NEWCOR, INC.
Exhibit 10(I) to Form 10-K
For the Year Ended October 31, 1995
RETIREMENT AND TERMINATION
BENEFITS AGREEMENT
THIS AGREEMENT, dated as of the 22nd day of February, 1995,
by and among NEWCOR, INC., a Delaware corporation (the
"Company"), and XXXXXXX X. XXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee are parties to a certain
Employment Agreement dated December 15, 1993, as amended by
agreement dated March 2, 1994 (the "Employment Agreement")
pursuant to which Employee has been employed as the President and
Chief Executive Officer of the Company; and
WHEREAS, the Company and Employee have carried on
discussions and reached certain understandings concerning
Employee's retirement as an employee and officer of the Company;
and
WHEREAS, the Employment Agreement contains certain
provisions concerning termination benefits in the event the
Employment Agreement is terminated; and
WHEREAS, the Company and Employee desire to modify and
supersede the Employment Agreement as it relates to Employee's
retirement.
NOW, THEREFORE, in consideration of the premises, the
agreements and understandings contained herein, and the payments
to be made by the Company pursuant hereto, the Company and
Employee mutually agree as follows:
1. Retirement; Resignation. Employee shall retire as an
employee and resign as an officer of the Company, effective
March 1, 1995 (the "Effective Date"). The Employment Agreement
shall remain in full force and effect until the Effective Date.
The Employment Agreement, and all other agreements, commitments
and understandings between the Company and Employee, whether oral
or written, shall terminate and end as of the Effective Date.
Such retirement and resignation, however, shall in no way affect
Employee's service as a Director of the Company, which shall
continue in accordance with the Bylaws of the Company and
applicable law.
2. Continuing Activities. Notwithstanding Employee's
resignation as an employee, and in consideration of the payments
to be made hereunder by the Company, Employee agrees to make
himself available at the Company's executive offices at
prearranged times during regular business hours for a reasonable
period following the Effective Date to consult with the President
and Chief Executive Officer of the Company. The length of such
service shall be mutually agreed upon by Employee and the
President and Chief Executive Officer. Following such period and
continuing through the remainder of the Payment Period (as
hereinafter defined), as may be in each instance agreed to by
Employee and the Chairman of the Company, Employee shall consult
with the Company concerning such matters related to the Company's
business as employee shall reasonably determine he can provide
assistance to the Company.
3. Continuing Payments. In consideration of the
foregoing, and the other agreements and undertakings of Employee
contained herein, and in full accord, satisfaction and discharge
of any and all obligations, agreements (including the Employment
Agreement), commitments and understandings, the Company shall for
the period commencing on the Effective Date and ending on March
31, 1996 (the "Payment Period"):
a. Pay Employee the sum of $215,193, payable at the
intervals at which executive officers of the Company receive
salary payments, less any taxes and other deductions
required to be withheld by law.
b. Provide Employee and his family with the full
health, life and accident and disability insurance benefits
presently made available by the Company to the Employee in
accordance with the Employment Agreement.
c Permit Employee continued use of the Company-owned
car presently driven by Employee, and pay all insurance,
maintenance and repair and all other costs and expenses
(including the cost of gasoline) of such automobile
resulting from Employee's use of it.
4. Office Support. Commencing upon the expiration of the
transition period referenced in Paragraph 2 above, and continuing
for the balance of the Payment Period, the Company shall
reimburse Employee, upon submission of satisfactory evidence of
payment, for the costs, not to exceed $10,000 in the aggregate,
of maintaining an office of Employee's selection and other
transitional expenses.
5. Options. As provided in the Company's 1982 and 1993
Management Stock Incentive Plan (the "Plan"), Employee shall have
12 months following the Effective Date to exercise any options
issued to Employee under the Plan which are vested as of the
Effective Date.
6. Other Agreements. Following the Effective Date, the
Company agrees to reimburse Employee for all expenses incurred by
Employee in connection with his employment with the Company,
following receipt from Employee of all outstanding expense
reports, in the manner and format customarily prescribed by the
Company of its employees.
7. Release. In consideration of the payments and
reimbursements to be made hereunder by the Company (which
Employee acknowledges as good and valuable consideration and
which constitute, in whole or in part, monies or benefits to
which Employee is not otherwise entitled under the Employment
Agreement or otherwise), Employee, on behalf of himself and his
heirs, legal representatives and assigns, hereby releases and
forever discharges the Company, and its subsidiaries, divisions,
units, successors, affiliates, shareholders, directors, officers,
agents, employees and former employees (hereinafter the "Released
Parties") of and from all actions, causes of action, claims,
demands, compensatory, exemplary, statutory and punitive damages,
costs, suits, debts, dues, sums of money, accounts, reckonings,
bills, covenants, contracts, liens, controversies, agreements,
promises, variances, trespasses, executions, liability and any
all consequential damages whatsoever, in law or in equity, which
Employee, individually, or in any representative capacity, had,
now has or may have or shall have against the Released Parties by
reason of any matter, fact, representation, cause or thing of any
conceivable kind and character whatsoever, and which occurred up
to the Effective Date, including specifically, but not by way of
limitation, any and all claims of discrimination, wrongful
discharge, breach of contract, fraud, promissory estoppel,
misrepresentation, retaliation, all claims under or in connection
with the Age Discrimination in Employment Act, the Older Workers
Benefits Protection Act, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Employee Retirement
Income Security Act of 1974, the Michigan Xxxxxxx-Xxxxxx Civil
Rights Act, the Michigan Handicappers' Civil Rights Act, the
Michigan Workers Disability Compensation Act, The American with
Disabilities Act, and any other Michigan and federal statutes and
the common law of the State of Michigan and the United States,
actions based on torts, public policy, defamation or injuries
incurred on the job or incurred as a result of loss of
employment, and any and all claims and demands of every
conceivable kind based upon or in connection with or involving
Employee's employment and the termination of such employment.
