EXHIBIT 10.24 - RELEASE AGREEMENT BETWEEN METALDYNE CORPORATION AND XXXXXX
THANAPOULOS
AGREEMENT
THIS RELEASE AGREEMENT ("Agreement") is made as of this 10th day of August
2004, between XXXXXX X. XXXXXXXXXXX ("Executive") and METALDYNE CORPORATION
("Employer").
INTRODUCTION
I. Executive's last day of work will be August 17, 2004 (the "Termination
Date").
II. Employer is not obligated to pay Executive any compensation, benefits or
other consideration after the Termination Date except as specifically set
forth in Paragraph 1.
III. Executive has had the opportunity to review this Agreement and is
encouraged to consult with legal counsel prior to executing this Agreement
to ascertain whether Executive has any potential rights or remedies, which
are being waived and released by Executive's execution of this Agreement.
IV. Executive and Employer, without any admission of liability, desire to
settle with finality, compromise, dispose of, and release all claims,
demands and causes of action Executive has asserted or which Executive
could assert against Employer, whether arising out of the Executive's
Employment Agreement with Employer, dated October 1, 2001 ("Employment
Agreement"); any agreement with a predecessor to Employer; the termination
of the Employment Agreement; the employment relationship; the termination
of the employment relationship; or any condition or benefit of employment
or otherwise. This Agreement is not and shall not be construed as an
admission by Employer of any liability, an admission against interest or
any violation of Employer's policies or procedures.
AGREEMENT
Employer and Executive agree as follows:
1. SEVERANCE PACKAGE. As consideration for this Agreement, Employer
agrees to provide Executive the Severance Package set forth in this
Paragraph 1. The payments and benefits provided under this Paragraph 1
are made in lieu of any further payments or benefits to Executive
under the Employment Agreement, and Executive acknowledges that the
payments and benefits provided under this Paragraph 1 exceed the
amounts that would otherwise be owing to him under the Employment
Agreement:
a. Base salary continuation for a period of twenty-four (24) months
in the gross amount of $900,000.00. Payment to Executive will be
made in equal, bi-weekly installments, minus applicable
withholding and payroll taxes. The gross amount per pay period
will be $900,000.00 divided by the number of pay periods in the
twenty-four (24) month period.
b. A gross bonus equal to two hundred percent (200%) of the target
bonus opportunity under the Annual Value Creation Plan (AVCP),
payable in equal installments over the twenty-four (24) month
period under the same payment provisions described in 1(a) above.
Executive's gross bonus amount for this purpose is $540,000.00.
The gross amount per pay period will be $540,000.00 divided by
the number of pay periods in the twenty-four (24) month period.
In addition, a pro rata bonus for 2004 through the Termination
Date calculated at one hundred percent (100%) of the bonus
opportunity for target performance under the AVCP. Executive's
gross bonus amount for this purpose is $166,153.84, subject to
all applicable withholdings described above, paid as a single sum
within ten (10) days of the signing of this Agreement.
c. Continuation of benefits under any group medical, dental, and
life insurance benefits substantially similar to those which
Executive was receiving immediately prior to termination of
employment until the earlier of:
1. the end of the twenty-four (24) month period following
the Termination Date, or
2. the date on which Executive becomes eligible to receive
any benefits under any plan or program of any other
employer.
Employer will pay the employer-portion of the medical, dental,
and life insurance coverage. Executive will be required to pay
the Executive-portion of the medical, dental, and life insurance
premiums. The Executive-portion of the premiums will be billed to
the Executive on a monthly basis. Health care continuation will
be applied against the COBRA notification period. If Employer is
not able to provide coverage under the existing plans, Executive
will be paid cash in the amount of the Employer's portion of the
premium cost.
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d. The effect of this termination on any stock option grants is not
addressed by this Agreement and is subject to the plan documents
governing such grants.
e. Employer shall pay for outplacement services for Executive with a
provider selected by Employer. Employer shall make direct
periodic payments for such services to the provider, as needed,
provided that such payments shall not in the aggregate exceed
Twenty-Thousand Dollars ($20,000).
f. Executive shall continue to participate in the Metaldyne
Executive Car Program for a period of six (6) months from the
Termination Date in accordance with the terms of that program.
g. Executive shall continue to participate in the Metaldyne
Executive Flex Allowance Plan for the remainder of the 2004
"benefit year", which would cover eligible expenses through
October 31, 2004.
