EXHIBIT 10.1
McLAREN AUTOMOTIVE GROUP, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made as of the third day of
January, 2000, by and between McLAREN AUTOMOTIVE GROUP, INC., a Delaware
corporation with its principal office located at 00000 Xxxx Xxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxx, 00000 (the "Corporation"), and Xxxxxxxxxx X. Xxxxx, whose
address is 0000 Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx, 00000 (the "Employee").
RECITALS:
A. The Corporation is engaged in the business of designing, fabricating,
developing, validating and certifying powertrain and driveline components,
services and products for the vehicle industry (the "Business");
B. The Corporation wishes to employ Employee and utilize her professional
experience, ability, services, background and know-how; and
C. Employee wishes to work for the Corporation under the terms and
conditions in this Agreement.
NOW, THEREFORE, in consideration of the covenants and conditions set forth
in this Agreement and for other good and valuable consideration, which has been
received and which is sufficient, the parties agree to the following terms:
1. Employment Term. Subject to the terms and conditions contained in this
Agreement, the Corporation employs Employee, and Employee agrees to be employed
by the Corporation, for a two (2) year period from the date of this Agreement
unless the Agreement is terminated before the end of two years in accordance
with Section 13. This Agreement will automatically renew for successive periods
of two (2) years, up to a maximum of two (2) successive two-year periods, unless
the Corporation notifies Employee of its intent to terminate this Agreement at
least ninety (90) days prior to the end of the initial two-year term or any
successive two-year period, or unless the Agreement is terminated before the end
of any successive two-year period in accordance with Section 13. The initial
two-year term and any successive terms are referred to in this Agreement as the
"Employment Term."
2. Duties. Employee's position with the Corporation will be Executive
Vice President Business Infrastructure/Chief Financial Officer. As the
Executive Vice President Business Infrastructure/Chief Financial Officer,
Employee will be responsible for management of non-operations aspects of the
business including but not limited to finance, accounting, human resources,
facilities, planning, public and investor relations, internal and external
communications, information systems, legal activities, non-operations purchasing
and will perform other duties which the Corporation requests from time to time.
The Employee will report to the President/CEO of the Corporation.
3. Time and Efforts. During her employment with the Corporation, Employee
will diligently and conscientiously devote her full business time, attention and
ability to the Corporation and its Business, and will faithfully serve the
Corporation. Employee will fulfill her responsibilities described in this
Agreement honestly, diligently, in good faith, with her best efforts and in the
best interests of the Corporation. While she is employed by the Corporation,
Employee will not engage in any other business activity without first receiving
written approval from the Corporation, except for personal investments in a
passive capacity such written approval which shall not be reasonably withheld if
it is determined that the requested business activity will in no way interfere
with Employee's activities with the Corporation.
4. Salary and Bonus. During her employment with the Corporation, the
Corporation will pay Employee an annual salary of One Hundred Thousand Dollars
($100,000.00), payable according to the Corporation's standard payment
practices. The ordinary and usual sums for taxes and withholding will be
deducted from this salary. Employee will be eligible for any bonus plan which
is in effect for employees of a similar level within the Corporation.
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5. Stock Options. Upon commencement of this agreement and upon each
successive renewal of this agreement, Employee shall receive a grant of 25,000
options of the Corporations stock. Exercise price for these options shall be
the average of the closing price for the Corporations stock for the five (5)
trading days following the commencement of the agreement. Options shall vest
over the period of the agreement with one-half of the options grant vesting on
the last business day of the first year of the agreement and the second half of
the options grant vesting on the last business day of the second year of the
agreement and following the same pattern in successive renewals of the
agreement.
6. Vacation and Other Benefits. Employee will be entitled to take four
(4) weeks of paid vacation per year. No vacation time may be carried over from
one year to the next. Employee will be entitled to receive health benefits and
also to participate all other benefits provided to employees of a similar level
within the Corporation.
7. Expenses. The Corporation will pay or reimburse Employee for all
reasonable and necessary expenses incurred by the Employee in performing her
duties under this Agreement.
8. Rules of the Corporation. Employee agrees that she will comply with
all reasonable rules and regulations of the Corporation in performing her duties
under this Agreement. Employee agrees that she will carry out all reasonable
orders, directions and policies of the Corporation which are consistent with her
position with the Corporation and which are communicated by the Corporation to
Employee, either orally or in writing. However, Employee will not be required
to comply with any directions or orders if she has obtained an attorney's
written opinion which is reasonably satisfactory to the Corporation stating that
her compliance with a particular direction or order would violate applicable
law.
9. Confidentiality. Employee knows that the Corporation possesses
business information which is confidential. During the Employee's employment
with the Corporation and after the termination of Employee's employment,
Employee will not use or reveal, divulge or make known to any person, company,
or any other third party, any Proprietary Information. "Proprietary
Information" is any and all information or data, whether in writing, or learned
by Employee orally, by observation or other sensory detection, relating to any
product, product design, service, research, development, formula, process,
method of distribution or delivery, know-how, trade secret, customer list,
contract term, customer pricing, supplier list or price, business strategy,
compensation, plan or practice, operating records, software, technology, sales
data, information or other records, lists or documents used by the Corporation
in operating the Business or otherwise. The Proprietary Information and all
other information relating to the Corporation belongs to and will remain the
property of the Corporation. All Proprietary Information, other information and
property of the Corporation must be returned to the Corporation by Employee upon
termination of Employee's employment.
