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Exhibit 10.27 - Amendment to Letter Agreement with Vinod M. Khilnani
JUNE 23, 2000
Vinod M. Khilnani
Simpson Industries, Inc.
47603 Halyard Drive
Plymouth, MI 48170-2429
Re: Change in Control Agreement Modification
Dear Vinod:
As you are aware, the Board of Directors of Simpson Industries, Inc. (the
"Company") previously determined that you should be protected in the event of a
Change in Control of the Company, and you received a letter from me dated
September 1, 1997 setting forth the terms of compensation that you would receive
if your employment is terminated pursuant to a Change in Control (the
"Agreement"). Recently, the Board of Directors reviewed the terms of the
Company's Change in Control provisions, which have been in effect for a long
period of time, and concluded that the individual agreements should be updated
to reflect the current economic environment. For purposes of this letter,
"Change in Control" has the same definition as set forth in Section 3 of your
Agreement.
This letter is intended to constitute an amendment to your Agreement and
describes certain changes in the benefits that will be provided to you if your
employment is terminated pursuant to a Change in Control. Unless specifically
addressed in this letter, the terms in your Agreement will remain unchanged.
3. Subsection (iii)(B) of Section 5 - Compensation upon Termination
or During Disability is amended and restated in its entirety to
read as follows:
(iii) (B) You shall be entitled to receive as severance pay
(a) a lump sum payment to be made within 30 days of your Date of
Termination in an amount equal to 30 months of your base monthly
compensation, as in effect on the Date of Termination, plus the
average of the actual short-term incentive bonus payments made to
you during the two years prior to the Date of Termination, divided
by 12 and multiplied by 30, reduced by applicable income and
employment tax withholding requirements; (b) full benefits for up
to 30 months under each employee welfare benefit plan in which you
were entitled to participate immediately prior to the Date of
Termination, with the health and dental continuation coverage to
run concurrently with your COBRA rights; (c) vesting credit up to
a maximum of 30 months under the Company's Supplemental Executive
Retirement Plan; and (d) 100% vesting in all
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outstanding stock options that were granted to you prior to the
Change in Control under any of the Company's stock plans.
4. Subsection (iv) of Section 5 - Compensation upon Termination or
During Disability is amended and restated in its entirety to read
as follows:
(iv) Notwithstanding the foregoing, no benefits shall be
provided under subsection (iii) to the extent (a) that the
aggregate present value of any "parachute payments" provided to
you under this Agreement (determined under Section 280G of the
Internal Revenue Code of 1986, as amended [the "Code"]), when
aggregated with parachute payments to you under all other Company
plans, programs or agreements, exceeds 2.99 times your "base
amount," as defined under Code Section 280G and the regulations
thereunder, in which case, the amounts payable under this
Agreement, when aggregated with your other parachute payments,
shall be reduced until the present value of your aggregate
parachute payments does not exceed 2.99 times the base amount; (b)
they would disqualify an employee benefit plan under the Code; (c)
they would cause an employee benefit plan to violate the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); or
(d) they would be denied by the insurance carrier that provides
such coverage to the Company. Health and dental benefits shall
cease upon eligibility through another employer's plan.
3. Section 10 - Arbitration is amended and restated in its entirety
to read as follows:
10. Arbitration. Any dispute or controversy arising under
or in connection with this Agreement (except as set forth in
Section 11 below), shall be settled exclusively by arbitration in
Oakland County, Michigan in accordance with the American
Arbitration Association's National Rules for the Resolution of
Employment Disputes. The arbitrator shall not have jurisdiction or
authority to change, add to or subtract from any of the provisions
of this Agreement. The parties to this Agreement hereby
acknowledge that with arbitration as the exclusive remedy with
respect to any grievance hereunder (except as set forth in Section
11 below), neither party has the right to resort to any Federal,
state or local court or administrative agency concerning breaches
of this Agreement (except as set forth in Section 11 below), and
that the decision of the arbitrator shall be a complete defense to
any suit, action or proceeding instituted in any Federal, state or
local court or before any administrative agency with respect to
any dispute which is arbitrable as set forth herein. The decision
of the arbitrator shall be final and enforceable in any court of
competent jurisdiction.
4. Section 11 - Covenant Not to Compete shall be added to the
Agreement to read as follows:
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11. Covenant Not to Compete.
(vi) During the term of your employment with the Company
and for a period of 30 months after your termination
of employment with the Company for any reason, or
for such shorter period as the Company may agree in
writing, you shall not directly or indirectly engage
in any activity, whether on your own behalf or as an
employee, consultant or independent contractor of
any other person or entity which competes with the
Company within North America for the development,
production or sale of any product, material or
process to be sold, produced or used by the Company
during the course of your employment with the
Company, including any product, material or process
which may be under development by the Company during
the course of your employment with the Company and
of which you have, or hereafter may gain, knowledge.
(vii) You agree that the covenant not to compete set forth
above shall not impose undue hardship on you and is
reasonable in both geographic scope and duration in
view of: (a) the Company's legitimate interest in
protecting proprietary information, the disclosure
of which to the Company's competitors would
substantially and unfairly impair the Company's
ability to compete in the marketplace or
substantially and unfairly benefit the Company's
competitors; (b) the specialized training and
experience that continues to be provided to you by
the Company in the course of your employment with
the Company; (c) the fact that the services rendered
by you on behalf of the Company are specialized,
unique and extraordinary; (d) the fact that the
Company directly competes within North America in
the sale, production and development of products,
materials and processes; and (e) the good and
valuable consideration provided to you by the
Company.
(viii) During the term of your employment with the Company
and for a period of 30 months after your termination
of employment with the Company for any reason, you
shall not employ, hire, solicit, induce, or attempt
to employ, hire, solicit, or induce for employment,
directly or indirectly any employee(s) of the
Company to leave his or her employment and become an
employee, consultant or representative of
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any other entity, including but not limited to you
or your new employer, if any.
(ix) The covenant not to compete set forth herein is of a
special, unique, extraordinary and intellectual
character, which gives the Company a peculiar value,
the loss of which cannot be reasonably or adequately
compensated for in damages in an action at law. A
breach by you of the covenant not to compete shall
cause the Company great and irreparable injury and
damage. Therefore, the Company will be entitled to
injunctive relief, specific performance and other
equitable relief to prevent your breach of the
covenant not to compete. This subsection shall not,
however, be construed to constitute a waiver of any
of the rights which the Company may have for damages
or otherwise.
(x) This covenant not to compete inures to the benefit
of the Company and any successors and assigns of the
Company.
To confirm your acceptance of the terms of this letter as a valid
modification to your Agreement, kindly sign and return to the Company the
enclosed copy of this letter.
Sincerely,
SIMPSON INDUSTRIES, INC.
By:
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Roy E. Parrott, CEO and Chairman
Agreed to this 23rd day of June, 2000
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Vinod M. Khilnani