to assign inventions to another party, and (iii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges and represents that (x) Executive has consulted with independent legal counsel regarding Executive’s rights and obligations under this Agreement and that Executive fully understands the terms and conditions contained herein, and (y) Executive is not subject to any pending, or to Executive’s knowledge any threatened, lawsuit, action, investigation or proceeding involving Executive’s prior employment or consulting work or the use of any information or techniques of any former employer or contracting party.
Section 13. Deferred Compensation Matters.
(c) Separation from Service. A termination of the Employment Period shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and for purposes of any such provision of this Agreement, references to a “termination”, “termination of the Employment Period”, “termination of employment” or similar terms shall mean “separation from service.”
(d) Reimbursements, In-Kind Benefits. To the extent any reimbursements or in-kind benefits under this Agreement constitute “non-qualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Executive, (ii) any right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
Notices to Executive:
At the most recent address set forth on the books and records of the Company.
Notices to the Company:
Metaldyne Performance Group Inc.
c/o American Securities LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxx and Xxxx Xxxxxxxxx
With a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.
Section 21. Choice of Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Michigan, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan.
Section 25. Consent to Jurisdiction. SUBJECT TO Section 29 HEREOF, EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN LOCATED IN XXXXX COUNTY, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVEADDRESS SET FORTH IN THIS AGREEMENT SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN THE STATE OF MICHIGAN WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS Section 25. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN IN XXXXX COUNTY, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 26. Waiver of Jury Trial. As a specifically bargained for inducement for each of the parties hereto to enter into this Agreement (after having the opportunity to consult with legal counsel), each party hereto expressly waives the right to trial by jury in any lawsuit or proceeding relating to or arising in any way from this Agreement or the matters contemplated hereby.
Disputes of the American Arbitration Association (the “AAA Rules”) shall be the sole and exclusive method for resolving any claim or dispute (“Claim”) arising out of or relating to the rights and obligations of the parties under this Agreement and the employment of Executive by the Company and its Subsidiaries (including, without limitation, claims and disputes regarding employment discrimination, sexual harassment and wrongful termination), whether such Claim arose or the facts on which such Claim is based occurred prior to or after the execution and delivery of this Agreement. The parties hereto agree that (i) one arbitrator shall be appointed pursuant to the AAA Rules to conduct any such arbitration, (ii) all meetings of the parties and all hearings with respect to any such arbitration shall take place in Michigan, (iii) each party to the arbitration shall bear its own costs and expenses (including, without limitation, all attorneys’ fees and expenses, except to the extent otherwise required by applicable law), and (iv) all costs and expenses of the arbitration proceeding (such as filing fees, the arbitrator’s fees, hearing expenses, etc.) shall be borne equally by the parties hereto. The parties agree that the judgment, award or other determination of any arbitration under the AAA Rules shall be final, conclusive and binding on all of the parties hereto. Nothing in this Section 29 shall prohibit any party hereto from instituting litigation to enforce any final judgment, award or determination of the arbitration. Each party hereto further agrees that each other party hereto may initiate litigation in any court of competent jurisdiction to execute any judicial judgment enforcing or not enforcing any award, judgment or determination of the arbitration.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement on the date first written above.
METALDYNE PERFORMANCE GROUP INC. | ||
/s/ XXXX XXXXXXXXX | ||
Name: Xxxx Xxxxxxxxx | ||
Title: Vice President and Secretary Date: August 4, 2014 | ||
EXECUTIVE | ||
/s/ XXXXXX X. XXXXX | ||
Xxxxxx X. Xxxxx | ||
Date: August 4, 2014 |
[Signature Page—Xxxxx Employment Agreement]
Exhibit A
GENERAL RELEASE
I, Xxxxxx X. Xxxxx, in consideration of and subject to the performance by Metaldyne Performance Group Inc., a Delaware corporation (together with its subsidiaries, the “Company”), of its obligations under my employment agreement, dated as of August 4th, 2014 (the “Employment Agreement”), do hereby release and forever discharge as of the date hereof the Company, its Subsidiaries and its affiliates and all present and former directors, officers, agents, representatives, employees, successors and assigns of the Company, its Subsidiaries and its affiliates and the Company’s direct or indirect owners (collectively, the “Released Parties”) to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under Section 5(a) or Section 5(b), as applicable, of the Employment Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I shall not receive the payments and benefits specified in Section 5(a) or Section 5(b), as applicable, of the Employment Agreement unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter or breach this General Release. Such payments and benefits shall not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates. I also acknowledge and represent that I have received all payments and benefits that I am entitled to receive (as of the date hereof) by virtue of any employment by the Company.
2. Except as provided in Paragraph 4 below and except for the provisions of the Employment Agreement that expressly survive the termination of my employment with the Company, I knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release and forever discharge the Company and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, which arise out of or are connected with my employment with, or my separation or termination from, the Company and its Subsidiaries (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”).
3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by Paragraph 2 above.
