EXHIBIT INDEX
Exhibit Description
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10.1 Release Agreement, dated January 14, 2005, between Xxxxx X.
Xxxxx and Metaldyne Corporation
AGREEMENT
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THIS RELEASE AGREEMENT ("Agreement") is made as of this 14th day of
January 2005, between Xxxxx X. Xxxxx ("Executive") and Metaldyne Corporation
("Employer").
INTRODUCTION
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I. Executive's last day of work will be January 31, 2005 (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 as of June 16, 2003, as
amended by that certain Amendment to Employment Agreement with an
effective date of September 10, 2004 ("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
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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 six
(6) months in the gross amount of $225,000
(The gross amount per pay period will be
$17,307.69). Payment to Executive will be
made in equal, bi-weekly installments, minus
applicable withholding and payroll taxes.
b. A gross bonus for 2004 to be paid in
accordance with the terms of the Annual Value
Creation Plan (AVCP); provided, however, that
the amount paid pursuant to the individual
performance component shall be fixed at
$67,500. The bonus will be paid in a single
lump sum at such time as the Company pays all
other employee bonuses under the AVCP.
c. A lump sum amount of $34,615.38, representing
the monetary value of 4 weeks of vacation
time. This payment will be made within 10
days of signing this Agreement and is subject
to all of the applicable withholdings
described above.
d. 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 six (6) 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. Executive shall continue to participate in
the Metaldyne Executive Car Program for a
period of one month from the Termination Date
in accordance with the terms of that program.
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 the 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.
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
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Employer agrees not to criticize, disparage or
otherwise demean the Executive.
6. RELEASE. Executive, for him, and his heirs,
executors, administrators, successors and assigns,
hereby releases and forever discharges Employer, its
affiliates 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
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.
Nothing contained in this Release Agreement shall
modify, alter, or otherwise affect the rights of
Executive as a former employee and officer to
indemnification by Employer pursuant to the Restated
Certificate of Incorporation and the Delaware General
Corporation law.
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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 January
14, 2005. 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 February 4, 2005.
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.
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
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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:
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XXXXX X. XXXXX
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DATE OF WITNESS' SIGNATURE DATE OF EXECUTIVE'S SIGNATURE
METALDYNE CORPORATION
(EMPLOYER)
BY: _______________________________________
ITS: _______________________________________
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