8. Waiver. In further consideration, Employee, on behalf
of himself, his heirs, legal representatives and assigns, hereby
covenants with the Released Parties that he will not xxx or
proceed in any manner, whether at law or in equity, against any
of them, for and account of any claim of any nature whatsoever,
including but not limited to any claim for injuries or
compensatory, exemplary, statutory or punitive damages as the
result of the events arising out of or relating in any way to
Employee's employment or the termination of such employment with
the Company.
9. Indemnification. Nothing contained herein shall alter,
amend or limit in any way Employee's right and entitlement as an
officer, director and employee of the Company to be indemnified
by the Company in accordance with, and subject to, the
Certificate of Incorporation and Bylaws of the Company and
applicable law.
10. Additional Agreements by Employee. Employee hereby
makes the following additional agreements with the Company:
a. The Employee agrees that he will not, at any time
during the Payment Period, without Company's express written
consent engage in any business that is competitive with any
business of the Company, directly or indirectly, alone or as
a partner, officer, director, stockholder employee of, or as
a consultant or adviser to, any other entity.
b. Throughout the Payment Period and continuing
thereafter, Employee agrees to keep confidential all trade
secrets, customer lists, business strategies, financial and
marketing information, and other data concerning the private
affairs of the Company or any of its affiliates made known
to or developed by Employee during the course of his
employment by the Company, or during the Payment Period (the
"Confidential Information"), not to use any Confidential
Information or supply Confidential Information to others
other than in furtherance of the Company's business, and to
return to the Company all copies, in whatever form, of all
Confidential Information and other documents relating to the
business of the Company or of any of its affiliates which
may be in the possession or under the control of Employee.
Further, Employee acknowledges and agrees that any
intellectual property of any sort developed or invented by
Employee while employed by the Company (or any at time
during the Payment Period) whether or not during work hours,
shall be and remain the sole and exclusive property of the
Company, and Employee shall have no interest therein.
c. Employee agrees that, during the Payment Period
and for five (5) years thereafter, he will make no attempt
whatsoever to induce or encourage any employee of the
Company or any of its affiliates to leave such employment
for employment with any other entity with which Employee is
associated and which is engaged in any line of business
which is competitive with the Company or any of its
affiliates; provided, however, the foregoing restriction and
agreement by Employee shall not relate to any family member
of Employee, including Xxxx Xxxxx, a current employee of the
Company.
11. Waiting and Revocation Periods. Employee expressly
acknowledges that he has been advised and instructed that he has
the right to consult an attorney and that he should review the
terms of this Agreement with counsel of his own selection.
Employee further acknowledges that he has twenty-one (21) days
with which to consider the terms of this Agreement and to review
its terms and conditions with his attorney. Employee understands
and agrees that this Agreement is revocable by either party for
seven (7) days after its execution by both parties, and that this
Agreement shall not become effective or enforceable until such
period has expired. This Agreement automatically becomes
enforceable and effective on the 8th day after the date this
Agreement is signed by the parties. This Agreement may be
revoked by a writing sent certified mail by either party post-
marked no later than the 7th day after the Agreement is signed by
both parties (unless that day is a Sunday or a holiday, in which
event the period is extended to day there is mail service).
12. Entire Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof
and supersedes all other agreements or understandings, including,
but not limited to the Employment Agreement. This Agreement
cannot be altered or amended except in writing, which writing
must be signed by Employee and the President and Chief Executive
Officer of the Company. In no event shall this Agreement be
modified by any oral statements, agreements, commitments or
understandings.
13. Free Act and Deed. The Company and Employee
acknowledge that they have reviewed this Agreement, understand
its terms and execute this Agreement as their free act and deed.
Employee further acknowledges that he has been afforded the
opportunity to review this Agreement with counsel of his own
choice and that he knowingly and voluntarily approves this
Agreement.
14. Choice of Law and Severability. This Agreement shall
be governed by and construed in accordance with the internal laws
of the State of Michigan applicable to contracts made and to be
performed within such State. If any provision of this Agreement
shall for any reason be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other
provision hereof, but this Agreement shall, in such event, be
construed as if such invalid and/or unenforceable provision had
never been contained herein.
15. Arbitration. In any controversy, dispute, or claim
arising out of or relating to this Agreement or any claimed
breach thereof shall be settled by arbitration in accordance with
the commercial rules of the American Arbitration Association at
its Southfield, Michigan offices. Judgment upon any award may be
entered in any circuit court or other court having jurisdiction
thereof, without notice to the opposite party or parties.
Anything contained herein to the contrary notwithstanding, this
agreement to arbitrate shall not be deemed to be a waiver of the
Company's right to secure equitable relief including injunction
(whether as part of or separate from the arbitration proceeding)
if and when otherwise appropriate.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
THIS IS A RELEASE. READ BEFORE SIGNING.
NEWCOR, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Its Chairman
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/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
