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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of March 12, 2001, by and between
TransPro, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxx
(hereinafter called the "Employee").
WITNESSETH:
WHEREAS, the Company desires that the Employee serve as the President
and Chief Executive Officer of the Company and the Employee is willing to serve
the Company in such capacities.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the parties hereto agree as
follows:
Section 1. Employment
Effective as of March 12, 2001, the Company will employ the Employee
and the Employee will perform services for the Company and its subsidiaries on
the terms and conditions set forth in this Agreement and for the period
specified in Section 3 hereof ("Term of Employment").
Section 2. Duties
The Employee, during the Term of Employment, will serve the Company as
its President and Chief Executive Officer. The Employee shall be based at the
Company's headquarters in New Haven, Connecticut, other than for periodic travel
in the ordinary course of business. The Employee will have such duties and
responsibilities as are assigned to him by the Board of Directors of the Company
commensurate with his position as President and Chief Executive Officer of the
Company.
The Employee will perform his duties hereunder faithfully and to the
best of his abilities and in furtherance of the business of the Company and its
subsidiaries, and will devote his full business time, energy, attention and
skill to the business of the Company and its subsidiaries and to the promotion
of its interests, except as otherwise agreed by the Company.
The Employee warrants and represents that he is free to enter into this
Agreement and is not restricted by any prior or existing agreement and the
Company may rely on such representation in entering into this Agreement.
Section 3. Term of Employment
The initial Term of Employment of this Agreement will be the period
commencing on
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the date hereof and ending on March 11, 2003, unless earlier terminated pursuant
to Section 11 hereof. At the end of the initial Term of Employment, and on each
anniversary thereof, the Term of Employment will automatically be extended for
one (1) additional year, unless the Company or the Employee will have given
written notice to the other that it does not wish to extend this Agreement at
least ninety (90) days in advance.
Section 4. Salary
The Employee will receive, as compensation for his duties and
obligations to the Company pursuant to this Agreement, a base salary at the
annual rate of Three Hundred Sixty Thousand Dollars ($360,000), payable in
substantially equal installments in accordance with the Company's payroll
practice. It is agreed between the parties that the Company will review the base
annual salary annually and in light of such review may (but will not be
obligated to), in the discretion of the Board of Directors of the Company,
increase such annual base salary taking into account any change in the
Employee's responsibilities, increases in the cost of living, performance by the
Employee, and other pertinent factors.
Section 5. Bonus
During the Term of Employment, the Employee will be eligible for an
annual cash bonus based on the achievement of specified Company performance
goals as determined by the Board of Directors, with a target bonus of
seventy-five percent (75%) of base salary for the applicable year with respect
to which such bonus is awarded and a maximum bonus of one hundred fifty percent
(150%) of base salary for the applicable year with respect to which such bonus
is awarded. The threshold metric for payment of any bonus shall be 90% of
targeted performance goals (at which point the Employee will be entitled to a
bonus of ten percent (10%) of base salary for the applicable year).
Any bonus earned above the target of 75% of base salary for any year
will be contributed on a tax-deferred basis into a Rabbi Trust under a plan
pursuant to which, at the sole discretion of the Board of Directors, some
portion thereof (determined on a year-to-year basis) may be invested in Company
stock or deferred stock units. The deferral time period shall not be less than
three (3) years. Termination for Serious Cause or by the Employee without Good
Reason prior to the three (3) year deferral time period shall result in
forfeiture of the deferral. A Change of Control that results in termination not
for Serious Cause or Good Reason shall result in a waiver of the deferral time
period.
Section 6. Options
(a) Initial Options. Concurrently herewith, the Company will grant to
the Employee, pursuant to the TransPro, Inc. 1995 Stock Plan (the "Plan"),
non-qualified stock options (the "Initial Options") to purchase Sixty Thousand
(60,000) shares of the Company's common stock, par value $0.01 per share (the
"Common Stock"), at a price per share equal to the fair market value per share
of the Company's Common Stock as provided in the Plan. One third (1/3) of the
Initial Options will become exercisable after the first anniversary of the date
hereof, an additional one third (1/3) of the Initial Options will become
exercisable after the second
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anniversary of the date hereof, and the final one third (1/3) of the Initial
Options will become exercisable after the third anniversary of the date hereof.
