EXHIBIT 10.1
This Executive Employment Agreement ("AGREEMENT"), dated January 1, 2004
is between Superior Industries International, Inc. ("COMPANY") and Xxxxxx X.
Xxxxxx ("EMPLOYEE").
RECITALS
Company is formed to engage primarily in the automobile parts
manufacturing business. Employee has experience in this business and possesses
valuable skills and experience that will be used in advancing Company's
interests. Employee is willing to be engaged by Company and Company is willing
to engage Employee in the capacity of President and Chief Operating Officer of
Company ("PRESIDENT"), upon the terms and conditions set forth in this
Agreement. Capitalized terms used herein without definition shall have the
meanings ascribed to them in this agreement.
AGREEMENT
Employee and Company, intending to be legally bound, agree as follows:
1. SERVICES
1.1. GENERAL SERVICES.
1.1.1. Company shall engage Employee as its President, reporting to the
Chief Executive Officer. As of the Commencement Date, Employee shall
perform the duties customarily performed by one holding such position in a
similar business as that engaged in by Company, as determined by the Board
in its sole and absolute discretion, and shall serve as a member of the
Board so long as he is employed as President of Company. Employee's duties
may change from time to time on reasonable notice, based on the needs of
Company and Employee's skills as determined by Company. (The duties to be
performed by Employee to Company and its affiliates shall hereinafter be
referred to as the "Services").
1.1.2. Employee shall devote his entire working time, attention, and
energies to the business of Company, and shall not, during the Term (as
defined below), be engaged in any other business activity whether or not
such business activity is pursued for gain, profit or other pecuniary
advantage, without the prior written consent of the Board. The foregoing
is not intended to restrict Employee's ability to enter into passive
investments that do not compete in any way with Company's business.
1.2. LOCATION. Employee shall be based at the company's corporate headquarters.
Employee shall undertake such travel as is necessary or advisable for the
effective performance of the duties of the position. Employee's office
initially will be based in California or such other location in Los
Angeles County as Company may designate.
1.3. BEST ABILITIES. Employee shall serve Company faithfully and to the best of
his ability and shall use his best abilities to perform the Services.
Employee shall act at all times according to what is reasonably believed
to be in the best interests of Company.
1.4. COMPANY AUTHORITY. As an officer of Company, Employee shall, with the
assistance of consultants, professionals, and other employees of Company,
comply with all laws, rules and regulations applicable to Employee as a
result of this Agreement. In complying with the Laws, Employee may after
reasonable investigation and in good faith rely upon advice given to
Employee or to the Board by Company's legal counsel and other consultants
or employees Company engages in connection with compliance with the Laws;
provided, however, that Employee may rely only upon advice that is within
the scope of the profession or expertise of the person providing such
advice. Prior to the execution of this Agreement, Employee has received
and reviewed Company's Policies and Procedures and Company's Employee
Handbook. Employee shall comply with Company's Policies and Procedures (as
they may be amended
from time to time), as well as practices now in effect or as later amended
or adopted by Company, as required of similarly situated employees at
Company.
2. TERM.
2.1. The term (the "Term") of this Agreement shall be effective as of the date
hereof (the "Effective Date") and shall govern Employee's employment from
and after such date through and including December 31, 2008. This
Agreement shall automatically renew for an additional one (1) year period
thereafter unless either party provides written notice at least six (6)
months in advance of terminating the Agreement, or until as provided in
Section 4 of this Agreement.
2.2. COMPENSATION AND BENEFITS
2.3. COMPENSATION. Employee's total compensation consists of base salary,
variable compensation (as further identified in this Agreement), and
medical and other benefits generally provided to similarly situated
employees of Company. Any compensation paid to Employee shall be pursuant
to Company's policies and practices for exempt employees and shall be
subject to all applicable laws and requirements regarding the withholding
of federal, state and/or local taxes. Compensation provided in this
Agreement is full payment for the Services and Employee shall receive no
additional compensation for extraordinary services unless otherwise
authorized in writing by the Board.
