Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of the 1st day of August 2007 (the
"Agreement") by and between TECUMSEH PRODUCTS COMPANY, a Michigan corporation
(the "Company"), and XXXXX X. XXXXX ("Executive").
WITNESSETH:
WHEREAS, the Company desires to enlist the services and employment of
the Executive on behalf of the Company and the Executive is willing to render
such services on the terms and conditions set forth herein; and
WHEREAS, the Executive represents that he possesses skills, experience
and knowledge that are of value to the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Employment and Duties. Executive shall be named President and Chief
Executive Officer of the Company and a member of the Company's Board of
Directors. Prior to the next annual meeting of the shareholders (expected to be
held in April 2008), it is expected that the Board will take action to elect
Executive as the Chairman of the Board. Executive shall have the duties and
responsibilities commensurate with such titles and offices, including, without
limitation, all such duties and responsibilities as now are or hereafter may be
set forth with respect to such offices in the bylaws of the Company or in the
directives of the Board of Directors of the Company (the "Board"). During the
Employment Period (as hereinafter defined), Executive also shall serve as an
officer of such other affiliates of the Company and in such other capacities as
may be requested by the Board and shall assume such duties and responsibilities
as from time to time may be assigned to him by the Board, all without additional
compensation therefore. Throughout the Employment Period, Executive shall devote
his business time, attention and energy on a full-time basis exclusively to the
affairs of the Company and its affiliates and shall use his best efforts to
promote the interests of the Company, and the Executive shall not engage in any
other business activity without the approval of the Board.
2. Term of Employment. The terms and provisions of the Agreement and the
employment of Executive hereunder shall commence on the Effective Date (as
hereinafter defined) and shall continue, unless earlier terminated as provided
in this Agreement, through the close of business on that day that is immediately
prior to the third anniversary of the Effective Date (the "Employment Period").
The "Effective Date" shall be that date on which Executive commences full time
employment with the Company, but not later than August 15, 2007 (the "Effective
Date").
3. Compensation; Benefits; Relocation Expenses; Attorneys' Fees; Make-Whole
Payment.
(a) Base Salary. During the Employment Period, in full consideration
of the performance by the Executive of the Executive's obligations
hereunder (including, any services as an officer, director, employee or
member of any committee of any affiliate of the Company, or otherwise on
behalf of the Company), the Executive shall receive from the Company a base
salary (the "Base Salary") at an annual rate of Seven Hundred Fifty
Thousand Dollars ($750,000) per year, payable in accordance with the normal
payroll practices of the Company then in effect. During the Employment
Period, the Executive will be eligible to receive increases (but not
decreases) in the Base Salary from time to time as determined in the sole
discretion of the Board or a committee thereof.
(b) Annual Performance Bonus. During the Employment Period, in
addition to the payment of the Base Salary described above, the Executive
shall be eligible to receive, in respect of each calendar year during the
Employment Period, a performance-based cash bonus equal to 100% of the Base
Salary (the "Target Bonus"). The bonus actually earned and payable to
Executive will be determined based on achievement of Company and individual
performance objectives as may be established with respect to each calendar
year by the Board or a committee thereof, and subject to such other terms
and conditions established by the Board pursuant to that certain Executive
Performance Bonus Plan to be developed by the Board or a committee thereof,
and approved (i) by the Board, and (ii) by the Company's shareholders, at
the Company's next annual meeting of the shareholders (expected to be held
in April 2008). The maximum bonus opportunity for Executive will be 200% of
the Base Salary; consequently, the aggregate annual bonus that may be
earned by Executive will range from zero (0) to 200% of Base Salary.
Notwithstanding anything herein to the contrary, with respect to the years
of the Employment Period, ending on December 31, 2007 and December 31,
2008, Executive shall receive a minimum annual
performance bonus of Three Hundred Seventy-Five Thousand Dollars ($375,000)
each such year. Unless otherwise provided in the Executive Performance
Bonus Plan, the minimum annual performance bonuses as described in the
preceding sentence will be paid no later than March 15 of the year
following the year in which each annual bonus is earned (i.e., March 15,
2008 and March 15, 2009).
