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EXHIBIT 10.29
SEPARATION AGREEMENT AND GENERAL RELEASE
Walbro Corporation ("Walbro" or the "Company") and Xxxxxxx X. Xxxxxxxx
(the "Executive") hereby enter into this Separation Agreement ("Agreement") this
20th day of May, 1998:
WHEREAS, Executive has been employed as Chief Executive Officer of
Walbro and been an officer and director with various entities affiliated with
Walbro, including without limitation, Walbro Corporation; Walbro Netherlands
B.V.; Auburn Die Cast; U.S. Coexcell, Inc.; Walbro Automotive Japan, Inc.;
Walbro Korea, Ltd.; Walbro Automotive S.A. - France; Walbro Automotive AS -
Norway; Walbro Automotive Limited - United Kingdom; Walbro Automotive FSC, Inc.;
CME, Xxxxxx Systems, SNC; Mitsuba-Walbro, Inc.; and Xxxxxxxxx Engineered
Products, Inc. (collectively, the "Affiliates"); and
WHEREAS, Walbro and Executive are parties to a certain Employment
Agreement dated August 16, 1996 and a certain Termination and Change of Control
Agreement dated August 16, 1996 (collectively the "Prior Agreements") and wish
to terminate the Prior Agreements and sever their employment relationship and
fully settle all claims which either party has or may have; and
WHEREAS, Executive has concluded it is in his best interest to retire
and resign his position with the Company and the Affiliates, subject to the
terms and conditions provided in this Agreement, and the Company has agreed to
accept Executive's resignation;.
WHEREAS, both parties desire to part on the terms and conditions
contained in this Agreement.
NOW, THEREFORE, Walbro and Executive agree as follows:
1. Effective as of the close of business on April 15, 1998 ("Separation
Date"), Executive resigns his employment and the office of Chief Executive
Officer, and effective as of the close of business on May 20, 1998, Executive
resigns directorships Executive may hold with Walbro and any of its Affiliates
and his position as Chairman of the board of directors of Walbro. Executive and
Walbro shall implement the resignation in a manner designed to ensure the least
disruption to the operations and business of Walbro and its Affiliates, while
continuing the good standing in which Executive is held in the industry and his
community. After the Separation Date, except as described in this Agreement,
neither Executive nor Walbro shall have any further obligation under the Prior
Agreements.
2. No provision of the Prior Agreements shall survive this Agreement,
except subsections (a) and (b) of Section 11 of the Termination and Change of
Control Agreement
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entered into by and between Executive and Walbro on August 16, 1996
("Termination and Change of Control Agreement") as provided above in Section 9
of this Agreement.
3. In consideration for the agreements and in full and final settlement
of all of Executive's stated and unstated claims, Walbro agrees:
(a) Walbro shall continue to pay Executive his Annual Base Salary
at the rate in effect (Four Hundred and Fifty Thousand Dollars
($450,000.00) per annum) through August 15, 1998, less all
appropriate deductions and withholdings required by law.
(b) Within seven days following the Effective Date, Walbro shall
pay Executive Fifty-One Thousand Five Hundred Sixty-Two and
50/100 Dollars ($51,562.50), less all appropriate deductions
and withholdings required by law, as Executive's Annual
Incentive Compensation for the fiscal year ending 1998 (such
amount determined by multiplying the average of Executive's
fiscal year 1995, 1996, and 1997 bonuses by a fraction, the
numerator of which is 227, the number of days in 1998 through
August 15, and the denominator of which is 365).
(c) Stock Options granted under the Walbro Corporation Equity
Based Long Term Incentive Plan (as identified in an
interoffice memorandum from X. X. Xxxxxxx to L. E. Althaver
dated March 16, 1998) shall be fully exercisable on and after
the Separation Date for the lesser of six (6) years after the
Separation Date or ten (10) years from date of grant.
(d) One Thousand Seventy (1,070) Phantom Stock certificates shall
be converted to stock certificates (or, alternatively, to cash
at fair market value) on the date of notice provided by
Executive; provided that such notice must be provided not
later than August 29, 1998.