(b) Additional Options. The Company will grant to the Employee pursuant
to the Plan, not later than June 30, 2001, non-qualified stock options (the
"Additional Options", and together with the Initial Options, the "Options") to
purchase Forty Thousand (40,000) shares of the Company's Common Stock. The price
per share of each Additional Option will be equal to the fair market value per
share of the Company's Common Stock at the time of grant as provided in the
Plan. The Additional Options shall become exercisable upon attainment of certain
Company performance thresholds (based upon stock price performance, EBITDA
targets or other applicable targets) to be mutually agreed upon by the Company's
Board of Directors and the Employee.
(c) Additional Provisions Related to Options.
Except as provided in this Agreement, the Options are subject to the
terms of the Plan and the Company's standard form of option agreement.
(d) Other Options. During the Term of Employment, the Employee will be
eligible to be granted options (in addition to the Options) to purchase shares
of Common Stock at such price and subject to such terms as provided by the Plan,
in the sole discretion of the Board of Directors of the Company.
Section 7. Employee Benefits
(a) Standard Benefits. During the Term of Employment, the Employee will
be entitled to participate in all employee benefit programs of the Company, as
such programs may be in effect from time to time, currently including without
limitation, (a) the Company's medical, dental and vision plans (with standard
employee payment) starting Xxxxx 0, 0000, (x) life insurance in the amount of
two (2) times the Employee's annual base salary, (c) short term disability
insurance, the terms of which will be determined at the discretion of the Board,
and (d) long term disability insurance in the amount of sixty percent (60%) of
the Employee's annual base salary. During the Term of Employment, the Employee
will also be entitled to participate in all retirement programs of the Company,
as such programs may be in effect from time to time, including without
limitation, the Company's 401(k) plan and Defined Benefit Cash Balance Plan (the
"Qualified Pension Plan"). The Employee's participation in these plans will
begin on July 1, 2001 with respect to the 401(k) plan, and on January 1, 2002
with respect to the Defined Benefit Cash Balance Plan.
(b) Additional Benefits. In addition to the standard employee benefits
set forth in Section 7(a) hereof, during the Term of Employment, the Employee
will receive the following additional benefits: (i) an annual physical
examination at no cost to the Employee, and (ii) an allowance for a leased
automobile at a cost to the Company per year not to exceed four percent (4%) of
the Employee's then-current annual base salary.
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(c) Supplemental Retirement Benefit.
(i) The Company will pay to the Employee (or his beneficiary)
a non-qualified pension benefit which supplements the benefit payable to the
Employee under the Qualified Pension Plan. The supplemental pension plan benefit
will be paid from the general assets of the Company and will be equal to the
benefit that would be payable to or on behalf of the Employee under the
Qualified Pension Plan if it did not contain the limitations under sections
401(a) (17) and 415 of the Internal Revenue Code of 1986, as amended (the
"Code"), less the benefit that is payable to or on behalf of the Employee under
the Qualified Pension Plan.
(ii) The supplemental pension benefit shall be paid at the
same time and in the same form as the benefit payable under the Qualified
Pension Plan. The Employee's beneficiary for purposes of the payment of the
supplemental pension benefit shall be the person (if any) entitled to a benefit
under the Qualified Pension Plan in the event of the death of the Employee. The
Employee shall become vested in the supplemental pension benefit hereunder at
the same rate that he becomes vested in the benefits payable under the Qualified
Pension Plan.
(iii) Notwithstanding any other provision of this Agreement,
the supplemental pension benefit shall be payable to the Employee in accordance
with the provisions of this Section 7(c) regardless of the reason for the
termination of his employment with the Company.
Section 8. Business Expenses
All reasonable travel and other out-of-pocket expenses incidental to
the rendering of services by the Employee hereunder will be paid by the Company
and if expenses are paid in the first instance by the Employee, the Company will
reimburse him therefor upon presentation of proper invoices; subject in each
case to compliance with the Company's reimbursement policies and procedures.
