EXHIBIT 10.12
EMPLOYMENT AGREEMENT
XXXXX X. XXXXXX
EMPLOYMENT AGREEMENT (the "Agreement") dated July 21, 2005 by and
between Affinia Group Inc. (the "Company") and Xxxxx X. Xxxxxx (the
"Executive").
The Company desires to continue to employ Executive and to enter into
an agreement embodying the terms of such employment;
Executive desires to continue to be employed by the Company and enter
into such an agreement;
In consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 7 of this
Agreement, Executive shall be employed by the Company for a period commencing on
May 1, 2005 and ending on December 31, 2007 (the "Employment Term") on the terms
and subject to the conditions set forth in this Agreement; provided, however,
that commencing with December 31, 2007 and on each December 31 thereafter (each
an "Extension Date"), the Employment Term shall automatically be extended for an
additional one year period, unless the Company or Executive provides the other
party hereto 90 days prior written notice before the next Extension Date that
the Employment Term shall not be so extended.
2. Position.
a. During the Employment Term, Executive shall serve as the
Company's Vice President and General Manager, Under Hood Group. In such
position, Executive shall have such duties and authority as shall be determined
from time to time by the Board of Directors of the Company (the "Board") and the
Chief Executive Officer of the Company. If requested, Executive shall also serve
as a member of the Board without additional compensation.
b. During the Employment Term, Executive will devote Executive's
full business time and best efforts to the performance of Executive's duties
hereunder and will not engage in any other business, profession or occupation
for compensation or otherwise which would conflict or interfere with the
rendition of such services either directly or indirectly, without the prior
written consent of the Board; provided that nothing herein shall preclude
Executive, subject to the prior approval of the Board, from accepting
appointment to or continue to serve on any board of directors or trustees of any
business corporation or any charitable organization; provided in each case, and
in the aggregate, that such activities do not conflict or interfere with the
performance of Executive's duties hereunder or conflict with Section 8.
3. Base Salary. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of $300,000, payable in regular
installments in accordance with the Company's usual payment practices. Executive
shall be entitled to such
2
increases in Executive's base salary, if any, as may be determined from time to
time in the sole discretion of the Board. Executive's annual base salary, as in
effect from time to time, is hereinafter referred to as the "Base Salary."
4. Annual Bonus. With respect to each full fiscal year during the
Employment Term, Executive shall be eligible to earn an annual bonus award (an
"Annual Bonus") of one hundred percent (100%) of Executive's Base Salary (the
"Target Annual Bonus") upon the achievement of performance goals established by
the Board. Executive may be entitled to greater Annual Bonus for performance in
excess targeted performance goals or a lesser Annual Bonus for performance which
does not meet such targeted performance goals, in each case in the discretion of
the Board.
5. Employee Benefits. During the Employment Term, Executive shall
generally be entitled to participate in the Company's employee benefit plans
(other than any severance plan) as in effect from time to time (collectively
"Employee Benefits"), on the same basis as those benefits are generally made
available to other senior executives of the Company.
6. Business Expenses. During the Employment Term, reasonable business
expenses incurred by Executive in the performance of Executive's duties
hereunder shall be reimbursed by the Company in accordance with Company
policies.
7. Termination. The Employment Term and Executive's employment
hereunder may be terminated by either party at any time and for any reason;
provided that Executive will be required to give the Company at least 30 days
advance written notice of any resignation of Executive's employment.
Notwithstanding any other provision of this Agreement, the provisions of this
Section 7 shall exclusively govern Executive's rights upon termination of
employment with the Company and its affiliates.
a. By the Company For Cause or By Executive Resignation Without
Good Reason.
(i) The Employment Term and Executive's employment hereunder may
be terminated by the Company for Cause (as defined below) and shall terminate
automatically upon Executive's resignation without Good Reason (as defined in
Section 7(c)).
