EMPLOYMENT AGREEMENT
Exhibit
10.29
EMPLOYMENT
AGREEMENT (the “Agreement”)
dated as of January 1, 2007 by and between XXXXXX-STANDARD AUTOMOTIVE
INC. (the “Company”)
and Xxxxxxx X. Xxxxxxxx (the “Executive”).
WHEREAS,
the Company desires to employ Executive on the terms set forth in
this Agreement and Executive desires to accept and continue such
employment with the Company under the terms of this
Agreement.
NOW
THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties
agree as follows:
1. Term
of Employment.
Subject to the provisions of Section 7 of this Agreement, Executive
shall be employed by the Company for a period commencing on January
1, 2007 (the “Effective
Date”)
and ending on December 31, 2009 (the “Employment
Term”)
on the terms and subject to the conditions set forth in this
Agreement; provided,
however, that commencing with December 31, 2009 and on each December
31 thereafter (each an “Extension
Date”),
the Employment Term shall be automatically extended for an additional
one-year period, unless the Company or Executive provides the other
party hereto 60 days prior written notice before the next Extension
Date that the Employment Term shall not be so extended.
2. Position.
a. During
the Employment Term, Executive shall serve as the Company’s Vice
President, Strategic Planning & Business Development. In such
positions, Executive shall have such duties and authority as is
customarily associated with such positions at other privately held
companies similar to the Company and shall have such duties,
consistent with Executive’s positions, as may be assigned from
time to time by the Chief Executive Officer of the Company (the
“CEO”)
or the Board of Directors of the Company (the “Board”).
b. During
the Employment Term, Executive will devote Executive’s full
business time and best efforts to the performance of Executive’s
duties hereunder and will not engage in any other business,
profession or occupation for compensation or otherwise which would
conflict or interfere with the rendition of such services either
directly or indirectly, without the prior written consent of the
Board; provided
that nothing herein shall preclude Executive, subject to the prior
approval of the Board, from accepting appointment to or continue to
serve on any board of directors or trustees of any business
corporation or any charitable organization; provided
in each case, and in the aggregate, that such activities do not
conflict or interfere with the performance of Executive’s duties
hereunder or conflict with Section 8.
3. Base
Salary.
During the Employment Term, the Company shall pay Executive a base
salary at the annual rate of $300,000, payable in regular
installments in accordance with the Company’s usual payroll
practices. Executive shall be entitled to such increases in
Executive’s base salary, if any, as may be determined from time
to time by the compensation committee of the Board, based upon the
recommendation of the CEO.
Executive’s
annual base salary, as in effect from time to time, is hereinafter
referred to as the “Base
Salary.”
4. Bonus
Incentives.
During the Employment Term, Executive shall be entitled to
participate in such annual and/or long-term cash incentive plans and
programs of the Company as are generally provided to the
Company’s other senior executives.
5. Employee
Benefits.
During the Employment Term, Executive shall be entitled to
participate in the Company’s employee benefit plans (other than
annual bonus and long-term incentive programs, which are addressed in
Section 4) as in effect from time to time (collectively
“Employee
Benefits”),
on the same basis as those benefits are generally made available to
other senior executives of the Company; provided
that the Company may reduce such level of benefits to the extent such
reduction applies to at least half of the senior executives of the
Company.
6. Business
Expenses. During
the Employment Term, reasonable business expenses incurred by
Executive in the performance of Executive’s duties hereunder
shall be reimbursed by the Company in accordance with Company
policies.
7. Termination.
The Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason;
provided
that Executive will be required to give the Company at least 60 days
advance written notice of any resignation of Executive’s
employment. Notwithstanding any other provision of this Agreement,
the provisions of this Section 7 shall exclusively govern
Executive’s rights upon termination of employment with the
Company and its affiliates.
a. By
the Company For Cause or By Executive’s Resignation Without Good
Reason.