2.3.1. Base Compensation. During the Term, Company agrees to pay Employee
an annual base salary of $650,000.00, less applicable withholdings,
payable in equal installments no less frequently than semi-monthly. In no
event shall Employee's base compensation be less than $650,000.00 per
year. Commencing on the first anniversary of the Effective Date and on
each anniversary thereafter, the Board may, at the recommendation of the
CEO, at its sole discretion adjust the base compensation to take into
account Employee's performance and the performance of Company in general;
however, the Board shall have no obligation to do so.
2.3.2. Variable Compensation. Employee shall be eligible for variable
compensation, subject to applicable withholdings and subject to approval
by the Board and the Company's Compensation Committee, and shall be set
forth in a separate agreement.
2.4. BUSINESS EXPENSES Company shall reimburse Employee for business expenses
reasonably incurred in performing the Services according to Company's
Expense Reimbursement Policy.
2.5. ADDITIONAL BENEFITS. Company shall provide Employee those additional
benefits normally granted by Company to similarly situated employees
subject to eligibility requirements applicable to each benefit. Company
has no obligation to provide any other benefits unless provided for in
this Agreement. As of the Commencement Date, Company intends to provide
major medical and dental benefits, holidays, and a 401K Plan. To the
extent that Company offers life or disability insurance to other executive
officers of Company and to the extent Employee is otherwise eligible for
coverage there under without a material adverse impact on the ability of
Company to offer such benefits generally, Company shall make those same
benefits available to Employee. Company reserves the right to modify,
suspend, or discontinue any and all of the above benefit plans, policies,
and practices at any time without notice to or recourse by Employee so
long as such action is taken generally with respect to other similarly
situated persons and does not single out Employee.
2.6 USE OF AUTOMOBILE. The Company shall provide Employee with a reasonable
car allowance on a monthly basis intended to cover all operating expenses
of the automobile and adequate automobile insurance with reasonable policy
limits.
2.7 PAID TIME OFF. Employee shall be entitled to up to fifteen (15) paid days
off per calendar year.
3. TERMINATION
3.1 CIRCUMSTANCES OF TERMINATION. This Agreement and the relationship
between Company and Employee may be terminated prior to the
expiration of the Term only as follows:
3.1.1 Death. This Agreement shall terminate upon Employee's death,
effective as of the date of Employee's death.
3.1.2 Disability. Company may, at its sole discretion, either
suspend compensation payments due under Section 3.1 or
terminate this Agreement due to Employee's Disability. For
purposes of this Agreement, "Disability" shall mean
circumstances in which Employee is incapable of performing the
Services, after Company has made or attempted to provide
reasonable accommodations to Employee as required by
applicable law, because of accident, injury, or physical or
mental illness for sixty (60) consecutive days, or is unable
or shall have failed to perform the Services for a total
period of ninety (90) days, regardless of whether such days
are consecutive. If Company suspends compensation payments
because of Employee's Disability; Company shall resume
compensation payments when Employee resumes performance of the
Services. If Company elects to terminate this Agreement due to
Employee's Disability; it will give Employee not more than
thirty (30) days advance written notice.
3.1.3 Discontinuance Of Business. If Company discontinues operating
its business in any substantial respect, then this Agreement
shall terminate as of the last day of the month on which
Company ceases such operations with the same effect as if that
last date were originally established as the termination date
of this Agreement.