(c) Benefits. During the Employment Period, the Executive shall be
entitled to participate in employee benefit plans, policies, programs and
arrangements (including, without limitation, paid vacation and holidays,
and sick leave) as may be amended from time to time, on the same terms as
similarly situated executives of the Company to the extent the Executive
meets the eligibility requirements for any such plan, policy, program or
arrangement. In addition, the Company shall, to the extent insurable at
standard rates, provide a term life insurance policy (for the benefit of
Executive's heirs and named beneficiaries) in the amount of Five Million
Dollars ($5,000,000).
(d) Relocation Expenses. If approved by the Company in advance, the
Company will reimburse Executive for those reasonable and documented
expenses incurred in connection with Executive's relocation from
Birmingham, Alabama to southeast Michigan for: (i) movement of household
goods and automobiles, (ii) up to three (3) house hunting trips for
Executive and his spouse, and (iii) temporary housing in southeast Michigan
for a period not to exceed ninety (90) days.
(e) Attorneys' Fees. The Company will reimburse Executive for those
reasonable and documented expenses (subject to attorney-client privilege)
incurred in connection with the preparation, review, and execution of the
term sheet on which this Agreement is based, and this Agreement. Such
reimbursement of attorneys' fees shall be in an amount not to exceed Twenty
Thousand Dollars ($20,000).
(f) Make-Whole Payment. Executive has represented to the Company that
as a result of his resignation from his then current employer, in order to
accept the Company's offer of employment and become employed by the
Company, Executive has become ineligible to receive certain payments he was
entitled to receive from his former employer anticipated to be Five Hundred
Thousand Dollars ($500,000) (the "Make-Whole Amount"). Following the
Effective Date and subject to Executive's presentation of appropriate
documentation to the Company, the Company agrees to pay the Make-Whole
Amount to Executive as follows: (i) fifty percent (50%) of the Make-Whole
Amount within 90 days of presentation of the appropriate documentation; and
(ii) fifty percent (50%) of the Make-Whole Amount not later than February
1, 2008.
4. Long Term Incentive Plan Grants.
(a) Annual Grants. During the Employment Period, Executive shall
receive an annual grant of awards under the Company's Long-Term Incentive
Equity Award Plan (the "Plan") equal to (as of the date of the grant) the
aggregate of Executive's (i) then current Base Salary and (ii) the Target
Bonus then in effect (the "Annual Award"). The Plan as approved and adopted
by the Board on the Effective Date is subject to shareholder approval at
the Company's next annual meeting of the shareholders (expected to be held
in April 2008). The Annual Awards shall be subject to any conditions set
forth in the Plan and the granting document(s), including, without
limitation, shareholder approval as described in Section 4(c) of this
Agreement.
(b) Initial Grants. On the Effective Date, Executive will be granted
(i) stock options for shares of Class A common stock of the Company having
a Black-Scholes present value at the Effective Date of One Million Five
Hundred Thousand Dollars ($1,500,000) (the "Options"), and (ii) restricted
stock units with a value of One Million Five Hundred Thousand Dollars
($1,500,000) based on the closing market price of the Company's Class A
shares of common stock on the Effective Date (the "Units" and collectively,
with the Options, the "Initial Incentive Awards"). The Options will (x) be
granted with an exercise price equal to the closing market price of the
Company's Class A shares of common stock on the Effective Date, (y) have a
term of seven (7) years, and (z) vest over a three (3) year period, with
one-third of the Options vesting at the end of each year of employment. The
Executive will be entitled to settle the Units with the Company on the
third anniversary of the Effective Date, if he remains employed for the
full term of Employment Period. It is anticipated that the Units will be
settled in shares of the Company's Class A common stock. The Initial
Incentive Awards shall be subject to any conditions set forth in the Plan
and the granting document(s), including, without limitation, shareholder
approval as described in Sections 4(a) and 4(c) of this Agreement.