(i) The
Employment Term and Executive’s employment hereunder may be
terminated by the Company for Cause (as defined in Section 7(a)(ii)
and shall terminate automatically upon Executive’s resignation
without Good Reason (as defined in Section 7(c)); provided that
Executive will be required to give the Company at least 60 days
advance written notice of a resignation without Good
Reason.
(ii) For
purposes of this Agreement, “Cause”
shall mean any of: (I) the Executive’s willful failure to
perform duties or directives which is not cured following written
notice, (II) the Executive’s commission of a (x) felony or (y)
crime involving moral turpitude, (III) the Executive’s willful
malfeasance or misconduct which is demonstrably injurious to the
Company or its affiliates, or (IV) material breach by the Executive
of the restrictive covenants, including, without limitation, Sections
8 and 9 hereof and any non-compete, non-solicitation or
confidentiality provisions to which the Executive is
bound.
(iii) If,
during the Employment Term, Executive’s employment is terminated
by the Company for Cause or Executive resigns without Good Reason,
Executive shall be entitled to receive:
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(A) the
Base Salary accrued but not paid through the date of
termination;
(B) any
annual and/or long-term bonus earned but unpaid as of the date of
termination for any previously completed fiscal year or performance
period;
(C) reimbursement
for any unreimbursed business expenses properly incurred by Executive
in accordance with Company policy prior to the date of
Executive’s termination; and
(D) such
Employee Benefits, if any, as to which Executive may be entitled
under the employee benefit plans of the Company (the amounts
described in clauses (A) through (D) hereof being referred to as the
“Accrued
Rights”).
Following
such termination of Executive’s employment by the Company for
Cause or resignation by Executive without Good Reason, except as set
forth in this Section 7(a)(iii), Executive shall have no further
rights to any compensation or any other benefits under this
Agreement.
b. Disability
or Death.
(i) The
Employment Term and Executive’s employment hereunder shall
terminate upon Executive’s death and may be terminated by the
Company if Executive becomes physically or mentally incapacitated and
is therefore unable for a period of six (6) consecutive months or for
an aggregate of nine (9) months in any twenty-four (24) consecutive
month period to perform Executive’s duties (such incapacity is
hereinafter referred to as “Disability”).
Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in
writing by a qualified independent physician mutually acceptable to
Executive and the Company. If Executive and the Company cannot agree
as to a qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall
make such determination in writing. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
(ii) Upon
termination of Executive’s employment hereunder during the
Employment Term for either Disability or death, Executive,
Executive’s estate or Executive’s beneficiaries under the
terms of any benefit plan (as the case may be) shall be entitled to
receive:
(A) the
Accrued Rights; and
(B) a
pro rata portion of any Annual Bonus, if any, that Executive would
have been entitled to receive pursuant to Section 4 hereof in such
year based upon the percentage of the fiscal year that shall have
elapsed through the date of Executive’s termination of
employment, payable when such Annual Bonus would have otherwise been
payable had Executive’s employment not terminated.
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Following
Executive’s termination of employment due to death or
Disability, except as set forth in this Section 7(b)(ii), Executive
shall have no further rights to any compensation or any other
benefits under this Agreement.
c. By
the Company Without Cause or Resignation by Executive for Good
Reason.
(i) The
Employment Term and Executive’s employment hereunder may be
terminated by the Company without Cause or by Executive’s
resignation for Good Reason.
(ii) For
purposes of this Agreement,
(A) “Good
Reason”
shall mean any of: (i) a substantial diminution in Executive’s
position or duties; adverse change in reporting lines; or assignment
of duties materially inconsistent with Executive’s position;
(ii) any reduction in Executive’s Base Salary or Annual Bonus
opportunity; (iii) any reduction in Executive’s long-term cash
incentive compensation opportunities, other than reductions generally
affecting other senior executives participating in the applicable
long-term incentive compensation programs or arrangements; (iv) the
failure of the Company to pay Executive any compensation or benefits
when due hereunder; (v) relocation of Executive’s principal
place of work in excess of fifty (50) miles from Executive’s
current principal place of work; or (vi) any material breach by the
Company of the terms of the Agreement; provided
that none of the events described in this Section 7(c)(ii)(A) shall
constitute Good Reason unless the Company fails to cure such event
within 10 calendar days after receipt from Executive of written
notice of the event which constitutes Good Reason.
