Exhibit 10.25
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT (the “
Agreement ”) dated as of January 1, 2009 by and
between COOPER-STANDARD AUTOMOTIVE INC. (the “ Company
”) and Keith D. Stephenson (the “ Executive
”).
WHEREAS, the Company desires to
employ Executive on the terms set forth in this Agreement and
Executive desires to accept and continue such employment with the
Company under the terms of this Agreement.
NOW THEREFORE, 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 January 1, 2009 (the “ Effective Date ”)
and ending on December 31, 2009 (the “ Employment
Term ”) on the terms and subject to the conditions set
forth in this Agreement; provided , however, that commencing
with December 31, 2009 and on each December 31 thereafter
(each an “ Extension Date ”), the Employment
Term shall be automatically extended for an additional one-year
period, unless the Company or Executive provides the other party
hereto 60 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 President, Global
Body & Chassis Systems until March 26, 2009 and
thereafter as the Company’s President, International. In such
positions, Executive shall have such duties and authority as is
customarily associated with such positions at other companies
similar to the Company and shall have such duties, consistent with
Executive’s positions, as may be assigned from time to time
by the Vice Chairman of the Company, the Chief Executive Officer of
the Company (the “ CEO ”) or the Board of
Directors of the Company (the “ Board
”).
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 $385,000, payable in regular installments in
accordance with the Company’s usual payroll practices.
Executive shall be entitled to such increases in Executive’s
base salary, if any, as may be determined from time to time by
the
compensation committee of the Board, based upon
the recommendation of the Vice Chairman and/or CEO.
Executive’s annual base salary, as in effect from time to
time, is hereinafter referred to as the “ Base Salary
.”
4. Bonus Incentives . During
the Employment Term, Executive shall be entitled to participate in
such annual and/or long-term cash incentive plans and programs of
the Company as are generally provided to the Company’s other
senior executives.
5. Employee Benefits . During
the Employment Term, Executive shall be entitled to participate in
the Company’s employee benefit plans (other than annual bonus
and long-term incentive programs, which are addressed in
Section 4) 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; provided that the Company may
reduce such level of benefits to the extent such reduction applies
to at least half of the 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. Notwithstanding anything herein to the contrary or
otherwise, except to the extent any expense or reimbursement
described in this Section 6 does not constitute a
“deferral of compensation” within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), any expense or reimbursement described in
this Section 6 shall meet the following requirements:
(i) the amount of expenses eligible for reimbursement provided
to Executive during any calendar year will not affect the amount of
expenses eligible for reimbursement or in-kind benefits provided to
Executive in any other calendar year, (ii) the reimbursements
for expenses for which Executive is entitled to be reimbursed shall
be made on or before the last day of the calendar year following
the calendar year in which the applicable expense is incurred,
(iii) the right to payment or reimbursement on in-kind
benefits hereunder may not be liquidated or exchanged for any other
benefit and (iv) the reimbursements shall be made pursuant to
objectively determinable and nondiscretionary Company policies and
procedures regarding such reimbursement of expenses.
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 60 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’s Resignation Without Good Reason .
(i) The Employment Term and
Executive’s employment hereunder may be terminated by the
Company for Cause (as defined in Section 7(a)(ii) and shall
terminate automatically upon Executive’s resignation without
Good Reason (as defined in Section 7(c)); provided that
Executive will be required to give the Company at least 60 days
advance written notice of a resignation without Good
Reason.
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(ii) For purposes of this Agreement,
“ Cause ” shall mean any of: (I) the
Executive’s willful failure to perform duties or directives
which is not cured following written notice, (II) the
Executive’s commission of a (x) felony or (y) crime
involving moral turpitude, (III) the Executive’s willful
malfeasance or misconduct which is demonstrably injurious to the
Company or its affiliates, or (IV) material breach by the Executive
of the restrictive covenants, including, without limitation,
Sections 8 and 9 hereof and any non-compete, non-solicitation or
confidentiality provisions to which the Executive is
bound.