(c) Shareholder Approval. In the event that the Company's shareholders
do not approve the Plan, the Company shall (i) replace
the Initial Incentive Awards and any previously granted Annual Award with a
grant to the Executive of stock appreciation rights or contingent
cash-based performance awards of equivalent value of the Initial Incentive
Awards and applicable Annual Awards (the "Replacement Awards"), and (ii)
grant any Annual Awards thereafter in the form of Replacement Awards. The
form and terms of any Replacement Awards will be determined by the Board or
a committee thereof. Terms of any Replacement Awards will to the extent
possible be substantially identical to the Initial Incentive Award or
Annual Awards being replaced.
5. Taxes. The Executive shall be solely responsible for taxes imposed on
the Executive by reason of any compensation, benefits, or termination payments
provided under this Agreement and all such compensation, benefits, and
termination payments shall be subject to applicable withholding taxes or excise
tax. In the event that the aggregate payments or benefits to be made or afforded
to Executive under this Agreement would be deemed to include an "excess
parachute payment" under Section 280G of the Code or any successor thereof, and
subject to any excise tax imposed under Section 4999 (or any successor thereto)
of the Code, under no circumstances will the Company pay whether in form of
additional compensation or otherwise any portion of such excise tax.
6. Certain Expenses. Subject to review of the Board, in accordance with the
Company's practices and policies as then in effect during the Employment Period
as same are applied to executive officers, the Company shall pay or reimburse
Executive for reasonable and documented travel, entertainment, and other
incidental expenses (including, the cost of business publications and
professional associations), incurred on or in furtherance of the business of the
Company.
7. Certain Continuing Obligations of Executive. Throughout the Employment
Period and thereafter, Executive agrees to keep confidential all trade secrets,
technical information, intellectual property, business and marketing plans,
strategies, customer information, other information concerning the products,
promotions, development, financing, expansion plans, business policies and
practices of the Company, and other data concerning the private affairs of the
Company and its affiliates, made known to or developed by Executive during the
course of his employment hereunder ("Confidential Information"), not to use any
Confidential Information or supply Confidential Information to others other than
in furtherance of the Company's business, and to return to the Company upon
termination of his employment all copies, in whatever form or media, of all
Confidential Information and all other documents relating to the business of the
Company
or any of its affiliates which may then be in the possession or under the
control of Executive.
At the request of the Board, whether or not made during the Employment
Period, Executive agrees to execute such confidentiality agreements, assignments
of intellectual property rights, and other documents as hereafter may be
reasonably determined by the Board to be appropriate to carry out the purposes
of this Section.
8. Termination; Termination Payments.
(a) Termination. The Executive may terminate his employment under this
Agreement, in accordance with this Section 8, with Good Reason (as hereinafter
defined), Good Reason on Change of Control (as hereinafter defined), or
voluntarily. The Company may terminate the Executive's employment under this
Agreement, in accordance with this Section 8, for Executive's Disability, for
Cause, or without Cause. Any termination of the Executive under this Agreement
that would trigger an obligation to make any payments to the Executive shall be
considered a "separation from service" within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) Termination Payments - Termination by Executive. If Executive
voluntarily terminates his employment (i) without Good Reason, or (ii) without
Good Reason on Change of Control, then Executive shall be entitled to receive:
(A) a cash payment equal to the aggregate amount of (x) accrued but unpaid Base
Salary and (y) unused vacation days; (B) settlement of any then vested Units;
and (C) the ability to exercise any then vested Initial Incentive Award and
Annual Awards in accordance with their terms. All of Executive's unvested
Initial Incentive Award and Annual Awards or other grants will be cancelled as
of the effective date of Executive's termination (the "Termination Date"). After
the Termination Date, Executive will not be entitled to receive any other
post-termination payments or severance. Any cash payments due under this Section
8(b) shall be payable in a lump sum within ninety (90) days of the Termination
Date, provided that payment occurs no later than March 15 of the year following
the year in which the Termination Date falls.