10. Corporate Opportunity. Employee agrees that during her employment
with the Corporation she will not take any action which might divert from the
Corporation or any affiliate of the Corporation any business opportunity which
would be within the scope of any of the present or future businesses of the
Corporation or any of its subsidiaries or affiliates (future businesses are
business which are then under consideration by the Corporation or its
subsidiaries and affiliates), if the loss of the business would have, as
reasonably determined by the Corporation, an adverse effect upon the
Corporation, unless the Corporation has given prior written approval.
11. Discoveries and Works. Employee agrees that all discoveries and works
made or conceived by her as of the date of this Agreement or during her
employment with the Corporation, individually or with others, that relate to the
Business or the Corporation's activities (including actual or demonstrably
anticipated research or development of the Corporation), or result from any work
performed by Employee for the Corporation, will be owned by the Corporation.
The term "discoveries and works" includes, but is not limited to, the following:
designs, inventions, computer programs (including documentation of the
programs), technical improvements, processes, drawings and works of authorship.
The Employee will (a) promptly notify, make full disclosure to, and execute and
deliver any documents requested by, the Corporation to evidence or better assure
the Corporation's title to the discoveries and works, (b) assist the Corporation
in obtaining or maintaining for itself at its own expense United States and
foreign patents, copyrights, trade secret protection or other protection of any
and all discoveries and works, and (c) promptly execute, whether during or after
his employment with the Corporation, all applications or
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other endorsements necessary or appropriate to maintain or protect patents and
other rights for the Corporation. If there are any discoveries and works which,
within six (6) months after the termination of the Employee's employment, are
made, disclosed, reduced to a tangible or written form or description, or are
reduced to practice by the Employee and which pertain to the Business or the
products or services being sold or developed by the Corporation at the time of
Employee's termination, these discoveries and works will, as between the
Employee and the Corporation, be deemed to have been made during the Employee's
employment and will be owned by the Corporation. However, any discovery or work
that the Employee has developed entirely on her own time without using the
Corporation's equipment, supplies, facilities or trade secret information will
not be owned by the Corporation, except for those discoveries and works that
either: (i) relate to the Corporation's Business, or actual or demonstrably
anticipated research or development of the Corporation at the time of conception
or reduction to practice; or (ii) result from any work performed by the Employee
for the Corporation.
12. Non Solicitation. Employee agrees that she will not, while she is an
employee of the Corporation and for a period of one (1) year thereafter, (a)
directly or indirectly, personally or for any business entity in any capacity,
entice away, employ or solicit for employment any current or former employee of
the Corporation or its affiliates, or (b) contact any customer or prospective
customer of the Corporation or its affiliates except for the benefit of the
Corporation or its affiliates.
13. Termination.
(a) This Agreement may be terminated by the Corporation: (i) for Cause
as defined below; or (ii) immediately and without notice upon the Employee's
death or disability. For the purposes of this Agreement, "disability" means as a
physical or mental condition that, notwithstanding reasonable accommodations, as
defined under applicable state and/or federal law, prevents Employee from
performing any essential function of his job.
(b) Termination of Employee for "Cause" means: (i) any act or acts of
Employee which would constitute a felony (or its equivalent) or fraud; (ii) a
material breach by Employee performing the duties described in this Agreement
which is not cured by Employee within five (5) days after the Corporation gives
Employee notice of the breach; or (iii) gross neglect, gross malfeasance,
willful neglect, willful misconduct or dishonesty.
(c) If Employee's employment is terminated by the Corporation for
Cause, the Corporation's obligations under this Agreement will terminate and the
Corporation will not be liable to Employer for any payments of any kind under
this Agreement, including without limitation any claim to unpaid bonus amounts.
(d) If Employee's employment under this Agreement is terminated by the
Corporation for reason other than Cause during the first year of any two-year
employment period under this Agreement, the Corporation will pay Employee the
remaining salary that he would have received under this Agreement. If Employee's
employment under this Agreement is terminated for reason other than Cause during
the second year of any two-year employment period under this Agreement, the
Corporation will pay Employee an amount equal to the salary earned by Employee
during the twelve months immediately preceding the termination, excluding any
bonus amounts received by Employee during that twelve-month period. The
frequency of the payments made to Employee under this Section will be at the
Corporation's discretion.
(e) If Employee's employment is terminated due to his death or
disability, the Employee (or her estate) will be entitled to a pro rata portion
of her salary and bonus earned through the date of termination.
14. Assignment. Employee knows that the services to be performed by her
for the Corporation are unique and personal. Accordingly, Employee may not
assign any of her rights or delegate any of her duties or obligations under this
Agreement, except as otherwise expressly provided for in this Agreement.