Executive agrees that he is exclusively liable for the payment of
any federal, state, city or other taxes that may be due as a result of
any severance benefits received by Executive as provided in this
Agreement. Executive further agrees to indemnify and hold Employer
harmless from any payment of taxes or penalties, if any, that may be
required of Executive as a result of any severance benefits received
by Executive pursuant to this Agreement.
2. TERMINATION OF BENEFITS. Notwithstanding benefits outlined in
Paragraph 1 above, Executive shall cease to be an active participant
under Employer's retirement and other benefit plans pursuant to the
terms of those plans, and no additional benefits shall accrue to
Executive after the Termination Date.
3. NON-COMPETITION; NON-SOLICITATION; CONFIDENTIALITY; RELEASE
CONSIDERATION. Executive acknowledges that he remains subject to the
restrictive covenants and remedies contained in Sections 13 and 14 of
the Employment Agreement, which covenants and remedies, including the
Employer's right to cause a forfeiture of further payments or benefits
under the Severance Package of Paragraph 1 and demand repayment of any
payments or benefits, are incorporated herein by reference and which
by their terms survive the termination of Executive's employment and
the Employment Agreement. Employer acknowledges that, by signing this
Agreement, Executive has satisfied the requirement of Section 13(f) of
the Employment Agreement, and Executive acknowledges that this
Agreement provides additional and sufficient consideration for the
release contained herein.
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4. RETURN OF PROPERTY. Executive agrees to immediately return all
Employer property (and any copies of such property) of whatsoever kind
and character, including, without limitation, keys, credit cards,
documents, computers, computer software, discs and media, policy and
procedures manuals and all other tangible or intangible property of
Employer.
5. NO DISPARAGEMENT. Executive agrees not to criticize, disparage or
otherwise demean in any way Employer or its respective affiliates,
officers, directors, Executives or Employer's products. Likewise, the
Employer agrees not to criticize, disparage or otherwise demean the
Executive.
6. RELEASE. Executive, for himself, and his heirs, executors,
administrators, successors and assigns, hereby releases and forever
discharges Employer, its affiliates, subsidiaries and respective
officers, directors, agents, representatives, shareholders, employees
(current and former), employee benefit plans, successors,
predecessors, assigns, and any and all other persons, firms,
corporations and other legal entities associated with Employer
(collectively referred to as the "Released Parties"), of and from any
and all claims, demands, actions, causes of action, debts, damages,
expenses, suits, contracts, agreements, costs and liabilities of any
kind, nature or description, whether direct or indirect, known or
unknown, in law or in equity, in contract, tort or otherwise, which
Executive ever had, now has or may have against any of the Released
Parties as of the date of execution of this Agreement, whether known
or unknown, suspected or unsuspected, or which may be based upon
pre-existing acts, claims or events occurring at any time up to the
present date including, but not limited to, claims arising under the
Employment Agreement, Title VII of the Civil Rights Act of 1964 or
state civil rights statutes, claims arising under the Age
Discrimination in Employment Act of 1967 ("ADEA"), as amended by the
Older Workers Benefit Protection Act ("OWBPA"), claims arising under
the Americans with Disabilities Act ("ADA"), the Family and Medical
Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"), the
National Labor Relations Act ("NLRA"), the Employee Retirement Income
Security Act ("ERISA"), claims for breach of express or implied
contract, breach of promise, promissory estoppel, loss of income, back
pay, reinstatement, front pay, impairment of earning capacity,
wrongful termination, discrimination, damage to reputation, fraud,
violation of public policy, retaliation, negligent or intentional
infliction of mental or emotional distress, intentional tort or any
other federal, state or local common law or statutory claims, and all
other claims and rights, whether in law or equity. It is the intention
of the parties that this paragraph will be construed as broadly as
possible; however, this paragraph does not include claims arising
under state workers' compensation laws, state unemployment laws and
any claims that arise after the signing of this Agreement. This
paragraph also does not affect
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Executive's right to file a charge or otherwise participate in an EEOC
proceeding insofar as it is required by current EEOC regulations.
Executive understands that Employer will assert this Agreement as an
affirmative defense against any claim asserted by Executive in any
forum.
