Exhibit 10.19
EMPLOYMENT AGREEMENT
This Agreement is made by and between Metaldyne Corporation, a Delaware
corporation ("Company") and Xxxxxxx X. Xxxx, Xx. (hereinafter "Executive") June
18, 2001 ("Effective Date"). In order to induce Executive to serve as its
Executive Vice President and Chief Financial Officer, Company enters into this
Agreement with Executive to set out the terms and conditions that will apply to
Executive's employment with Company. Executive is willing to accept such
employment and assignment and to perform services on the terms and conditions
hereinafter set forth. It is therefore hereby agreed by and between the parties
as follows:
SECTION 1 - EMPLOYMENT.
(a) Company employs Executive as its Executive Vice President and Chief
Financial Officer. In this capacity, Executive shall report to the
Chief Executive Officer ("CEO"). Executive accepts employment in
accordance with this Agreement and agrees to devote his full business
time and efforts to the performance of his duties and responsibilities
hereunder.
(b) Nothing in this Agreement shall preclude Executive from engaging in
charitable and community affairs, from managing any passive investment
(i.e., an investment with respect to which Executive is in no way
involved with the management or operation of the entity in which
Executive has invested) made by him in publicly traded equity
securities or other property (provided that no such investment may
exceed five percent (5%) of the equity of any entity, without the prior
approval of the Board of Directors of Metaldyne Corporation (the
"Board")), or from serving, subject to the prior approval of the Board,
as a member of boards of directors or as a trustee of any other
corporation, association or entity, to the extent that any of the above
activities do not conflict with any provision of this Agreement.
SECTION 2 - TERM OF EMPLOYMENT. Executive's term of employment under this
Agreement ("Term of Employment") shall commence on the Effective Date and,
subject to the terms hereof, shall terminate on the earlier of: December 31,
2003 ("Initial Period"); or the date that either party terminates Executive's
employment under this Agreement; provided that subsequent to the Initial Period,
the Term of Employment shall automatically renew each January for one year
("Renewal Period"), unless Company delivers to Executive or Executive delivers
to Company written notice at least thirty (30) days in advance of the expiration
of the Initial Period or any Renewal Period, that the Term of Employment shall
not be extended, in which case the Term of Employment shall end at the end of
the Year in which such notice was delivered and shall not be further extended
except by written agreement of Company and Executive. The expiration of the Term
of Employment under this Agreement shall not be a termination of this Agreement
to the extent that other provisions of this Agreement by their terms survive the
Term of Employment. For purposes of this Agreement, the term "Year" shall mean
the twelve-month period commencing on the Effective Date and each anniversary of
the Effective Date.
SECTION 3 - COMPENSATION.
(a) Salary. During the Initial Period, Company shall pay Executive at the
rate of Three Hundred Fifteen Thousand Dollars ($315,000) per annum
("Base Salary"). Base Salary shall be payable in accordance with the
ordinary payroll practices of Company and shall be subject to all
applicable federal, state and local withholding and reporting
requirements. Base Salary may be adjusted by the President and CEO
during the Term of Employment.
(b) Annual Value Creation Plan ("AVCP"). Executive shall be eligible to
participate in the AVCP, a copy of which has been provided to
Executive, subject to all the terms and conditions of such plan, as
such plan may be modified from time to time.
SECTION 4 - EMPLOYEE BENEFITS.
(a) Employee Retirement Benefit Programs, Welfare Benefit Programs, Plans
and Practices. Company shall provide Executive with coverage under any
retirement benefit programs, welfare benefit programs, plans and
practices, that Company makes available to its senior executives, in
accordance with the terms thereof, as such programs, plans and
practices may be amended from time to time in accordance with their
terms.
(b) Vacation. Executive shall be entitled to twenty (20) business days of
paid vacation each calendar year, which shall be taken at such times as
are consistent with Executive's responsibilities hereunder. Vacation
days shall be subject to the Company's general policies regarding
vacation days, as such policies may be modified from time to time.
(c) Perquisites. During Executive's employment hereunder, Company shall
provide Executive, subject to review and approval by the President and
CEO, with such additional perquisites as are generally available to
similarly-situated executives.
(d) Stock Options. Executive shall be eligible to participate in the
Metaldyne Corporation 2001 Long Term Equity Incentive Plan in
accordance with the terms and conditions of such plan and any grant
agreements thereunder.
SECTION 5 - EXPENSES. Subject to prevailing Company policy or such
guidelines as may be established by the CEO or his delegee, Company will
reimburse Executive for all reasonable expenses incurred by Executive in
carrying out his duties.
