Employment Agreement
EXHIBIT 10.13
This Employment Agreement (the “Agreement”) dated as of February 16, 2011 (the
“Effective Date”), is made by and between UCI International, Inc. (together with any
successor thereto, the “Company”) and Xxxxx Xxxxxx (the “Executive”).
Section 1. Certain Definitions. The following terms referred to in this Agreement
that are not otherwise defined in this Agreement shall have the following meanings:
(a) “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, such Person where “control”
shall have the meaning given such term under Rule 405 of the Securities Act of 1933, as amended.
(b) “Board” shall mean the Board of Directors of the Company or Parent.
(c) The Company shall have “Cause” to terminate the Executive’s employment hereunder
upon:
(i) the Executive’s failure to use his reasonable best efforts to follow a legal
written order of the Board, other than any such failure resulting from the Executive’s
Disability, and such failure is not remedied within 30 days after receipt of notice;
(ii) the Executive’s gross or willful misconduct with regard to the Company;
(iii) the Executive’s conviction of a felony or crime involving material dishonesty;
(iv) the Executive’s fraud or personal dishonesty involving the Company’s assets (but
excluding expense reimbursement disputes as to which Executive had a reasonable good faith
belief that his conduct was within the policies of the Company); or
(v) the Executive’s unlawful use (including being under the influence) or possession
of illegal drugs on the Company’s premises or while performing the Executive’s duties and
responsibilities under this Agreement.
(d) “Compensation Committee” means the Compensation Committee of the Board.
(e) “Date of Termination” shall mean the date on which the Executive experiences a
Termination of Employment.
(f) “Disability” shall mean the absence of the Executive from the Executive’s duties
to the Company on a full-time basis for a total of six months during any 12-month period as a
result of incapacity due to mental or physical illness which is determined to be reasonably likely
to extend beyond the completion of the Term and which determination is made by a physician selected
by the Company and acceptable to the Executive or the Executive’s legal representative (such
agreement as to acceptability not to be withheld unreasonably). A Disability shall not be
“incurred” hereunder until, at the earliest, the last day of the sixth month of such absence.
(g) The Executive shall have “Good Reason” to resign his employment upon the
occurrence of any of the following without the Executive’s consent:
(i) failure of the Company to continue the Executive in the position of Chief
Executive Officer;
(ii) a material diminution in the nature or scope of the Executive’s responsibilities,
duties or authority;
(iii) a material failure of the Company to make any payment or provide any benefit
under this Agreement;
(iv) the Company’s material breach of this Agreement; or
(v) failure of any successor to the Company to assume the obligations of the Company
hereunder.
Notwithstanding the forgoing, the Executive may not resign his employment for Good Reason
unless: (A) the Executive provided the Company with at least 30 days prior written notice
of his intent to resign for Good Reason; (B) the Company has not remedied the alleged
violation(s) within the 30-day period; and (C) the Executive terminates his employment
within six months of the initial occurrence of the alleged violation.
(h) “Parent” shall mean UCI Holdco, Inc.
(i) “Person” shall mean an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(j) “Termination of Employment” shall mean the time when the engagement of the
Executive as an employee of the Company terminates, but excluding terminations where there is
simultaneous commencement by the Executive of a relationship with the Company or any of its
affiliates as an employee. In no event shall a “Termination of Employment”
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occur under this Agreement until the Executive incurs a “separation from service” within the
meaning of Treasury Regulation Section 1.409A-1(h).
Section 2. Employment.
(a) Term. The initial term of employment under this Agreement (the “Initial
Term”) shall be for the period beginning on the Effective Date of this Agreement and ending
on the first anniversary thereof, unless earlier terminated as provided in Section 3. The
employment term hereunder shall automatically be extended for successive one-year periods
(“Extension Terms” and, collectively with the Initial Term, the “Term”) unless
either party gives notice of non-extension to the other no later than 90 days prior to the
expiration of the then-applicable Term.
