EMPLOYMENT, RELEASE AND CONSULTING AGREEMENT
AGREEMENT dated as of November 22, 2000 between Xxxxxxx Xxxxxxx
residing at 0000 Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (the "Executive") and
MascoTech, Inc., a Delaware corporation with its principal place of business at
00000 Xxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the "Company").
A. The Executive is presently the Executive Vice President - Finance
and Administration of the Company.
B. The Board of Directors of the Company (the "Board") has approved a
transaction whereby the Company will become a private company (the
"Transaction").
C. The Executive has advised the Board that he is willing to continue
in his current capacity for a transition period after the Transaction closes,
and will thereafter provide certain employment and consulting services.
D. The Executive and the Company desire to memorialize the terms and
conditions of the Executive's employment by, consulting with and termination
from the Company.
NOW, THEREFORE, in consideration of the foregoing and of the promises
and mutual covenants contained herein, it is hereby agreed between the Executive
and the Company as follows:
1. Effectiveness of Agreement. This Agreement will become effective on
the date hereof (the "Effective Date").
2. Employment and Consulting/Non-Compete Periods. (a) The Executive
agrees to continue full-time in his current capacity with the Company (or such
other capacity as mutually agreed between the Executive and the Company) until
the later of March 31, 2001 or the date 60 days after either the Executive or
the Company gives the other notice ("Employment Period"), whereupon the
Executive shall either (i) enter into a long-term employment agreement for a
period of years ("New Employment Period") with the Company, whereupon the
provisions of this Agreement requiring payment of a stay bonus and consulting
fees shall terminate and no further such payments to the Executive shall be made
hereunder (but all other provisions of this Agreement shall continue in full
force and effect) or (ii) cease his employment with the Company ("Termination
Date"). At the Termination Date the Executive shall be paid a cash stay bonus of
$1,200,000 upon his execution of a Supplemental Release in the form of the
Release contained in paragraph 11 hereof. During the Employment Period, the
Executive will continue to receive compensation at least at his current rate of
base pay. During the Employment Period, the Executive shall also receive his
earned bonus for calendar year 2000 and his target bonus (which shall be no less
than 50% of his base compensation rate) for subsequent calendar years (pro-rated
in the case of any partial year of employment), in each case at the same time
that other executives of the Company receive bonuses for
calendar years 2000 and subsequent years, but in no event later than
(respectively) February 28, 2001 and the same date in subsequent years.
(b) Following the Employment Period, the Executive shall continue to
hold himself available to work for the Company as a consultant for a three-year
period which begins on the day after the Termination Date and ends on the third
anniversary of the Termination Date (the "Consulting Period"). During the
Consulting Period, the Executive shall be paid fees for consulting and for the
non-competition and confidentiality covenants contained in paragraph 8 hereof in
the amount of $400,000 payable on the first day of the Consulting Period, the
amount of $400,000 payable on the first day of the second year of the Consulting
Period and the amount of $350,000 payable on the first day of the third year of
the Consulting Period.
(c) During the Consulting Period, the Company shall retain the
Executive as a consultant, and the Executive shall perform and discharge well
and faithfully for the Company and its subsidiaries, such consulting services as
may be requested from time to time by the Board of Directors of the Company.
Notwithstanding the foregoing, it is understood and agreed that the Executive
will be engaging in other activities unrelated to the Company and any request by
the Company for services by the Executive will give due consideration to the
Executive's other commitments.
(d) It is agreed that during the Consulting Period the Executive shall
be an independent contractor, shall not be an employee, servant, agent, partner
or joint venturer of the Company or any of its subsidiaries, officers, directors
or employees, and shall have no authority to assume or create any obligation or
liability, express or implied, on behalf of the Company or its subsidiaries, or
in its or their name or to bind them in any manner whatsoever; provided,
however, that to the extent payments pursuant to paragraph 2(b) are made to the
Executive with no payment by the Employer of the Employer's portion of social
security taxes, the Company shall increase the payments under paragraph 2(b) by
an amount, equal to one-half of executive's self-employment tax on a fully
grossed up basis.