(c) Termination Payments - Good Reason. If Executive terminates his
employment for Good Reason, then Executive shall be entitled to receive: a cash
payment in an amount equal to the aggregate of (i) accrued but unpaid Base
Salary; (ii) unused vacation days; (iii) the Target Bonus on a pro rata basis
through the Termination Date; (iv) one and one-half (1.5) times the Base Salary
then in effect; and (v) one (1) times the annual Target Bonus. In the event
Executive's Good Reason termination
occurs within the first twelve (12) months of the Employment Period, then fifty
percent (50%) of the Executive's Initial Incentive Award and any Annual Award
will become immediately vested as of the Termination Date, and irrespective of
the terms of any such Initial Incentive Award and Annual Award, the Executive
will have 180 days from the Termination Date to exercise the so vested Initial
Incentive Award and Annual Award. In the event Executive's Good Reason
termination occurs after the first twelve (12) months of the Employment Period,
one hundred percent (100%) of the Executive's Initial Incentive Award and Annual
Awards will become immediately vested as of the Termination Date, and
irrespective of the terms of any such Initial Incentive Award and Annual Awards,
the Executive will have 180 days from the Termination Date to exercise the so
vested Initial Incentive Award and Annual Awards. In addition, other than a
continuation of Company-paid health insurance for one (1) year (to the extent
such health insurance is in effect as of the Termination Date), Executive will
not be entitled to receive any other post-termination payments or severance
following such resignation. Any cash payments due under this Section 8(c) shall
be payable in a lump sum within ninety (90) days of the Termination Date,
provided that payment occurs no later than March 15 of the year following the
year in which the Termination Date falls.
(d) Termination Payments - Cause. If the Company terminates
Executive's employment for Cause, then Executive shall be entitled to receive: a
cash payment in an amount equal to the aggregate of (i) accrued but unpaid Base
Salary; and (ii) unused vacation days. All Annual Awards and Initial Incentive
Awards, whether or not vested, will be forfeited and immediately cancelled
effective on the date notice of the for Cause termination is delivered to
Executive. Executive will not be entitled to receive any other post-termination
payments or severance following such termination. Any cash payments due under
this Section 8(d) shall be payable in a lump sum within ninety (90) days of the
Termination Date, provided that payment occurs no later than March 15 of the
year following the year in which the Termination Date falls.
(e) Termination Payments - Without Cause. If the Company terminates
Executive's employment without Cause, then Executive shall be entitled to
receive: (i) a cash payment in an amount equal to the aggregate of (A) accrued
but unpaid Base Salary; (B) unused vacation days; (C) the Target Bonus on a pro
rata basis through the Termination Date; (D) one and one-half (1.5) times the
Base Salary then in effect; and (E) one (1) times the annual Target Bonus; and
(ii) the ability to exercise any then vested Initial Incentive Award and Annual
Awards in accordance with their terms for up to 180 days after the Termination
Date. In addition, other than a continuation of Company-paid health insurance
for up to one (1) year, Executive will not be entitled to receive any other
post-termination payments or severance following such resignation. Any cash
payments pursuant to
Sections 8(e)(i)(A), (B) and (D) due under this Section 8(e) shall be payable in
regular installments in accordance with the normal payroll practices of the
Company then in effect, and any cash payments pursuant to Sections 8(e)(i)(C)
and (E) due under this Section 8(e) shall be payable in accordance with the
normal bonus payment practices of the Company then in effect, provided that all
cash payments made pursuant to this section 8(e) are subject to any required
delay in payment as described in Section 8(m).
(f) Termination Payments - Change of Control. In the event that a
Change of Control (as hereinafter defined) occurs, (i) within the first twelve
(12) months of the Employment Period, then fifty percent (50%) of the
Executive's Initial Incentive Award and Annual Award will become immediately
vested as of the date of the Change of Control irrespective of the terms of any
such Initial Incentive Award and Annual Award; and (ii) after the first twelve
(12) months of the Employment Period, one hundred percent (100%) of the
Executive's Initial Incentive Award and Annual Awards will become immediately
vested as of the Termination Date irrespective of the terms of any such Initial
Incentive Award and Annual Awards. In addition, in the event that (x) Executive
is terminated without Cause on a Change of Control or (y) Executive terminates
his employment for Good Reason on Change of Control, then Executive shall be
entitled to receive the compensation specified under Section 8(c) of this
Agreement, except that the compensation specified under Sections 8(c)(iv) and
(v) shall be two (2) times the Base Salary then in effect, and two (2) times the
annual Target Bonus. Any cash payments due under this Section 8(f) shall be
payable in a lump sum within ninety (90) days of the Termination Date, provided
that payment occurs no later than March 15 of the year following the year in
which the Termination Date falls.