(iii) If, during the Employment
Term, Executive’s employment is terminated by the Company for
Cause or Executive resigns without Good Reason, Executive shall be
entitled to receive within thirty (30) days of
termination:
(A) the Base Salary accrued but not
paid through the date of termination;
(B) any annual and/or long-term
bonus earned but unpaid as of the date of termination for any
previously completed fiscal year or performance period;
(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 ”). Any question as to the existence of the
Disability of Executive as to which Executive and the Company
cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Executive and the
Company. If Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall
make such determination in writing. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
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(ii) Upon termination of
Executive’s employment hereunder during the Employment Term
for either Disability or death, Executive, Executive’s estate
or Executive’s beneficiaries under the terms of any benefit
plan (as the case may be) shall be entitled to receive:
(A) the Accrued Rights within thirty
(30) days of termination; 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,
(A) “ Good Reason
” shall mean any of: (i) a substantial diminution in
Executive’s position or duties; adverse change in reporting
lines; or assignment of duties materially inconsistent with
Executive’s position; (ii) any reduction in
Executive’s Base Salary or Annual Bonus opportunity;
(iii) any reduction in Executive’s long-term cash
incentive compensation opportunities, other than reductions
generally affecting other senior executives participating in the
applicable long-term incentive compensation programs or
arrangements; (iv) the failure of the Company to pay Executive
any compensation or benefits when due hereunder;
(v) relocation of Executive’s principal place of work in
excess of fifty (50) miles from Executive’s current
principal place of work; or (vi) any material breach by the
Company of the terms of the Agreement; provided that none of
the events described in this Section 7(c)(ii)(A) shall
constitute Good Reason unless the Company fails to cure such event
within 10 calendar days after receipt from Executive of written
notice of the event which constitutes Good Reason.
(B) “ Change of Control
” shall mean the occurrence of any of the following events
after the Effective Date: (i) the sale or disposition, in one
or a series of related transactions, of all or substantially all of
the assets of Cooper-Standard Holdings Inc. (“ CSA
”) to any “person” or “group” (as
such terms are defined in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) other than Permitted Holders or (ii) any person
or group, other than Permitted Holders, is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of greater than or
equal to 50% of the total
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voting power of the
voting stock of CSA, including by way of merger, consolidation or
otherwise, except where one or more of Cypress Merchant Banking
Partners II L.P., Cypress Merchant Banking II C.V., 55
th
Street Partners II
L.P., Cypress Side-By-Side LLC, GS Capital Partners 2000, L.P., GS
Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000
GmbH & Co. Beteiligungs KG, GS Capital Partners 2000
Employee Fund, L.P. and Goldman Sachs Direct Investment Fund 2000,
L.P. (collectively, the “ Sponsors ”) and/or
their respective affiliates, immediately following such merger,
consolidation or other transaction, continue to have the ability to
designate or elect a majority of the Board of Directors of CSA (or
the board of directors of the resulting entity or its parent
company). For purposes of this Agreement, “ Permitted
Holder ” shall mean, as of the date of determination, any
and all of (x) an employee benefit plan (or trust forming a
part thereof) maintained by (A) the Company or its affiliate
or (B) any corporation or other person of which a majority of
its voting power of its voting equity securities or equity interest
is owned, directly or indirectly, by the Company or its affiliate
and (y) the Sponsors and any of their respective affiliates.
Notwithstanding that a transaction or series of transactions does
not constitute a Change of Control, with respect to Executive it
shall be deemed to be a Change of Control for purposes of
Executive’s entitlement’s hereunder if clause (i),
above, is satisfied in respect of the business or division in which
Executive is principally engaged. For the avoidance of doubt, a
Change of Control pursuant to the immediately preceding sentence
shall not apply to Executive if his employment is not primarily
with and for the business or division that is sold.