(e) As of the date of this Agreement, Executive shall cease to
accrue benefits under the Company's supplemental employee
retirement plan ("SERP"); provided, however, Walbro shall pay
to Executive ten (10) annual installments with the initial
payment on September 1, 1998 under the SERP, less appropriate
deductions and withholdings required by law. Each installment
payment shall be One Hundred Ninety Six Thousand Six Hundred
Ninety Five Dollars ($196,695).
(f) Walbro shall provide office facilities through August 15,
1999, at a location to be chosen by Walbro.
(g) Walbro will reimburse Executive for the monthly lease cost of
his assigned vehicle (1998 Cadillac Seville) and shall provide
insurance coverage for such vehicle from the Separation Date
to August 15, 1999. Executive shall be responsible for
operating, maintenance and repair costs.
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(h) All other fringe benefits shall terminate on May 20, 1998.
4. In consideration for agreement and in full settlement of all claims:
(a) Executive agrees to repay the One Hundred Thousand Dollars
($100,000) outstanding loan not later than August 15, 1998.
(b) Executive agrees that, as a part of his responsibilities, he
shall (i) return all Company property (including customer
lists, data, software, etc.) in his possession and (ii) use
reasonable efforts to assure a smooth transition of his duties
and responsibilities to the management executives or other
individuals designated by Walbro and shall provide the details
concerning corporate opportunities which have not resulted in
agreements with third parties in which he is and was involved
and be available for consultation regarding general business
matters for a period of one year following the Separation
Date. Executive further agrees to cooperate with Walbro in the
truthful and honest prosecution and/or defense of any claim in
which the Released Parties (as hereinafter defined) may have
an interest (subject to reasonable limitations concerning time
and place), which may include without limitation making
himself available to participate in any proceeding involving
any of the Released Parties, allowing himself to be
interviewed by representatives of Walbro, appearing for
depositions and testimony without requiring a subpoena, and
producing and/or providing any documents or names of other
persons with relevant information; provided that Walbro shall
provide Executive reasonable compensation for the time
actually expended in such endeavors and shall pay Executive's
reasonable expenses incurred at Walbro's request.
5. Except for a claim based upon a breach of this Agreement, Executive
hereby releases Walbro, its Affiliates, directors, officers and employees of any
and all claims, suits, demands, actions or causes of action of any kind of
nature whatsoever, whether the underlying facts are known or unknown, which
Executive has or now claims, or might have a claim, pertaining to or arising out
of Executive's employment by Walbro, his resignation therefrom, the Prior
Agreements, or any other agreement or benefit plan of Walbro. This release
covers all claims, actions or liability under (i) Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Civil Rights Act of 1866 (42
U.S.C. Section 1981), the Age Discrimination in Employment Act, the Americans
With Disabilities Act, the Fair Labor Standards Act, the National Labor
Relations Act, the Employee Retirement Income Security Act, the Family and
Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the
Xxxxxxx Xxxxxx Civil Rights Law, the Michigan Handicappers Civil Rights Act,
and Michigan wage laws; (ii) any other federal, state or local statute,
ordinance, or regulation regarding employment, compensation, employee benefits,
termination of employment, or discrimination in employment; and (iii) the
common law of any state relating to employment contracts, wrongful discharge,
defamation, or any other matter. This release shall run to and be for the
benefit of Walbro and each of its Affiliates or related entities, and all
predecessors, successors and assigns thereof and each of their trustees,
shareholders, directors, officers, Executives, agents and attorneys, past or
present, and all predecessors, successors, heirs and assigns thereof
(collectively "Released
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Parties"). This release shall run to and be binding upon Executive and his heirs
and assigns. The Executive waives any reinstatement or future employment with
the Company, and agrees never to apply for employment or otherwise seek to be
hired, rehired, employed or reemployed by the Company or its Affiliates.