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SECTION 6 - TERMINATION OF EMPLOYMENT. The respective rights and
responsibilities of the parties to this Agreement notwithstanding, Executive
remains an employee-at-will, and his Term of Employment may be terminated by
either party at any time for any reason by written notice.
(a) Termination Without Cause or for Good Reason. If Executive's employment
is terminated during the Term of Employment by Company for any reason
other than Cause (as defined in Section 6(c) hereof), Disability (as
defined in Section 6(e) hereof) or death, or if Executive's employment
is terminated by Executive for Good Reason (as defined in Section
6(a)(2) hereof), then Company shall pay Executive the Severance
Package. Any termination of employment that results from a notice of
nonrenewal given in accordance with Section 2 of this Agreement shall
not be a termination under this Section 6(a) but shall instead be a
termination under Section 6(b) below. Likewise, a termination by
Executive without Good Reason shall be a termination under Section 6(b)
below and not a termination under this Section 6(a).
(1) For purposes of this Agreement, "Severance Package" shall mean:
(A) Base Salary continuation for twenty-four (24) months at
Executive's annual Base Salary rate in effect on the date of
termination, subject to all applicable federal, state and
local withholding and reporting requirements. These salary
continuation payments shall be paid in accordance with usual
Company payroll practices;
(B) A bonus equal to two hundred percent (200%) of the target
bonus opportunity under AVCP, payable in equal installments
over the twenty-four (24) month period described in Section
6(a)(1)(A) above, subject to the same withholding and
reporting requirements. In addition, Executive shall receive
the bonus for the most recently completed bonus term if a
bonus has been declared for such term but not paid, and a
pro rata bonus for the year of termination through the date
of termination calculated at one hundred percent (100%) of
the bonus opportunity for target performance for that term,
multiplied by a fraction the numerator of which is the
number of days that Executive was employed during such bonus
term and the denominator of which is 365. The prorated bonus
for the final year shall be paid in a single sum within ten
(10) days of the termination of Executive's employment with
Company. Any unpaid bonus shall be paid in accordance with
customary practices for payment of bonuses under AVCP; and
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(C) Continuation of benefits under any life, group medical, and
dental insurance benefits substantially similar to those
which Executive was receiving immediately prior to
termination of employment until the earlier of:
(i) the end of the twenty-four (24) month period following
Executive's termination of employment, or
(ii) the date on which Executive becomes eligible to receive
any benefits under any plan or program of any other
employer.
The continuing coverage provided under this Section
6(a)(1)(C) is subject to Executive's eligibility to
participate in such plans and all other terms and conditions
of such plans, including without limitation, any employee
contribution requirements and Company's ability to modify or
terminate such plans or coverages. Company may satisfy this
obligation in whole or in part by paying the premium
otherwise payable by Executive for continuing coverage under
Section 601 et seq. of the Employee Retirement Income
Security Act of 1974, as it may be amended or replaced from
time to time. If Executive is not eligible for continued
coverage under one of the Company-provided benefit plans
noted in this paragraph (C) that he was participating in
during his employment, Company shall pay Executive the cash
equivalent of the insurance cost for the duration of the
applicable period at the rate of the Company's cost of
coverage for Executive's benefits as of the date of
termination. Any obligation to pay the cash equivalent of
such cost under this item may be settled, at Company's
discretion, by a lump-sum payment of any remaining premiums.
(2) For purposes of this Agreement, a termination of employment by
Executive for "Good Reason" shall be a termination by Executive
following the occurrence of any of the following events unless
Company has cured as provided below:
(A) A material and permanent diminution in Executive's duties or
responsibilities;
(B) A material reduction in the aggregate value of Base Salary
and bonus opportunity; or
(C) A permanent reassignment of Executive to another primary
office, or a relocation of the Company office that is
Executive's primary
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office, unless Executive's primary office following such
reassignment or relocation is within thirty-five (35) miles
of Executive's primary office before the reassignment or
relocation or Executive's permanent residence on the date of
the reassignment or relocation.
Executive must notify Company of any event constituting Good
Reason within one hundred twenty (120) days after Executive
becomes aware of such event or such event shall not constitute
Good Reason for purposes of this Agreement provided that Company
shall have fifteen (15) days from the date of such notice to cure
the Good Reason event. Executive cannot terminate his employment
for Good Reason if Cause exists at the time of such termination.