(b) Position and Duties. The Executive shall serve as Chief Executive Officer of the
Company and shall have the authorities duties and responsibilities customarily commensurate with
such position and such additional customary responsibilities, duties and authority as may from time
to time be reasonably assigned to the Executive by the Board. The Executive shall report to the
Board. The Executive shall devote substantially all his working time and efforts to the business
and affairs of the Company. The Executive agrees to observe and comply with the Company’s rules
and policies as adopted by the Company from time to time. During the Term, it shall not be a
violation of this Agreement for the Executive to (i) serve on industry trade, civic or
charitable boards or committees; (ii) deliver lectures or fulfill speaking engagements; or
(iii) manage personal investments, as long as such activities do not materially interfere
with the performance of the Executive’s duties and responsibilities. The Executive shall be
permitted to serve on for-profit corporate boards of directors and advisory committees if approved
in advance by the Board.
(c) Compensation and Related Matters.
(i) Annual Base Salary. During the Term, the Executive shall receive a base
salary at a rate of $765,000 per annum, which shall be paid in accordance with the
customary payroll practices of the Company, subject to any increase as determined by the
Compensation Committee in its sole discretion (the “Annual Base Salary”). Annual
Base Salary may be increased, but not decreased, from time to time by the Board.
(ii) Annual Bonus. During the Term, the Executive will participate in an
annual performance-based bonus plan (“Executive Bonus Plan”) established by the
Compensation Committee at a target level of 100% of his Annual Base Salary (“Target
Level”). Such bonus shall be payable at such time as bonuses are paid to other senior
executive officers who participate therein; provided, however, that such
bonus shall be paid in the Executive’s taxable year following the Company’s fiscal year to
which such bonus applies on or before March 15 of such year.
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(iii) Benefits. The Executive shall be entitled to participate in employee
benefit plans, programs and arrangements of the Company which are applicable to the senior
officers of the Company at a level commensurate with the Executive’s position.
(iv) Relocation Expenses. If the Company requires the Executive to relocate
his place of residence outside of the Greater Atlanta area during the Term, the Company
shall reimburse Executive for any of the following expenses to the full extent reasonable:
(i) real estate broker commissions and attorney fees associated with the sale of
his former residence and purchase of a new residence, (ii) moving expenses (as
defined in Section 217(b) of the Internal Revenue Code (the “Code”)), and
(iii) to the extent approved by the Board, necessary temporary lodging for the
Executive and his family, provided that the Executive shall properly account for such
expenses in accordance with the Company’s policies and procedures.
Section 3. Termination.
(a) Termination During Term. The Executive’s employment hereunder may be terminated
by the Company or the Executive, as applicable, without any breach of this Agreement only under the
following circumstances:
(i) Death. The Executive’s employment hereunder shall terminate upon his
death.
(ii) Disability. If the Executive has incurred a Disability, the Company may
give the Executive written notice of its intention to terminate the Executive’s employment.
In that event, the Executive’s employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive, provided
that within the 30 days after such receipt, the Executive shall not have returned to
full-time performance of his duties.
(iii) Termination for Cause. The Company may terminate the Executive’s
employment for Cause.
(iv) Termination without Cause. The Company may terminate the Executive’s
employment without Cause.
(v) Resignation for Good Reason. The Executive may resign his employment for
Good Reason.
(vi) Resignation without Good Reason. The Executive may resign his employment
without Good Reason.
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(vii) Non-extension of Term by the Company. In the event the Company
gives notice of non-extension to the Executive pursuant to Section 2(a), the Executive’s
employment shall terminate upon the expiration of the then current Initial Term or the
Extension Term.
(viii) Non-extension of Term by the Executive. In the event the Executive
gives notice of non-extension to the Company pursuant to Section 2(a), the Executive’s
employment shall terminate upon the expiration of the then current Initial Term or the
Extension Term.
(b) Notice of Termination. Any termination of the Executive’s employment by the
Company or by the Executive under this Section 3 (other than termination pursuant to paragraph
(a)(i)) shall be communicated by a written notice to the other party hereto indicating the specific
termination provision in this Agreement relied upon, setting forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated, and specifying a Date of Termination which, if submitted by the
Executive, shall be at least 30 days following the date of such notice (a “Notice of
Termination”); provided, however, that the Company may, in its sole discretion,
change the Date of Termination to any date following the Company’s receipt of the Notice of
Termination. A Notice of Termination submitted by the Company may provide for a Date of
Termination on the date the Executive receives the Notice of Termination, or any date thereafter
elected by the Company in its sole discretion. The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause
or Good Reason shall not waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing the Executive’s or
the Company’s rights hereunder.