The following provisions are applicable to and made a part of this
Agreement and the foregoing general release and waiver:
(a) Executive does not release or waive any right or claim which
he may have under the Age Discrimination in Employment Act, as
amended by the Older Workers Benefits Protection Act, which
arises after the date of execution of this Agreement; provided
that Executive acknowledges and agrees that any claim under
the Age Discrimination in Employment Act relating to his
separation from employment with Walbro has arisen prior to the
execution of this Agreement;
(b) In exchange for this general release and waiver hereunder,
Executive hereby acknowledges that he has received separate
consideration beyond that which he is otherwise entitled to
under the Prior Agreements, Walbro policy or applicable law;
(c) Walbro hereby expressly advises Executive to consult with an
attorney of his choosing prior to executing this Agreement,
which contains a general release and waiver;
(d) Executive has twenty-one (21) days from the date of
presentment to consider whether or not to execute this
Agreement. In the event of such execution, Executive has a
further period of seven (7) days from the date of execution in
which to revoke said execution by an unequivocal and written
notice to Xxxxxx X. Xxxxxxx, Secretary and Chief
Administrative Officer, Walbro Automotive Corporation that
shall be effective when actually received by Xx. Xxxxxxx if
received by 5:00 p.m. on the seventh day after the signing of
the Agreement, and this Agreement shall not become effective
or enforceable until the expiration of such revocation period
("Effective Date"); and
(e) Prior to pursuing any claim that requires the Court to
disregard or invalidate this Agreement, Executive shall return
to Walbro the consideration described in paragraph 3 above.
6. Walbro and its Affiliates hereby remise, release and forever
discharge and covenant not to xxx and shall be deemed to have remised, released
and forever discharged Executive of and from any and all causes and causes of
action, suits, sums of money, debts, duties, accounts and accounting, breaches
or defaults, damages, judgments and liabilities, by reason of any agreement, act
or occurrence, fact or circumstance, conduct or misconduct, contractual or
otherwise, general and special, contingent, known or unknown, liquidated or
unliquidated, or matter, cause or thing whatsoever, from the beginning of time
to the date
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hereof, including but not limited to Executive's employment with Walbro,
provided, however, that nothing herein contained shall be deemed to release
Executive from his obligations under this Agreement.
7. Walbro shall indemnify Executive and advance expenses in accordance
with its practices for former senior executive officers and directors. In
addition, Walbro hereby agrees to indemnify and hold harmless Executive and any
of his heirs, successors and assigns, and each of them, from and against any and
all losses, damages, fines, assessments, claims, judgments, proceedings,
expenses or liabilities (including, without limitation, reasonable attorneys'
fees) arising out of, attributable to or which result from any claim by any of
Walbro or Walbro's affiliates or by any third party against Executive based upon
or related to (i) Executive's position as an officer and/or director of any of
the Walbro or Walbro's affiliates; and (ii) Executive's function as a trustee of
any Company-sponsored plans; except to the extent any such claim, as a matter of
law, constitutes a claim for which Walbro is not permitted to indemnify
Executive or arises out of enforcement of this Agreement.
8. To the maximum extent permitted by law, (1) Executive covenants not
to xxx or to institute or cause to be instituted any action in any federal,
state or local agency or court against Walbro or any Released Party regarding
the matters covered by the release contained in paragraph 5 above, except to
enforce the terms of this Agreement; and (2) Walbro covenants not to xxx or to
institute or cause to be instituted any action in any federal, state or local
agency or court against Executive or any Released Party regarding the matters
covered by the release contained in paragraph 6 above, except to enforce the
terms of this Agreement.
9. Executive agrees to continue be bound by the provisions of
subsections (a) and (b) of Section 11 "Non-Competition and Non-Disclosure;
Executive Cooperation" of the Termination and Change of Control Agreement, such
restrictions to continue to be in effect until August 15, 1999.
10. This Agreement comprises the entire agreement between the parties
with regard to the subject matter hereof. No modification of this Agreement
shall be valid unless signed by the authorized representative of the party
against whom such modification is sought to be enforced.