(B) “Change
of Control”
shall mean the occurrence of any of the following events after the
Effective Date: (i) the sale or disposition, in one or a series of
related transactions, of all or substantially all of the assets of
Xxxxxx-Standard Holdings Inc. (“CSA”)
to any “person” or “group” (as such terms are
defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other
than Permitted Holders or (ii) any person or group, other than
Permitted Holders, is or becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of greater than or equal to 50% of the total voting power
of the voting stock of CSA, including by way of merger, consolidation
or otherwise, except where one or more of Cypress Merchant Banking
Partners II L.P., Cypress Merchant Banking II C.V., 55th
Street Partners II L.P., Cypress Side-By-Side LLC, GS Capital
Partners 2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS
Capital Partners 2000 GmbH & Co. Beteiligungs KG, GS Capital
Partners 2000 Employee Fund, L.P. and Xxxxxxx Sachs Direct Investment
Fund 2000, L.P. (collectively, the “Sponsors”)
and/or their respective affiliates, immediately following such
merger, consolidation or other transaction, continue to have the
ability to designate or elect a majority of the Board of Directors of
CSA (or the board of directors of the resulting entity or its parent
company). For purposes of this Agreement, “Permitted
Holder”
shall mean, as of the date of determination, any and all of (x) an
employee benefit plan
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(or
trust forming a part thereof) maintained by (A) the Company or its
affiliate or (B) any corporation or other person of which a majority
of its voting power of its voting equity securities or equity
interest is owned, directly or indirectly, by the Company or its
affiliate and (y) the Sponsors and any of their respective
affiliates. Notwithstanding that a transaction or series of
transactions does not constitute a Change of Control, with respect to
Executive it shall be deemed to be a Change of Control for purposes
of Executive’s entitlement’s hereunder if clause (i),
above, is satisfied in respect of the business or division in which
Executive is principally engaged. For the avoidance of doubt, a
Change of Control pursuant to the immediately preceding sentence
shall not apply to Executive if his employment is not primarily with
and for the business or division that is sold.
(iii) If
during the Employment Term Executive’s employment is terminated
by the Company without Cause (other than by reason of death or
Disability) or Executive resigns for Good Reason, Executive shall be
entitled to receive, subject to Executive’s execution (without
subsequent revocation) of a release of claims substantially in the
form of Exhibit A (the “Release”):
(A) Termination
Prior to a Change of Control.
If such termination of employment occurs prior
to
a Change of Control, then:
| (i) |
the
Accrued Rights; |
| (ii) |
a
pro rata portion of any Annual Bonus, if any, that Executive would
have been entitled to receive pursuant to Section 4 hereof in respect
of such year based upon the percentage of the fiscal year that shall
have elapsed through the date of Executive’s termination of
employment, payable when such Annual Bonus would have otherwise been
payable had Executive’s employment not terminated;
|
| (iii) |
subject
to Section 11.k., a single lump sum cash payment within five (5) days
following the expiration of such revocation period provided for in
the Release equal to one (1) times the sum of Executive’s (i)
Base Salary plus (ii) Target Annual Bonus for the year prior to such
termination of employment; |
| (iv) |
subject
to Section 11.k., a single lump sum cash payment within five (5) days
following the expiration of such revocation period provided for in
the Release equal to the actuarial equivalent (determined using all
of the same mortality, interest rate and other methods and
assumptions as are used from time to time to determine
“actuarial equivalence” for lump sum benefits under the
applicable Retirement Plan (as defined below)) of the excess of (A)
the retirement pension (determined as a straight life annuity
commencing at age sixty-five (65) or the first of the month following
the Executive’s termination of employment, whichever
|
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is later) which Executive would have accrued under
the terms of any tax qualified defined benefit plan or scheme and
nonqualified supplementary defined benefit plan sponsored by the
Company in which Executive participates (the “Retirement
Plans”), determined as if the Executive had accumulated
(after the date of termination) twelve (12) additional months of
service credit thereunder and had pensionable compensation equal to
the pensionable compensation (as determined pursuant to the terms of
the Retirement Plans) paid to the Executive for the calendar year
immediately preceding the year in which such termination of
employment occurs, over (B) the retirement pension (determined as a
straight life annuity commencing at age sixty-five (65) or the first
of the month following the Executive’s termination of
employment, whichever is later) which Executive had then accrued
pursuant to the provisions of such Retirement Plans; and
| (v) |
for
twenty-four (24) months following his date of termination, the
Company shall arrange to provide Executive with life (for the
Executive only, excluding spouse or dependent life insurance) and
health insurance benefits on the same basis applicable to active
employees of the Company, provided
the Executive remits to the Company on a timely basis the monthly
active employee premiums owed for such coverage; and provided
that if the Company is unable to continue Executive’s life
insurance coverage under the Company’s group policy, the Company
shall pay for Executive’s conversion policy for such period.