(c) Company obligations upon Termination of Employment. Upon a Termination of
Employment, the Executive (or the Executive’s estate) shall be entitled to receive a lump sum equal
to the Executive’s Annual Base Salary through the Date of Termination not theretofore paid, any
bonus if declared or earned but not yet paid for a completed fiscal year, any expenses owed to the
Executive, any accrued vacation pay owed to the Executive, and any amount arising from the
Executive’s participation in, or benefits under any employee benefit plans, programs or
arrangements, which amounts shall be payable in accordance with the terms and conditions of such
employee benefit plans, programs or arrangements.
Section 4. Severance Payments. The Executive shall be entitled to severance payments
and benefits (collectively, the “Severance”) upon the terms set forth in this Section 4.
Notwithstanding any other provision of the Agreement, the Executive’s right to Severance shall be
subject to the Executive signing and not revoking the Release as set forth in Section 4(d) and
subject to the continued compliance of the Executive with Sections 5, 6, 7, and 8 of this
Agreement.
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(a) Termination for Cause, Resignation without Good Reason or upon Non-extension by the
Executive. If the Executive experiences a Termination of Employment pursuant to Sections
3(a)(iii) for Cause, Section 3(a)(vi) without Good Reason, or pursuant to Sections 3(a)(viii) due
to Non-extension of the Agreement by the Executive, the Executive shall not be entitled to any
Severance (other than as expressly provided for herein or under any benefit plan).
(b) Termination of Employment upon death or Disability. If the Executive experiences
a Termination of Employment pursuant to Section 3(a)(i) due to the Executive’s death, or pursuant
to Section 3(a)(ii) due to the Executive’s Disability, the Company shall pay to the Executive (or
the Executive’s estate):
(i) an amount equal to the Annual Base Salary that the Executive would have been
entitled to receive if the Executive’s employment had continued for a period of six months
following the Date of Termination, in the manner and at such times as specified in Section
4(e); and
(ii) a prorated amount of the Executive’s annual bonus based on the Company’s
year-to-date performance through the Date of Termination in relation to the performance
targets set forth in the Executive Bonus Plan (such amount to be determined in good faith
by the Compensation Committee), on the First Payment Date.
(c) Termination of Employment without Cause, resignation for Good Reason or Termination of
Employment upon Non-extension by the Company. If the Executive experiences a Termination of
Employment due to the Company terminating the Executive’s employment without Cause pursuant to
Section 3(a)(iv), due to the Executive terminating his employment for Good Reason pursuant to
Section 3(a)(v), or due to Non-extension of the Agreement by the Company pursuant to Section
3(a)(vii), the Company shall:
(i) pay to the Executive an amount equal to the Annual Base Salary that the Executive
would have been entitled to receive if the Executive’s employment had continued for a
period of twenty-four months following the Date of Termination, in the manner and at such
times as specified in Section 4(e);
(ii) a lump sum equal to a pro-rata portion of the Executive’s Target Level annual
bonus for the year of termination, based on the number of days the Executive was employed
by the Company during the applicable year, on the First Payment Date; and
(iii) continue coverage for the Executive and any dependents under all Company group
health benefit plans in which the Executive and any dependents were entitled to participate
immediately prior to the Date of Termination (under the same terms as during employment)
for twenty-four months.
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(d) Release. Notwithstanding any provision to the contrary in this Agreement, except
in the case of a termination pursuant to Section 3(a)(i) due to the Executive’s death, no Severance
payments shall be made unless (i) on or following the Termination Date and on or prior to
the 50th day following the Termination Date the Executive executes a waiver
and release of claims agreement in the form attached hereto as Exhibit A (the
“Release”), which Release may be amended by the Company to reflect changes in applicable
laws and regulations, and (ii) such Release shall not have been revoked by the Executive on
or prior to the 8th day following the date of the Release.