(g) Termination Payments - Disability. If Executive is terminated by
the Company for a Disability (as hereinafter defined), then Executive shall be
entitled to receive: (i) a cash payment equal to the aggregate amount of (A)
accrued but unpaid Base Salary, (B) unused vacation days, and (C) the Target
Bonus on a pro rata basis through the Termination Date; (D) settlement of any
then vested Units; and (ii) the immediate vesting of the next tranche of options
that would have vested after the Termination Date under any Initial Incentive
Award and Annual Awards; and (iii) the ability to exercise any then vested
Initial Incentive Award and Annual Awards in accordance with their terms. All of
Executive's unvested Initial Incentive Award and Annual Awards or other grants
will be cancelled as of the Termination Date. After the Termination Date,
Executive will not be entitled to receive any other post-termination payments or
severance. Any cash payments due under this Section 8(g) shall be payable in a
lump sum within ninety (90) days of the Termination Date, provided that payment
occurs no later than March 15 of the year following the year in which the
Termination Date falls.
(h) Definitions. For purposes of this Agreement:
(i) "Cause" shall mean any of the following: (A) the Executive's
continuing substantial failure to perform his duties for the Company for
thirty (30) days (other than as a result of incapacity due to mental or
physical illness) after a written demand is delivered to the Executive by
the Company's Board of Directors; (B) the Executive's willful engagement in
illegal conduct or gross misconduct that is materially and demonstrably
injurious to the Company; (C) the Executive's conviction of a felony or his
plea of guilty or nolo contendere to a felony, or (D) the Executive's
willful and material breach of his confidentiality obligations under local
law or Tecumseh's code of conduct.
(ii) A "Change of Control" shall occur if at any time:
(A) Any person or group (as such terms are used in
connection with Section 13(d) and 14(d) of the Exchange Act)
hereafter becomes the "beneficial owner" (as defined in Rule
13(d)(3) and 13(d)(5) under the Exchange Act), directly or
indirectly, of securities of the Company representing thirty-five
percent (35%) or more of the combined voting power of the
Company's then outstanding securities;
(B) A merger, consolidation, sale of assets, reorganization,
or proxy contest is consummated and, as a consequence of which,
members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board
thereafter;
(C) A merger, consolidation, or reorganization is
consummated with any other corporation pursuant to which the
shareholders of the Company immediately prior to the merger,
consolidation, or reorganization do not immediately thereafter
directly or indirectly own more than fifty percent (50%) of the
combined voting power of the voting securities entitled to vote
in the election of directors of the merged, consolidated, or
reorganized entity; or
(D) members of the Incumbent Board (as hereinafter defined)
cease for any reason to constitute a majority of the Board of
Directors of the Company.
(iii) "Disability" means any medically determinable physical or
mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months: (A)
which renders Executive unable to engage in any substantial gainful
activity; or (B), which enables Executive to receive income replacement
benefits for a period of not less than three (3) months under an accident
and health plan covering employees of the Company, provided that this
definition shall be interpreted in accordance with Code Section
409A(a)(2)(A)(v) and regulations and other guidance thereunder.
Notwithstanding (A) and (B) of this Section 8(h)(iii), Executive shall be
deemed to have a total and permanent disability when determined to be
totally disabled by the Social Security Administration.
(iv) "Good Reason" shall mean any of the following occurrences
without the written consent of Executive: (a) the assignment to Executive
of any duties inconsistent with his duties described in Section 1 of this
Agreement or any removal of Executive from or any failure to reelect
Executive to his positions described in Section 1 hereof; provided, that
the suspension of Executive from the duties of his employment and any
positions held by him during the pendency of any criminal proceedings
against Executive as to which a conviction would constitute "Cause" shall
not be deemed "Good Reason" so long as during the period of such suspension
the Company continues to pay the Base Salary and provide the additional
benefits to which Executive is entitled; (b) the Company requiring that the
Executive relocate his principal office to a location fifty or more miles
from Tecumseh, Michigan; (c) the failure of the Company to pay Executive
the Base Salary and provide the additional benefits, including the Target
Bonus opportunity, Annual Awards, and Initial Incentive Award as and when
required hereunder; or (d) any other failure of the Company to perform its
obligations to Executive hereunder if such failure continues uncured for
thirty (30) days after written notice thereof, specifying the nature of
such failure and requesting that it be cured, is given by Executive to the
Company.
