EXHIBIT 10.4
AGREEMENT
This Agreement is made and entered
into in Westborough, Massachusetts, by and among Xerium
Technologies, Inc. (the “Company”), a Delaware
corporation with its principal place of business at Westborough,
Massachusetts, Xerium Germany Holding GmbH and Josef Mayer of
Blaustein, Germany (the “Mr. Mayer”), effective as of
the 19 th day of May, 2005. Reference is made
to the Managing Director Service Contract between Mr. Mayer and
Xerium Germany Holding GmbH as evidenced by the employment contract
between Mr. Mayer and Wangner Beteiligungs GmbH, which became valid
May 1, 2001, and the agreement transferring Mr. Mayer’s
employment to Xerium Germany Holding GmbH effective as of January
2, 2005 (collectively, the “Managing Director Service
Contract”).
WHEREAS, this Agreement is not
intended to amend the Managing Director Service Contract except as
expressly set forth herein;
WHEREAS, this Agreement intends to
treat Mr. Mayer as an executive of the Company only with respect to
monies paid to Mr. Mayer as transactional bonus in connection with
Company’s initial public offering, all loans to him that
were, are, or will be forgiven in connection with the
Company’s public offering and any tax gross-up payments with
respect thereto, and certain amounts related to the management
incentive compensation plans of the Company;
WHEREAS, this Agreement does not
create or purport to create an employment or service relationship
between Mr. Mayer and the Company;
The parties agree as follows:
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1.
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If Mr. Mayer
shall terminate his employment/managing director service
relationship with Xerium Germany Holding GmbH prior to the
completion of eighteen (18) months following the date of this
Agreement, then he shall immediately forfeit and return to the
Company: (i) the gross amount of all monies paid to him as a
transactional bonus in connection with the Company’s initial
public offering; (ii) the gross amount of all loans to him that
were forgiven in anticipation of the Company’s initial public
offering in April 2004 and the tax gross-up payment with respect
thereto; and (iii) the amount paid on or about April 14, 2005 in
consideration of the fact that Mr. Mayer will no longer participate
in the Company’s previously existing cash management
incentive compensation plans and in connection with the adoption of
the Senior Executive Annual Incentive Plan. Failure by Mr. Mayer to
make due repayment of such amount within ten (10) days of the
Company’s demand for same shall authorize the Company to
commence a civil proceeding for the same, in which event Mr. Mayer
shall be liable for all reasonable costs and attorney’s fees
incurred by the Company in connection herewith.
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2.
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The provisions
of the Managing Director Service Contract shall remain unaffected,
except as follows:
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(i)
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Section III (2)
is amended to read as follows:
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The employee shall receive an annual
management bonus according to the Xerium Technologies, Inc.
(“XTI”) annual cash bonus plan from time to time in
effect for senior executives of XTI generally, it being understood
that effective immediately prior to the Company’s initial
public offering, the Company established a single such plan called
the Senior Executive Annual Incentive Plan. The amount and the
criteria for entitlement to the annual management bonus shall be
determined by the shareholder of the Company, or by the
compensation committee of the Board of Directors of XTI as such
shareholder’s designee on an annual basis. A paid bonus does
not represent an automatic entitlement for one or the following
years.
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(ii)
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The references
to MIC in Section IV and Section VII shall be deemed to be
references to annual cash bonus plans of XTI.
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3.
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This Agreement
may be amended or modified only by a written instrument signed by
Mr. Mayer and by an expressly authorized representative of each of
the Company and Xerium Germany Holding GmbH.
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4.
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This Agreement
may be executed in two or more counterparts, each of which shall be
an original and all of which together shall constitute one and the
same instrument.
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5.
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This is a
Massachusetts contract and shall be construed and enforced under
and be governed in all respects by the laws of the Commonwealth of
Massachusetts, without regard to the conflict of laws principles
thereof.
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[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT
BLANK.]
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IN WITNESS WHEREOF, this Agreement
has been executed as a sealed instrument by the Company, by its
duly authorized representative, and by the Mr. Mayer, as of the
date first above written.
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/s/ Josef Mayer
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Josef
Mayer
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XERIUM
TECHNOLOGIES, INC.
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By:
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/s/ MICHAEL P. O’DONNELL
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Name:
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Michael P.
O’Donnell
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Title:
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Executive Vice President & Chief Financial Officer
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XERIUM GERMANY
HOLDING GMBH
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By:
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/s/ THOMAS GUTIERREZ
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Name:
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Thomas
Gutierrez
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Title:
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Director
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Agreement
concerning
transfer of employment
contract
by and between
1. Firm Wangner
Beteiligungsgesellschaft mbH, Föhrstr. 39, 72760
Reutlingen;
2. Firm Xerium Germany Holding
GmbH, Föhrstr. 39, 72760 Reutlingen
and
Josef Mayer, Hölderlinstr.
20, 89134 Bläustein
- hereinafter called employee
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1. Transfer of employment
contract
1.1. the employment contract is
hereby transfered to XERIUM Germany Holding GmbH on 01.02.2005 with
the effect that it ceases to be valid between employee and Wangner
Beteiligungsgesellschaft mbH on 01.02.2005 and will be continued by
Xerium Germany Holding GmbH from this date onwards. Xerium Germany
Holding GmbH hereby accepts all rights and obligations from the
employment contract. Employee keeps all rights and Xerium Germany
Holding GmbH accepts to be bound by and undertakes to satisfy all
rights that employee has acquired under his former employment
contract with Wangner Beteiligungsgesellschaft mbH.
The employment of employee with the
predecessor of Xerium Group is 01.05.2001—such date shall be
considered as date of commencement of employment with Xerium
Germany Holding GmbH.
1.2. The employment of employee with
Xerium Germany Holding GmbH is governed by all terms, conditions
and contractual arrangements that had been agreed upon with Wangner
Beteiligungsgesellschaft mbH including all amendments and
supplements.
2. Miscellaneous
The agreement contains all of the
arrangements made between the parties in respect of the transfer.
Other arrangements have not been made niether orally nor in
writing.
2.2. All modifications and
supplements hereof shall be considered null and void if not made in
writing.
2.3. This agreement shall be subject
to the laws of the Federal Republic of Germany.
2.4. Any litigation shall be subject
to the jurisdiction at the corporate seat of the corporation
against which the claim is presented.
2.5. The employee confirms to have
received one original of this agreement.
2.6. In case of any discrepancies
between the German and the English text the German text shall
prevail.
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3/02/05
Datum/Date
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3/02/05
Datum/Date
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/s/ Thomas Gutierrez
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/s/ Thomas Gutierrez
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Thomas Gutierrez
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Thomas Gutierrez
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(Wangner Beteiligungsgesellschaft
mbH)
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(Xerium Germany
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