3.1.4 For Cause. Company may terminate this Agreement without
advance notice for Cause, as determined at the sole discretion
of the Board. For the purpose of this Agreement, "Cause" shall
mean, as determined by Company in its sole discretion: any
failure to comply in any material respect with this Agreement
or any agreement incorporated herein; personal or professional
misconduct by Employee (including, but not limited to,
criminal activity or gross or willful neglect of duty); breach
of Employee's fiduciary duty to Company and/or any
subsidiaries, affiliates or successors of Company; conduct
that threatens public health or safety, threatens Company's
ability to manufacture automobile parts, or threatens to do
immediate or substantial harm to Company's business or
reputation; or any other misconduct, deficiency, failure of
performance, breach or default. To the extent that a breach
pursuant to this Section 3.1.4 is, in Company's sole
discretion, reasonably capable of being cured by Employee
without harm to Company or its reputation, Company shall,
instead of immediately terminating Employee pursuant to this
Agreement, provide Employee with notice of such breach,
specifying the actions required to cure such breach, and
Employee shall have thirty (30) days to cure such breach by
performing the actions so specified. If Employee fails to cure
such breach to the Company's satisfaction within the thirty
(30) day period, Company may terminate this Agreement without
further notice. Company's exercise of its right to terminate
under this Section shall be without prejudice to any other
remedy to which Company may be entitled at law, in equity, or
under this Agreement.
3.1.5 Without Cause. This Agreement may be terminated without Cause
at any time by the Company upon thirty (30) days advanced
written notice to Employee.
3.1.6 Voluntary Termination. This Agreement may be terminated for
any reason at any time by Employee upon thirty (30) days
advanced written notice to the Company.
3.1.7 Change in Control. For purposes of this Plan, a "Change in
Control" of the Company shall be deemed to have occurred if:
3.1.7.1.1 Any "person" as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 30% or
more of the combined voting power of the Company's then
outstanding
securities.
3.1.7.1.2 The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than (i) a merger or consolidation that 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) more than 50% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected to
implement a re-capitalization of the Company (or similar
transaction) in which no "person" (as hereinabove described)
acquires more than 50% of the combined voting power of the
Company's then outstanding securities; or
3.1.7.1.3 The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets.
3.1.8 ACTIVATION EVENT. For purpose of this Plan, the term
"Activation Event" shall mean an involuntary termination of
employment with the Company within one (1) year after a Change
in Control. "Involuntary termination" shall mean:
3.1.8.1.1 without the Employee's express written consent the
significant reduction of the Employee's duties, authority or
responsibilities, relative to the Employee's duties, authority
or responsibilities as in effect immediately prior to such
reduction, or the assignment to Employee of such reduced
duties, authority, or responsibilities;
3.1.8.1.2 without the Employees' express written consent, a
substantial reduction, without good business reasons, of the
facilities and perquisites (including office space and
location) available to the Employee immediately prior to such
reduction;
3.1.8.1.3 a reduction by the Company in the base salary and/or
incentive compensation opportunity of the employee as in
effect immediately prior to such reduction;
3.1.8.1.4 a material reduction by the Company in the kind or
level of employee benefits, to which the Employee was entitled
immediately prior to such reduction with the result that the
employee's overall benefits package is significantly reduced;
3.1.8.1.5 the relocation of the Employee to a facility or a
location more than 50 miles from the employee's then present
location, without the Employee's express written consent;
3.1.8.1.6 any purported termination of the employee by the
Company that is not effected for disability or for just cause,
or any purported termination for which the grounds relied upon
are not valid;
3.1.8.1.7 the failure of the Company to obtain the assumption
of this Plan by any successors contemplated by the
Change-in-Control agreement or transaction; or
3.1.8.1.8 any act or set of facts or circumstances, that
would, violate California case law.
3.2 EMPLOYEE'S RIGHTS UPON TERMINATION.
3.2.1 Expiration of Term. Upon termination of this Agreement by
expiration of the Term set forth in Section 2 above, Company
shall have no further obligation to Employee under this
Agreement or otherwise except to pay to Employee (a) any
accrued and unpaid base compensation and variable compensation
(less applicable withholdings) and (b) reimbursement of any
unpaid reimbursable
expenses, owed to Employee prior to the expiration of the
Term.