Section 9. Relocation Expenses
All reasonable out-of-pocket expenses incidental to the relocation of
the Employee to Connecticut (including without limitation, expenses related to
closing costs on the purchase of a home, realtor fees associated with the sale
of the Employee's residence in Canada, up to two (2) "points" of prepaid
mortgage interest relating to the Employee's new home in Connecticut, temporary
living expenses prior to a permanent move to Connecticut for up to a maximum of
ninety (90) days, and moving expenses related to moving household goods from
Canada and Kentucky to Connecticut), will be paid by the Company and if expenses
are paid in the first instance by the Employee, the Company will reimburse him
therefor upon presentation of proper invoices; subject in each case to
compliance with the Company's reimbursement policies and procedures. All
relocation expense reimbursements shall be grossed up to offset any incremental
United States Federal and State of Connecticut tax liability incurred as a
result of the reimbursement by the Company of relocation expenses.
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Section 10. Vacations and Sick Leave
The Employee will be entitled to holidays, reasonable vacation and
reasonable sick leave each year, in accordance with policies of the Company, as
determined by the Board of Directors, provided, however, that the Employee will
be entitled to a minimum of four (4) weeks vacation per year.
Section 11. Termination
(a) Termination by the Company for Serious Cause. In the event of
Serious Cause (as defined below), the Company may terminate the Employee's
employment and the Term of Employment upon written notice of such termination
stating the Serious Cause upon which the Company relies for its termination. The
Employee's employment and the Term of Employment will be terminated effective as
of the date specified in such notice, which will in no event be earlier than the
effective date of such notice as provided in Section 21.
"Serious Cause" means (i) the willful and continued failure by the
Employee to perform substantially his duties hereunder, other than by reasons of
health, after demand for substantial performance is delivered by the Company
that identifies the manner in which the Company believes the Employee has not
substantially performed his duties; (ii) the Employee will have been indicted by
any federal, state or local authority in any jurisdiction for, or will have
pleaded guilty or nolo contendere to, an act constituting a felony, (iii) the
Employee will have habitually abused any controlled substance (such as narcotics
or alcohol), or (iv) the Employee will have (A) engaged in acts of fraud,
material dishonesty or gross misconduct in connection with the business of the
Company, or (B) committed a material breach of this Agreement.
(b) Termination by Employee for Good Reason. The Employee may terminate
his employment and the Term of Employment in the event of Good Reason (as
defined below) upon thirty (30) days' prior written notice of such termination
stating the Good Reason upon which the Employee relies for his termination. The
Employee's employment and the Term of Employment will be terminated effective as
of the date specified in such notice, which in no event will be earlier than the
effective date of such notice as provided in Section 21.
"Good Reason" means (i) a reduction in the Employee's salary or
benefits other than an across-the-board reduction affecting all members of
senior management, (ii) a material reduction of the Employee's duties and
significant responsibilities hereunder (not including reasonable changes in
title or in corporate structure), (iii) a material breach of this Agreement by
the Company, (iv) the relocation of the Employee's place of work more than
thirty-five (35) miles away from its present location without the written
consent the Employee, or (v) the Company's failure to renew this Agreement for
any reason other than for Serious Cause or the death or Disability of the
Employee.
(c) Effect of Termination for Serious Cause or Without Good Reason. In
the event of termination of the Employee's employment and the Term of Employment
by the Company for Serious Cause or by the Employee without Good Reason, the
Employee will forfeit all bonus
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amounts for the then current fiscal year, and the Company will be liable to the
Employee only for (i) any accrued but unpaid base salary and vacation, (ii) any
earned but unpaid bonus from a prior fiscal year (subject, if applicable, to the
terms of any deferred compensation arrangements), and (iii) reimbursement of
business expenses incurred prior to the date of termination.
(d) Death, Retirement, Disability. In the event of the death,
Retirement or Disability of the Employee, the Employee's employment and Term of
Employment will be terminated as of the date of such death, Retirement or
Disability and the Company will pay the Employee, or the Employee's estate or
legal representative, as appropriate, (i) any accrued but unpaid base salary and
vacation, (ii) any earned but unpaid bonus from a prior fiscal year (subject, if
applicable, to the terms of any deferred compensation arrangements), and (iii)
reimbursement of business expenses incurred prior to the date of termination.
"Disability" means the Employee's inability, for reasons of health, to
carry out the functions of his position for a total of one hundred eighty (180)
days during any twelve (12) month period. "Retirement" will mean retirement from
employment upon or after attaining age sixty-five (65) or such earlier age
agreed to by the Company.
