EXHIBIT 10.26
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 12/th/ day of
November, 2002, by and between McLAREN PERFORMANCE TECHNOLOGIES, INC., a
Delaware corporation with its office located at 00000 Xxxx Xxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Corporation"), and XXXXXX XXXXX, an individual
residing at _______________________ _______________ ("Rossi").
RECITALS:
A. The Corporation and Rossi are parties to a certain
Employment Agreement dated December 1/st/, 2000, (the
"Employment Agreement").
B. The Corporation and Rossi wish to enter into this Agreement
to terminate the Employment Agreement except those
provisions identified in this Agreement.
C. The Corporation and Rossi wish to set forth the severance
to be paid to Rossi by the Corporation and other terms and
conditions related to the termination of Rossi's
employment.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated in and
made a part of this Agreement.
2. Termination of Employment Agreement. The parties hereby agree that
the Employment Agreement, and Rossi's employment relationship with the
Corporation, shall be terminated as of November 3, 2002 (the "Termination
Date"). Notwithstanding the foregoing, the parties agree that the covenants
contained in the following sections of the Employment Agreement shall remain in
full force and effect: Paragraph 9, Confidentiality; Paragraph 11, Discoveries
and Works; Paragraph 12, Non Solicitation, and Paragraph 15, Injunctive Relief.
Rossi acknowledges and agrees that the Corporation has fulfilled all of its
obligations under the Employment Agreement, and Rossi hereby releases the
Corporation from any and all further obligations under the Employment Agreement.
3. Severance, Accrued Vacation, and Other Benefits.
(a) Severance Payment. The Corporation shall pay Rossi severance pay
equivalent to his monthly salary (based on his former annual salary of $200,000)
for two months, i.e., the months of November and December 2002 (the "Severance
Payment"). Applicable taxes and withholding shall be deducted from the Severance
Payment which shall be paid to Rossi by the Corporation in accordance with the
Corporation's normal payroll schedule during the months of November, December,
January and February. However, no payment shall be made until the seven-day
revocation period in paragraph 10 has expired.
(b) Accrued Vacation. The Corporation shall pay Rossi for ___ accrued but
unused vacation days for 2002, from which shall be deducted the ordinary and
usual amounts for taxes and withholding and which shall be remitted to Rossi by
the Corporation on or before November 30, 2002.
(c) Group Health Benefits. Rossi, his spouse, and dependents may be
eligible for group health plan continuation coverage, at their own expense,
under federal law (COBRA). If Rossi, his spouse, and dependents, if any, are
otherwise eligible and elect to continue group health coverage under COBRA, the
Corporation will pay the applicable COBRA premiums for coverage for the months
of November and December of 2002 and January and February of 2003, provided that
Rossi, his spouse and dependants, if any, remain eligible.
(d) Stock Options. This Agreement does not affect any rights or
obligations Rossi may have under the
McLaren Performance Technologies, Inc. 2000 Stock Option Plan ("2000 Stock
Option Plan") for the 200,000 stock options that were granted to Rossi in
accordance with his Employment Agreement. The parties further agree, subject to
the terms of the 2000 Stock Option Plan and any applicable option agreement,
that the 100,000 of the foregoing 200,000 stock options that were scheduled to
vest on December 1, 2002 in accordance with the Employment Agreement shall vest
on that date.
(e) Other Benefits. Except as provided in this Agreement, all of Rossi's
other benefits terminated on Termination Date or as otherwise stated in
applicable benefit plan documents.
4. Release. Rossi agrees, in consideration of the foregoing promises and
payment by Corporation, not to xxx and Xxxxx hereby releases and forever
discharges the Corporation, and its predecessors, assigns, affiliates, and each
of their past and present officers, directors, employees and agents, both in
their individual and representative capacities, from any and all claims,
demands, actions and causes of action, damages, costs, payments and expenses of
every kind, nature or description which may exist as of the date of this
Agreement arising out of or relating to facts or circumstances, whether known or
unknown, in existence on the date of this Agreement, including but not limited
to those arising out of or related to Rossi's employment relationship with the
Corporation, any breach of contract claims, claims of statutory violations,
common law tort claims, claims for benefits, claims for expense reimbursement,
claims for wrongful discharge, including constructive discharge, claims for
interest, cost, or attorney fees, claims arising out of or related to the
ownership of stock of the Corporation or the granting or ownership of stock
options, or otherwise. Rossi agrees that this release includes, but is not
limited to, a voluntary waiver of all claims of discrimination, including age
discrimination against the Corporation under both federal and state law.