Benefits otherwise receivable by Executive pursuant to this
Subsection (v) shall become secondary to comparable benefits that are
actually received by Executive during the remainder of such period
following his termination, and any such benefits actually received by
Executive shall be reported to the Company. The continued health
insurance benefits hereunder shall count as COBRA continuation
coverage. |
(B) Termination
Following a Change of Control.
If such termination of employment occurs following
a Change of Control, the Accrued Rights, but without further payments
or benefits hereunder, however,
Executive shall be entitled (albeit without duplication of amounts
payable in respect of the Accrued Rights) to be covered by the
Company’s Change of Control Severance Pay Plan, substantially in
the form of Exhibit B (the “Change
of Control Severance Plan”).
Notwithstanding
the foregoing, the aggregate amounts payable to Executive pursuant to
this Section 7(c)(iii) shall be reduced by the present value of any
other cash severance or termination benefits payable to Executive
under any other plans, programs or arrangements of the Company or its
affiliates including, without limitation, under the Change of Control
Severance Plan. Following Executive’s termination of employment
by the Company without Cause (other than by reason of
Executive’s death or Disability) or by Executive’s
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resignation
for Good Reason, except as set forth in this Section 7(c), Executive
shall have no further rights to any compensation or any other
benefits under this Agreement.
d. Expiration
of Employment Term.
In the event either party elects not to extend the Employment Term
pursuant to Section 1, unless Executive’s employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this Section 7,
Executive’s termination of employment hereunder shall be deemed
to occur on the close of business on the day immediately preceding
the next scheduled Extension Date, and upon such deemed termination
of Executive’s employment hereunder:
(i) if
Executive has elected not to extend the Employment Term, Executive
shall be entitled to receive only the Accrued Rights; or
(ii) if
the Company has elected not to extend the Employment Term (for other
than Cause), Executive shall be entitled to receive the amounts and
considerations provided for in Section 7 c. as if Executive’s
employment had been terminated by the Company without Cause (other
than by reason of Executive’s death or Disability) or by
Executive’s resignation for Good Reason immediately prior to the
expiration of the Employment Term; provided that:
(A) the
amounts and considerations provided for in Section 7 c. shall not be
paid or begin to be paid until the Executive’s actual separation
from the Company and its affiliates (within the meaning of Code
Section 409A);
(B) if
the date of Executive’s actual separation from the Company is on
or after his 65th
birthday, Executive shall be entitled to receive only the Accrued
Rights.
Following
such deemed termination of Executive’s employment hereunder as a
result of either party’s election not to extend the Employment
Term, except as set forth in this Section 7 d., Executive shall
have no further rights to any compensation or any other benefits
under this Agreement.
e. Notice
of Termination.
Any purported termination of employment by the Company or by
Executive (other than due to Executive’s death) shall be
communicated by written Notice of Termination to the other party
hereto in accordance with Section 11(h) hereof. For purposes of this
Agreement, a “Notice
of Termination”
shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so
indicated.
f. Board/Committee
Resignation.
