EXHIBIT 10.4
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement ("Agreement") is made as of the ____ day
of _________, ____ by and between Core Molding Technologies, Inc., a Delaware
corporation, with its principal office at 000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxx
00000-0000 (the "Company"), and ______________, an individual, residing at
_________________________ (the "Executive").
WHEREAS, the Company wishes to assure itself of stability and continuity of
senior management and recognizes that organizational changes, including a change
in control of the Company, could negatively affect the retention of senior
executive personnel of the Company and the decision-making and performance of
such personnel with respect to such organizational changes, and the
effectiveness of retention and incentivizing features of other elements of the
Company's executive compensation program;
WHEREAS, the Executive is currently employed by the Company in the capacity
of __________________ and the Executive is one of the key executives of the
Company; and
WHEREAS, the Company and the Executive now desire to achieve a degree of
certainty as to the Executive's rights to compensation upon certain terminations
of employment during the Term of this Agreement (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
1. Term of This Agreement
The Term of this Agreement shall commence on the date hereof and continue
until December 31, 2007; provided, however, that commencing on January 1, 2008
and each January 1st thereafter, the above-referenced date and the Term of this
Agreement shall automatically be extended for one additional year unless at
least thirty days prior to such January 1st date, the Company or the Executive
shall have given notice that it or he does not wish to extend this Agreement.
The phrase "Term of this Agreement" shall refer to the period commencing on the
date hereof and ending on December 31, 2007 (or any extension thereof pursuant
to the preceding sentence).
Nothing contained in this Agreement shall prevent the Company at any time
from terminating the Executive's right and obligation to perform service for the
Company or prevent the Company from removing the Executive from any position
which the Executive holds in the Company, subject to the obligation of the
Company to make payments and provide benefits if and to the extent required
under this Agreement, which payments and benefits shall be full and complete
liquidated damages, insofar as the obligations of the Company pursuant to this
Agreement are concerned, for any such action taken by the Company. The Executive
specifically acknowledges that, except for this Agreement, his employment by the
Company is employment-at-will, subject to termination by the Executive, or by
the Company, at any time
with or without cause. The Executive acknowledges that such employment-at-will
status cannot be modified except in a specific writing which has been authorized
or ratified by the Company's Board of Directors (the "Board").
2. Change in Control
Notwithstanding the other provisions of this Agreement, no benefit shall be
payable under this Agreement unless a Change in Control (as defined below) of
the Company shall be deemed to have occurred and the Executive's employment by
the Company shall have been terminated (by the Executive or by the Company)
within two (2) years thereafter. For purposes of this Agreement, a "Change in
Control of the Company" shall be deemed to have occurred if any one of the
following takes place:
(a) The Company is merged, consolidated or reorganized into or with another
corporation, partnership, limited liability company, trust, or other legal
person (collectively referred herein as a "Business Entity"), and immediately
after such merger, consolidation, or reorganization less than fifty percent
(50%) of the combined voting power of the then-outstanding securities of such
Business Entity immediately after such transaction are held in the aggregate by
the holders of voting stock of the Company immediately prior to such
transaction;
(b) The Company sells all or substantially all of its assets to any other
Business Entity, and less than fifty percent (50%) of the combined voting power
of the then-outstanding securities of such Business Entity immediately after
such sale are held in the aggregate by the holders of voting stock of the
Company immediately prior to such sale;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934 ("Exchange Act"), disclosing that any person (as
the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of securities representing 50% or more of the voting stock of
the Company;
(d) The Company files a report or proxy statement with the Securities and
Exchange Commission pursuant to the Exchange Act disclosing in response to Form
8-K or Schedule 14A (or any successor schedule, form or report or item therein)
that a change in control of the Company has occurred; or
(e) If during any period of two consecutive years, individuals who at the
beginning of any such period constitute the directors of the Company cease for
any reason to constitute at least a majority thereof, provided, however, that
for purposes of this Section 2(e), each director who is first elected, or first
nominated for election by the Company's stockholders, by a vote of at least two
thirds of the directors of the Company (or a committee thereof) then still in
office who were directors of the Company at the beginning of any such period
will be deemed to have been a director of the Company at the beginning of such
period.