(iii) If during the Employment Term
Executive’s employment is terminated by the Company without
Cause (other than by reason of death or Disability) or Executive
resigns for Good Reason, Executive shall be entitled to receive,
subject to Executive’s execution (without subsequent
revocation) of a release of claims substantially in the form of
Exhibit A (the “ Release ”) within thirty
(30) days of termination:
(A) Termination Prior to a Change
of Control . If such termination of employment occurs prior
to a Change of Control, then:
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(i)
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the Accrued
Rights within thirty (30) days of termination;
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(ii)
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a pro rata
portion of any Annual Bonus, if any, that Executive would have been
entitled to receive pursuant to Section 4 hereof in respect of
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;
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(iii)
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subject to
Section 11(k), a single lump sum cash payment within five
(5) days following the expiration of such revocation period
provided for in the Release equal to two (2) times the sum of
Executive’s (i) Base Salary plus (ii) Target Annual
Bonus for the year prior to such termination of
employment;
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(iv)
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subject to
Section 11(k), a single lump sum cash payment within five
(5) days following the expiration of such revocation period
provided for in the Release equal to the actuarial equivalent
(determined using all of the same mortality, interest rate and
other methods and assumptions as are used from time to time to
determine “actuarial equivalence” for lump sum benefits
under the applicable Retirement Plan (as defined below)) of the
excess of (A) the retirement pension (determined as a straight
life annuity commencing at age sixty-five (65) or the first of
the month following the Executive’s termination of
employment, whichever is later) which Executive would have accrued
under the terms of any tax qualified defined benefit plan or scheme
and nonqualified supplementary defined benefit plan sponsored by
the Company in which Executive participates (the “
Retirement Plans ”), determined as if the Executive
had accumulated (after the date of termination) twenty-four
(24) additional months of service credit thereunder and had
pensionable compensation equal to the pensionable compensation (as
determined pursuant to the terms of the Retirement Plans) paid to
the Executive for the calendar year immediately preceding the year
in which such termination of employment occurs, over (B) the
retirement pension (determined as a straight life annuity
commencing at age sixty-five (65) or the first of the month
following the Executive’s termination of employment,
whichever is later) which Executive had then accrued pursuant to
the provisions of such Retirement Plans; and
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(v)
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for twenty-four
(24) months following his date of termination, the Company
shall arrange to provide Executive with life (for the Executive
only, excluding spouse or dependent life insurance) and health
insurance benefits on the same basis applicable to active employees
of the Company, provided the Executive remits to the Company
on a timely basis the monthly active employee premiums owed for
such coverage; and provided that if the Company is unable to
continue Executive’s life insurance coverage under the
Company’s group policy, the Company shall pay for
Executive’s conversion policy for such period. Benefits
otherwise receivable by Executive pursuant to this Subsection
(v) shall become secondary to comparable benefits that are
actually received by Executive during the remainder of such period
following his termination, and any such benefits actually received
by Executive shall be reported to the Company. The continued health
insurance benefits hereunder shall count as COBRA continuation
coverage.
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(B) Termination Following a
Change of Control . If such termination of employment occurs
following a Change of Control, the Accrued Rights, but
without further payments or benefits hereunder, however ,
Executive shall be entitled (albeit without duplication of amounts
payable in respect of the Accrued Rights) to be covered by the
Company’s Change of Control Severance Pay Plan, substantially
in the form of Exhibit B (the “ Change of Control
Severance Plan ”).
Notwithstanding the foregoing, the
aggregate amounts payable to Executive pursuant to this
Section 7(c)(iii) 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 including, without limitation, under the Change of
Control Severance Plan. 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), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
d. Expiration of Employment
Term . 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 hereunder shall be
deemed to occur on the close of business on the day immediately
preceding the next scheduled Extension Date, and upon such deemed
termination of Executive’s employment hereunder:
(i) if Executive has elected not to
extend the Employment Term, Executive shall be entitled to receive
only the Accrued Rights; or
(ii) if the Company has elected not
to extend the Employment Term (for other than Cause), Executive
shall be entitled to receive the amounts and considerations
provided for in Section 7 c. as if Executive’s
employment had been terminated by the Company without Cause (other
than by reason of Executive’s death or Disability) or by
Executive’s resignation for Good Reason immediately prior to
the expiration of the Employment Term; provided that:
(A) the amounts and considerations
provided for in Section 7(c) shall not be paid or begin to be
paid until the Executive’s actual separation from the Company
and its affiliates (within the meaning of Code
Section 409A);
(B) if the date of
Executive’s actual separation from the Company falls between
his 64 th and 65 th birthdays, the multiple
applicable to the lump sum payment under
Section 7(c)(iii)(A)(iii) shall be reduced from two
(2) to one (1) and
(C) if the date of
Executive’s actual separation from the Company is on or after
his 65 th birthday, Executive shall be
entitled to receive only the Accrued Rights.