(ii) For purposes of this Agreement, "Cause" shall mean (A) the
Executive's continued failure to perform such Executive's duties (other than as
a result of total or partial incapacity due to physical or mental illness) which
is not cured for a period of 10 days following written notice by the Company or
its affiliates to the Executive of such failure, (B) conviction or plea of
guilty or no contest to a (x) felony, or (y) crime involving moral turpitude or
the property or business of the Company or its affiliates, (C) willful
malfeasance or willful misconduct in performance of duties to the Company or its
affiliates, or (D) Executive's breach of the provisions of Sections 8 or 9 of
this Agreement.
(iii) If Executive's employment is terminated by the Company for
Cause, or if Executive resigns without Good Reason, Executive shall be entitled
to receive:
(A) the Base Salary through the date of termination;
3
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy prior
to the date of Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive may
be entitled under the employee benefit plans of the Company (the
amounts described in clauses (A) through (D) hereof being referred to
as the "Accrued Rights").
Following such termination of Executive's employment by the
Company for Cause or resignation by Executive without Good Reason, except as set
forth in this Section 7(a)(iii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive's employment hereunder shall
terminate upon Executive's death and may be terminated by the Company if
Executive becomes physically or mentally incapacitated and is therefore unable
for a period of six (6) consecutive months or for an aggregate of nine (9)
months in any twenty-four (24) consecutive month period to perform Executive's
duties (such incapacity is hereinafter referred to as "Disability").
(ii) Upon termination of Executive's employment hereunder for
either Disability or death, Executive or Executive's estate (as the case may be)
shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of any Annual Bonus, if any, that
Executive would have been entitled to receive pursuant to Section 4
hereof in such year based upon the percentage of the fiscal year that
shall have elapsed through the date of Executive's termination of
employment, payable when such Annual Bonus would have otherwise been
payable had Executive's employment not terminated.
Following Executive's termination of employment due to death
or Disability, except as set forth in this Section 7(b)(ii), Executive shall
have no further rights to any compensation or any other benefits under this
Agreement.
c. By the Company Without Cause or Resignation by Executive for
Good Reason.
(i) The Employment Term and Executive's employment hereunder may
be terminated by the Company without Cause or by Executive's resignation for
Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall mean (A)
the failure of the Company to pay or cause to be paid Executive's Base Salary or
Annual Bonus, when due hereunder or a reduction in the Base Salary or Target
Annual Bonus from the levels set
4
forth in Sections 3 and 4, respectively (other than any across the board
reduction in Base Salary and/or Annual Bonus of 15% or less which similarly
affects the four other highest paid executive officers of the Company as of the
date hereof, to the extent they are then employed by the Company) (B) any
substantial and sustained diminution in Executive's title, authority or
responsibilities from those described in Section 2 hereof or (C) any relocation
of Executive's principal place of employment by more than 50 miles from the
Company's current offices in Gastonia, North Carolina, without Executive's
consent; provided that either of the events described in clauses (A) and (B) of
this Section 7(c)(ii) shall constitute Good Reason only if the Company fails to
cure such event within 30 days after receipt from Executive of written notice of
the event which constitutes Good Reason; provided, further, that "Good Reason"
shall cease to exist for an event on the 60th day following the later of its
occurrence or Executive's knowledge thereof, unless Executive has given the
Company written notice thereof prior to such date.
(iii) If Executive's employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) subject to Executive's continued compliance with the
provisions of Sections 8 and 9, an amount equal to 2 times the sum of
(x) Base Salary and the Average Bonus (as defined below) paid as
follows: (i) the amount equal to 1 times the sum of Base Salary and the
Average Bonus shall be paid in equal monthly installments for 12 months
following the date of such termination of employment and (ii) the
amount equal to 1 times the sum of Base Salary and the Average Bonus
shall be paid on the first anniversary of the date of such termination
of employment in a lump sum cash payment; provided that -------- the
aggregate amount described in this clause (B) shall be reduced by the
present value of any other cash severance or termination benefits
payable to Executive under any other plans, programs or arrangements of
the Company or its affiliates. "Average Bonus" shall mean an amount
equal to the average of the Annual Bonuses paid to Executive hereunder
for the two most recently completed fiscal years preceding Executive's
termination of employment (or if there has been one, but less than two
completed fiscal years during the Employment Term, an amount equal to
the average of the Annual Bonus hereunder for the preceding completed
fiscal year and the annual bonus (excluding any special non-recurring
bonuses or retention incentive payments) paid to Executive in respect
of calendar year 2004 from Xxxx Corporation (including any pro-rata
annual bonus paid to Executive by the Company for the part of 2004 in
which Executive was employed by the Company) (the "2004 Annual Bonus")
or if there have been no previously completed fiscal years during the
Employment Term, then an amount equal to the 2004 Annual Bonus).