(e) If at anytime after the Transaction closes and during the
Employment or Consulting Periods (as the case may be) there occurs a subsequent
Change in Control then promptly following such Change in Control the Company (or
its successors or assigns) shall pay to the Executive in a single lump sum the
present value (utilizing an 8% discount factor) of all the cash payments then
not yet paid pursuant to the second sentence of paragraph 2(a) and paragraph
2(b), and all other provisions of the Agreement shall thereupon continue in full
force and effect. For the purposes hereof, "Change in Control" means the
occurrence, following the date of the Transaction, of an event as a result of
which a "person" or "group of persons", as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended, who are not
affiliated with or not controlled by Heartland Industrial Partners, L.P.,
directly or indirectly are the "beneficial owners" (as defined in Rule 13d-3
under the Exchange Act) or have the right to acquire such beneficial ownership
(whether or not such right is exercisable immediately, with the passage of time
or subject to any condition) of voting
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securities representing 50% or more of the combined voting power of all
outstanding voting securities of the Company.
3. Death. If after the Effective Date the Executive dies or becomes
disabled, then all payments pursuant to the second sentence of paragraph 2(a)
and paragraph 2(b) scheduled for payment on or following the date of death or
the date of disability shall cease and any obligation to provide Employment or
Consulting Services thereafter shall cease. For the purposes of this Agreement,
the date of disability is the date the Executive first perfects his eligibility
(or the date he would have first perfected such eligibility, but for his
termination of employment with the Company or his loss of coverage under the
Company's long term disability program) for extended long term disability
benefits requiring him to be unable to perform any gainful occupation pursuant
to the Company's long term disability program.
4. Benefits. (a) The Executive acknowledges that his employment will
terminate as of the Termination Date and, except as specifically provided
herein, he will cease to be an active participant under the benefit plans of the
Company on such date pursuant to the terms of the applicable benefit plans, and
no additional Company-provided benefits shall accrue to him after such date,
other than salary and accrued vacation earned through the Termination Date which
has not yet been paid. Nothing contained herein shall restrict the Executive's
receipt of benefits under the Company's employee fringe benefit programs accrued
during the Executive's employment with the Company.
(b) Effective immediately following the Termination Date, the Executive
shall be entitled to receive (i) reimbursement (in an amount tax-effected, if
such reimbursements are determined to be taxable, by dividing the amount
required for such reimbursement by one minus the decimal equivalent of the sum
of Executive's marginal state and federal income tax rates) for the purchase by
the Executive and his spouse and such other dependents as would be permitted
under the Company's group health plan of Company's COBRA coverage for the 18
months following the Termination Date hereunder; provided, however, such COBRA
reimbursements shall be suspended (subject to resumption if such other coverage
ceases) at any time Executive becomes eligible for any other comparable group
health coverage and (ii) reimbursement for Executive's purchase of commercial
(non-employer-sponsored) health and dental coverage for Executive and his spouse
and such other dependents as would be permitted under the Company's group health
plan which coverage is comparable to Company's COBRA coverage (or if such
coverage is not available, then the best comparable coverage that is available
for purchase), in an amount tax-effected, if such reimbursements are determined
to be taxable, by dividing the amount required to reimburse the actual cost of
such coverage as billed to the Executive by one minus the decimal equivalent of
the sum of Executive's marginal state and federal income tax rates, paid monthly
in advance, for the time following the expiration of Executive's COBRA
eligibility (provided other group coverage is not yet in effect); provided,
however, such reimbursement will be suspended (subject to resumption if such
other coverage ceases) (A) at any time Executive becomes eligible for any other
comparable group health coverage or (B) during any period that the
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Executive is participating (for comparable group coverage) under the retirement
medical provisions of that certain Supplemental Executive Retirement Plan
agreement (SERP) between the Executive and the Company dated February 28, 1995
as the same may be from time to time amended, provided, further, the Company
reserves the right in its reasonable discretion to select and require Executive
to utilize the most cost-effective provider of such comparable group health
coverage. Upon the death of the Executive, his surviving spouse, if any, will be
entitled to receive the same benefits that the Executive would have received
under this Section 4(b) had he not died; provided, however, that (1) if
Executive's surviving spouse remarries, then such benefits will immediately
terminate, and (2) if Executive's surviving spouse is more than 20 years younger
than the Executive, then the Benefits described in this Clause (b) will only
continue for such surviving spouse for a period of three (3) years after the
death of the Executive.
5. Options and Awards. All of the restricted stock awards and options
heretofore granted to the Executive under the Company's restricted stock award
and option plans will be treated in the same manner as the awards and options of
other employees of the Company in the Transaction who continue as employees of
the Company.