(e) Effect of Termination Without Serious Cause or With Good Reason. If
(i) the Company terminates the Term of Employment and the Employee's employment
herein without Serious Cause, or (ii) the Employee terminates the Term of
Employment and his employment hereunder for Good Reason, the Company will
continue to pay the Employee his then-current base salary for a period of one
(1) year from the date of such termination. In addition, the Employee will be
entitled to prompt payment of (A) any accrued but unpaid salary and vacation,
(B) any earned but unpaid bonus from a prior fiscal year (subject, if
applicable, to the terms of any deferred compensation arrangements), (C) the
Company's medical, dental and vision plans (with standard employee payment),
life insurance in the amount of two (2) times the Employee's annual base salary
(assuming Employee can be certified as insurable), long term disability
insurance, and the allowance for a leased automobile for the period of one (1)
year, and (D) reimbursement of business expenses incurred prior to the date of
termination.
(f) No Other Obligations. In the event of the termination of the
Employee's employment and the Term of Employment pursuant to Sections 11 or 12
herein, the Company will have no obligations to the Employee other than those
set forth in Sections 11 and 12 herein.
Section 12. Change of Control
(a) Effect of Termination. If (i) the employment of the Employee is
terminated by the Company (or successor thereto) without Serious Cause or (ii)
the Employee terminates employment with the Company (or successor thereto) for
Good Reason, within the period commencing on the date that a Change of Control
is formally proposed to the Company's Board of Directors and ending on the first
anniversary of the date on which such Change of Control occurs, then the
Employee will be entitled to receive (in lieu of the benefits described in
Section 11): (1) any accrued but unpaid salary and vacation, (2) the Employee's
then-current base salary for a period of eighteen (18) months from such
termination, (3) any earned but unpaid bonus from a prior fiscal year(subject,
if applicable, to the terms of any deferred compensation
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arrangements), (4) an amount equal to the targeted bonus for the fiscal year in
which termination takes place, (5) the Company's medical, dental and vision
plans (with standard employee payment), life insurance in the amount of two (2)
times the Employee's annual base salary (assuming Employee can be certified as
insurable), long term disability insurance, and the allowance for a leased
automobile for the period of one (1) year, and (6) reimbursement of business
expenses incurred prior to the date of termination.
The Employee will not be entitled to any benefits or other entitlements
under this section unless a Change of Control actually occurs.
(b) Change of Control. A "Change of Control" of the Company will be
deemed to have occurred if (i) any "person" (as such term is defined in Section
3(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), excluding the Company or any of its subsidiaries,
a trustee or any fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, an underwriter temporarily holding
securities pursuant to an offering of such securities or a corporation owned,
directly or indirectly, by shareholders of the Company in substantially the same
proportion as their ownership of the Company, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing an increase from less than Twenty Percent
(20%) to Fifty Percent (50%) or more of the combined voting power of the
Company's then outstanding securities ("Voting Securities"); (ii) during any
period of not more than two (2) years, individuals who constitute the Board of
Directors of the Company (the "Board") as of the beginning of the period and any
new director (other than a director designated by a person who has entered into
an agreement with the Company to effect a transaction described in clause (i) or
(iii) of this sentence) whose election by the Board of nomination for election
by the Company's shareholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at such
time or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; (iii) the stockholders of
the Company approve a merger, consolidation or reorganization or a court of
competent jurisdiction approves a scheme or arrangement of the Company, other
than a merger, consolidation, reorganization or scheme which would result in the
Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least Fifty Percent (50%) of
the combined voting power of the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger, consolidation,
reorganization or scheme or arrangement, and such transaction is completed; or
(iv) the stockholders of the Company approve a plan of complete liquidation of
the Company or any agreement for the sale of substantially all of the Company's
assets, and such transaction is completed.
Section 14. Agreement Not to Compete or Solicit
(a) Covenant Not to Compete. The Employee hereby covenants and agrees
that at no time during the Term of Employment nor for a period of one (1) year
immediately following the termination of the Employee's employment will he for
himself or on behalf of any other person, partnership, company or corporation,
directly or indirectly, acquire any financial or beneficial
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interest in (except as provided in the next sentence), provide consulting or
other services to, be employed by, or own, manage, operate or control any entity
engaged in the vehicle parts business similar to the business engaged in by the
Company or its subsidiaries at the time of such termination of employment.
Notwithstanding the preceding sentence, the Employee will not be prohibited from
owning less than one percent (1%) of any publicly traded corporation, whether or
not such corporation is in competition with the Company.