Upon termination of Executive’s employment for any reason,
Executive agrees to resign, as of the date of such termination and to
the extent applicable, from the Board (and any committees thereof)
and the Board of Directors (and any committees thereof) of any of the
Company’s affiliates.
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8. Non-Competition.
a. Executive
acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agrees
as follows:
(i) During
the Executive’s employment with the Company and for a period of
one year following the date Executive ceases to be employed by the
Company and its affiliates, Executive will not:
(A) engage
in any Competitive Activity (as defined in Section 8(b));
or
(B) induce
or attempt to induce customers, business relations or accounts of the
Company or any of its affiliates to relinquish their contracts or
relationships with the Company or any its affiliates; or
(C) solicit,
entice, assist or induce other employees, agents or independent
contractors to leave the employ of the Company or any of its
affiliates or to terminate their engagements with the Company and/or
any of its affiliates or assist any competitors of the Company or any
of its affiliates in securing the services of such employees, agents
or independent contractors.
b. Definitions. For
purposes of this Agreement, “Competitive Activity”
means Executive’s participation, without the written consent of
any one of the Chief Executive Officer, or Chief Operating Officer
(except where Executive holds any of such positions, in which case
the Board shall be required to provide such written consent), if any,
of the Company, in the management of any business enterprise if such
enterprise engages in substantial and direct competition with the
Company or any of its affiliates and such enterprise’s sales of
any product or service competitive with any product or service of the
Company or any of its affiliates amounted to 5% of such
enterprise’s net sales for its most recently completed fiscal
year and if the Company’s net sales of said product or service
amounted to 5% of, as applicable, the Company’s or its
affiliate’s net sales for its most recently completed fiscal
year. “Competitive Activity” will not include (i) the mere
ownership of 5% or more of securities in any such enterprise and the
exercise of rights appurtenant thereto or (ii) participation in the
management of any such enterprise other than in connection with the
competitive operations of such enterprise.
9. Confidentiality;
Intellectual Property.
a. Confidentiality.
(i) Executive
acknowledges and agrees that in the performance of his duties as an
employee of the Company or an affiliate thereof, he was and will
continue to be brought into frequent contact with, had and will
continue to have access to, and became and will continue to become
informed of confidential and proprietary information of the Company
and its affiliates and/or information which is a trade secret of the
Company and/or its affiliates (collectively, “Confidential
Information”),
as more fully described in Subsection (ii) of this Section. Executive
acknowledges and agrees that the Confidential Information of the
Company and its affiliates gained by Executive during his association
with the Company and its affiliates was, is and will be developed by
and/or for the Company and its affiliates through substantial
8
expenditure
of time, effort and money and constitutes valuable and unique
property of the Company and its affiliates.
(ii) The
Executive will keep in strict confidence, and will not, directly or
indirectly, at any time, disclose, furnish, disseminate, make
available, use or suffer to be used in any manner any Confidential
Information of the Company or its affiliates without limitation as to
when or how Executive may have acquired such Confidential Information
(subject to subsection (iv)). Executive specifically
acknowledges that Confidential Information includes any and all
information, whether reduced to writing (or in a form from which
information can be obtained, translated, or derived into reasonably
usable form), or maintained in the mind or memory of Executive and
whether compiled or created by the Company or its affiliates, which
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value
from the disclosure or use of such information, that reasonable
efforts have been put forth by the Company and its affiliates to
maintain the secrecy of Confidential Information, that such
Confidential Information is and will remain the sole property of the
Company and its affiliates, and that any retention (in tangible form)
or use by Executive of Confidential Information not in the good faith
performance of his duties in the best interest of the Company or, in
any case, after the termination of Executive’s employment with
and services for the Company and its affiliates shall constitute a
misappropriation of the Company’s Confidential
Information.