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3. Notice of Termination; Date of Termination
(a) Any termination of the Executive's employment by the Company or by the
Executive shall be communicated by written Notice of Termination to the other
party thereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that 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. Furthermore, either the Executive or the Company may
give a Notice of Termination to the other party for the purpose of terminating
this Agreement, as such, without terminating the Executive's Employment with the
Company, which Notice of Termination shall have the effect of terminating this
Agreement at the expiration of the Term of this Agreement as in effect on the
date of giving such Notice of Termination.
(b) "Date of Termination" shall mean:
(i) If the Agreement is terminated for Disability (as defined in
Section 7 below), thirty (30) days after Notice of Termination is
given (provided that the Executive shall not have returned to the
performance of his duties on a full-time basis during such thirty
(30) day period),
(ii) If the Executive terminates his employment voluntarily, the date
specified in the Notice of Termination,
(iii) The expiration or termination of the Term of this Agreement, and
(iv) If the Executive's employment is terminated for any other reason,
the date on which a Notice of Termination is given; provided that
if within thirty days after any Notice of Termination is given
the party receiving such Notice of Termination notifies the other
party that a dispute exists concerning the termination, the Date
of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by
a binding and final arbitration award or by a final judgment,
order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been
perfected).
4. Compensation After Change in Control
Immediately after any Change in Control of the Company shall be deemed to
have occurred, the Executive shall be entitled to receive for the remainder of
the Term of this Agreement (as extended from time to time) an annual base salary
(the "Base Salary"), payable in installments in accordance with the current
practice of the Company, at an annual rate at least equal to the aggregate
annual base salary payable to the Executive as of the date hereof. The Base
Salary may be increased (but may not be decreased) at any time and from time to
time by
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action of the Board of Directors of the Company, any committee thereof, or any
individual having authority to take such action, in accordance with the
Company's regular practices, and, if so increased, such increased Base Salary
shall thereafter be the Base Salary for the purposes of this Agreement. Any
increase in the Base Salary shall not serve to limit or reduce any other
obligation of the Company hereunder.
5. Benefit Plans
After a Change in Control of the Company shall be deemed to have occurred,
(a) The Company agrees to continue in effect any perquisite, benefit or
compensation plan (including without limitation the Company's annual cash profit
sharing plan, long-term equity incentive plan, stock purchase plan, section
401(k) plan, dental plan, life insurance plan, health and accident plan,
disability plan, or deferred compensation plan) in which the Executive currently
participates (collectively referred to as the "Benefit Plans"); or to maintain
plans providing substantially similar benefits, unless the continuation of any
such plan (or similar plan) would not, in the good faith discretion of the
Company, be an economically reasonable decision, taking into account all facts
and circumstances;
(b) Other than as provided in paragraph (a), the Company agrees not to take
any action that would adversely affect the Executive's participation in, or
materially reduce the benefits under, any of the Benefit Plans or deprive the
Executive of any material fringe benefit currently enjoyed; and
(c) The Company agrees to provide the Executive with the number of paid
vacation days to which he is entitled in accordance with the Company's normal
vacation policy in effect on the date hereof.
6. Termination for Cause
(a) The Company may terminate the Executive's employment for Cause. For the
purposes of this Agreement, the Company shall have "Cause" to terminate
employment hereunder only (i) if termination shall have been the result of an
act or acts of dishonesty by the Executive constituting a felony and resulting
or intended to result directly or indirectly in substantial gain or personal
enrichment to the Executive at the expense of the Company; or (ii) upon the
willful and continued failure by the Executive substantially to perform his
duties with the Company (other than any such failure resulting from incapacity
due to mental or physical illness) after a demand in writing for substantial
performance is delivered by the Board, which demand specifically identifies the
manner in which the Board believes that the Executive has not substantially
performed his duties, and such failure results in demonstrably material injury
to the Company. The Executive's employment shall in no event be considered to
have been terminated by the Company for Cause if such termination took place as
the result of (i) bad judgment or negligence, or (ii) any act or omission
without intent of gaining therefrom directly or indirectly a profit to which the
Executive was not legally entitled, or (iii) any act or omission believed in
good faith to have been in or not opposed to the interest of the Company, or
(iv) any act or omission in respect of which a determination is made that the
Executive met the applicable
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standard of conduct prescribed for indemnification or reimbursement or payment
of expenses under the By-Laws of the Company or the laws of the State of
Delaware, in each case as in effect at the time of such act or omission. The
Executive shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of a majority of the entire membership of the Board at a
meeting of the Board called and held for the purpose (after reasonable notice to
the Executive and an opportunity for him, together with his counsel, to be heard
before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in clauses (i) or (ii) of the
first sentence of this paragraph and specifying the particulars thereof in
detail.
