SIMPSON INDUSTRIES, INC.
47603 Halyard Drive
Plymouth, Michigan 481702429
March 1, 1996
Mr. James B. Painter
Simpson Industries, Inc.
47603 Halyard Drive
Plymouth, Michigan 48170-2429
Dear Jim:
Simpson Industries, Inc. (the "Company") considers a dedicated and vital
management team to be essential for protecting and enhancing the best interests
of the Company and its shareholders. In this connection, the Company recognizes
that the possibility of a change in control may exist and that such possibility,
and the uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to the detriment
of the Company and its shareholders. Accordingly, the Board of Directors of the
Company (the "Board") has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's senior management, including yourself, to their assigned duties
without distraction in the face of the potentially disturbing circumstances
arising from the possibility of change in control of the Company.
This letter agreement sets forth the severance benefits which the Company agrees
will be provided to you in the event your employment with the Company is
terminated subsequent to a "Change in Control of the Company" (as defined in
Section 3 hereof) under the circumstances described below.
1. Company's Right to Terminate. The Company may terminate your employment at
any time, subject to providing the benefits hereinafter specified in accordance
with the terms hereof and subject to any other benefits which the Company has
agreed in writing to provide you.
2. Term of Agreement. This Agreement shall commence on the date hereof and
shall continue in effect until December 31, 1996; provided, however, that
commencing on January 1, 1997 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless at
least 30 days prior to such January 1 date, the Company shall have given notice
that it does not wish to extend this Agreement; and provided, further, that this
Agreement shall continue in effect beyond the term provided herein if a change
in control of the Company as defined in Section 3 hereof, shall have occurred
during such term.
3. Change in Control. No benefits shall be payable hereunder unless there
shall have been a change in control of the Company, as set forth below, and your
employment by the Company shall thereafter have been terminated in accordance
with Section 4 below. For purposes of this Agreement, a "Change in Control of
the Company" shall mean a Change in Control of a nature that would be required
to be reported in response to the requirements of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") provided that, without limitation, such a Change in Control shall be
deemed to have occurred if (i) any "person" [as such term is used in Sections
13(d) and 14(d) of the Exchange Act] is or becomes the "beneficial owner" (as
defined in Rule 13d3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25 percent or more of the combined voting
power of the Company's then outstanding securities; or (ii) during any period of
two consecutive calendar years, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at least a majority
thereof unless the election or the nomination for election by the Company's
shareholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
4. Termination Following Change in Control. If any of the events described in
Section 3 hereof constituting a Change in Control of the Company shall have
occurred, you shall be entitled to the benefits provided in Section 5 hereof
upon the subsequent termination of your employment within two years from the
date of such Change in Control unless such termination is (a) because of your
death, (b) by the Company for Cause or Disability or (c) by you other than for
Good Reason.
(i) Disability. Termination by the Company of your employment based on
"Disability" shall mean termination because of your absence from your duties
with the Company on a full time basis for 180 consecutive calendar days, as a
result of your incapacity due to physical or mental illness, unless within 30
days after Notice of Termination (as hereinafter defined) is given following
such absence you shall have returned to the full time performance of your
duties.
(ii) Cause. Termination by the Company of your employment for "Cause"
shall mean termination upon (A) the willful and continued failure by you to
substantially perform your duties with the Company (other than any such failure
resulting from your incapacity due to physical or mental illness), after a
demand for substantial performance is delivered to you by the Chief Executive
Officer of the Company or by the Chairman of the Board of Directors which
specifically identifies the manner in which such executive believes that you
have not substantially performed your duties, or (B) the willful engaging by you
in misconduct which is materially injurious to the Company, monetarily or
otherwise. For purposes of this paragraph, no act, or failure to act, on your
part shall be considered "willful" unless done, or omitted to be done, by you
not in good faith and without reasonable belief that your action or omission was
in the best interest of the Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to you a copy of a Notice of Termination from the Chief
Executive Officer of the Company after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Chief
Executive Officer, finding that in the good faith option of such executive you
were guilty of conduct set forth above in clauses (A) or (B) of the first
sentence of this paragraph and specifying the particulars thereof in detail.