(iii) The
Executive further agrees that he shall return, within ten (10) days
of the effective date of his termination as an employee of the
Company and its affiliates, in good condition, all property of the
Company and its affiliates then in Executive’s possession,
including, without limitation, whether in hard copy or in any other
media (i) property, documents and/or all other materials (including
copies, reproductions, summaries and/or analyses) which constitute,
refer or relate to Confidential Information of the Company or its
affiliates, (ii) keys to property of the Company or its affiliates,
(iii) files and (iv) blueprints or other drawings.
(iv) Executive
further acknowledges and agrees that his obligation of
confidentiality shall survive until and unless such Confidential
Information of the Company or its affiliates shall have become,
through no fault of Executive, generally known to the industry or
Executive is required by law (after providing the Company with notice
and opportunity to contest such requirement) to make disclosure.
Executive’s obligations under this Section are in addition to,
and not in limitation or preemption of, all other obligations of
confidentiality which Executive may have to the Company and its
affiliates under general legal or equitable principles or
statutes.
b. Intellectual
Property.
(i) If
Executive has created, invented or contributed to any works of
authorship, inventions, software, databases, systems or other
intellectual property, materials, documents or other work product
(“Works”)
prior to Executive’s employment, that are relevant to or
implicated by such employment (“Prior
Works”),
Executive hereby agrees not to seek royalties or other compensation
from the Company, and not to assert any infringement or similar claim
against the Company, for the Company’s use of such Prior
Works.
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(ii) If
Executive creates, invents or contributes to any Works at any time
during Executive’s employment and within the scope of such
employment and/or with the use of any Company resources
(“Company
Works”),
Executive hereby assigns and shall assign all rights and intellectual
property rights therein to the Company to the extent ownership of any
such rights does not vest originally in the Company.
10. Specific
Performance/Survival.
Executive acknowledges and agrees that the Company’s remedies at
law for a breach or threatened breach of any of the provisions of
Section 8 or 9 would be inadequate and the Company would suffer
irreparable damages as a result of such breach or threatened breach.
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, the Company, without posting any bond, shall be entitled to
cease making any payments or providing any benefit otherwise required
by this Agreement and obtain 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.
In the event the Company wrongfully ceases making payments and
providing benefits in accordance with the prior sentence, Executive
shall be entitled to recover reasonable attorney fees, incurred in
recovering such payments or benefits. The provisions of Section 8, 9
and 10 shall survive the termination of this Agreement.
11. Miscellaneous.
a. Governing
Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Michigan, without regard to conflicts of
laws principles thereof.
b. Entire
Agreement/Amendments.
This Agreement contains the entire understanding of the parties with
respect to the employment of Executive by the Company. There are no
restrictions, agreements, promises, warranties, covenants or
undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This Agreement
may not be altered, modified, or amended except by written instrument
signed by the parties hereto.
c. No
Waiver.
The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver of
such party’s rights or deprive such party of the right
thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
d. Severability.
In the event that any one or more of the provisions of this Agreement
shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
e. Assignment.
This Agreement, and all of Executive’s rights and duties
hereunder, shall not be assignable or delegable by Executive. Any
purported assignment or delegation by Executive in violation of the
foregoing shall be null and void ab
initio
and of no force and effect. This Agreement may be assigned by the
Company to a person or entity which is an affiliate, and shall be
assigned by the Company to a person or entity which is a successor
in
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interest
to substantially all of the business operations of the Company. Upon
such assignment, the rights and obligations of the Company hereunder
shall become the rights and obligations of such affiliate or
successor person or entity.
f. Set
Off; No Mitigation.
The Company’s obligation to pay Executive the amounts provided
and to make the arrangements provided hereunder shall be subject to
set-off, counterclaim or recoupment of amounts owed by Executive to
the Company or its affiliates. However, Executive shall not be
required to mitigate the amount of any payment provided for pursuant
to this Agreement by seeking other employment or
otherwise.
g. Successors;
Binding Agreement.
This Agreement shall inure to the benefit of and be binding upon
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
h. Notice.
For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or
overnight courier or three days after it has been mailed by United
States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below in this
Agreement, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon
receipt.
If
to the Company:
Xxxxxx-Standard
Automotive Inc.