3.2.2 Death or Disability. Upon termination of this Agreement
because of death or Disability of Employee pursuant to
Sections 3.1.1 or 3.1.2 above, Company shall have no further
obligation to Employee under this Agreement or otherwise
except to pay to Employee's estate or designated beneficiary
(a) any accrued and unpaid base compensation and variable
compensation pro rated to the date of termination (less
applicable withholdings) and (b) reimbursement of any unpaid
reimbursable expenses, owed to Employee prior to the date of
Employee's death or termination due to Disability
3.2.3 Discontinuance Of Business. Upon termination of this Agreement
because of discontinuation of Company's business pursuant to
Section 3.1.3, Company shall have no further obligation to
Employee under this Agreement or otherwise except to pay to
Employee (a) any unpaid base compensation (less applicable
withholdings) and (b) reimbursement of any unpaid reimbursable
expenses, owed to Employee prior to the date of termination of
this Agreement.
3.2.4 Termination With Cause. Upon termination of Employee's
employment for Cause pursuant to Section 3.1.4, Company shall
have no further obligation to Employee under this Agreement or
otherwise except to pay to Employee (a) any unpaid base
compensation (less applicable withholdings) and (b)
reimbursement of any unpaid reimbursable expenses, owed to
Employee by Company prior to the date of the termination
3.2.5 Termination Without Cause. Upon termination of Employee's
employment by Company without "Cause," Company shall have no
further obligation to Employee under this Agreement or
otherwise except to pay to Employee:
3.2.5.1.1 Any accrued and unpaid base compensation (less
applicable withholdings) and reimbursement of any unpaid
reimbursable expenses owed by Company to Employee through the
termination date; and
3.2.5.1.2 Severance compensation totaling one (1) year base
compensation in the form of (i) monthly payments to Employee
in the amount of Employee's monthly base salary as in effect
on the date of termination, payable in accordance with
customary payroll practices, for twelve (12) months following
such termination; provided, however, that such severance
payments shall be reduced by 50% of any earnings of Employee
subsequent to the termination that gives rise to the severance
payments. Payment of severance compensation shall be
conditioned upon Employee executing a Release Agreement, which
shall include among other things the language set forth in
Exhibit A and upon Employee's compliance with his obligations
under Article 6; provided, however, that Company may in its
sole discretion revise the language in Exhibit A at any time
prior to the execution of the Release Agreement. Severance
compensation pursuant to this Section 3.2.5 shall be in lieu
of any other severance benefit or other right or remedy to
which Employee would otherwise be entitled under Company's
policies in effect on the date of execution of this Agreement
or thereafter. Employee acknowledges and agrees that in the
event Employee breaches any provision of Article 6 or the
Release Agreement, his right to receive severance payments
under this Section 4.2.5 shall automatically terminate and
Employee shall repay all severance payments received.
3.2.5.1.3 For purposes of clarification, Company's or
Employee's election not to renew the employment Term shall not
constitute a termination without "Cause" covered by this
Section 3.2.5, but shall constitute a termination due to
expiration of Term and subject to and covered by Section
3.2.1.
3.2.6 Voluntary Termination. Upon Employee's voluntary termination
of his employment, Company shall have no further obligation to
Employee under this Agreement or otherwise, except to pay to
Employee (a) any unpaid base compensation (less applicable
withholdings) and (b) reimbursement of any unpaid reimbursable
expenses owed to Employee by Company prior to the date of
termination.