Following such deemed termination of
Executive’s employment hereunder as a result of 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.
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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:
(i) During the Executive’s
employment with the Company and for a period of two years following
the date Executive ceases to be employed by the Company and its
affiliates, Executive will not:
(A) engage in any Competitive
Activity (as defined in Section 8(b)); or
(B) induce or attempt to induce
customers, business relations or accounts of the Company or any of
its affiliates to relinquish their contracts or relationships with
the Company or any its affiliates; or
(C) solicit, entice, assist or
induce other employees, agents or independent contractors to leave
the employ of the Company or any of its affiliates or to terminate
their engagements with the Company and/or any of its affiliates or
assist any competitors of the Company or any of its affiliates in
securing the services of such employees, agents or independent
contractors.
b. Definitions . For purposes
of this Agreement, “ Competitive Activity ”
means Executive’s participation, without the written consent
of any one of the Chief Executive Officer, or Chief Operating
Officer (except where Executive holds any of such positions, in
which case the Board shall be required to provide such written
consent), if any, of the Company, in the management of any business
enterprise if such enterprise engages in substantial and direct
competition with the Company or any of its affiliates and such
enterprise’s sales of any product or service competitive with
any product or service of the Company or any of its affiliates
amounted to 5% of such enterprise’s net sales for its most
recently completed fiscal year and if the Company’s net sales
of said product or service amounted to 5% of, as applicable, the
Company’s or its affiliate’s net sales for its most
recently completed fiscal year. “Competitive Activity”
will not include (i) the mere ownership of 5% or more of
securities in any such enterprise and the exercise of rights
appurtenant thereto or (ii) participation in the management of
any such enterprise other than in connection with the competitive
operations of such enterprise.
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9. Confidentiality; Intellectual
Property .
a. Confidentiality
.
(i) Executive acknowledges and
agrees that in the performance of his duties as an employee of the
Company or an affiliate thereof, he was and will continue to be
brought into frequent contact with, had and will continue to have
access to, and became and will continue to become informed of
confidential and proprietary information of the Company and its
affiliates and/or information which is a trade secret of the
Company and/or its affiliates (collectively, “
Confidential Information ”), as more fully described
in Subsection (ii) of this Section. Executive acknowledges and
agrees that the Confidential Information of the Company and its
affiliates gained by Executive during his association with the
Company and its affiliates was, is and will be developed by and/or
for the Company and its affiliates through substantial expenditure
of time, effort and money and constitutes valuable and unique
property of the Company and its affiliates.
(ii) The Executive will keep in
strict confidence, and will not, directly or indirectly, at any
time, disclose, furnish, disseminate, make available, use or suffer
to be used in any manner any Confidential Information of the
Company or its affiliates without limitation as to when or how
Executive may have acquired such Confidential Information (subject
to subsection (iv)). Executive specifically acknowledges that
Confidential Information includes any and all information, whether
reduced to writing (or in a form from which information can be
obtained, translated, or derived into reasonably usable form), or
maintained in the mind or memory of Executive and whether compiled
or created by the Company or its affiliates, which derives
independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic
value from the disclosure or use of such information, that
reasonable efforts have been put forth by the Company and its
affiliates to maintain the secrecy of Confidential Information,
that such Confidential Information is and will remain the sole
property of the Company and its affiliates, and that any retention
(in tangible form) or use by Executive of Confidential Information
not in the good faith performance of his duties in the best
interest of the Company or, in any case, after the termination of
Executive’s employment with and services for the Company and
its affiliates shall constitute a misappropriation of the
Company’s Confidential Information.
(iii) The Executive further agrees
that he shall return, within ten (10) days of the effective
date of his termination as an employee of the Company and its
affiliates, in good condition, all property of the Company and its
affiliates then in Executive’s possession, including, without
limitation, whether in hard copy or in any other media
(i) property, documents and/or all other materials (including
copies, reproductions, summaries and/or analyses) which constitute,
refer or relate to Confidential Information of the Company or its
affiliates, (ii) keys to property of the Company or its
affiliates, (iii) files and (iv) blueprints or other
drawings.