A termination by Executive following cure shall not be a
termination for Good Reason. A failure of Executive to notify
Company after the first occurrence of an event constituting Good
Reason shall not preclude any subsequent occurrences of such
event (or similar event) from constituting Good Reason.
(b) Voluntary Termination by Executive; Expiration of Employment Term. If
Executive terminates his employment with Company without Good Reason,
or if the Employment Term expires following notice of nonrenewal by
either party under Section 2, then Company shall pay Executive his
accrued unpaid Base Salary through the date of termination and the AVCP
award for the most recently completed year if an award has been
declared for such year but not paid. The accrued unpaid Base Salary
amounts payable under this Section 6(b) shall be payable in a lump sum
within ten (10) days of termination of employment. Any accrued unpaid
bonus amounts payable under this Section 6(b) shall be payable in
accordance with customary practices for payment of bonuses under AVCP.
No prorated bonus for the year of termination shall be paid. Any other
benefits under other plans and programs of Company in which Executive
is participating at the time of Executive's termination of employment
shall be paid, distributed, settled, or shall expire in accordance with
their terms, and Company shall have no further obligations hereunder
with respect to Executive following the date of termination of
employment.
(c) Termination for Cause. If Executive's employment is terminated for
Cause, Company shall pay Executive his accrued but unpaid Base Salary
through the date of the termination of employment, and no further
payments or benefits shall be owed. The accrued unpaid Base Salary
amounts payable under this Section 6(c) shall be payable in a lump sum
within ten (10) days of termination of employment. As used herein, the
term "Cause" shall be limited to:
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(1) Executive's conviction of or plea of guilty or nolo contendere to
a crime constituting a felony under the laws of the United States
or any state thereof or any other jurisdiction in which Company
conducts business;
(2) Executive's willful misconduct in the performance of his duties
to Company;
(3) Executive's willful and continued failure to follow the
instructions of Company's Board or CEO; or
(4) Executive's willful and/or continued neglect of duties (other
than any such neglect resulting from incapacity of Executive due
to physical or mental illness);
provided, however, that Cause shall arise under items (3) or (4) only
following ten (10) days written notice thereof from Company which
specifically identifies such failure or neglect and the continuance of
such failure or neglect during such notice period. Any failure by
Company to notify Executive after the first occurrence of an event
constituting Cause shall not preclude any subsequent occurrences of
such event (or a similar event) from constituting Cause.
(d) Termination Following a Change of Control. In the event Executive's
employment with Company terminates by reason of a Qualifying
Termination (as defined below) within three (3) years after a Change of
Control of Company (as defined below), then, in lieu of the Severance
Package, and subject to the limitations described in Section 7 below,
the Company shall provide Executive the following termination benefits:
(1) Termination Payments. Company shall pay Executive:
(A) A single sum payment equal to three hundred percent (300%)
of Executive's annual Base Salary rate in effect on the date
of termination, subject to all applicable federal, state and
local withholding and reporting requirements. This
single-sum payment shall be paid within ten (10) days of
termination of employment;
(B) A bonus equal to three hundred percent (300%) of the target
bonus opportunity under AVCP. In addition, Executive shall
receive the bonus for the most recently completed bonus term
if a bonus has been declared for such term but not paid, and
a pro rata bonus for the year of termination through the
date of termination calculated at one hundred percent (100%)
of the bonus opportunity for target performance for that
term, multiplied by a fraction the numerator of which is the
number of days that Executive was employed
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during such bonus term and the denominator of which is 365.
The prorated bonus for the final year shall be paid as a
single sum within ten (10) days of termination of
employment. Any unpaid bonus shall be paid in accordance
with customary practices for payment of bonuses under AVCP.
All payments under this Section 6(d), however, are subject to the
timing rules, calculations and adjustments described in Sections
7 and 8.
(2) Benefits Continuation. Executive shall continue to receive life,
group medical and dental insurance benefits substantially similar
to those which Executive was receiving immediately prior to the
Qualifying Termination until the earlier of:
(A) the end of the thirty-six (36) month period following
Executive's termination of employment, or
(B) the date on which Executive becomes eligible to receive any
benefits under any plan or program of any other employer.
The continuing coverage provided under this Section 6(d)(2) is
subject to Executive's eligibility to participate in such plans
and all other terms and conditions of such plans, including
without limitation, any employee contribution requirements and
Company's ability to modify or terminate such plans or coverages.