(e) Payment Timing; Separate Payments. Except as otherwise provided in this Section
4, the Severance payments shall be payable in the form of salary continuation and shall be paid at
the same time and in the same manner as the Executive’s Annual Base Salary would have been paid if
the Executive had remained in active employment with the Company through the end of the applicable
Severance period in accordance with the Company’s normal payroll practices as in effect on the
Termination Date, except that any payments that would otherwise have been made before the first
normal payroll payment date falling on or after the sixtieth (60th) day after the Termination Date
(the “First Payment Date”) shall be made on the First Payment Date. Each separate
Severance installment payment shall be a separate payment under this Agreement for all purposes.
(f) Survival. The expiration or termination of the Term shall not impair the rights
or obligations of any party hereto, which shall have accrued prior to such expiration or
termination.
(g) Mitigation. The Executive shall have no duty to mitigate the amount of any
payment provided for hereunder by seeking other employment, and any income earned by the Executive
from other employment or self-employment shall not be offset against any obligations of the Company
to the Executive hereunder.
Section 5. Restrictive Covenants.
(a) Non-Competition. The Executive shall not, at any time during the Term or during
the 12-month period following the later of the expiration of the Term or the Date of Termination
(the “Restriction Period”) directly or indirectly engage in, have any equity interest in,
or manage or operate any person, firm, corporation, partnership or business (whether as director,
officer, employee, agent, representative, partner, security holder, consultant or otherwise) that
engages in any business which materially competes with any material business of the Company or any
entity owned by the Company anywhere in the world; provided, however, that the
Executive shall be permitted to acquire a passive stock or equity interest in such a business
provided the stock or other equity interest acquired is not more than five percent (5%) of the
outstanding interest in such business. Nothing herein shall prevent the Executive from engaging in
any activity with, or holding a financial interest in, a non-competitive division, subsidiary or
affiliate of an entity engaged in a business that materially competes with the Company.
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(b) Non-Solicit. During the Term and during Restriction Period, the Executive shall
not, and shall not permit any of his affiliates to, directly or indirectly, recruit or otherwise
solicit or induce any non-clerical employee, customer, subscriber or supplier of the Company to
terminate its employment or arrangement with the Company, otherwise change its relationship with
the Company, or establish any relationship with the Executive or any of his affiliates for any
business purpose that is prohibited by subjection (a) above. Nothing herein shall prevent the
Executive from serving as a reference.
(c) Limitations. In the event the terms of this Section 5 shall be determined by any
court of competent jurisdiction to be unenforceable by reason of its extending for too great a
period of time or over too great a geographical area or by reason of its being too extensive in any
other respect, it will be interpreted to extend only over the maximum period of time for which it
may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the
maximum extent in all other respects as to which it may be enforceable, all as determined by such
court in such action.
Section 6. Nondisclosure of Proprietary Information.
(a) Except as required in the faithful performance of the Executive’s duties hereunder or
pursuant to Section 6(c), the Executive shall, in perpetuity, maintain in confidence and shall not
directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or
the benefit of any person, firm, corporation or other entity any confidential or proprietary
information or trade secrets of or relating to the Company, including, without limitation,
information with respect to the Company’s operations, processes, products, inventions, business
practices, finances, principals, vendors, suppliers, customers, potential customers, marketing
methods, costs, prices, contractual relationships, regulatory status, compensation paid to
employees or other terms of employment, or deliver to any person, firm, corporation or other entity
any document, record, notebook, computer program or similar repository of or containing any such
confidential or proprietary information or trade secrets. The parties hereby stipulate and agree
that as between them the foregoing matters are important, material and confidential proprietary
information and trade secrets and affect the successful conduct of the businesses of the Company
(and any successor or assignee of the Company).
(b) Upon termination of the Executive’s employment with the Company for any reason, the
Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters,
notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents
concerning the Company’s customers, business plans, marketing strategies, products or processes.
The Executive shall be permitted to retain his rolodex (and similar address and telephone
directories).
(c) The Executive may respond to a lawful and valid subpoena or other legal process but shall
give the Company the earliest reasonably possible notice thereof, shall, as much reasonably in
advance of the return date as possible, make available to the Company
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and its counsel the documents
and other information sought and shall reasonably assist such counsel in resisting or otherwise
responding to such process. The Executive may disclose information that is public knowledge.