3.2.7 Termination Due to Change in Control .
Upon termination of Employee's employment by Company due
to Change In control," Company shall have no further
obligation to Employee under this Agreement or otherwise
except to pay to Employee:
3.2.7.1.1 Any accrued and unpaid base compensation (less
applicable withholdings) and reimbursement of any unpaid
reimbursable expenses owed by Company to Employee through the
termination date; and
3.2.7.1.2 Severance compensation totaling three (3) years base
compensation in the form of (i) monthly payments to Employee
in the amount of Employee's monthly base salary as in effect
on the date of termination, payable in accordance with
customary payroll practices, for thirty six (36) months
following such termination; provided, however, that such
severance payments shall be reduced by 50% of any earnings of
Employee subsequent to the termination that gives rise to the
severance payments. Payment of severance compensation shall be
conditioned upon Employee executing a Release Agreement, which
shall include among other things the language set forth in
Exhibit A and upon Employee's compliance with his obligations
under Article 5; provided, however, that Company may in its
sole discretion revise the language in Exhibit A at any time
prior to the execution of the Release Agreement. Severance
compensation pursuant to this Section 3.2.7 shall be in lieu
of any other severance benefit or other right or remedy to
which Employee would otherwise be entitled under Company's
policies in effect on the date of execution of this Agreement
or thereafter. Employee acknowledges and agrees that in the
event Employee breaches any provision of Article 6 or the
Release Agreement, his right to receive severance payments
under this Section 3.2.7 shall automatically terminate and
Employee shall repay all severance payments received.
3.2.8 For purposes of clarification, Company's or Employee's
election not to renew the employment Term shall not constitute a
termination without "Cause" covered by this Section 3.2.7, but shall
constitute a termination due to expiration of Term and subject to
and covered by Section 3.2.1.
3.2.9 Board Membership. Upon Employee's termination of employment
for any reason whatsoever, Employee shall be deemed to have resigned
as a member of the Board effective as of the date of Employee's
termination, without any further action by Employee or any other
party unless nominated by the Nominating committee and subject to
shareholder approval.
4 REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS OF EMPLOYEE. Employee represents and warrants that
he has all right, power, authority and capacity, and is free to
enter into this Agreement; that by doing so, Employee will not
violate or interfere with the rights of any other person or entity;
and that Employee is not subject to any contract, understanding or
obligation that will or might prevent, interfere with or impair the
performance of this Agreement by Employee. Employee shall indemnify
and hold Company harmless with respect to any losses, liabilities,
demands, claims, fees, expenses, damages and costs (including
attorneys' fees and court costs) resulting from or arising out of
any third party claim or action based upon Employee's violation of
the foregoing representation.
4.2 REPRESENTATIONS OF COMPANY. Company represents and warrants that it
has all right, power and authority, without the consent of any other
person, to execute and deliver, and perform its obligations under,
this Agreement. All corporate and other actions required to be taken
by Company to authorize the
execution; delivery and performance of this Agreement and the
consummation of all transactions contemplated hereby have been duly
and properly taken.
4.3 MATERIALITY OF REPRESENTATIONS. The representations, warranties and
covenants set forth in this Agreement shall be deemed to be material
and to have been relied upon by the parties hereto.
5 COVENANTS
5.1 NONDISCLOSURE AND INVENTION ASSIGNMENT. Employee shall not disclose
or use at any time, either during the Term or thereafter, to any
person or entity or use for his own direct or indirect benefit any
Confidential Information (as defined below) of which Employer is or
becomes aware, whether or not such information is developed by
Employee, except to the extent that such disclosure or use is
directly related to and required by Employee's Performance of his
duties under this Agreement. For purposes of this Agreement,
"Confidential Information" shall include Company's products,
reports, studies, services, processes, suppliers, customers,
customers' account executives, financial, sales and distribution
information, price lists, identity and list of actual and potential
customers, trade secrets, technical information, business plans and
strategies to the extent that such information has not been publicly
disseminated by Company or otherwise made available to the public.
For purposes of the foregoing, information shall not be deemed to
have been "publicly disseminated" or "otherwise made available to
the public" if such dissemination or availability arose as a result
of a breach of this Agreement.
5.2 COVENANT TO DELIVER RECORDS. Upon termination of Employee's
employment, Employee will deliver to Company all customer lists,
proposals, reports, memoranda, computer software and programming,
budgets and other financial information, and other materials or
records or writings of any type (including any copies thereof and
regardless of the medium in which the information exists) made, used
or obtained by Employee in connection with his employment by
Company.