Company may satisfy this obligation in whole or in part by paying
the premium otherwise payable by Executive for continuing
coverage under Section 601 et seq. of the Employee Retirement
Income Security Act of 1974, as it may be amended or replaced
from time to time. If Executive is not eligible for continued
coverage under one of the Company-provided benefit plans noted in
this paragraph (2) that he was participating in during his
employment, Company shall pay Executive the cash equivalent of
the insurance cost for the duration of the applicable period at
the rate of the Company's cost of coverage for Executive's
benefits as of the date of termination. Any obligation to pay the
cash equivalent of such cost of coverage under this item may be
settled, at Company's discretion, by a lump-sum payment of any
remaining premiums.
(3) Qualifying Termination. For purposes of this Agreement, the term
"Qualifying Termination" means a termination of Executive's
employment with the Company for any reason other than:
(A) death;
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(B) Disability, as defined herein;
(C) Cause, as defined herein; or
(D) A termination by Executive without Good Reason, as defined
herein.
(4) Change of Control Defined. For purposes of this Agreement, a
"Change of Control" means the first of the following events to
occur following the date hereof:
(A) The sale, lease, or transfer in one or a series of related
transactions (I) of eighty percent (80%) or more of the
consolidated assets of Company and its subsidiaries or (II)
of seventy-five percent (75%) or more of Capital Stock of
Company held by the Heartland Entities as of November 28,
2000 (appropriately adjusted for stock splits, combinations,
subdivisions, stock dividends and similar events) to any
Person or group of persons other than an affiliate of the
Heartland Entities, whether directly or indirectly or by way
of any merger, consolidation or other business combination
or purchase of beneficial ownership or otherwise. The term
"group of persons" shall have the meaning of the term
"person" set forth in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 ("1934 Act") or any similar
successor provision, and the rules, regulations and
interpretations promulgated thereunder. The term "beneficial
ownership" shall have the meaning defined under Rule 13d-3
under the 1934 Act or any similar successor rules,
regulations and interpretations promulgated thereunder.
(B) The date on which the individuals who constitute Company's
Board of Directors on the date of this agreement, and any
new Directors who are hereafter designated by the Heartland
entities cease, for any reason, to constitute at least a
majority of the members of the Board.
Except as otherwise indicated herein, the definition of all
capitalized terms in this Section 6(d)(4) is set forth in the
Shareholders Agreement by and among MascoTech, Inc., Masco
Corporation, Xxxxxxx Xxxxxxxxx, The Xxxxxxx and Xxxx Xxxxxxxxx
Foundation, and the Heartland Entities, et al., dated November
28, 2000 (the "Shareholders Agreement").
(e) Disability. In the event that Executive is unable to perform his duties
under this Agreement on account of a disability which continues for one
hundred eighty (180) consecutive days or more, or for an aggregate of
one hundred eighty (180)
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days in any period of twelve (12) months, Company may, in its
discretion, terminate Executive's employment hereunder. Company's
obligation to make payments under this Agreement shall, except for
earned but unpaid Base Salary and AVCP awards, cease on the first to
occur of (i) the date that is six (6) months after such termination or
(ii) the date Executive becomes entitled to benefits under a
Company-provided long-term disability program. For purposes of this
Agreement, "Disability" shall be defined by the terms of Company's
long-term disability policy, or, in the absence of such policy, as a
physical or mental disability that prevents Executive from performing
substantially all of his duties under this Agreement and which is
expected to be permanent. Company may only terminate Executive on
account of Disability after giving due consideration to whether
reasonable accommodations can be made under which Executive is able to
fulfill his duties under this Agreement. The commencement date and
expected duration of any physical or mental condition that prevents
Executive from performing his duties hereunder shall be determined by a
medical doctor selected by Company. Company may, in its discretion,
require written confirmation from a physician of Disability during any
extended absence.
(f) Death. In the event of Executive's death during the Term of Employment,
all obligations of Company to make any further payments, other than an
obligation to pay any accrued but unpaid Base Salary to the date of
death and any accrued but unpaid bonuses under AVCP to the date of
death, shall terminate upon Executive's death.
(g) No Duplication of Benefits. Notwithstanding any provision of this
Agreement to the contrary, if Executive's employment is terminated for
any reason, in no event shall Executive be eligible for payments under
more than one subsection of this Section 6.
(h) Payments Not Compensation. Any participation by Executive in, and any
terminating distributions and vested rights under, Company-sponsored
retirement or savings plans, regardless of whether such plans are
qualified or nonqualified for tax purposes, shall be governed by the
terms of those respective plans. For purposes of determining benefits
and the amounts to be paid to Executive under such plans, any salary
continuation or severance benefits other than salary or bonus accrued
before termination shall not be compensation for purposes of accruing
additional benefits under such plans.