(v) "Good Reason on Change of Control" shall mean any of the
following occurrences following a Change of Control: (a) the failure to
offer the Executive an equivalent position in the surviving entity; or (b)
the Incumbent Board ceases to
constitute a majority of the Board as described in Section (8)(h)(ii)(D) of
this Agreement.
(vi) "Incumbent Board" shall mean the individuals who, as of the
date of this Agreement, constitute the entire Board of Directors of the
Company and any new director whose election by the Board or nomination for
election by the shareholders of the Company was approved by a vote of at
least a majority of the directors then still in office who either were
directors on the date of this Agreement or whose election or nomination for
election was previously so approved.
(i) Termination Notice. The Company shall provide the Executive with
thirty (30) days advance written notice of its intention to terminate the
Executive's employment for any reason other than Cause. The Executive must
provide the Company with thirty (30) days advance written notice of his
intention to terminate his employment for any reason other than Good Reason or
Good Reason on Change of Control for which the Executive may give the Company
ten (10) days advance written notice.
(j) Post Termination Cooperation. In the event of termination of the
Executive's employment, for whatever reason (other than death or Disability),
the Executive agrees to cooperate with the Company and to be reasonably
available to the Company for a reasonable period of time thereafter with respect
to matters arising out of the Executive's employment hereunder or any other
relationship with the Company, whether such matters are business-related, legal
or otherwise. The Company shall reimburse the Executive for all expenses
reasonably incurred by the Executive during such period in connection with such
cooperation with the Company.
(k) Board Resignation. Upon termination of the Executive's employment
for any reason, the Executive shall be deemed to have resigned from the Board
and from all other boards of, and other positions with, the Company and its
affiliates.
(l) Release; Full Satisfaction. Notwithstanding any other provision of
this Agreement, no post-termination payments to which Executive becomes entitled
under this Agreement or any agreement or plan referenced herein shall become
payable under this Agreement unless and until the Executive executes a general
release of claims in form and manner reasonably satisfactory to the Company
including, where relevant, a release of any statutory claims, and such release
has become irrevocable; provided, that the Executive shall not be required to
release any indemnification rights. The payments to be provided to the Executive
pursuant to this Section 8 upon termination of the Executive's employment shall
constitute the exclusive
payments in the nature of severance or termination pay or salary continuation
which shall be due to the Executive upon a termination of employment and shall
be in lieu of any other such payments under any plan, program, policy or other
arrangement which has heretofore been or shall hereafter be established by any
member of the Company.
(m) Termination Payments - Delay. To the extent (i) any
post-termination payments to which Executive becomes entitled under this
Agreement or any agreement or plan referenced herein constitute "deferred
compensation" subject to Section 409A of the Code and (ii) Executive is deemed
at the time of such termination of employment to be a "specified employee" under
Section 409A of the Code, then such payment will not be made or commence until
the earliest of (x): the expiration of the six (6) month period measured from
the date of Executive's "separation from service" (as such term is defined in
Treasury Regulations under Section 409A of the Code and any other guidance
issued under Section 409A of the Code) with the Company; (y) the date Executive
has a Disability; and (z) the date of Executive's death following such
separation from service. Upon the expiration of the applicable deferral period
as described in this Section 8(m), any payments which would have otherwise been
made during that period (whether in a single sum or in installments) in the
absence of this provision (together with reasonable accrued interest) will be
paid to Executive or Executive's beneficiary in one lump sum.
9. Executive's Representation. The Executive represents to the Company that
the Executive's execution and performance of this Agreement does not violate any
agreement or obligation (whether or not written) that the Executive has with or
to any person or entity including, but not limited to, any prior employer.
10. Integration; Amendment. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof and thereof, and supersedes
and replaces in their entirety any prior agreements or understandings concerning
such subject matter, including without limitation the First Agreement. This
Agreement may not be waived, changed, modified, extended, or discharged orally,
but only by agreement in writing.