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(iv) Executive further acknowledges
and agrees that his obligation of confidentiality shall survive
until and unless such Confidential Information of the Company or
its affiliates shall have become, through no fault of Executive,
generally known to the industry or Executive is required by law
(after providing the Company with notice and opportunity to contest
such requirement) to make disclosure. Executive’s obligations
under this Section are in addition to, and not in limitation or
preemption of, all other obligations of confidentiality which
Executive may have to the Company and its affiliates under general
legal or equitable principles or statutes.
b. Intellectual Property
.
(i) If Executive has created,
invented or contributed to any works of authorship, inventions,
software, databases, systems or other intellectual property,
materials, documents or other work product (“ Works
”) prior to Executive’s employment, that are relevant
to or implicated by such employment (“ Prior Works
”), Executive hereby agrees not to seek royalties or other
compensation from the Company, and not to assert any infringement
or similar claim against the Company, for the Company’s use
of such Prior Works.
(ii) If Executive creates, invents
or contributes to any Works at any time during Executive’s
employment and within the scope of such employment and/or with the
use of any Company resources (“ Company Works
”), Executive hereby assigns and shall assign all rights and
intellectual property rights therein to the Company to the extent
ownership of any such rights does not vest originally in the
Company.
10. Specific
Performance/Survival . 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 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. In the event the Company wrongfully ceases making
payments and providing benefits in accordance with the prior
sentence, Executive shall be entitled to recover reasonable
attorney fees, incurred in recovering such payments or benefits.
The provisions of Section 8, 9 and 10 shall survive the
termination of this Agreement.
11. Miscellaneous
.
a. Governing Law . This
Agreement shall be governed by and construed in accordance with the
laws of the State of Michigan, 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.
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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 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 by
the Company to a person or entity which is 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. Set Off; No Mitigation .
The Company’s obligation to pay Executive the amounts
provided and to make the arrangements provided hereunder shall be
subject to set-off, counterclaim or recoupment of amounts owed by
Executive to the Company or its affiliates. However, Executive
shall not be required to mitigate the amount of any payment
provided for pursuant to this Agreement by seeking other employment
or otherwise.
g. 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.
h. 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:
Cooper-Standard Automotive
Inc.
39550 Orchard Hill Place
Drive
Novi, MI 48375
Phone: 248-596-5900
Attention: Chief Executive
Officer
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If to Executive:
To the most recent address of
Executive set forth in the personnel records of the
Company.
i. 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.
j. 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. For the avoidance of doubt, this Agreement shall not
supercede the Change of Control Severance Plan and any equity-based
awards granted to the Executive pursuant to the 2004 CSA
Acquisition Corp. Stock Incentive Plan.
k. Compliance with IRC
Section 409A . Notwithstanding anything herein to the
contrary, (i) if at the time of Executive’s termination
of employment with the Company and its affiliates, Executive is a
“specified employee” as defined in Section 409A of
the Code and the deferral of the commencement of any payments or
benefits otherwise payable hereunder as a result of such
termination of employment is necessary in order to prevent any
accelerated or additional tax under Section 409A of the Code,
then the Company will defer the commencement of the payment of any
such amounts or benefits hereunder (without any reduction in such
payments or benefits ultimately paid or provided to Executive)
until the date that is six months following Executive’s
termination of employment with the Company (or the earliest date as
is permitted under Section 409A of the Code) and (ii) if
any other payments of money or other benefits due to Executive
hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments
or other benefits shall be deferred if deferral will make such
payment or other benefits compliant under Section 409A of the
Code, or otherwise such payment or other benefits shall be
restructured, to the extent possible, in a manner, determined by
the Board, that does not cause such an accelerated or additional
tax. The Executive will be considered to have terminated employment
hereunder for purposes of receiving payments subject to Code
Section 409A only if his termination of employment constitutes
a “separation from service” within the meaning of Code
Section 409A. In the event that Executive receives continued
health benefits pursuant to Section 7(c) of this Agreement,
such expense or reimbursement shall meet the following
requirements: (i) the amount of expenses eligible for any
reimbursement provided to Executive during any calendar year will
not affect the amount of expenses eligible for reimbursement or
in-kind benefits provided to Executive in any other calendar year,
(ii) the reimbursements for expenses for which Executive is
entitled to be reimbursed shall be made on or before the last day
of the calendar year following the calendar year in which the
applicable expense is incurred, and (iii) the right to payment
or reimbursement on in-kind benefits hereunder may not be
liquidated or exchanged for any other benefit.