(iii) Good Reason. Termination by you of your employment for "Good
Reason" shall mean termination based on:
(A) the assignment to you of any duties inconsistent with your
position, duties, responsibilities and status with the Company immediately prior
to a Change in Control, or a change in your reporting responsibilities, titles
or offices as in effect immediately prior to a Change in Control, or any removal
of you from or any failure to reelect you to any of such positions, except in
connection with the termination of your employment for Cause or Disability or as
a result of your death or by you other than for Good Reason;
(B) a reduction by the Company in your base salary as in effect on
the date hereof or as the same may be increased from time to time;
(C) a failure by the Company to continue the Company's incentive
bonus plans as the same may be modified from time to time but substantially in
the form currently in effect (the "Plans"), or a failure by the Company to
continue you as a participant in the Plans on at least the present basis or to
pay you the amounts which you would be entitled to receive based on the Com
pany's performance in accordance with the Plans;
(D) the Company's requiring you to be based anywhere other than
your present location or the Company's principal executive offices except for
required travel on the Company's business to an extent substantially consistent
with your present business travel obligations, or in the event you consent to
any such relocation, the failure by the Company to pay (or reimburse you for)
all reasonable moving expenses incurred by you or to indemnify you against any
loss realized in the sale of your principal residence in connection with any
such relocation;
(E) the failure by the Company to continue in effect any benefit,
retirement or compensation plan, savings and profit sharing plan, stock
ownership plan, stock purchase plan, stock option plan, life insurance plan,
health and accident plan, dental plan or disability plan in which you are
participating at the time of a Change in Control of the Company (or plans pro
viding you with no less favorable benefits), the taking of any action by the
Company which would adversely affect your participation in or materially reduce
your benefits under any of such plans or deprive you of any material fringe
benefit enjoyed by you at the time of the Change in Control, or the failure by
the Company to provide you with the number of paid vacation days to which you
are then entitled in accordance with the Company's normal vacation policy in
effect on the date hereof;
(F) the failure by the Company to obtain the assumption of the
agreement to perform this Agreement by any successor as contemplated in Section
6 hereof; or
(G) any purported termination of your employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of
paragraph (iv) below [and, if applicable, paragraph (ii) above]; and for
purposes of this Agreement, no such purported termination shall be effective.
(iv) Notice of Termination. Any purported termination by the
Company pursuant to paragraph (i) or (ii) above or by you pursuant to paragraph
(iii) above shall be communicated by written Notice of Termination to the other
party hereto. 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 your employment
under the provision so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A)
if your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
performance of your duties on a full-time basis during such 30 day period), (B)
if your employment is terminated pursuant to paragraph (ii) above, the date
specified in the Notice of Termination, and (C) if your employment is terminated
for any other reason, the date on which a Notice of Termination is given;
provided if within 30 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 agree ment 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).
5. Compensation upon Termination or During Disability.
(i) During any period that you fail to perform your duties hereunder as a
result of incapacity due to physical or mental illness, you shall continue to
receive your full base salary at the rate then in effect and any bonus payments
under the Plans paid during such period until this Agreement is terminated
pursuant to paragraph 4(i) hereof. Thereafter, your benefits shall be
determined in accordance with the Company's long-term disability plan then in
effect.
(ii) If your employment shall be terminated for Cause, the Company shall
pay you your 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 obligation to you under this Agreement.
(iii) If your employment by the Company shall be terminated (A) by the
Company other than for Cause or Disability or (B) by you for Good Reason, then
you shall be entitled to the benefits provided below:
(A) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is given
and the amount, if any, with respect to any year then ended which pursuant to
the Plans would have accrued to you on the basis of the Company's performance
but which has not yet been paid to you;
(B) From the date of Termination through a period of 24 months
following the Change in Control or until your normal retirement date (whichever
first occurs), you shall be entitled to receive as severance pay (i) a monthly
payment equal to your monthly salary for the last full month immediately
preceding termination, plus 1/12 of the average of the short-term incentive
bonus payments paid to you or accrued with respect to each of the two years
preceding termination; (ii) continued treatment as an "employee" under any stock
option, employee benefit or other compensation arrangement (for the remaining
period); (iii) full benefits under each employee welfare benefit plan in which
you were entitled to participate immediately prior to date of termination;
(iv) the right to immediately exercise in full all outstanding stock options;
(v) full credit under the Company's retirement plans for service through the
remaining period.
(C) The Company shall also pay to you all legal fees and expenses
incurred by you as a result of any controversy over this Agreement, to the
extent you are successful in legal proceedings against the Company.
(iv) Notwithstanding the foregoing, no payments shall be provided under
subsection (iii) to the extent that they would (A) constitute an "excess
parachute payment" under Section 280G of the Internal Revenue Code, (B)
disqualify an employee benefit plan or trust under the Internal Revenue Code, or
(C) cause an employee benefit plan or trust to violate the Employee Income
Retirement Security Act of 1974, as amended.
6. Successors; Binding Agreement.
(i) 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, to expressly assume 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 succession
shall be a breach of this Agreement and shall entitle you to compensation from
the Company in the same amount and on the same terms as you would be en titled
hereunder if you terminated your employment for Good Reason, 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 which executes and delivers
the agreement provided for in this paragraph 6 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
(ii) This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
be no such designee, to your estate.
7. Notice. For the purposes 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 or mailed by United States
registered mail, returned receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notices to the Company shall be directed to the attention to the Chief
Executive Officer of the Company with a copy to the Secretary of the Company, 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.
8. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by you and such officer as may be specifically designated by the Board of
Directors of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions 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 Michigan.
9. Validity. The invalidity or unenforceability of any provision 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.
10. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Oakland
County, Michigan in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award
in any court having jurisdiction.
To confirm your acceptance, kindly sign and return to the Company the enclosed
copy of this letter which will then constitute our agreement on this subject.
Sincerely,
SIMPSON INDUSTRIES, INC.
By:
Roy E. Parrott, President
Agreed to this
day of March , 1997
James B. Painter