6. SERP. (a) On the Termination Date, notwithstanding any contrary term
of the SERP, the Executive will become 100% vested (i.e., treated as if he
retired at age 65) in the SERP and receive benefits upon his attainment of age
65 or his death (whether before or after such age) or disability as if (i) his
"Average Compensation", as otherwise defined in the SERP, were $705,000 and (ii)
his SERP percentage were 60%. Notwithstanding the foregoing, unless the
Executive dies or becomes disabled prior to attaining age 65, the Executive and
his spouse will not be entitled to receive benefits under the SERP until the
Executive attains the age of 65 (based on Average Compensation of $705,000) and
be entitled to receive all of the benefits of the SERP in accordance with the
terms thereof as if his SERP percentage were 60%.
(b) For purposes of this Agreement, the SERP may not be amended to
terminate or reduce benefits provided in such SERP Agreement.
7. Gross-Up. In the event that, as a result of the payments to the
Executive under Section 2 hereof and/or the vesting of stock awards or options
in connection with the Transaction and/or the benefits provided under Sections 4
or 6, Executive becomes subject to excise tax (the "Excise Tax") under Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company
shall pay to Executive an amount (the "Gross-Up Payment") equal to an amount
which, after payment by Executive of all taxes (including any federal, state and
local income tax and excise tax upon such amount) would allow the Executive to
retain an amount equal to the Excise Tax, unless, if the reduction of the
payments under the second sentence of paragraph 2(a) and paragraph 2(b) to
Executive by no more than 5% would avoid the imposition of Excise Tax, then the
Company shall so reduce such payments to Executive and no Gross-Up Payment will
be made.
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For purposes of determining whether Executive will be subject to the
Excise Tax and the amount of such Excise Tax, the following criteria shall
apply:
(a) All determinations required to be made under this Section 7
shall be made by the Company's independent auditors (the "Accounting Firm"),
which shall provide detailed supporting calculations to both the Company and
Executive within 15 business days after the Termination Date or such earlier
time as is requested by the Company provided that any determination that an
Excise Tax is payable by Executive shall be made on the basis of substantial
authority. If the Accounting Firm determines that no Excise Tax is payable by
Executive, it shall furnish Executive with a written opinion that Executive has
substantial authority not to record any Excise Tax on his federal income tax
return. Any determination by the Accounting Firm meeting the requirements of
this Section 7(a) shall, subject to possible adjustment as set forth in Section
7(c) below, be binding upon the Company and Executive.
(b) The value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accounting Firm in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of Executive's residence on the date on which the Excise Tax is
incurred, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.
(c) In the event that the Excise Tax is subsequently determined to
be less than the amount taken into account hereunder, Executive shall repay to
the Company, at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state, and local income tax deduction) plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional payment in respect of such excess at the time
that the amount of such excess finally is determined. In the case of any payment
that the Company is required to make to Executive pursuant to the preceding
sentence (a "Later Payment"), the Company shall also pay to Executive an
additional amount such that after payment by Executive of all of Executive's
applicable federal, state and local taxes, including any interest and penalties
assessed by any taxing authority, on such additional amount, Executive will
retain an amount equal to the total of Executive's applicable federal, state and
local taxes, including any interest and penalties assessed by any taxing
authority, arising due to the Later Payment. Executive and the Company each
shall reasonably cooperate with the other in connection with any administrative
or judicial proceedings concerning the existence or amount of liability for
Excise Tax.
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Notwithstanding any provision of this Agreement to the contrary,
Executive shall pay his ordinary federal, state and local income taxes to which
he is subject as a result of the payments to which he becomes entitled pursuant
to the terms hereof or the terms of any other agreement (including but not
limited to the accelerated vesting of stock options).
8. Non-Competition; Non-Solicitation; Confidentiality. (a) Executive
acknowledges and recognizes the highly competitive nature of the business of the
Company and accordingly agrees that, in consideration of this Agreement, the
rights conferred hereunder, and the payments hereunder, during the Non-Compete
Term (as hereinafter defined), Executive will not engage, either directly or
indirectly, as an employee, consultant or independent contractor, or as a
principal for his own account or jointly with others, or as a stockholder in any
corporation or joint stock association which designs, develops, manufactures,
distributes, sells or markets the type of products or services sold, distributed
or provided by the Company or its subsidiaries during the two year period prior
to the Termination Date (the "Business"); provided, that nothing herein shall
prevent Executive from owning, directly or indirectly, not more than 5% of the
outstanding shares of, or any other equity interest in, any entity engaged in
the Business and listed or traded on a national securities exchanges or in an
over-the-counter securities market.