11. Noncompetition and Nonsolicitation. Notwithstanding anything to the
contrary contained elsewhere in this Agreement, in view of Executive's
importance to the success of the Company, Executive and the Company agree that
the Company would likely suffer significant harm from Executive's competing with
the Company during Employment Period and for some period of time thereafter.
Accordingly, Executive agrees that Executive shall not engage in competitive
activities while employed by the Company and, in the event Executive's
employment is terminated voluntarily by Executive or without Cause by the
Company, during the
Restricted Period (as hereinafter defined). Executive shall be deemed to engage
in competitive activities if he shall, without the prior written consent of the
Company, (i) render services directly or indirectly, as an employee, officer,
director, consultant, advisor, partner, or otherwise, for any organization or
enterprise which competes directly or indirectly with the business of Company or
any of its affiliates in providing those products and services to original
equipment manufacturers or aftermarket distributors, or (ii) directly or
indirectly acquires any financial or beneficial interest in (except as provided
in the next sentence) any organization which conducts or is otherwise engaged in
a business or enterprise which competes directly or indirectly with the business
of the Company or any of its affiliates in providing those products and services
to original equipment manufacturers or aftermarket distributors. Notwithstanding
the preceding sentence, Executive shall not be prohibited from owning less than
one (1%) percent of any publicly traded corporation whether or not such
corporation is in competition with the Company. For purposes of this Agreement,
the term "Restricted Period" shall equal the longer of (y) twelve (12) months,
or (z) the period during which Executive receives salary and benefits under
Sections 8(a)-(f), in each case commencing as of the Termination Date. Further,
during the Restricted Period, the Executive shall not, and shall not cause any
other person to, (i) interfere with or harm, or attempt to interfere with or
harm, the relationship of the Company or its affiliates with any Restricted
Person (as hereinafter defined), or (ii) endeavor to entice or solicit any
Restricted Person away from the Company or its affiliates. For the purposes of
this Agreement, "Restricted Person" shall mean any person who at any time during
the Employment Period was an employee or customer of the Company or its
affiliates, or otherwise had a material business relationship with the Company
or its affiliates.
12. Non-disparagement. During the Restricted Period, (a) the Executive
shall not make or publish any disparaging statements (whether written or oral)
regarding the Company or its affiliates, directors, officers or employees, and
(b) the Company shall not make or publish any disparaging statements (whether
written or oral) regarding the Executive. Notwithstanding anything herein to the
contrary, during the Restricted Period, the Company may respond to inquiries
from Executive's prospective employers who contact the Company, and may make any
public announcements or filings that may be necessary for a public company.
13. Notices. For the purposes of this Agreement, notices and all other
communications provided for shall be in writing and shall be deemed to have been
given when delivered or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or national overnight courier with
proof of delivery addressed as follows:
If to the Executive: Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
With copy to: Cattel, Tuyn & Rudzewicz PLLC
00 Xxxxxxxxxx Xxxxx Xxxxxxx,
Xxxxx 000 Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
If to the Company: Tecumseh Products Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
With copy to: Miller, Canfield, Paddock & Stone,
P.L.C.
000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
or to such other address as either party may have furnished to the other in
writing. Notices of change of address shall be effective only upon receipt.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to contracts made
and to be performed within such State without regards to the principles of
conflicts of law.
15. Venue and Jurisdiction. The parties hereby consent to the jurisdiction
of the state and federal courts located in the Eastern District of Michigan,
which shall be the exclusive venue for any legal action or proceeding filed by
either party with respect to this Agreement. The parties hereby further agree
and irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, that either of them may
now or hereafter have to the bringing of any such action or proceedings in such
jurisdictions.
16. Conflict. In the event of a conflict between the terms of this
Agreement and the Plan or the Executive Performance Bonus Plan, this Agreement
shall control.
17. Headings. The headings contained herein are solely for the purposes of
reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in two 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TECUMSEH PRODUCTS COMPANY
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By: Xxxxx X. Xxxxxx
Its: Chairman
EXECUTIVE
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Xxxxx X. Xxxxx