5.3 EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. Employee
shall be subject to the provisions of the Company's Employee
Standards of Professional Conduct Statement and is incorporated
herein by this reference.
5.4 NON-SOLICITATION. Employee agrees that, so long as he is employed by
Company and for a period of one (1) year after termination of his
employment for any reason, he shall not (a) directly or indirectly
solicit, induce or attempt to solicit or induce any Company employee
to discontinue his or her employment with Company (b) usurp any
opportunity of Company that Employee became aware of during his
tenure at Company which is made available to him on the basis of the
belief that Employee is still employed by Company, or (c) directly
or indirectly solicit or induce or attempt to influence any person
or business that is an account, customer or client of Company to
restrict or cancel the business of any such account, customer or
client with Company. (For purposes of this Agreement, an employee,
consultant, or agent is defined as any person who has worked for
Company within the twelve-month period immediately preceding the
termination of Employee's employment.).
5.5 NON DISPARAGEMENT. Employee shall not, directly or indirectly,
either for the benefit of Employee or any other Person, from the
Effective Date to the first anniversary of the termination of his
Employment, make any disparaging remarks that are reasonably likely
to cause material injury to the relationship between the Company or
its affiliates and any existing or prospective client, lessor,
lessee, contractual counterparty, vendor, supplier, customer,
distributor, employee, consultant, regulator or other business
associate of the Company or its affiliates.
6 CERTAIN RIGHTS OF COMPANY
6.1 ANNOUNCEMENT. Company shall have the right to make public
announcements concerning the execution of this Agreement and certain
terms thereof.
6.2 RIGHT TO INSURE. Company shall have the right to secure, in its own
name or otherwise, and at its own expense, life, health, accident or
other insurance covering Employee, and Employee shall have no right,
title or interest in and to such insurance. Employee shall assist
Company in procuring such insurance by submitting to examinations
and by signing such applications and other instruments as may be
required by the insurance carriers to which application is made for
any such insurance.
7 ASSIGNMENT
7.1 Neither party may assign or otherwise dispose of its rights nor
obligations under this Agreement without the prior written consent
of the other party except as provided in this Paragraph. Company may
assign and transfer this Agreement, or its interest in this
Agreement, to any affiliate of Company or to any entity that is a
party to a merger, reorganization, or consolidation with Company, or
to a subsidiary of Company, or to any entity that acquires
substantially all of the assets of Company or of any division with
respect to which Employee is providing services (providing such
assignee assumes Company's obligations under this Agreement) without
Employee's consent. Employee shall, if requested by Company, perform
the Services, as specified in this Agreement, for the benefit of any
subsidiary or other affiliate of Company. Upon assignment,
acquisition, merger, consolidation or reorganization, the term
"Company" as used herein shall be deemed to refer to such assignee
or successor entity. Employee shall not have the right to assign his
interest in this Agreement, any rights under this Agreement, or any
duties imposed under this Agreement, nor shall Employee or his
spouse, heirs, beneficiaries, executors or administrators have the
right to pledge, hypothecate or otherwise encumber Employee's right
to receive compensation hereunder without the express written
consent of Company.
8 RESOLUTION OF DISPUTES
8.1 VENUE. In the event of any dispute arising out of or in connection
with this Agreement or in any way relating to the employment of
Employee that leads to the filing of a lawsuit, the parties agree
that venue and jurisdiction shall be in Los Angeles County,
California.