00000
Xxxxxxx Xxxx Xxxxx Xxxxx
Xxxx,
XX 00000
Phone:
000-000-0000
Attention:
Chief Executive Officer
If
to Executive:
To
the most recent address of Executive set forth in the personnel
records of the Company.
i. Executive
Representation.
Executive hereby represents to the Company that the execution and
delivery of this Agreement by Executive and the Company and the
performance by Executive of Executive’s duties hereunder shall
not constitute a breach of, or otherwise contravene, the terms of any
employment agreement or other agreement or policy to which Executive
is a party or otherwise bound.
j. Prior
Agreements.
This Agreement supercedes all prior agreements and understandings
(including verbal agreements) between Executive and the Company
and/or its affiliates regarding the terms and conditions of
Executive’s employment with the Company and/or its affiliates.
For the avoidance of doubt, this Agreement shall not supercede the
Change of Control Severance Plan and any equity-based awards granted
to the Executive pursuant to the 2004 CSA Acquisition Corp. Stock
Incentive Plan.
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k. Compliance
with IRC Section 409A.
Notwithstanding anything herein to the contrary, (i) if at the time
of Executive’s termination of employment with the Company and
its affiliates, Executive is a “specified employee” as
defined in Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the deferral of the commencement
of any payments or benefits otherwise payable hereunder as a result
of such termination of employment is necessary in order to prevent
any accelerated or additional tax under Section 409A of the Code,
then the Company will defer the commencement of the payment of any
such amounts or benefits hereunder (without any reduction in such
payments or benefits ultimately paid or provided to Executive) until
the date that is six months following Executive’s termination of
employment with the Company (or the earliest date as is permitted
under Section 409A of the Code) and (ii) if any other payments of
money or other benefits due to Executive hereunder could cause the
application of an accelerated or additional tax under Section 409A of
the Code, such payments or other benefits shall be deferred if
deferral will make such payment or other benefits compliant under
Section 409A of the Code, or otherwise such payment or other benefits
shall be restructured, to the extent possible, in a manner,
determined by the Board, that does not cause such an accelerated or
additional tax. The Executive will be considered to have terminated
employment hereunder for purposes of receiving payments subject to
Code Section 409A only if his termination of employment constitutes a
“separation from service” within the meaning of Code
Section 409A.
l. Cooperation.
Executive shall provide Executive’s reasonable cooperation in
connection with any action or proceeding (or any appeal from any
action or proceeding) which relates to events occurring during
Executive’s employment hereunder. This provision shall survive
any termination of this Agreement.
m. Withholding
Taxes.
The Company may withhold from any amounts payable under this
Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or
regulation.
n. Survival.
The provisions of Sections 7 d., 8, 9, 10 and 11 of this Agreement
shall survive any termination of this Agreement or Executive’s
termination of employment hereunder
o. Counterparts.
This Agreement may be signed in counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
|
XXXXXX-STANDARD
AUTOMOTIVE INC. |
EXECUTIVE
|
|
|
/s/
Xxxxx X. XxXxxx |
/s/
Xxxxxxx X. Xxxxxxxx |
|
|
By:
Xxxxx X. XxXxxx
Title:
Chairman and Chief Executive Officer |
Name:
Xxxxxxx X. Xxxxxxxx |
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EXHIBIT
A
XXXXXX-STANDARD
AUTOMOTIVE INC.
Form
of Release
WHEREAS,
________________ (the “Executive”)
employment has been terminated in accordance with Section 7(c) of the
Employment Agreement dated as of ________________ between
Xxxxxx-Standard Automotive Inc. (“Xxxxxx”)
and the Executive (the “Employment
Agreement”);
and
WHEREAS,
the Executive is required to sign this Release in order to receive
the severance and termination benefits described in Section 7(c) of
the Employment Agreement.
NOW
THEREFORE, in consideration of the promises and agreements contained
herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally
bound, the Executive agrees as follows:
1. This
Release is effective on the date hereof and will continue in effect
as provided herein.