7. NON-DISCLOSURE. Executive shall not disclose the fact of this
Agreement or any of its terms to any third parties other than
Executive's spouse, tax advisors, accountants and attorneys or as
otherwise required by law. Executive agrees that any violation of this
non-disclosure paragraph will result in substantial and irreparable
injury to Employer.
8. REFERENCES. In the event that Executive seeks a reference for
employment purposes, Executive agrees to direct inquiries to
Metaldyne's Human Resources Department. References to be provided by
Employer regarding Executive shall be limited to dates of employment,
positions held and compensation. Those making such inquiries will be
advised that it is the general policy of Employer to provide only such
neutral references in response to employment inquiries.
9. CONSIDERATION TIME AND REVOCATION PERIOD. Consistent with the ADEA,
this Agreement was first given to Executive on August 10, 2004.
Executive has twenty-one (21) calendar days during which to review and
consider this offer. Executive is not required to, but may accept this
Agreement by signing and returning the Agreement at any time prior to
August 31, 2004. In the event Executive signs and returns the
Agreement before that time, Executive certifies, by such execution,
that he knowingly and voluntarily waives the right to the full
twenty-one (21) days, for reasons personal to Executive, with no
pressure by Employer to do so. Employer and Executive further agree
that any changes, whether material or immaterial, to this Agreement do
not restart the running of the twenty-one (21) day consideration
period.
Executive understands that he may revoke this Agreement for a period of
seven (7) calendar days following his execution of the Agreement. Executive
understands that any revocation, in order to be effective, must be: (1) in
writing and either postmarked within seven (7) days of the Executive's execution
of the Agreement and addressed to General Counsel, Metaldyne Corporation, 00000
Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000-0000, or (2) hand-delivered within seven (7)
days of Executive's execution of the Agreement to Metaldyne's General Counsel at
the address listed above. If revocation is by mail, certified mail, return
receipt requested is required to show proof of mailing.
10. NO PAYMENT. No payments or benefits under this Agreement shall be made
to Executive until after the seven (7) day revocation period has
expired. If Executive does not revoke this Agreement within the seven
(7) day revocation period, then this Agreement shall become fully and
finally effective and the payments and benefits provided by the terms
of Paragraph 1 will be made to Executive.
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11. COMPLETE AGREEMENT. In executing this Agreement, Executive is doing so
knowingly and voluntarily and agrees that he has not relied upon any
oral statements by Employer or its representatives, and that this
Agreement, when signed by both parties, supersedes any and all prior
written agreements between the parties regarding the terms of
Executive's employment or the termination of such employment,
including, without limitation, the Employment Agreement (except to the
extent that provisions of the Employment Agreement are specifically
incorporated into this Agreement).
12. SEVERABILITY. Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the remaining parts,
terms or provisions shall not be affected thereby, and said illegal or
invalid part, term or provision shall be deemed not to be a part of
this Agreement.
13. CHOICE OF LAW. This Agreement shall be deemed to be made and entered
into in the State of Michigan and shall in all respects be
interpreted, enforced and governed under the laws of the State of
Michigan and the United States.
EXECUTIVE REPRESENTS THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND
EXECUTES IT KNOWINGLY AND VOLUNTARILY; THAT NO PROMISE, INDUCEMENT OR AGREEMENT
HAS BEEN MADE TO HIM OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS AGREEMENT;
THAT THIS AGREEMENT, INCLUDING THE COVENANTS INCORPORATED BY REFERENCE, CONTAINS
THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE MODIFIED EXCEPT BY A
SUBSEQUENT WRITTEN AGREEMENT, EXECUTED BY BOTH PARTIES, WHICH SPECIFICALLY
EVIDENCES AN INTENT TO MODIFY THIS AGREEMENT; AND THAT EXECUTIVE HAS BEEN
ADVISED TO CONSULT WITH LEGAL COUNSEL PRIOR TO EXECUTING THIS AGREEMENT.
WITNESSED:
/S/ XXXXXX X. XXXXXXX /S/ XXXXXX X. XXXXXXXXXXX
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XXXXXX X. XXXXXXXXXXX
AUGUST 23, 2004
DATE OF WITNESS' SIGNATURE AUGUST 23, 2004
DATE OF EXECUTIVE'S SIGNATURE
METALDYNE CORPORATION
(EMPLOYER)
BY: /S/ XXXXXXX X. XXXXXXXXX
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ITS: CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
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