11. Executive agrees that any breach by Executive of Section 9 of this
Agreement will cause Walbro great injury which will be difficult, if not
impossible, to measure and that such injury will be immediate and irreparable
for which Walbro will have no adequate remedy at law. Consequently, Executive
and Walbro agree that any material breach thereof by Executive shall entitle
Walbro to the non-exclusive remedy of injunctive relief. Executive agrees that,
in the event of a breach by Executive of this Agreement, Walbro would be more
harmed by the denial of an injunction or other equitable relief than Executive
would be harmed by the issuance of an injunction or other equitable relief and
that the public interest would be furthered by the issuance of an injunction or
other equitable relief to prevent further or additional breach of Section 9
hereof.
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12. Executive agrees that neither this Agreement or performance
hereunder constitutes an admission by Walbro of any violation of any federal,
state or local law, regulation, common law, of any breach of any contract or any
other wrongdoing of any type.
13. If any provision, section, subsection or other portion of this
Agreement shall be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable in whole or in part, and such determination
shall become final, such provision or portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining provisions and
portions of Section 11 of the Termination and Change of Control Agreement
enforceable. This Agreement or Section 11 of the Termination and Change of
Control Agreement, as amended, shall be enforced so as to give effect of the
intention of the parties insofar as that is possible; provided, however, that
upon any finding by a court of competent jurisdiction that a release or waiver
of claims or rights or a covenant provided by Section 11 of the Termination and
Change of Control Agreement is illegal, void or unenforceable, the Executive
agrees to execute promptly a release, waiver and/or covenant that is legal and
enforceable. In addition, the parties hereby expressly empower a court of
component jurisdiction to modify any term or provision of Section 11 of the
Termination and Change of Control Agreement, as amended, to the extent necessary
to comply with existing law and to enforce Section 11 of the Termination and
Change of Control Agreement, as amended.
14. This Agreement and Section 11 of the Termination and Change of
Control Agreement shall be construed in accordance with the laws of the State of
Michigan without regard to its choice of law rules, and the parties hereto
consent to the exclusive jurisdiction of the State of Michigan courts, except as
to the enforcement or execution of the judgement of any such court and as to
either party seeking injunctive relief in any jurisdiction in which such party
believes that a breach hereof may have occurred.
15. Executive acknowledges that he has carefully read and fully
understands the terms and provisions of this Agreement and all of his rights and
obligations thereunder, has had an opportunity to be represented by legal
counsel of his choosing, and that his execution of this Agreement is voluntary.
16. Neither this Agreement nor any term or provision herein shall
create any rights on the part of any person or entity as a third-party
beneficiary.
17. Walbro and Executive agree that neither will (without the prior
written consent of the other) disclose, publish, indicate or, in any manner
communicate, the terms and provisions of this Agreement to any other person or
entity except: (a) as may be specifically required by law; (b) to his accountant
and/or financial advisor to the extent necessary to prepare his tax returns; (c)
to his attorney; and (d) to his spouse; and as may be otherwise publicly
available. The Executive further agrees that prior to any such authorized
disclosure, he will inform each such person to whom disclosure is to be made
that the terms of the Agreement are confidential and he will secure the
agreement of each such person to maintain the confidentiality of the terms and
provisions of the Agreement. Walbro and Executive further agree that neither
will disparage the other, the Affiliates or any of the Released Parties. The
Executive agrees to refer any request for a reference to the attention of Xx.
Xxxxxx X. Xxxxxxx.
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18. The Executive acknowledges that the Company hereby advises him in
writing to consult with an attorney before signing this Agreement, that he was
given a period of twenty-one (21) days within which to consider this Agreement,
that he had an adequate opportunity to review this Agreement with an attorney,
that he fully understands its terms, that her was not coerced into signing it,
and that he has signed it knowingly and voluntarily. The Executive understands
that by signing this Agreement, he is waiving each and every claim he has, had,
or may have regarding his employment by, or termination of employment with, the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
WALBRO CORPORATION
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
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