2. In
consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Employment Agreement, which
the Executive acknowledges are in addition to payments and benefits
which the Executive would be entitled to receive absent the
Employment Agreement, the Executive, for himself and his dependents,
successors, assigns, heirs, executors and administrators (and his and
their legal representatives of every kind), hereby releases,
dismisses, remises and forever discharges Xxxxxx, its predecessors,
parents, subsidiaries, divisions, related or affiliated companies,
officers, directors, stockholders, members, employees, heirs,
successors, assigns, representatives, agents and counsel (the
“Company”)
from any and all arbitrations, claims, including claims for
attorney’s fees, demands, damages, suits, proceedings, actions
and/or causes of action of any kind and every description, whether
known or unknown, which Executive now has or may have had for, upon,
or by reason of any cause whatsoever (“claims”),
against the Company, including but not limited to:
(a) any
and all claims arising out of or relating to Executive’s
employment by or service with the Company and his termination from
the Company;
(b) any
and all claims of discrimination, including but not limited to claims
of discrimination on the basis of sex, race, age, national origin,
marital status, religion or handicap, including, specifically, but
without limiting the generality of the foregoing, any claims under
the Age Discrimination in Employment Act, as amended, Title VII of
the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, The Xxxxxxx-Xxxxxx Civil Rights Act, the Michigan
Handicappers’ Civil Rights Act, the Michigan Wage Payment Act
(MCLA Section 408.471), the Polygraph Protection Act of 1981, the
Michigan Whistleblower’s Protection Act (MCLA Section 15.361),
the common law of the State of Michigan, and any other applicable
state statutes and regulations; and
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provided,
however
that the foregoing shall not apply to claims to enforce rights that
Executive may have as of the date hereof or in the future under any
of Xxxxxx’x health, welfare, retirement, pension or incentive
plans, under any indemnification agreement between the Executive and
Xxxxxx, under Xxxxxx’x indemnification by-laws, under the
directors’ and officers’ liability coverage maintained by
Xxxxxx, under the applicable provisions of the Delaware General
Corporation Law, or that Executive may have in the future under the
Employment Agreement or under this Release.
(c) any
and all claims of wrongful or unjust discharge or breach of any
contract or promise, express or implied.
3. Executive
understands and acknowledges that the Company does not admit any
violation of law, liability or invasion of any of his rights and that
any such violation, liability or invasion is expressly denied. The
consideration provided for this Release is made for the purpose of
settling and extinguishing all claims and rights (and every other
similar or dissimilar matter) that Executive ever had or now may have
against the Company to the extent provided in this Release. Executive
further agrees and acknowledges that no representations, promises or
inducements have been made by the Company other than as appear in the
Employment Agreement.
4. Executive
further agrees and acknowledges that:
(a) The
release provided for herein releases claims to and including the date
of this Release;
(b)
Executive has been advised by the Company to consult with legal
counsel prior to executing this Release, has had an opportunity to
consult with and to be advised by legal counsel of his choice, fully
understands the terms of this Release, and enters into this Release
freely, voluntarily and intending to be bound;
(c) Executive
has been given a period of 21 days to review and consider the terms
of this Release, prior to its execution and that he may use as much
of the 21 day period as he desires; and
(d) Executive
may, within 7 days after execution, revoke this Release. Revocation
shall be made by delivering a written notice of revocation to the
General Counsel at Xxxxxx. For such revocation to be effective,
written notice must be actually received by the General Counsel at
Xxxxxx no later than the close of business on the 7th day after
Executive executes this Release. If Executive does exercise his right
to revoke this Release, all of the terms and conditions of the
Release shall be of no force and effect and Xxxxxx shall not have any
obligation to make payments or provide benefits to Executive as set
forth in the Employment Agreement.
5. Executive
agrees that he will never file a lawsuit or other complaint asserting
any claim that is released in this Release.
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6. Executive
waives and releases any claim that he has or may have to reemployment
after the date of this Release.
IN
WITNESS WHEREOF, the Executive has executed and delivered this
release on the date set forth below.
|
Dated:
|
|||
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[Name]
Executive
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