8.2 SUBMISSION TO ARBITRATION. Company and Employee agree that any
dispute with any party (including Company's affiliates, successors,
predecessors, contractors, employees and agents) that may arise out
of this Agreement, or Employee's engagement with Company or the
termination thereof, shall be submitted for resolution by mandatory,
binding arbitration in accordance with Company's standard
Alternative Dispute Resolution Agreement. The arbitration
requirement applies to all statutory, contractual and/or common law
claims including, but not limited to, claims arising under Title VII
of the Civil Rights Action of 1964; the Age Discrimination in
Employment Act; the Equal Pay Act of 1963; the California Fair
Employment and Housing Act; California Labor Code sections 200, et
seq., 970, and 1050, et seq.; the Fair Labor Standards Act; and the
Americans with Disabilities Act. Both Company and Employee shall be
precluded from bringing or raising in court or any other forum any
dispute that was or could have been submitted to binding
arbitration. This arbitration requirement does not apply to claims
for workers' compensation benefits, claims arising under ERISA (29
U.S.C. Sections 1001, et seq.) or provisional remedies under
California Code of Civil Procedure section 1281.8.
8.3 PAYMENT OF COSTS AND FEES. Where required by law, Company shall pay
all additional costs peculiar to the arbitration to the extent such
costs would not otherwise be incurred in a court proceeding (for
instance, Company will, if required, pay the arbitrator's fees to
the extent it exceeds Court filing fees). Each party shall pay its
own costs and attorneys' fees in the first instance. However, the
arbitrator may award costs and attorneys' fees to the prevailing
party to the extent permitted by law.
9 GENERAL PROVISIONS
9.1 NOTICES. Notice under this Agreement shall be sufficient only if
personally delivered by a major commercial paid delivery courier
service or mailed by certified or registered mail (return receipt
requested and postage pre-paid) to the other party at its address
set forth in the signature block below or to such other address as
may be designated by either party in writing. If not received
sooner, notices by mail shall be deemed received five (5) days after
deposit in the United States mail.
9.2 AGREEMENT CONTROLS. Unless otherwise provided for in this Agreement,
Company's policies, procedures and practices shall govern the
relationship between Employee and Company. If, however, any of
Company's policies, procedures and/or practices conflict with this
Agreement (together with any amendments hereto), this Agreement (and
any amendments hereto) shall control.
9.3 AMENDMENT AND WAIVER. Any provision of this Agreement may be amended
or modified and the observance of any provision may be waived
(either retroactively or prospectively) only by written consent of
the parties. Either party's failure to enforce any provision of this
Agreement shall not be construed as a waiver of that party's right
to enforce such provision.
9.4 GOVERNING LAW. This Agreement and the performance hereunder shall be
interpreted under the substantive laws of the State of California,
without giving effect to the conflict of law principles thereof.
9.5 FORCE MAJEURE. Either party shall be temporarily excused from
performing under this Agreement if any force majeure or other
occurrence beyond the reasonable control of either party makes such
performance impossible, except a Disability as defined in this
Agreement, provided that the party subject to the force majeure
provides notice of such force majeure at the first reasonable
opportunity. Under such circumstances, performance under this
Agreement that related to the delay shall be suspended for the
duration of the delay provided the delayed party shall resume
performance of its obligations with due diligence once the delaying
event subsides. In case of any such suspension, the parties shall
use their reasonable best efforts to overcome the cause and effect
of such suspension.
9.6 REMEDIES. Employee acknowledges that because of the nature of
Company's business, and the fact that the services to be performed
by Employee pursuant to this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character that give them a
peculiar value, a breach of this Agreement shall cause substantial
injury to Company for which money damages cannot reasonably be
ascertained and for which money damages would be inadequate.
Employee therefore agrees that Company shall have the right to
obtain injunctive relief, including the right to have the provisions
of this Agreement specifically enforced by Arbitration having equity
jurisdiction, in addition to any other remedies that Company may
have.
9.7 SEVERABILITY. If any term, provision, covenant, paragraph, or
condition of this Agreement is held to be invalid, illegal, or
unenforceable by any court of competent jurisdiction, that provision
shall be limited or eliminated to the minimum extent necessary so
this Agreement shall otherwise remain enforceable in full force and
effect.