(i) Executive's Duty to Provide Materials. Upon the termination of the Term
of Employment for any reason, Executive or his estate shall surrender
to Company all correspondence, letters, files, contracts, mailing
lists, customer lists, advertising material, ledgers, supplies,
equipment, checks, and all other materials and records of any kind that
are the property of Company or any of its subsidiaries
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or affiliates, that may be in Executive's possession or under his
control, including all copies of any of the foregoing.
SECTION 7 - CAP ON PAYMENTS.
(a) General Rules. The Internal Revenue Code (the "Code") may place
significant tax burdens on Executive and Company if the total payments
made to Executive due to a Change of Control exceed prescribed limits.
For example, if Executive's "Base Period Income" (as defined below) is
$100,000, Executive's limit or "Cap" is $299,999. If Executive's "Total
Payments" exceed the Cap by even $1.00, Executive is subject to an
excise tax under Section 4999 of the Code of 20% of all amounts paid to
Executive in excess of $100,000. In other words, if Executive's Cap is
$299,999, Executive will not be subject to an excise tax if Executive
receives exactly $299,999. If Executive receives $300,000, Executive
will be subject to an excise tax of $40,000 (20% of $200,000). In order
to avoid this excise tax and the related adverse tax consequences for
Company, by signing this Agreement, Executive will be agreeing that,
subject to the exception noted below, the present value of Executive's
Total Payments will not exceed an amount equal to Executive's Cap.
(b) Special Definitions. For purposes of this Section, the following
specialized terms will have the following meanings:
(1) "Base Period Income". "Base Period Income" is an amount equal to
Executive's "annualized includable compensation" for the "base
period" as defined in Sections 280G(d)(1) and (2) of the Code and
the regulations adopted thereunder. Generally, Executive's
"annualized includable compensation" is the average of
Executive's annual taxable income from Company for the "base
period," which is the five calendar years prior to the year in
which the Change of Control occurs. These concepts are
complicated and technical and all of the rules set forth in the
applicable regulations apply for purposes of this Agreement.
(2) "Cap" or "280G Cap". "Cap" or "280G Cap" shall mean an amount
equal to 2.99 times Executive's "Base Period Income." This is the
maximum amount which Executive may receive without becoming
subject to the excise tax imposed by Section 4999 of the Code or
which Company may pay without loss of deduction under Section
280G of the Code.
(3) "Total Payments". The "Total Payments" include any "payments in
the nature of compensation" (as defined in Section 280G of the
Code and the regulations adopted thereunder), made pursuant to
this Agreement or otherwise, to or for Executive's benefit, the
receipt of which is contingent on a Change of Control and to
which Section 280G of the Code applies.
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(c) Calculating the Cap and Adjusting Payments. If Company
believes that these rules will result in a reduction of the
payments to which Executive is entitled under this
Agreement, it will so notify Executive as soon as possible.
Company will then, at its expense, retain a "Consultant"
(which shall be a law firm, a certified public accounting
firm, and/or a firm of recognized executive compensation
consultants) to provide an opinion or opinions concerning
whether Executive's Total Payments exceed the limit
discussed above. Company will select the Consultant. At a
minimum, the opinions required by this Section must set
forth the amount of Executive's Base Period Income, the
present value of the Total Payments and the amount and
present value of any excess parachute payments. If the
opinions state that there would be an excess parachute
payment, Executive's payments under this Agreement will be
reduced to the extent necessary to eliminate the excess.
Executive will be allowed to choose the payment that should
be reduced or eliminated, but the payment Executive chooses
to reduce or eliminate must be a payment determined by such
Consultant to be includable in Total Payments. Executive's
decision shall be in writing and delivered to Company within
thirty (30) days of Executive's receipt of such opinions. If
Executive fails to so notify Company, Company will decide
which payments to reduce or eliminate. If the Consultant
selected to provide the opinions referred to above so
requests in connection with the opinion required by this
Section, a firm of recognized executive compensation
consultants selected by Company shall provide an opinion,
upon which such Consultant may rely, as to the
reasonableness of any item of compensation as reasonable
compensation for services rendered before or after the
Change of Control. If Company believes that Executive's
Total Payments will exceed the limitations of this Section,
it will nonetheless make payments to Executive, at the times
stated above, in the maximum amount that it believes may be
paid without exceeding such limitations. The balance, if
any, will then be paid after the opinions called for above
have been received. If the amount paid to Executive by
Company is ultimately determined, pursuant to the opinion
referred to above or by the Internal Revenue Service, to
have exceeded the limitation of this Section, the excess
will be treated as a loan to Executive by Company and shall
be repayable on the ninetieth (90th) day following demand by
Company, together with interest at the lowest "applicable
federal rate" provided in Section 1274(d) of the Code. If it
is ultimately determined, pursuant to the opinion referred
to above or by the Internal Revenue Service, that a greater
payment should have been made to Executive, Company shall
pay Executive the amount of the deficiency, together with
interest thereon from the date such amount should have been
paid to the date of such payment, at the rate set forth
above, so that Executive will have received or be entitled
to receive the maximum amount to which Executive is entitled
under this Agreement.