(C) a pro rata portion of any Annual Bonus, if any, that
Executive would have been entitled to receive pursuant to Section 4
hereof in such year based upon the percentage of the fiscal year that
shall have elapsed through the date of Executive's termination of
employment, payable when such Annual Bonus would have otherwise been
payable had Executive's employment not terminated; and
5
(D) continued medical and dental coverage at the Company's
cost (comparable to such coverage provided by the Company to active
executives of the Company) for a period of 24 months after the date of
such termination; provided that if the Company is unable to provide
such coverage to Executive under the terms of its medical and dental
plans for any portion of such period, the Company may in lieu of
providing such coverage pay to Executive an amount equal to the premium
that would otherwise be paid by active executives for such coverage
during such period (without giving effect to any Company subsidy).
(iv) If Executive's employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, in each case, within twenty-four months following a
Change of Control (as defined in the Affinia Group Holdings Inc. 2005 Stock
Incentive Plan), Executive shall be entitled to receive, in addition to the
payments and benefits set forth in Section 7(c)(iii), a lump sum cash payment
equal to the excess, if any, of (A) the product of (x) 2 times (y) the Target
Annual Bonus over (B) the product of (x) 2 times (y) the Average Bonus.
For purposes of this Section 7(c), in the event such
termination of employment occurs as a result of a resignation by Executive for
Good Reason due to a reduction in Executive's Base Salary or Target Annual Bonus
pursuant to Section 7(c)(ii)(A), the references to Base Salary and Target Annual
Bonus in Sections 7(c)(iii) and 7(c)(iv) shall be deemed to be references to
Executive's Base Salary and Target Bonus immediately before such reduction.
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
7(c)(iii), or Section 7(c)(iv) if applicable, Executive shall have no further
rights to any compensation or any other benefits under this Agreement.
d. Expiration of Employment Term.
(i) In the event either party elects not to extend the Employment
Term pursuant to Section 1, unless Executive's employment is earlier terminated
pursuant to paragraphs (a), (b) or (c) of this Section 7, Executive's
termination of employment under this Agreement (whether or not Executive
continues as an employee of the Company thereafter) shall be deemed to occur on
the close of business on the day immediately preceding the next scheduled
Extension Date and Executive shall be entitled to receive:
(A) if Executive is the party that elected not to extend the
Employment Term, Executive shall be entitled to receive the (x) Accrued
Rights and (y) commencing upon the date of Executive's termination of
employment with the Company (which, for the avoidance of doubt, may
occur after the expiration of the Employment Term), subject to
Executive's continued compliance with the provisions of Section 8 and
9, an amount equal to 2 times the Base Salary paid in equal monthly
installments for 24 months following the date of such termination of
employment; provided that the aggregate amount described -------- in
this clause (y) shall be reduced by the present value of any other cash
severance or termination benefits payable to
6
Executive under any other plans, programs or arrangements of the
Company or its affiliates; and
(B) if the Company is the party that elected not to extend
the Employment Term, Executive shall be entitled to receive (x) the
Accrued Rights and (y) commencing upon the date of Executive's
termination of employment with the Company (which, for the avoidance of
doubt, may occur after the expiration of the Employment Term), subject
to Executive's continued compliance with the provisions of Sections 8
and 9, an amount equal to 2 times the Base Salary paid as follows: (i)
the amount equal to 1 times the Base Salary shall be paid in equal
monthly installments for 12 months following the date of such
termination of employment and (ii) the amount equal to 1 times Base
Salary shall be paid on the first anniversary of the date of such
termination of employment in a lump sum cash payment; provided that the
aggregate amount described in this clause (y) shall be reduced by the
present value of any other cash severance or termination benefits
payable to Executive under any other plans, programs or arrangements of
the Company or its affiliates.
