EXHIBIT 10.2
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is entered into as of this day of
September, 2002, among XXXXXXX & XXXXXX PRODUCTS CO. and any successors thereto
(collectively, the "Company") and Xxxxxxx Xxxxxx (the "Executive").
The Executive and the Company agree as follows:
1. Separation. The employment relationship between the Executive and the
Company will terminate on October 1, 2002 (the "Termination Date").
Effective as of the Termination Date, the Executive's employment will be
terminated as (i) Senior Vice President Global Procurement and Supply Chain
Management and (ii) all other officer, director, committee member and
employee positions with the Company, its parent corporation and its
subsidiaries.
2. Payments. Prior to the date of this Agreement, the Company has paid
Executive for services rendered through the Termination Date (except that
Executive will be paid for the September 2002 pay period in accordance with
the Company's normal payroll practices). The Company and the Executive
hereby agree:
(i) that the Executive is not entitled to receive (x) payment for any
accrued and unused vacation time or (y) any benefits under any pension
or similar plan maintained by the Company;
(ii) that the Executive's stock options that have vested prior to the
Termination Date may be exercised at any time on or prior to the date
which is 90 days after the Termination Date, after which time all such
options shall expire and be of no further force and effect and that
Executive's stock options that had not vested prior to the Termination
Date expired on the Termination Date; and
(iii) subject to Executive's compliance with Sections 5 and 6 hereof,
the Company shall (x) pay to Executive for a period of 24 months from
the Termination Date (the "Restricted Period") $270,000 per year,
representing Executive's base salary as in effect on the Termination
Date on a periodic basis in accordance with the Company's normal pay
practices as may be in effect from time to time, commencing with the
first payroll payment date following the Termination Date; and (y)
make available to Executive during the Restricted Period the benefits
set forth on Schedule A hereto in the amounts and of the types
provided to Executive on the Termination Date (or substantially
equivalent benefits) and $20,000 per year for perquisites, net of any
income taxes payable by Executive on such amount, payable to Executive
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on a periodic basis at the times payments pursuant to clause (iii)(x)
above are made; provided that the Company shall not be required to
provide any such benefit or perquisite from and after the date the
Executive receives any comparable benefit or perquisite from another
employer (and Executive shall promptly notify the Company of his
receipt of any such perquisite or benefit).
3. Release. In consideration of the above, the sufficiency of which the
Executive hereby acknowledges, the Executive, on behalf of the Executive
and the Executive's heirs, executors and assigns hereby releases and
forever discharges the Company and its members, shareholders, parents,
affiliates, subsidiaries, divisions, any and all current and former
directors, officers, employees, agents, and contractors and their heirs and
assigns, and any and all employee pension benefit or welfare benefit plans
of the Company, including current and former trustees and administrators of
such employee pension benefit and welfare benefit plans, from all claims,
charges, or demands, in law or in equity, whether known or unknown, which
may have existed or which may now exist from the beginning of time to the
date of this Agreement, including, without limitation, any claims the
Executive may have arising from or relating to the Executive's employment
or termination from employment with the Company, including a release of any
rights or claims the Executive may have under Title VII of the Civil Rights
Act of 1964, as amended, and the Civil Rights Act of 1991 (which prohibit
discrimination in employment based upon race, color, sex, religion and
national origin); the Americans with Disabilities Act of 1990, as amended,
and the Rehabilitation Act of 1973 (which prohibit discrimination based
upon disability); the Family and Medical Leave Act of 1993 (which prohibits
discrimination based on requesting or taking a family or medical leave);
Section 1981 of the Civil Rights Act of 1866 (which prohibits
discrimination based upon race); Section 1985(3) of the Civil Rights Act of
1871 (which prohibits conspiracies to discriminate); the Employee
Retirement Income Security Act of 1974, as amended; any other federal,
state or local laws against discrimination; or any other federal, state, or
local statute, or common law relating to employment, wages, hours, or any
other terms and conditions of employment. This includes a release by the
Executive of any claims for wrongful discharge, breach of contract, torts
or any other claims in any way related to the Executive's employment with
or resignation or termination from the Company, including any claim under
any written or oral understandings relating to employment. This release
also includes a release of any claims for age discrimination under the Age
Discrimination in Employment Act, as amended ("ADEA"). The ADEA requires
that the Executive be advised to consult with an attorney before the
Executive waives any claim under ADEA, and the Executive acknowledges that
he has been so advised. In addition, the ADEA provides the Executive with
at least 21 days to decide whether to waive claims under ADEA and seven
days after the Executive signs the Agreement to revoke that waiver. The
Executive may revoke this release
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within seven days of the date of this Agreement by providing written notice
to the Chief Executive Officer of the Company and upon any such revocation
Executive shall not be entitled to any of the compensation or benefits
provided for in this Agreement. This release does not release the Company
from any obligations due to the Executive under this Agreement. This
Agreement is not an admission by either the Executive or the Company of any
wrongdoing or liability.
4. Acknowledgment of No Reinstatement. The Executive understands and agrees
that the consideration provided for herein is more than (and in lieu of)
that which the Executive would otherwise be entitled to under the Company's
existing plans and policies or otherwise. The Executive waives any right to
reinstatement or future employment with the Company following the
Executive's separation from the Company on the Termination Date.
5. Non-Disparagement. The Executive agrees not to make any oral or written
statements or otherwise take any action that is intended or may reasonably
be expected to disparage the reputation, business, prospects or operations
of the Company, its affiliates, officers, directors, stockholders or
employees or any persons related to the foregoing.