(b) During the period from the date of this Agreement until the
end of the Consulting Period ("Non-Compete Term"), Executive will not (i) employ
or solicit, or receive or accept the performance of services by, any active
employee of the Company or any of its subsidiaries who is employed primarily in
connection with the Business, except in connection with general, non-targeted
recruitment efforts such as advertisements and job listings or (ii) solicit for
business (relating to the Business) any person who is a customer or former
customer of the Company or any of its subsidiaries, unless such person shall
have ceased to have been such a customer for a period of at least six months.
(c) Executive will not at any time disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries, any trade secrets, information, data, or other confidential
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial data,
financing methods, plans, or the business and affairs of the Company generally,
or of any subsidiary of the Company, unless required to do so by applicable law
or court order, subpoena or decree or otherwise required by law, with reasonable
evidence of such determination promptly provided to the Company. The preceding
sentence of this sub-clause (c) shall not apply to information which is not
unique to the Company or which is generally known to the industry or the public
other than as a result of Executive's breach of this covenant. Executive agrees
that within 10 days after the Termination Date, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the
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business of the Company and its subsidiaries, except that he may retain personal
notes, notebooks and diaries. Executive further agrees that he will not retain
or use for his account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business
of the Company or its subsidiaries.
(d) 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 tribunal 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. Remedies. 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 would be inadequate and, 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
seek 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.
10. No Disparagement. Executive agrees not to criticize, disparage or
otherwise demean in any way the Company, any of its subsidiaries or their
respective products, officers, directors or employees. Likewise, the Company
agrees not to criticize, disparage or otherwise demean in any way the Executive.
11. RELEASE. IN CONSIDERATION OF THE PAYMENTS TO BE MADE AND BENEFITS
PROVIDED BY THE COMPANY AND OTHER AGREEMENTS HEREUNDER, EXECUTIVE ON EXECUTIVE'S
OWN BEHALF AND ON BEHALF OF EXECUTIVE'S HEIRS, EXECUTORS, AGENTS, SUCCESSORS AND
ASSIGNS, RELEASES AND FOREVER DISCHARGES THE COMPANY AND ITS SUBSIDIARIES AND
THEIR RESPECTIVE OFFICERS, AGENTS, CURRENT AND FORMER EMPLOYEES, SUCCESSORS,
PREDECESSORS AND ASSIGNS AND ANY OTHER PERSON, FIRM, CORPORATION OR LEGAL ENTITY
IN ANY WAY RELATED TO THE COMPANY AND ITS SUBSIDIARIES (THE "RELEASED PARTIES"),
OF AND FROM ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, STATUTORY RIGHTS,
DUTIES, DEBTS, SUMS OF MONEY, SUITS, RECKONINGS, CONTRACTS, AGREEMENTS,
CONTROVERSIES, PROMISES, DAMAGES, OBLIGATIONS, RESPONSIBILITIES, LIABILITIES AND
ACCOUNTS OF WHATSOEVER KIND, NATURE OR DESCRIPTION, DIRECT OR INDIRECT, IN LAW
OR IN EQUITY, IN CONTRACT OR IN TORT OR OTHERWISE, WHICH EXECUTIVE EVER HAD OR
WHICH EXECUTIVE NOW HAS OR HEREAFTER CAN, SHALL OR MAY HAVE, AGAINST ANY OF THE
RELEASED PARTIES, FOR OR BY REASON OF ANY MATTER, CAUSE, OR THING WHATSOEVER UP
TO THE PRESENT TIME, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED AT THE
PRESENT TIME, OR WHICH MAY BE BASED UPON PRE-EXISTING ACTS,
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CLAIMS OR EVENTS OCCURRING AT ANY TIME UP TO THE DATE HEREOF WHICH MAY RESULT IN
FUTURE DAMAGES, INCLUDING WITHOUT LIMITATION ALL DIRECT OR INDIRECT CLAIMS
EITHER FROM DIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER AND RIGHTS OR
CLAIMS ARISING UNDER TITLE VII, ANY STATE CIVIL-RIGHTS LEGISLATION, CLAIMS OF
HANDICAP DISCRIMINATION, CLAIMS RELATING TO THE TERMINATION OF EMPLOYMENT AS
REFERRED TO HEREIN, AND CLAIMS OF AGE DISCRIMINATION UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED ("ADEA"), AGAINST ANY OF
THE RELEASED PARTIES, OTHER THAN (A) CLAIMS ARISING UNDER THE EXPRESS PROVISIONS
OF THIS AGREEMENT, AND (B) THE RIGHT TO RECEIVE BENEFITS, IF ANY, ACCRUED
THROUGH THE TERMINATION DATE UNDER THE COMPANY'S BENEFIT PLANS. THE EXECUTIVE
AGREES NOT TO XXX OR TO FILE ANY LAWSUITS AGAINST ANY RELEASED PARTY WITH
RESPECT TO CLAIMS COVERED BY THIS RELEASE.