Section 7. Inventions. All rights to discoveries, inventions, improvements and
innovations (including all data and records pertaining thereto) directly related to the Company’s
business, whether or not patentable, copyrightable, registrable as a trademark, or reduced to
writing, that the Executive may discover, invent or originate during the Term, either alone or with
others and whether or not during working hours or by the use of the facilities of the Company
(“Inventions”), shall be the exclusive property of the Company. The Executive shall
promptly disclose all Inventions to the Company, shall execute at the request of the Company any
assignments or other documents the Company may deem necessary to protect or perfect its rights
therein, and shall assist the Company, at the Company’s expense, in obtaining, defending and
enforcing the Company’s rights therein. The Executive hereby appoints the Company as his
attorney-in-fact to execute on his behalf any assignments or other documents deemed necessary by
the Company to protect or perfect its rights to any Inventions.
Section 8. Non-Disparagement. At any time during the Term or during the Restriction
Period, each of the parties agrees that it will not disparage or denigrate to any person any aspect
of his or its past relationship with the other, nor the character of the other or the other’s
agents, representatives, products, or operating methods, whether past, present, or future, and
whether or not based on or with reference to their past relationship; provided,
however, that this paragraph shall have no application to any evidence or testimony
requested of either party hereto by any court or government agency.
Section 9. Injunctive Relief. It is recognized and acknowledged by the Executive that
a breach of the covenants contained in Sections 5, 6, 7, and 8 will cause irreparable damage to the
Company and its goodwill, the exact amount of which will be difficult or impossible to ascertain,
and that the remedies at law for any such breach will be inadequate. Accordingly, the Executive
agrees that in the event of a breach of any of the covenants contained in Sections 5, 6, 7, or 8,
in addition to any other remedy which may be available at law or in equity, the Company will be
entitled to specific performance and injunctive relief. As used in this Section 9 and as used in
Section s 5, 6, 7, and 8, the term “Company” shall include the Company, Parent, and any of their
direct or indirect subsidiaries.
Section 10. Assignment and Successors. The Company may assign its rights and
obligations under this Agreement to any entity, including any successor to all or substantially all
the assets of the Company, by merger or otherwise, and may assign or encumber this Agreement and
its rights hereunder as security for indebtedness of the Company and its affiliates. The Executive
may not assign his rights or obligations under this Agreement to any individual or entity, except
his estate upon his death. This Agreement shall be binding upon and inure to the benefit of the
Company, the Executive and their
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respective successors, assigns, personnel and legal
representatives, executors, administrators, heirs, distributees, devisees, and legatees, as
applicable.
Section 11. Governing Law. This Agreement shall be governed, construed, interpreted
and enforced in accordance with the substantive laws of the state of New York, without reference to
the principles of conflicts of law of New York or any other jurisdiction, and where applicable, the
laws of the United States.
Section 12. Notices. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when personally delivered
or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid.
In the case of the Executive, mailed notices shall be addressed to him at the home address which he
most recently communicated to the Company in writing. In the case of the Company, mailed notices
shall be addressed to the HR Director at its Rank Australia office, Xxxxx 00/0 Xxxx Xxxxxx, Xxxxxx
0000 Xxxxxxxxx.
Section 13. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which together will constitute one and
the same Agreement.
Section 14. Entire Agreement. The terms of this Agreement and the other agreements
and instruments contemplated hereby or referred to herein (collectively the “Related
Agreements”) are intended by the parties to be the final expression of their agreement with
respect to the employment of the Executive by the Company and may not be contradicted by evidence
of any prior or contemporaneous agreement. The parties further intend that this Agreement and the
Related Agreements shall constitute the complete and exclusive statement of their terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal
proceeding to vary the terms of this Agreement and the Related Agreements. This Agreement
supersedes all prior agreements between the parties concerning the subject matter hereof,
including, but not limited to, any prior employment agreement to which the Executive and the
Company or any of its affiliates are parties.