15. Injunctive Relief. Employee agrees that the remedy of monetary
damages for any breach or threatened breach by Employee of the covenants in
Sections 9 (Confidentiality), 10 (Corporate Opportunity), and 12
(Nonsolicitation) of this Agreement will be inadequate to remedy fully the
breach because any breach or attempted breach by
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Employee would cause immediate, substantial and irreparable loss of business and
profits to the Corporation and its affiliates in an amount which would be
impossible to calculate. Therefore, if Employee breaches or threatens to breach
any of the covenants, in addition to any and all other legal and equitable
remedies which may be available, including suit for recovery of actual damages,
the Corporation and its affiliates, or any successor of the Corporation or its
affiliates, will be entitled to injunctive relief, without needing to prove any
actual loss of business to the Corporation or its affiliates by reason of the
Employee's breach and, to the extent permissible under the applicable law, a
temporary restraining order will be granted immediately on commencement of any
suit by the Corporation or its affiliates. Employee waives any right to notice
of any application by the Corporation or its affiliates for a temporary
restraining order.
16. Reasonableness. Employee has weighed all the facts, conditions and
circumstances pertaining to this Agreement and Employee agrees that all of the
provisions of this Agreement are reasonable. Employee will not contest the
validity of any provision of this Agreement and he waives any and all rights he
may have to bring any claim, action or suit or to raise any defense regarding
the validity and reasonableness of this Agreement or any of its provisions. If
Employee brings an action or raises any defense in violation of this Section,
the Corporation will be entitled to receive reimbursement from Employee for the
Corporation's reasonable attorney fees and costs.
17. Validity. If any provision contained in this Agreement, or the
application of any provision, is held invalid or unenforceable by a court of
competent jurisdiction, that provision will be deemed to be modified in a manner
to make it consistent with the intent of the original provision, so that, as
revised, the provision will be valid and enforceable, and this Agreement, and
the application of the provision to persons or circumstances other than those
for which it would be invalid or unenforceable, will not be affected by the
revision.
18. Binding Effect. This Agreement will inure to the benefit of and be
binding upon the Corporation and its permitted assigns, including without
limitation any person or entity which may acquire substantially all of the
Corporation's assets or business, or with or into which the Corporation may be
liquidated, consolidated, merged or otherwise combined, and will inure to the
benefit and be binding upon Employee, his heirs, distributes and personal
representatives.
19. Notices. All notices and other communications to be provided under
this Agreement will be effective when they are received if they are in writing
and hand delivered or sent by facsimile transmission and confirmed by U.S. mail,
and will be effective one (1) day after they are sent by a nationally recognized
overnight delivery service. Any communication given in any other manner will be
effective only if and when it is received by the party to be notified. For the
purposes of this Section, the addresses of the parties are the addresses stated
in the first paragraph of this Agreement. A party may change the address to
which all communications are to be sent by giving written notice to the other
party in accordance with this Section.
20. Waiver. Either party's failure to insist in any one or more instances
upon the other party's performance of any of the terms or conditions of this
Agreement will not be construed as a waiver of future performance of any term,
covenant or condition, but the obligations of either party with respect to the
term or condition will continue in full force and effect.
21. Entire Agreement. This Agreement supersedes all previous agreements
between Employee and the Corporation, and contains the entire understanding and
agreement between the parties regarding Employee's employment with the
Corporation. This Agreement cannot be amended, modified or supplemented in any
respect except by a subsequent written agreement signed by both the Corporation
and Employee.
22. Governing Law; Forum. This Agreement is a contract made under, and
will be governed by and construed in accordance with, the law of the State of
Michigan which is applicable to contracts made and to be performed entirely
within Michigan, without giving effect to choice of law principles of Michigan.
The Corporation and Employee each agree that any legal or equitable action or
proceeding with respect to this Agreement or Employee's employment with the
Corporation will be brought only in any court of the State of Michigan, or in
any court in the United States of America sitting in Michigan, and the
Corporation and Employee each submits to and accepts the jurisdiction of those
courts with respect to such party's person and property, and irrevocably
consents to the service of
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process in connection with any action or proceeding by personal delivery to or a
mailing by registered or certified mail, postage prepaid to each party at the
party's address contained in this Agreement. Nothing in this Section will affect
the right of the Corporation and Employee to serve process in any other manner
permitted by law. The Corporation and Employee each irrevocably waives any
objection to the laying of venue of any action or proceeding in the courts
described in this Section.
23. Headings. The headings contained in this Agreement are for
convenience only and are not to be used in construing or interpreting this
Agreement.
24. Counterparts. This Agreement may be executed in one or more
counterparts, which will each be deemed to be an original, but all of which will
constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date written in the first paragraph of this Agreement.
McLAREN AUTOMOTIVE GROUP, INC.
/s/ Wiley X. XxXxx
By: Wiley X. XxXxx
Its: President
/s/ Xxxxxxxxxx X. Xxxxx
Xxxxxxxxxx X. Xxxxx
Compensation Committee:
/s/ Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxxx
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