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(d) Effect of Repeal. In the event that the provisions of Sections 280G and
4999 of the Code are repealed without succession, this Section shall be
of no further force or effect.
(e) Exception. The Consultant selected pursuant to Section 7(c) will
calculate Executive's "Uncapped Benefit" and Executive's "Capped
Benefit." The limitations of Section 7(a) will not apply to Executive
if Executive's Uncapped Benefit is at least one hundred five percent
(105%) of Executive's Capped Benefit. For this purpose, Executive's
"Uncapped Benefit" is the amount to which Executive would be entitled
pursuant to Section 6(d), without regard to the limitations of Section
7(a). Executive's "Capped Benefit" is the amount to which Executive
would be entitled pursuant to Section 6(d) after the application of the
limitations of Section 7(a).
SECTION 8 - TAX GROSS-UP.
(a) Gross-Up Payment. If the Cap imposed by Section 7(a) does not apply to
Executive because of the exception provided by Section 7(e), Company
will provide Executive with a "Gross-Up Payment" if an excise tax is
imposed on Executive pursuant to Section 4999 of the Code. Except as
otherwise noted below, this Gross-Up Payment will consist of a single
lump sum payment in an amount such that after payment by Executive of
the "total presumed federal and state taxes" and the excise taxes
imposed by Section 4999 of the Code on the Gross-Up Payment (and any
interest or penalties actually imposed), Executive would retain an
amount of the Gross-Up Payment equal to the remaining excise taxes
imposed by Section 4999 of the Code on Executive's Total Payments
(calculated before the Gross-Up Payment). For purposes of calculating
Executive's Gross-Up Payment, Executive's actual federal and state
income taxes will not be used. Instead, Company will use Executive's
"total presumed federal and state taxes." For purposes of this
Agreement, Executive's "total presumed federal and state taxes" shall
be conclusively calculated using a combined tax rate equal to the sum
of the maximum marginal federal and applicable state income tax rates.
The state tax rate for Executive's principal place of residence will be
used and no adjustments will be made for the deduction of state taxes
on the federal return, any deduction of federal taxes on a state
return, the loss of itemized deductions or exemptions, or for any other
purpose.
(b) Calculations. All determinations concerning whether a Gross-Up Payment
is required pursuant to Section 8(a) and the amount of any Gross-Up
Payment (as well as any assumptions to be used in making such
determinations) shall be made by the Consultant selected pursuant to
Section 7(c). The Consultant shall provide
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Executive and Company with a written notice of the amount of the excise
taxes that Executive is required to pay and the amount of the Gross-Up
Payment. The notice from the Consultant shall include any necessary
calculations in support of its conclusions. All fees and expenses of
the Consultant shall be paid by Company. Any Gross-Up Payment shall be
made by Company within fifteen (15) days after the mailing of such
notice. As a general rule, the Consultant's determination shall be
binding on Executive and Company. The application of the excise tax
rules of Section 4999, however, is complex and uncertain and, as a
result, the Internal Revenue Service may disagree with the Consultant
concerning the amount, if any, of the excise taxes that are due. If the
Internal Revenue Service determines that excise taxes are due, or that
the amount of the excise taxes that are due is greater than the amount
determined by the Consultant, the Gross-Up Payment will be recalculated
by the Consultant to reflect the actual excise taxes that Executive is
required to pay (and any related interest and penalties). Any
deficiency will then be paid to Executive by Company within fifteen
(15) days of the receipt of the revised calculations from the
Consultant. If the Internal Revenue Service determines that the amount
of excise taxes that Executive paid exceeds the amount due, Executive
shall return the excess to Company (along with any interest paid to
Executive on the overpayment) immediately upon receipt from the
Internal Revenue Service or other taxing authority. Company has the
right to challenge any excise tax determinations made by the Internal
Revenue Service. If Company agrees to indemnify Executive from any
taxes, interest and penalties that may be imposed upon Executive
(including any taxes, interest and penalties on the amounts paid
pursuant to Company's indemnification agreement), Executive must
cooperate fully with Company in connection with any such challenge.