9.8 CONSTRUCTION. Headings and captions are only for convenience and
shall not affect the construction or interpretation of this
Agreement. Whenever the context requires, words, used in the
singular shall be construed to include the plural and vice versa,
and pronouns of any gender shall be deemed to include the masculine,
feminine, or neuter gender.
9.9 COUNTERPARTS. This Agreement may be signed in counterpart copies,
each of which shall represent an original document, and all of which
shall constitute a single document.
9.10 NO ADVERSE CONSTRUCTION. The rule that a contract is to be construed
against the party drafting the
contract is hereby waived, and shall have no applicability in
construing this Agreement or the terms hereof.
9.11 ENTIRE AGREEMENT. With respect to its subject matter, namely, the
engagement by Company of Employee, this Agreement and all exhibits
hereto (including the documents expressly incorporated herein, such
as the Employee Proprietary Information and Inventions Agreement)
contain the entire understanding between the parties, and supersedes
any prior agreements, understandings, and communications between the
parties, whether oral, written, implied or otherwise.
Assistance of Counsel. Employee expressly acknowledges that he was advised he
has the right to be represented by counsel of his own choosing in connection
with the negotiation and drafting of the terms of this Agreement.
9.12 ATTORNEYS' FEES. Company shall reimburse Employee up to $2,500 for
attorneys' fees incurred by Employee for advice and negotiation in
connection with the execution of this Agreement. Such reimbursement
shall be made on the date that is six (6) month after the Effective
Date and only if, on that date; Employee is then employed by
Company.
9.13 FURTHER ASSURANCES. Each party hereto shall execute such documents
and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions of this Agreement
and the transactions contemplated by this Agreement.
9.14 PAYMENT OF TAXES. To the extent that any taxes become payable by
Employee by virtue of any payments made or benefits conferred by the
Company, the Company shall not be liable to pay or obligated to
reimburse Employee for any such taxes or to make any adjustment
under this Agreement. Any payments otherwise due under this
Agreement to Employee shall be reduced by any required withholding
for Federal, State and/or local taxes and other appropriate payroll
deductions.
The parties execute this Executive Employment Agreement as of the date stated
above:
EMPLOYEE SUPERIOR INDUSTRIES INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx,
Chairman of the Board and CEO
Address:
NOTICE ADDRESS
EXHIBIT A
RELEASE AGREEMENT LANGUAGE
In consideration for this severance compensation, Employee, upon accepting such
severance payment, on behalf of himself, his agents, heirs, executors,
administrators, and assigns, expressly releases and forever discharges Company
and its successors and assigns, and all of its respective agents, Directors,
officers, partners, employees, representatives, insurers, attorneys, parent
companies, subsidiaries, affiliates, and joint venturers, and each of them, from
any and all claims based upon acts or events that occurred on or before the date
on which Employee accepts the severance compensation, including any claim
arising under any state or federal statute or common law, including, but not
limited to, Title VII of the Civil Rights Act of 1964, 42
U.S.C.Sections 2000e, et seq., the Americans with Disabilities Act, 42
U.S.C.Sections 12101, et seq., the Age Discrimination in Employment Act, 29
U.S.C.Sections 623, et seq., the Worker Adjustment and Retraining
Notification Act, 29 U.S.C.Sections 2101, et seq., the California Fair
Employment and Housing Act, California Government Code Sections 12940, et
seq., breach of contract, and any other statutory or common law claim.
Employee acknowledges that he is familiar with section 1542 of the California
Civil Code, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MIGHT HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Employee expressly acknowledges and agrees that he is releasing all known and
unknown claims, and that he is waiving all rights he has or may have under Civil
Code section 1542 or under any other statute or common law principle of similar
effect. Employee acknowledges that the benefits he is receiving in exchange for
this Release are more than the benefits to which he otherwise would have been
entitled, and that such benefits constitute valid and adequate consideration for
this Release. Employee further acknowledges that he has read this Release,
understands all of its terms, and has consulted with counsel of his choosing
before signing this Agreement.