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l. 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.
m. 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.
n. Survival . The provisions
of Sections 7(d), 8, 9, 10 and 11 of this Agreement shall survive
any termination of this Agreement or Executive’s termination
of employment hereunder
o. 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.
Remainder of page
intentionally left blank
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IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of the day and year
first above written.
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COOPER-STANDARD
AUTOMOTIVE INC.
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EXECUTIVE
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By:
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James S.
McElya
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Keith D.
Stephenson
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Title:
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Chairman and
Chief Executive Officer
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EXHIBIT A
COOPER-STANDARD AUTOMOTIVE
INC.
Form of Release
WHEREAS,
(the “ Executive ”) employment has been
terminated in accordance with Section 7(c) of the Employment
Agreement dated as of
between Cooper-Standard Automotive Inc. (“ Cooper
”) and the Executive (the “ Employment Agreement
”); and
WHEREAS, the Executive is required
to sign this Release in order to receive the severance and
termination benefits described in Section 7(c) of the
Employment Agreement.
NOW THEREFORE, in consideration of
the promises and agreements contained herein and other good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, and intending to be legally bound, the
Executive agrees as follows:
1. This Release is effective on the
date hereof and will continue in effect as provided
herein.
2. In consideration of the payments
to be made and the benefits to be received by the Executive
pursuant to the Employment Agreement, which the Executive
acknowledges are in addition to payments and benefits which the
Executive would be entitled to receive absent the Employment
Agreement, the Executive, for himself and his dependents,
successors, assigns, heirs, executors and administrators (and his
and their legal representatives of every kind), hereby releases,
dismisses, remises and forever discharges Cooper, its predecessors,
parents, subsidiaries, divisions, related or affiliated companies,
officers, directors, stockholders, members, employees, heirs,
successors, assigns, representatives, agents and counsel (the
“ Company ”) from any and all arbitrations,
claims, including claims for attorney’s fees, demands,
damages, suits, proceedings, actions and/or causes of action of any
kind and every description, whether known or unknown, which
Executive now has or may have had for, upon, or by reason of any
cause whatsoever (“ claims ”), against the
Company, including but not limited to:
(a) any and all claims arising out
of or relating to Executive’s employment by or service with
the Company and his termination from the Company;
(b) any and all claims of
discrimination, including but not limited to claims of
discrimination on the basis of sex, race, age, national origin,
marital status, religion or handicap, including, specifically, but
without limiting the generality of the foregoing, any claims under
the Age Discrimination in Employment Act, as amended, Title VII of
the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, The Elliott-Larsen Civil Rights Act, the Michigan
Handicappers’ Civil Rights Act, the Michigan Wage Payment Act
(MCLA Section 408.471), the Polygraph Protection Act of 1981,
the Michigan Whistleblower’s Protection Act (MCLA
Section 15.361), the common law of the State of Michigan, and
any other applicable state statutes and regulations; and
15
provided, however
that the foregoing shall not apply
to claims to enforce rights that Executive may have as of the date
hereof or in the future under any of Cooper’s health,
welfare, retirement, pension or incentive plans, under any
indemnification agreement between the Executive and Cooper, under
Cooper’s indemnification by-laws, under the directors’
and officers’ liability coverage maintained by Cooper, under
the applicable provisions of the Delaware General Corporation Law,
or that Executive may have in the future under the Employment
Agreement or under this Release.
(c) any and all claims of wrongful
or unjust discharge or breach of any contract or promise, express
or implied.
3. Executive understands and
acknowledges that the Company does not admit any violation of law,
liability or invasion of any of his rights and that any such
violation, liability or invasion is expressly denied. The
consideration provided for this Release is made for the purpose of
settling and extinguishing all claims and rights (and every other
similar or dissimilar matter) that Executive ever had or now may
have against the Company to the extent provided in this Release.