Company shall bear all costs associated with the challenge of any
determination made by the Internal Revenue Service and Company shall
control all such challenges. The additional Gross-Up Payments called
for by the preceding paragraph shall not be made until Company has
either exhausted its (or Executive's) rights to challenge the
determination or indicated that it intends to concede or settle the
excise tax determination. Executive must notify Company in writing of
any claim or determination by the Internal Revenue Service that, if
upheld, would result in the payment of excise taxes in amounts
different from the amount initially specified by the Consultant. Such
notice shall be given as soon as possible but in no event later than
fifteen (15) days following Executive's receipt of notice of the
Internal Revenue Service's position.
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SECTION 9 - NOTICES. All notices or communications hereunder shall be in
writing, addressed as follows:
To Company: Metaldyne Corporation
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
ATTN: Chairman of the Board
with a copy to: R. Xxxxxxx Xxxxxxx, Esq.
McDonald, Hopkins, Xxxxx &
Xxxxx Co., L.P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
To Executive:
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with a copy to:
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Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third (3rd) business day
after the actual date of mailing shall constitute the time at which notice was
given.
SECTION 10 - SEPARABILITY; LEGAL FEES. If any provision of this Agreement
shall be declared to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the remaining provisions hereof
which shall remain in full force and effect. In the event of a dispute by
Company, Executive or others as to the validity or enforceability of, or
liability under, any provision of this Agreement, Company shall reimburse
Executive for all reasonable legal fees and expenses incurred by him in
connection with such dispute if Executive substantially prevails in the dispute
and if Executive has not substantially prevailed in such dispute one-half (1/2)
the amount of all reasonable legal fees and expenses incurred by him in
connection with such dispute except to the extent Executive's position is found
by a tribunal of competent jurisdiction to have been frivolous.
SECTION 11 - ASSIGNMENT AND ASSUMPTION. This contract shall be binding upon
and inure to the benefit of the heirs and representatives of Executive and the
assigns and successors of Company, but neither this Agreement nor any rights or
obligations hereunder shall be
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assignable or otherwise subject to hypothecation by Executive (except by will or
by operation of the laws of intestate succession) or by Company, except that
Company may assign this Agreement to any successor (whether by merger, purchase
or otherwise) to all or substantially all of the stock, assets or business of
Company.
SECTION 12 - AMENDMENT. This Agreement may only be amended by written
agreement of the parties hereto.
SECTION 13 - NON-COMPETITION; NON-SOLICITATION; CONFIDENTIALITY.
(a) Executive represents that acceptance of employment under this Agreement
and performance under this Agreement are not in violation of any
restrictions or covenants under the terms of any other agreements to
which Executive is a party.
(b) Executive acknowledges and recognizes the highly competitive nature of
the business of Company and accordingly agrees that, in consideration
of this Agreement, the rights conferred hereunder, and any payment
hereunder, during the Term of Employment and for the six (6) month
period following the termination of Executive's employment with
Company, for any reason ("Non-Compete Term"), Executive shall not
engage, either directly or indirectly, as a principal for Executive's
own account or jointly with others, or as a stockholder in any
corporation or joint stock association, or as a partner or member of a
general or limited liability entity, or as an employee, officer,
director, agent, consultant or in any other advisory capacity in any
business other than Company or its subsidiaries which designs,
develops, manufacturers, distributes, sells or markets the type of
products or services sold, distributed or provided by Company or its
subsidiaries during the two (2) year period prior to the date of
termination (the "Business"); provided that nothing herein shall
prevent Executive from owning, directly or indirectly, not more than
five percent (5%) of the outstanding shares of, or any other equity
interest in, any entity engaged in the Business and listed or traded on
a national securities exchanges or in an over-the-counter securities
market.
(c) During the Non-Compete Term, Executive shall not (i) directly or
indirectly employ or solicit, or receive or accept the performance of
services by, any active employee of Company or any of its subsidiaries
who is employed primarily in connection with the Business, except in
connection with general, non-targeted recruitment efforts such as
advertisements and job listings, or directly or indirectly induce any
employee of Company to leave Company, or assist in any of the
foregoing, or (ii) solicit for business (relating to the Business) any
person who is a customer or former customer of Company or any of its
subsidiaries, unless such person shall have ceased to have been such a
customer for a period of at least six (6) months.
