EXHIBIT 10.32
SEVERANCE BENEFIT AGREEMENT
THIS SEVERANCE BENEFIT AGREEMENT (the "Agreement") is made and entered into
this 9th day of August, 1999, by and between XXXXXXX & XXXXXX CORPORATION, a
Delaware corporation (the "Company"), and XXXXXXXX XXXXXXX ("Executive").
Statement of Purpose
The Company wishes to encourage the continued service and dedication of
Executive by providing Executive with severance benefits if his employment with
the Company is terminated for certain reasons, as described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Company and Executive hereby agree as follows:
1. Term of Agreement. The initial term of this Agreement shall extend
for a period of two years, commencing on the date hereof and ending August 8,
2001. At the end of such initial two year term, unless the Company shall have
given Executive 60 days prior written notice of its intention to terminate this
Agreement at the end of the initial term hereof, the term of this Agreement
shall automatically be extended by an additional one year period. Thereafter,
unless the Company shall have given Executive 60 days prior written notice of
its intention to terminate this Agreement at the end of the term then in effect,
the term of this Agreement shall automatically be extended by an additional one
year period.
2. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) Constructive Termination means the Executive's termination of his
employment with the Company and its subsidiaries at any time during the 90 day
period beginning on:
(i) the termination of this Agreement at the end of the term then in
effect;
(ii) the involuntary relocation of Executive to any office or location
more than fifty (50) miles from the office or location at which Executive
is then located;
(iii) a material reduction in Executive's total compensation and
benefits package; or
(iv) a significant reduction in Executive's responsibilities, position
or authority (including changes resulting from the assignment to Executive
of any duties inconsistent with his responsibilities, position or
authority);
provided, however, that, notwithstanding any other provision hereof, no event or
circumstance described in clause (iii) or (iv) above shall rise to a
"Constructive Termination" for purposes of
this Agreement unless Executive shall have given notice to the Company of
Executive's determination of the occurrence of an event specified in clause
(iii) or (iv) above and such event shall be continuing as of the end of 45 days
after the giving of such notice.
(b) Date of Termination means the later of (i) the date of receipt of the
Notice of Termination by the Company or Executive, as the case may be, or (ii)
any later date specified therein (which shall be not more than 30 days after the
giving of such notice).
(c) Involuntary Termination means a termination of Executive's employment
by the Company other than a Termination For Cause or by reason of Executive's
death or disability.
(d) Notice of Termination means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide the basis for
termination of Executive's employment under the provision so indicated, and
(iii) if the termination date is other than the date of receipt of such notice,
specifies the termination date (which shall be not more than 30 days after the
giving of such notice).
(e) Termination For Cause means a termination of Executive's employment by
the Company as a result of:
(i) fraud or misappropriation with respect to any business of the
Company or intentional material damage to any property or business of the
Company or an affiliate of the Company;
(ii) willful failure by Executive to perform his duties and
responsibilities and to carry out his authority;
(iii) willful malfeasance or misfeasance or breach of fiduciary duty
or representation to the Company or its owners or an affiliate of the
Company;
(iv) willful failure to act in accordance with any specific lawful
instructions of the Chairman and CEO or a majority of the Board of
Directors of the Company; or
(v) conviction of Executive of a felony.
3. Benefits Upon Involuntary Termination or Constructive Termination. In
the event of an Involuntary Termination or Constructive Termination of
Executive, the Company shall pay to Executive the following benefits and no
other salary, bonus, benefits or other compensation:
(a) to the extent not theretofore paid, Executive's base salary
through the Date of Termination;
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(b) any unpaid cash bonus Executive is entitled to receive for the
prior fiscal year of the Company;
(c) Executive's accrued and vested benefits under employee benefit
plans sponsored by the Company;
(d) a pro-rata bonus under the Executive Incentive Compensation Plan
for the current fiscal year (based on the number of months of such fiscal
year preceding the Date of Termination over twelve (12));
(e) Executive's base salary for the greater of 12 months or the
remaining term of this Agreement, based on the rate of base salary in
effect immediately preceding the Date of Termination, which shall be paid
to Executive on a periodic basis in accordance with the Company's normal
pay practices commencing with the first payroll payment date following the
Date of Termination;
(f) all of Executive's benefits and perquisites with the Company in
effect immediately prior to the Date of Termination (other than short and
long term disability insurance) until the earlier of (i) the expiration of
the payment period for the amount due under this Section 3(e) or (ii) the
date Executive becomes employed by another employer; and
(g) outplacement services for a reasonable period of time following
the Date of Termination, the provider of which shall be selected by the
Company.
Notwithstanding the foregoing, the Company shall not be obligated to pay or
provide Executive any amount or benefit pursuant to Section 3(d), 3(e), 3(f) or
3(g) unless Executive executes and delivers to the Company a release of the
parties set forth in Section 4 hereof, such release to be dated as of the Date
of Termination and to contain the provisions set forth in Section 4 hereof.
4. Release. In consideration of the severance benefits available in
certain events pursuant to this Agreement, Executive unconditionally releases
the Company and its subsidiaries and affiliates and directors, officers,
employees and stockholders thereof, from any and all claims, liabilities and
obligations of any nature pertaining to the terms of his employment or the
termination of employment other than those explicitly provided for by this
Agreement including, without limitation, any claims arising out of alleged legal
restrictions on the Company's rights to terminate its employees, such as any
termination contrary to public policy or to laws prohibiting discrimination
(including, without limitation, the Age Discrimination in Employment Act).
5. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future eligibility or participation in any
benefit, bonus, incentive or other plan provided by the Company and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option or other agreements with the
Company. Amounts which are vested benefits or which Executive is
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otherwise entitled to receive under any plan or program of the Company
subsequent to the Date of Termination shall be payable in accordance with such
plan or program.
6. Succession. This Agreement shall inure to the benefit of and shall be
binding upon the Company and its successors and assignees, but, without the
prior written consent of Executive, this Agreement may not be assigned other
than in connection with a merger, sale, consolidation or similar transaction of
all or substantially all of the business and/or assets of the Company in which
the successor or assignee assumes (whether by operation of law or express
assumption) all obligations of the Company hereunder. The Company shall require
any successor to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession had taken place. The obligations and duties of Executive
hereunder shall be personal and not assignable otherwise than by the laws of
descent and distribution.
7. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of Michigan.
(b) Notices. All notices and communications hereunder shall be in writing
and shall be given by hand delivery to the other party by registered or
certified mail, return receipt requested, postage prepaid, or by overnight mail,
addressed as follows:
If to Executive:
Xx. Xxxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
If to the Company:
Xxxxxxx & Xxxxxx Corporation
000 XxXxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
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) Validity. The invalidity or unenforceability of any provision of this
contract shall not affect the validity or enforceability of any other provision
of this Agreement.
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(d) Tax Withholding. The Company may withhold from any amounts payable
under this Agreement such federal, state and local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(e) Waiver. The waiver of the breach of any term or of any condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition hereof.
(f) Entire Agreement. This instrument contains the entire agreement of the
parties relating to the subject matter hereof, and it replaces and supersedes
any prior agreements between the parties relating to said subject matter. No
modifications of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
(g) No Right of Employment. Executive and the Company acknowledge that the
employment of Executive by the Company is "at will" and may be terminated by
either Executive or the Company at any time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
EXECUTIVE:
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
COMPANY:
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
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