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Exhibit 10.31
CONSULTING AGREEMENT
THIS AGREEMENT is made on April 12, 1991, between DURAMETALLIC
CORPORATION of Kalamazoo, Michigan ("DURAMETALLIC"), and XXXXX X. XXXX
("Xxxx").
WITNESSETH:
WHEREAS, Xxxx is employed by DURAMETALLIC as a senior executive
and has contributed and is expected to contribute substantially to the
future success of DURAMETALLIC; and
WHEREAS, as part of the terms and conditions of Xxxx'x continued
employment, DURAMETALLIC wishes to provide for continued consulting
services following his retirement;
THE PARTIES agree as follows:
1. Consulting Services. Xxxx agrees to consult with Durametallic
and assist the Board of Directors on matters arising after his
retirement which require Xxxx'x experience and special expertise. These
matters may include, but are not limited to, customer relations,
business development, projects upon which Xxxx has participated and the
transitional matters occasioned by Xxxx'x retirement.
Xxxx will have responsibility and control over the performance of
his consulting services. Xxxx may perform his obligations in any manner
consistent with the goals and policies of DURAMETALLIC. This includes
the ability to delegate any task he deems appropriate to an assistant
of his choosing and the ability to choose the time and place to perform
his services.
Although Xxxx is, in general, responsible for providing the
facilities and equipment required to perform his obligations,
DURAMETALLIC agrees to reimburse Xxxx for any reasonable expenses
incurred while providing assistance or consultation to DURAMETALLIC
under this agreement.
2. Payment for Consulting Services.
(a) Payment for the consulting services required by this
agreement ("Consulting Fees") will be paid as described below if:
(i) Xxxx has not voluntarily terminated his employment
with DURAMETALLIC within 5 years or before reaching the age
of 60 whichever shall first occur;
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(ii) DURAMETALLIC has not terminated Xxxx'x employment
in good faith and with good cause and other than by reason of
Xxxx'x disability; and
(iii) Xxxx provides consulting services as required by
this agreement.
(b) The Consulting Fees shall be paid to Xxxx in annual
installments of $110,000 for 10 years or until Xxxx'x death. The
Consulting Fees shall be paid on the anniversary of Xxxx'x
retirement for each successive year in which the consulting
services are provided. No such fees are payable unless Xxxx is
living on such anniversary date and has provided the services
provided hereunder.
3. Insurance. DURAMETALLIC will purchase and maintain insurance
policies to partially fund the Consulting Fees described in this
Agreement. DURAMETALLIC will pay all premiums due under these insurance
policies directly and will be the sole owner and beneficiary of these
insurance policies. DURAMETALLIC will not be required to fund the
entire amount of its obligation under this Agreement by these insurance
policies. DURAMETALLIC will not grant any security interest,
encumbrance or lien on the insurance policies which is superior to the
interest of general creditors of the corporation.
4. No Fiduciary Relationship. Xxxx shall have no greater rights
under this agreement than those of a general unsecured creditor of
DURAMETALLIC. Nothing contained in this Agreement and no action taken
pursuant to the provisions of this Agreement shall be construed as
creating a trust of any kind. Nothing contained in this Agreement shall
be construed as creating an escrow arrangement of any kind or a
fiduciary relationship between DURAMETALLIC and Xxxx as pertains to the
subject matter of this Agreement.
5. Other Benefits and Remuneration. Nothing contained in this
Agreement shall be deemed to exclude Xxxx from any compensation,
insurance, or other benefit to which he may now be or later become,
entitled as an employee of DURAMETALLIC.
6. No Assignment of Consulting Fees. The right to receive deferred
compensation under this Agreement may not be sold, assigned,
transferred, pledged, or encumbered by Xxxx or Xxxx'x beneficiary, or
any other person.
7. Termination. This Agreement cannot be terminated by
DURAMETALLIC without the consent of Xxxx. This Agreement is terminated
without further action if DURAMETALLIC terminates Xxxx'x employment
with good cause and in good faith.
8. Change in Management or Control. This Agreement will be
unaffected by a change in the management or control of DURAMETALLIC.
Termination of Xxxx'x employment related to or following a change in
management or control of DURAMETALLIC will not be deemed to be "for
good cause" and will not affect Xxxx'x rights under this Agreement.
9. Disability. Xxxx shall be considered disabled if by reason of
accident, physical illness, or mental illness: (a) Xxxx does not
fulfill Xxxx'x normal responsibilities as an employee of DURAMETALLIC
for a period of at least 6 months; (b) DURAMETALLIC and Xxxx agree that
Xxxx is or will be unable to perform Xxxx'x normal responsibilities as
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an employee for a period of at least 6 months; or (c) there is a
dispute as to disability and a physician or panel of physicians
determines that Xxxx is or will be unable to perform Xxxx'x normal
responsibilities for a period of at least 6 months. Disputes regarding
existence or date of disability shall be determined by a licensed
physician selected by agreement of DURAMETALLIC and Xxxx. Such
physician's fees shall be paid by DURAMETALLIC. If they cannot agree
upon a physician, the dispute shall be determined by a majority of a
panel of three licensed physicians, one selected by DURAMETALLIC, one
selected by Xxxx, and the third selected by the first two. DURAMETALLIC
and Xxxx shall each pay the fees of the physician they select, and the
fees of the third physician shall be shared equally. The date of
disability shall be the beginning of the 6-month period or the date
determined to be the onset of the disability by the physicians or panel
of physicians.
10. Amendment. The parties may amend this Agreement only by a
mutually executed written document.
11. Governing Law. This Agreement shall be construed according to
the laws of the State of Michigan.
IN WITNESS WHEREOF, this Agreement has been executed as of the
date written above.
DURAMETALLIC CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
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Its Senior VP Finance
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/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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