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(d) Executive shall not at any time (whether during or after his employment
with Company) disclose or use for Executive's own benefit or purposes
or the benefit or purposes of any other person, firm, partnership,
joint venture, association, corporation or other business organization,
entity or enterprise other than Company and any of its subsidiaries,
any trade secrets, information, data, or other confidential information
of the Company, including but not limited to, information relating to
customers, development programs, costs, marketing, trading, investment,
sales activities, promotion, credit and financial data, financing
methods, plans or the business and affairs of Company generally, or of
any subsidiary of Company, unless required to do so by applicable law
or court order, subpoena or decree or otherwise required by law, with
reasonable evidence of such determination promptly provided to Company.
The preceding sentence of this paragraph (d) shall not apply to
information which is not unique to Company or which is generally known
to the industry or the public other than as a result of Executive's
breach of this covenant. Executive agrees that upon termination of
employment with Company for any reason, Executive will return to
Company immediately all memoranda, books, papers, plans, information,
letters and other data, and all copies thereof or therefrom, in any way
relating to the business of Company and its subsidiaries, except that
Executive may retain personal notes, notebooks and diaries. Executive
further agrees that Executive will not retain or use for Executive's
account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of
Company or its subsidiaries.
(e) It is expressly understood and agreed that although Executive and
Company consider the restrictions contained in this Section 13 to be
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. Alternatively, if
any tribunal of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not
affect the enforceability of any of the other restrictions contained
herein.
(f) As a condition to the receipt of any benefits described in this
Agreement, Executive shall be required to execute an agreement pursuant
to which Executive releases any claims he may have against Company and
agrees to the continuing enforceability of the restrictive covenants of
this Agreement.
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(g) This Section 13 will survive the termination of this Agreement.
SECTION 14 - REMEDIES. Executive acknowledges and agrees that Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 13 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, Executive shall forfeit all payments otherwise due under
this Agreement and shall return any Severance Package payment made. Moreover,
Company, without posting any bond, shall be entitled to seek 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.
SECTION 15- SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 15 are in addition to the survivorship provisions of
any other section of this Agreement.
SECTION 16 - GOVERNING LAW; REVENUE AND JURISDICTION. If any judicial or
administrative proceeding or claim relating to or pertaining to this Agreement
is initiated by either party hereto, such proceeding or claim shall and must be
filed in a state or federal court located in Xxxxx County, Michigan and such
proceeding or claim shall be governed by and construed under Michigan law,
without regard to conflict of law and principals.
SECTION 17 - DISPUTE RESOLUTION. Any dispute related to or arising under
this Agreement shall be resolved in accordance with the Metaldyne Dispute
Resolution Policy in effect at the time such dispute arises. The Metaldyne
Dispute Resolution Policy in effect at the time of this Agreement is attached to
this Agreement.
SECTION 18 - EFFECT ON PRIOR AGREEMENTS. This Agreement contains the entire
understanding between the parties hereto and supersedes in all respects any
prior or other agreement or understanding, both written and oral, between
Company, any affiliate of Company or any predecessor of Company or affiliate of
any predecessor of Company and Executive; provided, however, that this Agreement
does not supercede the MascoTech, Inc. Retention Plan or any change in control
agreements between Executive and Xxxxxxx Industries, Inc., Global Metal
Technologies, Inc. ("GMTI"), or MascoTech, Inc. that predates the Heartland
Industrial Partners' acquisition of Xxxxxxx Industries, Inc., GMTI, or
MascoTech, Inc. in the year 2000 or 2001 and which agreements by their terms
survive such acquisition for a specified period.
SECTION 19 - WITHHOLDING. Company shall be entitled to withhold from
payment any amount of withholding required by law.
SECTION 20 - SECTION HEADINGS AND CONSTRUCTION. The headings of sections in
this Agreement are provided for convenience only and will not effect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding section or
17
sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as circumstances
require.
SECTION 21 - COUNTERPARTS. This Agreement may be executed in one (1) or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same Agreement.
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Intending to be legally bound hereby, the parties have executed this
Agreement on the dates set forth next to their names below.
COMPANY
METALDYNE CORPORATION
12/12/01
------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxxx
Date ------------------------------------
Its: Chief Executive Officer
-----------------------------------
EXECUTIVE
12/15/01
------------------------------- /s/ Xxxxxxx X. Xxxx, Xx.
Date ---------------------------------------
---------------------------------------
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