12. Notices. Any notice required or permitted to be given under this
Agreement shall be deemed properly given if in writing and delivered by hand and
receipt is acknowledged by the party to whom said notice shall be directed, or
if mailed by certified or registered mail, postage prepaid with return receipt
requested, or sent by express courier service, charges prepaid by shipper, to
the addresses of each party stated above (or to such other address as a party is
directed pursuant to written notice from the other party) and in the case of
notices to the Company, to the attention of its Vice President - General
Counsel, at 00000 Xxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000.
13. Assignment. This Agreement shall not be assignable by either party.
Notwithstanding the foregoing, the Company shall assign this Agreement to any
successor to substantially all of the stock, assets or business of the Company.
Any such successor must assume in writing all of the obligations of the Company
under this Agreement.
14. Acceptance and Revocation. Pursuant to provisions of ADEA, the
Executive has been given at least 21 days from the date this Agreement was first
communicated to the Executive to review and sign this Agreement.
The Executive understands he may revoke his acceptance of this
Agreement within seven calendar days after the date of the Executive's signature
set forth below. This Agreement will not be effective until the seven-day
revocation period has expired. The Executive understands that to be effective
any such revocation must be in writing, signed by the Executive and hand
delivered or post-marked within such seven-day period addressed to the Vice
President - General Counsel, MascoTech, Inc., 00000 Xxx Xxxx Xxxx, Xxxxxx,
Xxxxxxxx 00000. If revocation is by mail, certified mail return receipt
requested is recommended to show proof of mailing.
15. Mediation/Arbitration. The parties hereto agree that pursuant to
the Company's Corporate Dispute Resolution Policy (the "CDRP"), mediation, and,
if unsuccessful, arbitration, will apply to the employment and consulting
relationship hereunder and will be the sole and exclusive remedies for any
claims which may arise between the parties (other than allegations by the
Company of breach of Sections 8 or 10)
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in any way relating to this Agreement or for the breach thereof to the extent
such claims are covered by the CDRP, and the Executive agrees not to pursue any
such claims through a court or a jury. The Executive hereby acknowledges that he
has had an opportunity to review the CDRP, and agrees that all proceedings held
in accordance with the CDRP will be conducted in the Detroit, Michigan
metropolitan area. Notwithstanding the foregoing, any determinations of whether
or not the Executive is disabled shall be made in the first instance by the
Committee established under the MascoTech, Inc. Key Employee Retention Plan.
16. Entire Agreement. This instrument contains the entire agreement of
the parties relating to the subject matter hereof, supersedes and replaces in
its entirety any existing employment agreement or consulting agreement of the
Executive and may not be waived, changed, modified, extended or discharged
orally but only by agreement in writing signed by the party against whom
enforcement of any such waiver, change, modification, extension or discharge is
sought. The waiver by the Company of a breach of any provision of this Agreement
by the Executive shall not operate or be construed as a waiver of a breach of
any other provision or of any subsequent breach by the Executive.
17. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Michigan.
18. Attorneys Fees. In the event of a dispute by the Company, Executive
or others as to the validity or enforceability of, or liability under, any (i)
provision of this Agreement, the Company shall reimburse Executive for all
reasonable legal fees and expenses incurred by him in connection with such
dispute if Executive substantially prevails in the dispute and (ii) if Executive
has not substantially prevailed in such dispute as set forth in (i), one-half
the amount of all reasonable legal fees and expenses incurred by him in
connection with such dispute except to the extent Executive's position is found
by a tribunal of competent jurisdiction to have been frivolous.
19. Headings. The headings of the Sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope of
intent of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
MASCOTECH, INC.
By Xxxxxxx X. Xxxxxxxxx
--------------------------------
Its Chairman
----------------------------
Date: 11/22/00 /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