6. Confidentiality; Non-Competition; Etc. (a) The Executive agrees that the
Executive will keep confidential all confidential information and trade
secrets of the Company or any of its subsidiaries or affiliates and will
not disclose such information to any person without prior approval of the
Board of Directors of the Company or use such information for any purpose.
It is understood that for purposes of this Agreement the term "confidential
information" is to be construed broadly to include all material nonpublic
or proprietary information. The Executive shall promptly return any
documents, records, data, books or materials of the Company or its
subsidiaries or affiliates in his possession or control and any of his
workpapers containing confidential information or trade secrets of the
Company or its subsidiaries or affiliates.
(b) The Executive agrees that during the Restricted Period, the
Executive shall not, directly or indirectly (whether for compensation or
otherwise), as an agent, principal, partner, employee, officer, director,
trustee, consultant, shareholder, or in any other capacity, own, manage,
operate, join, control or participate in the ownership, management,
operation or control of, or be connected in any manner with, any of the
Competing Businesses (as defined below); provided, however, that
notwithstanding the foregoing, nothing contained in this Agreement shall be
deemed to preclude the Executive from owning not more than 2% of the
publicly traded securities of any Competing Business. The "Competing
Businesses" shall mean Intiers Automotive Inc., Xxxx Corporation, Xxxxxxx
Controls, Inc. and any subsidiary or affiliate of any such
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company or any of their successors.
(c) The Executive acknowledges that the agreements and covenants
contained in this Section are essential to protect the value of the
Company's and its subsidiaries' business and assets and by virtue of his
employment with the Company, the Executive has obtained knowledge,
contacts, know-how, training, experience and other information relating to
the Company's and its subsidiaries' business operations, and there is a
substantial probability that such knowledge, know-how, contacts, training,
experience and information could be used to the substantial advantage of a
competitor of the Company and its subsidiaries and to the Company's and its
subsidiaries' substantial detriment. Accordingly, for a period commencing
on the date hereof and ending on the calendar day following the last day of
the Restricted Period, the Executive shall not, directly or indirectly, for
himself or on behalf of or in conjunction with any person, partnership,
corporation or other entity, interfere with or disrupt, or attempt to
interfere with or disrupt, the relationship, contractual or otherwise,
between the Company or any of its subsidiaries and any customer, client,
supplier, distributor or agent of the Company or any of its subsidiaries.
(d) Executive covenants and agrees that he will not during the
Restricted Period, (i) solicit, employ or otherwise engage as an employee,
independent contractor or otherwise, any person who is or was an employee
of the Company or any of its subsidiaries or affiliates at any time during
the 24 month period immediately preceding the Termination Date, (ii) induce
or attempt to induce any employee of the Company or any of its subsidiaries
or affiliates to terminate such employment or (iii) interfere with the
relationship of the Company or any of its subsidiaries of affiliates with
any person, including any person who, at any time during the 24 month
period immediately preceding the Termination Date, was an employee,
contractor, supplier or customer of the Company or any of its subsidiaries
or affiliates.
(e) It is the desire and intent of the parties that the provisions of
this Section shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular portion of this Section shall be
adjudicated to be invalid or unenforceable, this Section shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of
this Section in the particular jurisdiction in which such adjudication is
made. The Executive agrees that he will execute any and all documents which
are reasonably necessary to effectuate the provisions of this Section.
(f) If there is a breach or threatened breach by the Executive of the
provisions of this Agreement, the Company or its affiliates shall be
entitled, without the requirement to post a bond, to an injunction
restraining the Executive from such
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breach. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies for such breach or threatened breach.
7. Cooperation; Reimbursement. The Executive shall, at the request of the
Company, assist and cooperate with the Company in the defense and/or
investigation of any third party claim or any investigation or proceeding,
whether actual or threatened, including, without limitation, participating
as a witness in any litigation, arbitration, hearing or other proceeding
between the Company and a third party or any government body. The Company
shall reimburse the Executive for all reasonable expenses incurred by him
in connection with such assistance including, without limitation, travel
expenses.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without reference to the
principles of conflict of laws.
9. Withholding. All payments to be made hereunder shall be net of all
applicable income and employment taxes required to be withheld therefrom.
10. Complete Agreement. This Agreement represents the complete agreement
between the Executive and the Company concerning the subject matter in this
Agreement and supersedes all prior agreements or understandings, written or
oral. Any oral or written understandings concerning the Executive's
employment are hereby terminated, including any agreements with stated
effect after termination including, without limitation, the Employment
Agreement, dated as of February 18, 2002, by and among the Executive and
the Company. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
11. Voluntary Agreement. This Agreement has been entered into voluntarily
and not as a result of coercion, duress, or undue influence. The Executive
acknowledges that the Executive has read and fully understands the terms of
this Agreement and has been advised to consult with an attorney before
executing this Agreement. Additionally, the Executive hereby acknowledges
and waives the opportunity of at least 21 days to consider this Agreement.
12. Successors and Assigns. The Company will require any successor or
assignee, whether direct or indirect, by purchase, merger, consolidation or
otherwise, of all, or substantially all, of the business and/or assets of
the Company to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it if such succession or assignment had not taken place. This Agreement
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shall inure to the benefit of and be binding on the Executive's personal
and legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
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The parties to this Agreement have executed this Agreement as of the day and
year first written above.
XXXXXXX & XXXXXX CORPORATION
By:
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Name:
Title:
EXECUTIVE
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Name: Xxxxxxx Xxxxxx
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Schedule A
(i) Continued use of Company cellular phone plan
(ii) Continued use of Executive Gasoline Card
(iv) Basic Life Insurance
(v) Basic Accidental Death & Dismemberment Insurance