(ii) Following Executive's termination of employment hereunder due
to either party's election not to extend the Employment Term, except as set
forth in this Section 7(d), Executive shall have no further rights to any
compensation or any other benefits under this Agreement. Unless the parties
otherwise agree in writing, continuation of Executive's employment with the
Company beyond the expiration of the Employment Term shall be deemed an
employment at-will and shall not be deemed to extend any of the provisions of
this Agreement and Executive's employment may thereafter be terminated at will
by either Executive or the Company; provided that the provisions of Sections 8,
9 and 10 of this Agreement (and Executive's entitlement to any amounts that
become payable upon a termination of Executive's employment beyond the
expiration of the Employment Term pursuant to Section 7(d)(i)(A) or (B)) shall
survive any termination of this Agreement or Executive's termination of
employment hereunder.
e. Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 11(h) hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Board/Committee Resignation. Upon termination of
Executive's employment for any reason, Executive agrees to resign, as of the
date of such termination and to the extent applicable, from the Board (and any
committees thereof) and the Board of Directors (and any committees thereof) of
any of the Company's affiliates.
8. Non-Competition.
a. Executive acknowledges and recognizes the highly competitive
nature of the businesses of the Company and its affiliates and accordingly
agrees as follows:
7
(1) During the period in which Executive remains employed by the
Company and for a period of 24 months following the date Executive ceases to be
employed by the Company (which, for the avoidance of doubt, cessation of
employment may occur after the expiration of the Employment Term)(the
"Restricted Period"), subject to the Company's payment to Executive of any
amounts owing to Executive pursuant to Section 7 (other than any failure by the
Company to make such payment in connection with or as a result of Executive's
breach of the provisions of Section 8 or 9), Executive will not, whether on
Executive's own behalf or on behalf of or in conjunction with any person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever ("Person"), directly or indirectly
solicit or assist in soliciting in competition with the Company, the business of
any client or prospective client:
(i) with whom Executive had personal contact or dealings on
behalf of the Company during the one year period preceding
Executive's termination of employment;
(ii) with whom employees reporting to Executive have had personal
contact or dealings on behalf of the Company during the one
year immediately preceding the Executive's termination of
employment; or
(iii) for whom Executive had direct or indirect responsibility
during the one year immediately preceding Executive's
termination of employment.
(2) During the Restricted Period, Executive will not directly or
indirectly:
(i) engage in any business that competes with the business of
the Company or its affiliates (including, without
limitation, businesses which the Company or its affiliates
have specific plans to conduct in the future and as to which
Executive is aware of such planning) in any geographical
area that is within 100 miles of any geographical area where
the Company or its affiliates manufactures, produces, sells,
leases, rents, licenses or otherwise provides its products
or services (a "Competitive Business");
(ii) enter the employ of, or render any services to, any Person
(or any division or controlled or controlling affiliate of
any Person) who or which engages in a Competitive Business;
(iii) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business, directly
or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or consultant;
or
(iv) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date
of this Agreement)
8
between the Company or any of its affiliates and customers,
clients, suppliers, partners, members or investors of the
Company or its affiliates.
(3) Notwithstanding anything to the contrary in this Agreement,
Executive may, directly or indirectly own, solely as an investment, securities
of any Person engaged in the business of the Company or its affiliates which are
publicly traded on a national or regional stock exchange or on the
over-the-counter market if Executive (i) is not a controlling person of, or a
member of a group which controls, such person and (ii) does not, directly or
indirectly, own 5% or more of any class of securities of such Person.