(b) If the Executive's employment shall be terminated for Cause, the
Company shall pay the Executive his full Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given and
the Company shall have no further obligations to the Executive under this
Agreement.
7. Termination for Death or Disability
(a) The Company may terminate this Agreement on account of the Executive's
death, or for "Disability" if the Executive is "Disabled." For purposes of this
Agreement, the Executive shall be considered Disabled only if, as a result of
his incapacity due to physical or mental illness, he shall have been absent from
his duties with the Company on a full-time basis for a period of one year and a
physician selected by him is of the opinion that (i) he is suffering from total
disability, as determined by the Executive's physician and (ii) he will qualify
for Social Security Disability Payment and (iii) within thirty (30) days after
written notice of termination is given, he shall not have returned to the
full-time performance of his duties.
(b) If the Company terminates this Agreement on account of the Executive's
death or because the Executive is Disabled, the Company shall pay the Executive
(or his successors) his full Base Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given and the Company shall
have no further obligations to the Executive under this Agreement.
8. Termination Following Retirement
(a) This Agreement will terminate upon the Executive's Retirement. For
purposes of this Agreement, "Retirement" shall mean termination of the
Executive's employment with his consent in accordance with the Company's
retirement policy (including early retirement) generally applicable to its
salaried employees or in accordance with any retirement arrangement established
with the Executive's consent with respect to him.
(b) In the event this Agreement terminates following the Executive's
Retirement, the Company shall pay to the Executive all amounts that may be due
and payable at his full Base Salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given and the Company shall have
no further obligations to the Executive under this Agreement.
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9. Termination of Employment by the Executive for Good Reason
(a) Upon the occurrence of a Change in Control, the Executive may terminate
his employment for Good Reason. For purposes of this Agreement, "Good Reason"
will exist if any one or more of the following occur:
(i) Failure by the Company to honor any of its obligations under
Sections 4, 5, or 11; or
(ii) Any purported termination by the Company of the Executive's
employment that is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 3 above and,
for purposes of this Agreement, no such purported termination
shall be effective; or
(iii) Failure to elect or reelect or otherwise to maintain the
Executive to the office or the position (or a substantially
equivalent office or position) in the Company that the Executive
held immediately prior to a Change in Control, or the removal of
the Executive as a Director of the Company (or any successor
thereto) if the Executive shall have been a Director of the
Company immediately prior to the Change in Control; or
(iv) An adverse change in the compensation or benefits of the
Executive or in the nature or scope of the authorities, powers,
functions, responsibilities or duties attached to the position
with the Company which the Executive held immediately prior to
the Change in Control, (including but not limited to assignment
by the Company to the Executive of duties inconsistent with his
or her current positions, duties, responsibilities, and status
with the Company or a change of his or her compensation or
benefits or his or her reporting responsibilities, titles, or
offices currently in effect) without the prior written consent of
the Executive, which is not remedied within 10 calendar days
after receipt by the Company of written notice from the Executive
of such change; or
(v) A determination by the Executive made in good faith that as a
result of a Change in Control and a change in circumstances
thereafter significantly affecting his position, including
without limitation a change in the scope of the business or other
activities for which he was responsible immediately prior to a
change in control, he has been rendered substantially unable to
carry out, has been substantially hindered in the performance of,
or has suffered a substantial reduction in, any of the
authorities, powers, functions, responsibilities or duties
attached to the position held by the Executive immediately prior
to the Change in Control, which situation is not remedied within
10 calendar
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days after written notice to the Company from the Executive of
such determination; or
(vi) The Company shall relocate its principal executive offices, or
require the Executive to have his principal location of work
changed, to any location which is in excess of 50 miles from the
location thereof immediately prior to the Change in Control or to
travel away from his office in the course of discharging his or
her responsibilities or duties hereunder significantly more (in
terms of either consecutive days or aggregate days in any
calendar year) than was required of him prior to the Change in
Control without, in either case, his prior written consent.