Section 15. Amendments; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by the Executive and a duly authorized
officer of Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of the Company may waive compliance by the other party or parties with any
provision of this Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to,
any other or subsequent failure. No failure to exercise and no delay in exercising any right,
remedy, or power hereunder preclude any other or further exercise of any other right, remedy, or
power provided herein or by law or in equity.
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Section 16. No Inconsistent Actions. The parties hereto shall not voluntarily
undertake or fail to undertake any action or course of action inconsistent with the provisions or
essential intent of this Agreement. Furthermore, it is the intent of the parties hereto to act in
a fair and reasonable manner with respect to the interpretation and application of the provisions
of this Agreement.
Section 17. Construction. This Agreement shall be deemed drafted equally by both the
parties. Its language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party shall not apply.
Section 18. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted before an arbitrator in
Atlanta, Georgia in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitration award in any court having jurisdiction;
provided, however, that the Company shall be entitled to seek a restraining order
or injunction in any court of competent jurisdiction to prevent any continuation of any violation
of the provisions of Sections 5, 6, 7, or 8 of this Agreement and the Executive hereby consents
that such restraining order or injunction may be granted without requiring the Company to post a
bond. Only individuals who are (i) lawyers engaged fulltime in the practice of law; and
(ii) on the AAA register of arbitrators shall be selected as an arbitrator. Within 20 days
of the conclusion of the arbitration hearing, the arbitrator shall prepare written findings of fact
and conclusions of law. It is mutually agreed that the written decision of the arbitrator shall be
valid, binding, final and non-appealable; provided, however, that the parties
hereto agree that the arbitrator shall not be empowered to award punitive damages against any party
to such arbitration. The arbitrator shall require the non-prevailing party to pay the arbitrator’s
full fees and expenses or, if in the arbitrator’s opinion there is no prevailing party, the
arbitrator’s fees and expenses will be borne equally by the parties thereto. In the event action
is brought to enforce the provisions of this Agreement pursuant to this Section, the non-prevailing
parties shall be required to pay the reasonable attorney’s fees and expenses of the prevailing
parties to the extent determined to be appropriate by the arbitrator, acting in its sole
discretion.
Section 19. Enforcement. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term of this Agreement,
such provision shall be fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a portion of this Agreement; and
the remaining provisions of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be
added automatically as part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
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Section 20. Withholding. The Company shall be entitled to withhold from any amounts
payable under this Agreement any federal, state, local or foreign withholding or other taxes or
charges which the Company is required to withhold. The Company shall be entitled to rely on an
opinion of counsel if any questions as to the amount or requirement of withholding shall arise.
Section 21. In-Kind Benefits and Reimbursements. Notwithstanding anything to the
contrary in this Agreement, in-kind benefits and reimbursements provided under this Agreement
during any tax year of the Executive shall not affect in-kind benefits or reimbursements to be
provided in any other tax year of the Executive, except for the reimbursement of medical expenses
referred to in Section 105(b) of the Code, and are not subject to liquidation or exchange for
another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement
requests must be timely submitted by the Executive and, if timely submitted, reimbursement payments
shall be made to the Executive as soon as administratively practicable following such submission,
but in no event later than the last day of the Executive’s taxable year following the taxable year
in which the expense was incurred. In no event shall the Executive be entitled to any
reimbursement payments after the last day of Executive’s taxable year following the taxable year in
which the expense was incurred. This paragraph shall only apply to in-kind benefits and
reimbursements that would result in taxable compensation income to the Executive.
Section 22. Indemnification and Insurance. The Company shall indemnify the Executive
to the fullest extent permitted by the laws of the State of New York, as in effect at the time of
the subject act or omission, and he will be entitled to the protection of any insurance policies
the Company may elect to maintain generally for the benefit of its directors and senior executive
officers against all costs, charges and expenses incurred or sustained by him in connection with
any action, suit or proceeding to which he may be made a party by reason of his being or having
been a director, officer or employee the Company or any of its subsidiaries or his serving or
having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at
the request of the Company (other than any dispute, claim or controversy arising under or relating
to this Agreement (except for this Section)). The provisions of this Section shall survive any
termination of Executive’s employment or any termination of this Agreement.