(4) During the Restricted Period, Executive will not, whether on
Executive's own behalf or on behalf of or in conjunction with any Person,
directly or indirectly:
(i) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its
affiliates; or
(ii) hire any such employee who was employed by the Company or
its affiliates as of the date of Executive's termination of
employment with the Company or who left the employment of
the Company or its affiliates coincident with, or within one
year prior to or after, the termination of Executive's
employment with the Company.
(5) During the Restricted Period, Executive will not, directly or
indirectly, solicit or encourage to cease to work with the Company or its
affiliates any consultant then under contract with the Company or its
affiliates.
b. It is expressly understood and agreed that although Executive and
the Company consider the restrictions contained in this Section 8 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against Executive, the provisions
of this Agreement shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable. Alternatively, if
any court of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
9
9. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Executive will not at any time (whether during or after
Executive's employment with the Company) (x) retain or use for the benefit,
purposes or account of Executive or any other Person; or (y) disclose, divulge,
reveal, communicate, share, transfer or provide access to any Person outside the
Company (other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information
--including without limitation trade secrets, know-how, research and
development, software, databases, inventions, processes, formulae, technology,
designs and other intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services, vendors, customers,
clients, partners, investors, personnel, compensation, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals -- concerning the past, current or future business, activities and
operations of the Company, its subsidiaries or affiliates and/or any third party
that has disclosed or provided any of same to the Company on a confidential
basis ("Confidential Information") without the prior written authorization of
the Board.
(ii) "Confidential Information" shall not include any information
that is (a) generally known to the industry or the public other than as a result
of Executive's breach of this covenant or any breach of other confidentiality
obligations by third parties; (b) made legitimately available to Executive by a
third party without breach of any confidentiality obligation; or (c) required by
law to be disclosed; provided that Executive shall give prompt written notice to
the Company of such requirement, disclose no more information than is so
required, and cooperate with any attempts by the Company to obtain a protective
order or similar treatment.
(iii) Except as required by law, Executive will not disclose to
anyone, other than Executive's immediate family and legal or financial advisors,
the existence or contents of this Agreement; provided that Executive may
disclose to any prospective future employer the provisions of Sections 8 and 9
of this Agreement provided they agree to maintain the confidentiality of such
terms. Notwithstanding anything herein to the contrary, any party to this
Agreement (and any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure. However, any such information relating to the tax treatment or tax
structure is required to be kept confidential to the extent necessary to comply
with any applicable federal or state securities laws.
(iv) Upon termination of Executive's employment with the Company
for any reason, Executive shall (x) cease and not thereafter commence use of any
Confidential Information or intellectual property (including without limitation,
any patent, invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the Company, its
subsidiaries or affiliates; (y) immediately destroy, delete, or return to the
Company, at the Company's option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files, letters and other
data) in Executive's possession or control (including any of the foregoing
stored or located in
10
Executive's office, home, laptop or other computer or other storage device,
whether or not Company property) that contain Confidential Information or
otherwise relate to the business of the Company, its affiliates and
subsidiaries, except that Executive may retain only those portions of any
personal notes, notebooks and diaries that do not contain any Confidential
Information; and (z) notify and fully cooperate with the Company regarding the
delivery or destruction of any other Confidential Information of which Executive
is or becomes aware.
b. Intellectual Property.
(i) If Executive has created, invented, designed, developed,
contributed to or improved any works of authorship, inventions, intellectual
property, materials, documents or other work product (including without
limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) ("Works"),
either alone or with third parties, prior to Executive's employment by the
Company, that are relevant to or implicated by such employment ("Prior Works"),
Executive hereby grants the Company a perpetual, non-exclusive, royalty-free,
worldwide, assignable, sublicensable license under all rights and intellectual
property rights (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) therein for all
purposes in connection with the Company's current and future business.
