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Exhibit 10.37
SEVERANCE AGREEMENT
Agreement made this 29th day of November, 1995, by and between Fretter,
Inc., a Michigan Corporation (the "Company"), and ________________________ (the
"Employee").
BACKGROUND
Employee is currently employed by the Company in the position of
______________________________. In consideration of Employee's past, present
and future services to the Company, the Company desires to provide for the
payment of certain compensation to Employee upon the occurrence of certain
events, all as more fully set forth below.
In consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as follows:
1. TERM. This Agreement shall continue for a period beginning on the
date hereof and ending on the earliest of the following (as defined below,
hereinafter, the "Term"):
(a) the date Employee dies or becomes permanently disabled
(permanent disability, being defined as his failure to render services of
the character which he had previously rendered to the Company, because of
his physical or mental illness or other incapacity beyond his control,
for a significant period of time, as reasonably determined by the Board
of Directors of the Company or its chief executive officer;
(b) the date of termination of Employee's employment with the
Company for cause (as defined in Section 2);
(c) by mutual agreement of the Company and Employee; or
(d) upon the voluntary termination by Employee of Employee's
employment with the Company by resignation, retirement or otherwise.
2. CAUSE DEFINED. For purposes of this Agreement, termination by the
Company for "Cause" shall mean termination for any one of the following
reasons:
(a) the Employee's continued and deliberate neglect of his
employment duties as determined by the Board of Directors of the Company
or its chief executive officer;
(b) the Employee's use, possession, or distribution of illegal drugs
on Company property or during Company time, or evidence of habitual use
or distribution of such substances at any time;
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(c) deliberate misconduct of the Employee in connection with the
performance of his duties, including without limitation, violation of the
Company's express written policies, misappropriation of funds or property
of the Company, accepting bribes or kick-backs in connection with any
transaction entered into on behalf of the Company or disclosing
information of the Company known to be confidential;
(d) the Employee's failure to disclose to the Company any personal
interest he has in a Company transaction;
(e) conviction of Employee for any felony, fraud or embezzlement; or
(f) the willful engaging by the Employee in gross misconduct which
is likely to be injurious to the Company, monetarily or otherwise, in the
Company's reasonable judgement.
3. TERMINATION. In addition to the "incentive compensation bonus" more
fully described in Section 4(a), if, during the Term of this Agreement,
Employee's employment with the Company is terminated as set forth below, the
Company will pay to Employee "severance compensation" in the amount and manner
more fully described in Section 4(b):
(a) The Company terminates Employee's employment without Cause; or
(b) The Employee terminates Employee's employment due to the fact
that without Employee's consent: (i) the duties or responsibilities
assigned to Employee are substantially and materially reduced to a level
beneath that which Employee enjoys on the date which the Company notifies
Employee of such reduction in duties and responsibilities; (ii) the
duties and responsibilities assigned to Employee are substantially and
materially inconsistent with those which Employee has on the date which
the Company assigns such inconsistent duties and responsibilities; (iii)
Employee's base annual salary is materially reduced to a level below that
which Employee enjoys on the date of notification of such reduction; and
(iv) Employee's principal place of employment with the Company is changed
to a location greater than seventy-five (75) miles from Employee's
current principal place of employment with the Company on the date
hereof; provided however, that for any termination by Employee under this
Section 3(b), the Employee shall first have given the Company written
notice of Employee's intention to terminate his employment, specifying
the reason(s) therefor, and provided further, that the Company shall not
have cured or remedied the reason(s) specified in such notice prior the
expiration of ten (10) business days following receipt of notice by the
Company.
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4. COMPENSATION PAYMENTS TO EMPLOYEE.
(a) Incentive Compensation Bonus. Employee shall be entitled to
receive a bonus for each of the periods ending July 31, 1996 and December
31, 1996 (each, a "Bonus Payment Date") equal to $______ payable on each
Bonus Payment Date if, and only if, Employee is employed by the Company
as of the respective Bonus Payment Date. If Employee's employment with
the Company is terminated for reasons specified in Section 3, or the term
of this Agreement expires for the reason specified in Section 1(a), in
either case prior to a Bonus Payment Date, Employee shall be entitled to
a portion of the Incentive Compensation Bonus payable on such Bonus
Payment Date prorated for the period up to the date of Employee's
termination or Agreement expiration, in such case, payable in the same
manner as Severance Compensation, as particularly described in Section
4(b).
(b) Severance Compensation. If Employee's employment with the
Company is terminated for reasons specified in Section 3, then employee
shall be entitled to a one-time lump sum payment in the amount of
$_______, payable not later than 10 days from the date of Employees
termination.
5. WITHHOLDING. Company may withhold from any benefits payable under
this Agreement all federal, state, city or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
6. NONASSIGNABILITY. Neither this Agreement nor any right or interest
hereunder shall be assignable by Employee or his legal representatives.
7. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Company which may
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Company, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in this Agreement shall preclude the Company from consolidating or
merging into or with or transferring all or substantially all of its assets to
another person. In that event, such other person shall assume this Agreement
and all obligations of the Company hereunder. Upon such a consolidation,
merger, or transfer of assets and assumption, the term "Company" as used
herein, shall mean such other person and this Agreement shall continue in full
force and effect.
8. WAIVERS NOT TO BE CONTINUED. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver
or as a consent to any subsequent breach by the other party.
9. NOTICES. All notices, requests, demand and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mail, certified or
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registered mail, return receipt requested, with postage prepaid, to the
following addresses or to such other address as either party may designate by
like notice:
If to Employee, to:
______________________
______________________
______________________
If to the Company, to:
______________________
______________________
______________________
ATTN: _______________
With a copy to:
______________________
______________________
______________________
ATTN: _______________
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
10. GENERAL PROVISIONS.
(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and
replaces all prior agreements between the parties. No amendment,
supplement, waiver or termination hereof shall be binding unless reduced
to writing and executed by the parties hereto.
(b) This Agreement shall not limit or infringe upon the right of the
Company to terminate the employment of Employee at any time for any
reason, nor upon the right of Employee to terminate his employment with
the Company.
(c) The term "person" as used in this Agreement means a natural
person, joint venture, corporation, sole proprietorship, trust, estate,
partnership, cooperative, association, non-profit organization or any
other legally cognizable entity.
(d) No failure on the part of any party hereto to exercise and no
delay in exercising any right, power or remedy hereunder shall operate as
a waiver thereof; nor shall any
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single or partial exercise of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any
other rights, power or remedy.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict
or modify any of the terms or provisions hereof.
(f) This Agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the laws of
the State of Michigan applicable to contracts executed and to be
performed solely in the State of Michigan.
IN WITNESS WHEREOF, the parties have executed this Severance Agreement
as of the day and year first above written.
"COMPANY"
FRETTER, INC.
By: _________________________________
Its: ________________________________
"EMPLOYEE"
_____________________________________
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