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Section 23. Employee Acknowledgement. The Executive acknowledges that he has read and
understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any
representations or promises made by the Company other than those contained in writing herein, and
has entered into this Agreement freely based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above
written.
| COMPANY |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Rank Group | ||||
| EXECUTIVE |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Address: 0000 Xxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000 |
||||
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Exhibit A
General Release and Waiver
For and in consideration of the payments and other benefits due to _______________ (the
“Executive”) pursuant to the Employment Agreement, dated as of __________ __, 2011 (the
“Agreement”), by and between United Components, Inc. (the “Company”) and the
Executive, and for other good and valuable consideration, the Executive hereby agrees, for the
Executive, the Executive’s spouse and child or children (if any), the Executive’s heirs,
beneficiaries, devisees, executors, administrators, attorneys, personal representatives, successors
and assigns, to forever release, discharge and covenant not to xxx the Company, or any of its
divisions, affiliates, subsidiaries, parents, branches, predecessors, successors, assigns, and,
with respect to such entities, their officers, directors, trustees, employees, agents,
shareholders, administrators, general or limited partners, representatives, attorneys, insurers and
fiduciaries, past, present and future (the “Released Parties”) from any and all claims of
any kind arising out of, or related to, his employment with the Company, its affiliates and
subsidiaries (collectively, with the Company, the “Affiliated Entities”), the Executive’s
separation from employment with the Affiliated Entities, which the Executive now has or may have
against the Released Parties, whether known or unknown to the Executive, by reason of facts which
have occurred on or prior to the date that the Executive has signed this Release. Such released
claims include, without limitation, any and all claims relating to the foregoing under federal,
state or local laws pertaining to employment, including, without limitation, the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et. seq., the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et. seq., the Americans
with Disabilities Act, as amended, 42 U.S.C. Section 12101 et. seq. the Reconstruction Era Civil
Rights Act, as amended, 42 U.S.C. Section 1981 et. seq., the Rehabilitation Act of 1973 , as
amended, 29 U.S.C. Section 701 et. seq., the Family and Medical Leave Act of 1992, 29 U.S.C.
Section 2601 et. seq., and any and all state or local laws regarding employment discrimination
and/or federal, state or local laws of any type or description regarding employment, including but
not limited to any claims arising from or derivative of the Executive’s employment with the
Affiliated Entities, as well as any and all such claims under state contract or tort law.
The Executive has read this Release carefully, acknowledges that the Executive has been given
at least twenty-one (21) days to consider all of its terms and has been advised to consult with an
attorney and any other advisors of the Executive’s choice prior to executing this Release, and the
Executive fully understands that by signing below the Executive is voluntarily giving up any right
which the Executive may have to xxx or bring any other claims against the Released Parties,
including any rights and claims under the Age Discrimination in Employment Act. The Executive also
understands that the Executive has a period of seven (7) days after signing this Release within
which to revoke his agreement, and that neither the Company nor any other person is obligated to
make any payments or
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provide any other benefits to the Executive pursuant to the Agreement until eight (8) days
have passed since the Executive’s signing of this Release without the Executive’s signature having
been revoked other than any accrued obligations or other benefits payable pursuant to the terms of
the Company’s normal payroll practices or employee benefit plans. Finally, the Executive has not
been forced or pressured in any manner whatsoever to sign this Release, and the Executive agrees to
all of its terms voluntarily.
Notwithstanding anything else herein to the contrary, this Release shall not affect:
(i) the Company’s obligations under Sections 4(a) or (b) of the Agreement or under
any compensation or employee benefit plan, program or arrangement (including, without limitation,
obligations to the Executive under any stock option, stock award or agreements or obligations under
any pension, deferred compensation or retention plan) provided by the Affiliated Entities where the
Executive’s compensation or benefits are intended to continue or the Executive is to be provided
with compensation or benefits, in accordance with the express written terms of such plan, program
or arrangement, beyond the date of the Executive’s termination; or (ii) rights to
indemnification, contribution or liability insurance coverage the Executive may have under the
by-laws of the Company or applicable law.
This Release is final and binding and may not be changed or modified except in a writing
signed by both parties.
Date |
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Date
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UCI INTERNATIONAL, INC. | |
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