Executive further agrees and acknowledges that no representations,
promises or inducements have been made by the Company other than as
appear in the Employment Agreement.
4. Executive further agrees and
acknowledges that:
(a) The release provided for herein
releases claims to and including the date of this
Release;
(b) Executive has been advised by
the Company to consult with legal counsel prior to executing this
Release, has had an opportunity to consult with and to be advised
by legal counsel of his choice, fully understands the terms of this
Release, and enters into this Release freely, voluntarily and
intending to be bound;
(c) Executive has been given a
period of 21 days to review and consider the terms of this Release,
prior to its execution and that he may use as much of the 21 day
period as he desires; and
(d) Executive may, within 7 days
after execution, revoke this Release. Revocation shall be made by
delivering a written notice of revocation to the General Counsel at
Cooper. For such revocation to be effective, written notice must be
actually received by the General Counsel at Cooper no later than
the close of business on the 7th day after Executive executes this
Release. If Executive does exercise his right to revoke this
Release, all of the terms and conditions of the Release shall be of
no force and effect and Cooper shall not have any obligation to
make payments or provide benefits to Executive as set forth in the
Employment Agreement.
5. Executive agrees that he will
never file a lawsuit or other complaint asserting any claim that is
released in this Release.
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6. Executive waives and releases any
claim that he has or may have to reemployment after the date of
this Release.
IN WITNESS WHEREOF, the Executive
has executed and delivered this release on the date set forth
below.
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EXHIBIT B
COOPER-STANDARD AUTOMOTIVE
INC.
CHANGE OF CONTROL SEVERANCE PAY
PLAN
As Amended and Restated Effective
July 1, 2008
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COOPER-STANDARD AUTOMOTIVE
INC.
CHANGE OF CONTROL SEVERANCE PAY
PLAN
1. General Statement of
Purpose . The Board of Directors (the “
Board” ) of Cooper-Standard Automotive Inc. (the
“ Company ”) has considered the effect a change
of control of the Company may have on certain executives of the
Company. The executives have made and are expected to continue to
make major contributions to the short-term and long-term
profitability, growth and financial strength of the Company. The
Company recognizes that the possibility of a change of control
exists, desires to assure itself of both the present and fixture
continuity of management, desires to establish certain minimum
severance benefits for certain of its executives applicable in a
change of control, and wishes to ensure that its executives are not
practically disabled from discharging their duties in respect of a
proposed or actual transaction involving a change of
control.
As a result, the Board believes that
the Cooper-Standard Automotive Inc. Change of Control Severance Pay
Plan (the “ Plan ”) will assist the Company in
attracting and retaining qualified executives.
2. Effective and Termination
Dates . The “ Effective Date ” of the Plan
is January 1, 2007. The Plan is restated as of July 1,
2008. The Plan will automatically terminate on the later of
(i) December 31, 2009 or (ii) the second anniversary
of a Change of Control (the “Termination Date”
); provided , however , that on each
December 31, commencing with the year 2007, the Termination
Date will automatically be extended for an additional year unless,
not later than 120 calendar days prior to such date, the Company
shall have given written notice to the Executives that the
Termination Date is not to be so extended.
3. Definitions. Where the
following words and phrases appear in the Plan, they shall have the
respective meanings set forth below, unless their context clearly
indicates otherwise:
(a) “ Affiliate ”
shall mean, with respect to an entity, any entity directly or
indirectly controlling, controlled by, or under common control with
such first entity.
(b) “ Base Pay ”
means, with respect to each Executive, the rate of annual base
salary, as in effect from time to time.
(c) “ Board ”
means the Board of Directors of the Company.
(d) “ Cause ”
means that, prior to any termination of employment pursuant to
Section 4(b), the Executive shall have committed:
(i) any act or omission constituting
a material breach by the Executive of any of his significant
obligations to or agreements with the Company or its Affiliate or
the continued failure or refusal of the Executive to adequately
perform the duties reasonably required by the Company or its
Affiliate which is materially injurious to the financial condition
or business reputation of, or is otherwise materially injurious to,
the Company or its Affiliate, after notification by the
Board of such breach, failure or
refusal and failure of the