(b) Non-Solicitation. The Employee hereby covenants and agrees that, at
all times during the Term of Employment and for a period of one (1) year
immediately following the termination thereof, the Employee will not directly or
indirectly employ or seek to employ any person or entity employed at that time
by the Company or any of its subsidiaries, or otherwise encourage or entice such
person or entity to leave such employment.
Section 15. Confidential Information
The Employee agrees to keep secret and retain in the strictest
confidence all confidential matters which relate to the Company or any affiliate
of the Company, including, without limitation, customer lists, client lists,
trade secrets, pricing policies and other business affairs of the Company and
any affiliate of the Company learned by him from the Company or any such
affiliate or otherwise before or after the date of this Agreement, and not to
disclose any such confidential matter to anyone outside the Company, or any of
its affiliates, whether during or after his period of service with the Company,
except as may be required in the course of a legal or governmental proceeding.
Upon request by the Company, the Employee agrees to deliver promptly to the
Company upon termination of his services for the Company, or at any time
thereafter as the Company may request, all Company or affiliate memoranda,
notes, records, reports, manuals, drawings, designs, computer files in any media
and other documents (and all copies thereof) relating to the Company's or any
affiliate's business and all property of the Company or any affiliate associated
therewith, which he may then possess or have under his control.
Section 16. Remedy
(a) Should the Employee engage in or perform, either directly or
indirectly, any of the acts prohibited by Sections 14 or 15 hereof, it is agreed
that the Company will be entitled to full injunctive relief, to be issued by any
competent court of equity, enjoining and restraining the Employee and each and
every other person, firm, organization, association, or corporation concerned
therein, from the continuance of such violative acts. The foregoing remedy
available to the Company will not be deemed to limit or prevent the exercise by
the Company of any or all further rights and remedies which may be available to
the Company hereunder or at law or in equity.
(b) The Employee acknowledges and agrees that the covenants contained
in this Agreement are fair and reasonable in light of the consideration paid
hereunder, and the invalidity or unenforceability of any particular provision,
or part of any provision, of this Agreement will not affect the other provisions
or parts hereof. If any provision hereof is determined to be invalid or
unenforceable and if any such provision will be so determined to be invalid or
unenforceable
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by reason of the duration or geographical scope of the covenants contained
therein, such duration or geographical scope, or both, will be reduced to a
duration or geographical scope solely to the extent necessary to cure such
invalidity.
Section 17. Successors and Assigns
This Agreement will be binding upon and inure to the benefit of the
Employee, his heirs, executors, administrators and beneficiaries, and the
Company and its successors and assigns.
Section 18. Governing Law
This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Connecticut, without reference to rules
relating to conflicts of law.
Section 19. Entire Agreement
This Agreement constitutes the full and complete understanding and
agreement of the parties and supersedes all prior understandings and agreements
as to employment of the Employee. This Agreement cannot be amended, changed,
modified or terminated without the written consent of the parties hereto.
Section 20. Waiver of Breach
The waiver of either party of a breach of any term of this Agreement
will not operate nor be construed as a waiver of any subsequent breach thereof.
Section 21. Notices
Any notice, report, request or other communication given under this
Agreement will be written and will be effective upon delivery when delivered
personally, by overnight courier or by fax. Unless otherwise notified by any of
the parties, notices will be sent to the parties as follows: (i) if to the
Employee, at the address set forth in the Company's records, and (ii) if to the
Company, to TransPro, Inc., 000 Xxxxx Xxxxx, Xxx Xxxxx, XX 00000, Attention:
Chairman of the Board.
Section 22. No Reliance on Representations
The Employee further acknowledges and affirms that he has not relied on
any representations, whether oral or written, in determining to enter into this
Agreement.
Section 23. Severability
If any one or more of the provisions contained in this Agreement will
be invalid, illegal or unenforceable in any respect under any applicable law,
the validity, legality and enforceability of the remaining provisions contained
herein will not in any way be affected or impaired thereby.
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Section 24. Counterparts
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
on the day and year first above written.
The Company:
TRANSPRO, INC.
By: ____________________________________
Name: Xxxxx Xxxxxxxx
Title: Chairman, TransPro, Inc. Board of Directors
Employee:
______________________________________
Xxxxxxx X. Xxxxxxx
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