Specifically, Rossi agrees that this Agreement includes a voluntary waiver of
all claims under the federal Age Discrimination in Employment Act ("ADEA"). The
only exclusion from this release is a claim that some term of this Agreement has
been violated and claims that can not be waived by law, such as the ability to
file a charge of age discrimination before the Equal Employment Opportunity
Commissions.
5. Agreement Not to Interfere. Rossi agrees that, for a period of two
(2) years from the date of this Agreement, not to interfere with or adversely
affect the Corporation's relationships with any person, firm, association,
corporation or other entity with whom Rossi actually did business or had a
personal contact while employed by the Corporation. Rossi will not divert or
change, or attempt to divert or change, any such relationship to the detriment
of the Corporation or to the benefit of any other person, firm, association,
corporation or other entity. Rossi further agrees that he shall not participate
in any activity that could have an adverse impact on the business or prospects
of the Corporation.
6. Agreement Not to Disparage. Rossi will not, at any time after the
date of this Agreement, disparage or act in any manner so as to disparage the
business of the Corporation with the public generally, or with any of its
customers, suppliers or employees.
7. Securities Filings. Rossi acknowledges and agrees that he will need
to review and certify certain reports and other filings of the Company to be
filed with the Securities and Exchange Commission. Rossi agrees that he will
undertake such review and provide such certifications as requested by the
Company in a timely manner so as not to delay the Company's filing of such
reports.
8. Ability to Work. Rossi acknowledges that Rossi is currently able to
work without limitation, either physical or mental.
9. Voluntary Acceptance. Rossi certifies that Rossi was advised in
writing of the following: (a) that Rossi's signing of the Agreement should be
voluntary and only with an understanding of the terms of the Agreement; (b) that
Rossi should consult with an attorney before signing the Agreement; and (c) that
Rossi may consider the Agreement for a period of at least twenty-one (21) days.
10. Free Act. Rossi certifies that Rossi fully understands this
Agreement, that the Agreement is entirely satisfactory to Rossi, and that
Rossi's signing of this Agreement is Rossi's own free and informed act and deed.
11. Revocation. Rossi may revoke this Agreement within seven (7) days (if
the 7th day is a Saturday, Sunday, or a national holiday, Rossi has until the
next business day) after signing the Agreement by notifying Xxxxx X.
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Panzl in writing at 00000 X. Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx, 00000.
12. Confidentiality. To the extent permitted by law, Corporation and
Rossi agree that they will maintain the strictest secrecy and will not disclose
the terms of this Agreement to any agency or person except where disclosure is
compelled by legal process or for reporting purposes to federal, state or local
taxing authorities or the Securities and Exchange Commission.
13. Assignment. Neither party may assign any of its rights or delegate
any of its duties or obligations under this Agreement without the prior written
consent of the other party.
14. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties, each of their respective successors and permitted
assigns.
15. Governing Law. This Agreement is a contract made under, and shall be
governed by and construed in accordance with, the law of the State of Michigan
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State. This Agreement
reflects the entire agreement of the parties relative to the subject matter
hereof and supercedes all prior or contemporaneous oral or written
understanding, statements, representations, or promises except for the
paragraphs of the Employment Agreement identified in paragraphs 2 of this
Agreement which are herein incorporated in its entirety in this Agreement. This
Agreement may only be amended or modified in a writing signed by both parties.
16. Headings. The headings are to be used solely for convenience and are
not to be used in construing or interpreting this Agreement.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first above written.
McLAREN PERFORMANCE
TECHNOLOGIES, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
------------------------------------ ----------------------------------------
By: Xxxxx X. Xxxxx Xxxxxx Xxxxx
Its: Chief Financial Officer
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