(ii) If Executive creates, invents, designs, develops, contributes
to or improves any Works, either alone or with third parties, at any time during
Executive's employment by the Company and within the scope of such employment
and/or with the use of any the Company resources ("Company Works"), Executive
shall promptly and fully disclose same to the Company and hereby irrevocably
assigns, transfers and conveys, to the maximum extent permitted by applicable
law, all rights and intellectual property rights therein (including rights under
patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) to the Company to the extent ownership of any such
rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and current
written records (in the form of notes, sketches, drawings, and any other form or
media requested by the Company) of all Company Works. The records will be
available to and remain the sole property and intellectual property of the
Company at all times.
(iv) Executive shall take all requested actions and execute all
requested documents (including any licenses or assignments required by a
government contract) at the Company's expense (but without further remuneration)
to assist the Company in validating, maintaining, protecting, enforcing,
perfecting, recording, patenting or registering any of the Company's rights in
the Prior Works and Company Works. If the Company is unable for any other reason
to secure Executive's signature on any document for this purpose, then Executive
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Executive's agent and attorney in fact, to act for and in
Executive's behalf and stead to execute any documents and to do all other
lawfully permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of, bring
to any premises of, divulge, disclose, communicate, reveal, transfer or provide
access to, or share with
11
the Company any confidential, proprietary or non-public information or
intellectual property relating to a former employer or other third party without
the prior written permission of such third party. Executive hereby indemnifies,
holds harmless and agrees to defend the Company and its officers, directors,
partners, employees, agents and representatives from any breach of the foregoing
covenant. Executive shall comply with all relevant policies and guidelines of
the Company, including regarding the protection of confidential information and
intellectual property and potential conflicts of interest. Executive
acknowledges that the Company may amend any such policies and guidelines from
time to time, and that Executive remains at all times bound by their most
current version.
(vi) The provisions of Section 9 shall survive the termination of
Executive's employment for any reason.
10. Specific Performance. Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of Section 8 or Section 9 would be inadequate and the Company would
suffer irreparable damages as a result of such breach or threatened breach. In
recognition of this fact, Executive agrees that, in the event of such a breach
or threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to cease making any payments or providing
any benefit otherwise required by this Agreement and obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
11. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by the
Company. There are no restrictions, agreements, promises, warranties, covenants
or undertakings between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
c. No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement, and all of Executive's rights and
duties hereunder, shall not be assignable or delegable by Executive. Any
purported assignment
12
or delegation by Executive in violation of the foregoing shall be null and void
ab initio and of no force and effect. This Agreement may be assigned by the
Company to a person or entity which is an affiliate and shall be assigned to,
and assumed by, any a successor in interest to substantially all of the business
operations of the Company. Upon such assignment, the rights and obligations of
the Company hereunder shall become the rights and obligations of such affiliate
or successor person or entity.
f. Successors; Binding Agreement. This Agreement shall inure to
the benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
g. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below in this Agreement, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
If to the Company:
Affinia Group Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: General Counsel
If to Executive:
To the most recent address of Executive set forth in the
personnel records of the Company.
h. Executive Representation. Executive hereby represents to the
Company that the execution and delivery of this Agreement by Executive and the
Company and the performance by Executive of Executive's duties hereunder shall
not constitute a breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Executive is a party or
otherwise bound.
i. Prior Agreements This Agreement supercedes all prior agreements
and understandings (including verbal agreements) between Executive and the
Company and/or its affiliates regarding the terms and conditions of Executive's
employment with the Company and/or its affiliates including, without limitation,
the letter agreement dated February 4, 2004, between the Executive and Xxxx
Corporation (other than with respect to the Retention Incentive Payment (as
defined therein)).
j. Cooperation. Executive shall provide Executive's reasonable
cooperation in connection with any action or proceeding (or any appeal from any
action or proceeding) which relates to events occurring during Executive's
employment hereunder. This provision shall survive any termination of this
Agreement.
13
k. Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
l. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AFFINIA GROUP INC XXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxxx
Title: General Counsel