10. Compensation Upon Certain Terminations
(a) If, within the two-year period subsequent to a Change in Control, (A)
the Company shall terminate the Executive's employment other than pursuant to
Sections 6 or 7 hereof, or (B) the Executive shall terminate his employment for
Good Reason pursuant to Section 9 hereof, then the Company shall pay to the
Executive in a lump sum on the fifth business day following the Date of
Termination, the following amounts:
(i) The Executive's Base Salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given;
and
(ii) In lieu of any further salary payments for periods subsequent to
the Date of Termination, an amount equal to 2.99 times the sum of
(A) the average of the Executive's Base Salary as reported on the
Executive's W-2 form for the five (5) calendar years prior to the
year in which such termination occurs, and (B) the average of the
cash bonuses earned by the Executive as reported on the
Executive's W-2 form for the five (5) calendar years prior to the
year in which such termination occurs, provided that the sum of
clauses (A) and (B) of this Section 10(a)(ii) shall not exceed
2.99 times the "Base Amount" as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986, or any successor provision
thereof.
(b) If, within the two-year period subsequent to a Change in Control of the
Company, (i) the Company shall terminate the Executive's employment other than
pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his
employment for Good Reason pursuant to Section 9 hereof, all unvested stock
options, stock appreciation rights, and restricted stock awards shall
immediately vest in full.
11. Successors, Binding Agreement
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume
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and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as would apply if the Executive terminated his employment
within the two-year period following a Change in Control, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that executes and delivers
the agreement provided for in this section or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable hereunder had the Executive continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to his devisee, legatee, or other designee or, if
there be no such designee, to his estate.
12. Notice
Notices and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth in the introductory
paragraph of this Agreement, provided that all notices to the Company shall be
directed to the attention of the Chairman of the Board of the Company, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
13. Miscellaneous
No provisions of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by
the Executive and such officer as may be specifically designated by the Board.
No waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreement or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware.
14. Validity
The invalidity or uneforceability of any one or more provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
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15. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
16. Arbitration
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in Columbus, Ohio in
accordance with the rules of the American Arbitration Association then in
effect; provided that all arbitration expenses shall be borne by the Company.
Notwithstanding the pendency of any dispute or controversy concerning
termination or the effects thereof, the Company will continue to pay the
Executive his full compensation in effect immediately before any Notice of
Termination giving rise to the dispute was given and continue him as a
participant in all compensation, benefit and insurance plans in which he was
then participating, until the dispute is finally resolved. Amounts paid under
this paragraph are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement. Judgment may be entered on the arbitrators' award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
17. Tax Matters - Optional Right of Partial Disclaimer
It is recognized that under certain circumstances:
(a) Payments or benefits provided to the Executive under this Agreement
might give rise to an "excess parachute payment" within the meaning of Section
280G of the Internal Revenue Code of 1986, or any successor provision thereof.
(b) It might be beneficial to the Executive to disclaim some portion of the
payment or benefit in order to avoid such "excess parachute payment" and thereby
avoid the imposition of an excise tax resulting therefrom.
(c) Under such circumstances it would not be to the disadvantage of the
Company to permit the Executive to disclaim any such payment or benefit in order
to avoid the "excess parachute payment" and the excise tax resulting therefrom.
Accordingly, the Executive may, at the Executive's option, exercisable at any
time or from time to time, disclaim any entitlement to any portion of the
payment or benefits arising under this Agreement which would constitute "excess
parachute payments," and it shall be the Executive's choice as to which payments
or benefits shall be so surrendered, if and to the extent that the Executive
exercises such option, so as to avoid "excess parachute payments."
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18. Withholding of Taxes
The Company may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.
19. Legal Fees and Expenses
It is the intent of the Company that the Executive not be required to incur
the legal expenses associated with (i) the interpretation of any provision in,
or obtaining of any right or benefit under, this Agreement or (ii) the
enforcement of his rights under this Agreement by litigation or other legal
action, because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Executive hereunder. Accordingly,
the Company irrevocably authorizes the Executive from time to time to retain
counsel of his choice, at the expense of the Company as hereafter provided, to
represent the Executive in connection with the interpretation or enforcement of
this Agreement, including the initiation or defense of any litigation or other
legal action, whether by or against the Company or any Director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. The Company shall pay or
cause to be paid and shall be solely responsible for any and all attorneys' and
related fees and expenses incurred by the Executive under this Section 19.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
CORE MOLDING TECHNOLOGIES, INC.
By:
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Name:
Title:
Date:
By:
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Name:
Title:
Date:
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