4. I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company in compliance with the terms of the Employment Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967). Furthermore, this General Release does not release any claim that relates to (i) my right to enforce this General Release; (ii) any rights I may have to indemnification from personal liability or to protection under any insurance policy maintained by the Company, including without limitation any general liability or directors and officers insurance policy and under any other document or agreement, including, without limitation, the Company’s Articles of Incorporation and By-Laws; (iii) my right, if any, to government-provided unemployment and worker’s compensation benefits; (iv) my rights to receive the amounts described in Section 1 of this General Release that have not yet been paid (subject to the conditions thereof); (v) my rights under any Company benefit plans (e.g., health, disability or retirement plans), which by their explicit terms survive the termination of my employment; or (vi) my rights under any plan, contract, agreement or arrangement relating in any way to ownership or the right to acquire equity in the Company or any of its affiliates.
5. I agree that I am waiving all rights to xxx or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever (including, without limitation, reinstatement, back pay, front pay, attorneys’ fees and any form of injunctive relief). Notwithstanding the above, I further acknowledge that I am not waiving and am not being required to waive any right that cannot be waived under law (including, without limitation, the right to file an administrative charge or participate in an administrative investigation or proceeding); provided that I hereby disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding.
6. In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including, without limitation, those relating to unknown and unsuspected Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Employment Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company or any other Released Party, or in the event I should seek to recover against the Company or any other Released Party in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. I further agree that I am not aware of any pending claim of the type described in Paragraph 2 above as of the execution of this General Release.
7. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any other Released Party or myself of any improper or unlawful conduct.
8. I agree that I will forfeit all amounts payable by the Company and its Subsidiaries pursuant to the Employment Agreement if I challenge the validity of this General Release. I also agree that if I violate this General Release by suing the Company or any other Released Parties, I shall pay all costs and expenses of defending against the suit incurred by the Released Parties (including, without limitation, reasonable attorneys’ fees, and return all payments received by me pursuant to the Employment Agreement).
9. I agree that this General Release and the Employment Agreement are confidential and agree not to disclose any information regarding the terms of this General Release or the Employment Agreement, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I shall instruct each of the foregoing not to disclose the same to anyone. Notwithstanding anything herein to the contrary, each of the parties (and each affiliate and person acting on behalf of any such party) agree that each party (and each employee, representative, and other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this transaction contemplated in the Employment Agreement and, all materials of any kind (including opinions or other tax analyses) that are provided to such party or such person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable federal or state securities laws. This authorization is not intended to permit disclosure of any other information including (without limitation) (i) any portion of any materials to the extent not related to the tax treatment or tax structure of this transaction, (ii) the identities of participants or potential participants in the Agreement, (iii) any financial information (except to the extent such information is related to the tax treatment or tax structure of this transaction), or (iv) any other term or detail not relevant to the tax treatment or the tax structure of this transaction.
10. The non-disclosure provisions in this General Release do not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission, the National Association of Securities Dealers, Inc., any other self-regulatory organization or governmental entity.
11. I agree that as of the date hereof, I have returned to the Company any and all property, tangible or intangible, relating to its Subsidiaries’ business, which I possessed or had control over at any time (including, but not limited to, company-provided credit cards, building or office access cards, keys, computer equipment, manuals, files, documents, records, software, customer data base and other data) and that I shall not retain any copies, compilations, extracts, excerpts, summaries or other notes of any such manuals, files, documents, records, software, customer data base or other data.
12. Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Employment Agreement after the date hereof.
13. Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) | I HAVE READ IT CAREFULLY; |
(b) | I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED; |
(c) | I VOLUNTARILY CONSENT TO EVERYTHING IN IT; |
(d) | I HAVE BEEN ADVISED IN WRITING BY MEANS OF THIS GENERAL RELEASE AGREEMENT TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION; |
(e) | I HAVE HAD AT LEAST [21]1/[45]2 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM TO CONSIDER IT AND THE CHANGES MADE SINCE THE DATE OF RECEIPT ARE NOT MATERIAL AND SHALL NOT RESTART THE REQUIRED [21]3/[45]4-DAY PERIOD OR I HAVE ELECTED TO SIGN THIS RELEASE PRIOR TO THE END OF SUCH [21]5/[45]6-DAY PERIOD; |
(f) | I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED; |
(g) | I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY ATTORNEY RETAINED TO ADVISE ME WITH RESPECT TO IT; AND |
(h) | I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME. |
[SIGNATURE PAGE FOLLOWS]
1 | To be included if not part of a broad layoff. |
2 | To be included if part of a broad layoff. |
3 | To be included if not part of a broad layoff. |
4 | To be included if part of a broad layoff. |
5 | To be included if not part of a broad layoff. |
6 | To be included if part of a broad layoff. |
METALDYNE PERFORMANCE GROUP INC. |
|
Name: |
Title: Date: |
EXECUTIVE |
|
Xxxxxx X. Xxxxx |
Date: |
[SIGNATURE PAGE TO GENERAL RELEASE]