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EXHIBIT 10.a
MASCOTECH, INC.
KEY EMPLOYEE RETENTION PLAN
Section 1. Purpose. The purpose of the MascoTech, Inc. Key Employee
Retention Plan (the "PLAN") is to promote the interests of MascoTech, Inc.
(including its subsidiaries and any successor to substantially all of its stock,
assets or business, the "COMPANY") and its stockholders by fostering the
continuous employment of certain of the Company's corporate headquarters
personnel, general managers and other key managers as designated by the
Committee. In recognition of the possibility of a Change of Control (as defined
below) and the uncertainty associated with such possibility which may result in
the departure or distraction of Participants to the detriment of the Company and
its stockholders, this Plan is intended to provide compensation security to
Participants and thereby (i) reinforce and encourage their continued attention
and dedication to their assigned duties (ii) and ensure their continued
availability to the Company in the event of a Change of Control.
Section 2. Definitions. As used in this Plan, the following terms shall
have the meanings indicated.
"BASE SEVERANCE AMOUNT" shall mean (i) the sum of (A) the annualized
base salary of a Participant as of the Effective Date or at the Date of
Termination whichever is greater and (B) the Target Bonus divided by (ii) twelve
(12).
"BOARD" means the Board of Directors of the Company.
"CAUSE" means (i) Participant's conviction of or plea of guilty or nolo
contendere to a crime involving moral turpitude or a crime (other than a minor
traffic or other minor violation) providing for a term of imprisonment, a
pattern of alcohol abuse (whether or not constituting a crime) or illegal
substance abuse on the part of Participant, or Participant's willful misconduct
in the performance of his duties to the Company or (ii) Participant's failure to
follow the instructions of the Company's Chairman of the Board of Directors or
the Company's Board of Directors or the executive officer of the Company to whom
Participant reports, or Participant's neglect of duties (other than any such
neglect resulting from incapacity of Participant due to physical or mental
illness), but in each such case only following 10 days' prior written notice
thereof from the Company which specifically identifies such failure or neglect
and the continuance of such failure or neglect during such notice period. The
Company must notify Participant of any event constituting Cause within 120 days
after the Company becomes aware of such event or such event shall not constitute
Cause for purposes of this Agreement; provided that a failure of the Company to
so notify Participant after the first occurrence of an event constituting Cause
shall not preclude any
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subsequent occurrences of such event (or a similar event) from constituting
Cause.
"CHANGE OF CONTROL" means the first of the following events to occur
following the date hereof:
(i) Any "person" or "group of persons", as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act, directly or indirectly
purchases or otherwise become the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) or has the right to acquire such
beneficial ownership (whether or not such right is exercisable
immediately, with the passage of time or subject to any condition) of
voting securities representing 50% or more of the combined voting power
of all outstanding voting securities of the Company; or
(ii) during any period of twenty-four consecutive calendar
months, the individuals who at the beginning of such period constitute
the Company's Board of Directors, and any new directors whose election
by such Board or nomination for election by stockholders was approved
by a vote of at least two-thirds of the members of such Board who were
either directors on such Board at the beginning of the period or whose
election or nomination for election as directors was previously so
approved, for any reason cease to constitute at least a majority of the
members thereof.
"COMPANY" has the meaning set forth in Section 1.
"EFFECTIVE DATE" has the meaning set forth in Section 4.
"EMPLOYEE" means any corporate headquarters employee, general manager
or key manager of the Company or any of its Subsidiaries as of the Effective
Date.
"EMPLOYEE RETENTION COMMITTEE" or "COMMITTEE" means a committee
consisting of Richard A. Manoogian, Timothy Wadhams and Daniel P. Tredwell and
any successor thereto appointed by a designee of Richard A. Manoogian, in the
case of Richard A. Manoogian's resignation from such committee, Richard A.
Manoogian, in the case of Timothy Wadhams' resignation from such committee, or
appointed by a designee of Daniel P. Tredwell, in the case of Daniel P.
Tredwell's resignation from such committee.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOOD REASON" means
(i) any change in a Participant's title (other than as a
result of a promotion or changes which would not be significant in
relationship to Participant's duties and responsibilities immediately
prior to the Effective
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Date) or a substantial reduction or substantial change in a
Participant's duties or responsibilities from the scope of duties and
responsibilities associated with the position of a Participant prior to
the Effective Date;
(ii) any reduction in base salary or bonus opportunity, or the
failure to pay Participant a bonus determined in substantially the same
manner as the Company's or applicable subsidiary's past practice or in
such other manner that is approved by the Plan Administrator;
(iii) relocation to an office or other place of employment
more than thirty-five (35) miles from the office or other place of
employment where Participant is working immediately prior to the
Effective Date, unless such relocation would result in a shorter
commute to such Participant than his or her pre-Effective Date commute;
or
(iv) the failure of the Company to obtain the assumption of
its obligations hereunder pursuant to Section 10(g) of this Agreement.
Participant must notify the Company of any event constituting Good
Reason within 120 days after Participant becomes aware of such event or such
event shall not constitute Good Reason for purposes of this Plan; provided that
a failure of Participant to so notify the Company after the first occurrence of
an event constituting Good Reason shall not preclude any subsequent occurrences
of such event (or similar event) from constituting Good Reason.
"MULTIPLE" means the number set forth as Multiple in each Participant's
Retention Notice, which shall not be greater than 24.
"NON-COMPETE TERM" means, with respect to each Participant, from the
date hereof until the Multiple number of months following such Participant's
Date of Termination; provided, however, if the Multiple is increased pursuant to
the provisions of Section 6(a)(i), the Non-Compete Terms shall be extended by a
like number of months, but in no case shall the Non-Compete Term exceed 24
months.
"PARTICIPANT" means any Employee selected by the Plan Administrator to
receive benefits under this Plan.
"PLAN ADMINISTRATOR" means the Employee Retention Committee.
"RETENTION NOTICE" means a notice by the Company informing a
Participant as to his or her benefits under this Plan.
"TARGET BONUS" means, with respect to any Participant, the amount set
forth in each Participant's Retention Notice.
Section 3. Administration. (a) The Plan Administrator shall administer
this Plan, and furnish all notices and do all filings, according to law, and
shall
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have the power to implement, operate and interpret this Plan and, further,
to take such other action and to make such final determinations as the Plan
Administrator deems equitable under the circumstances in light of the purpose of
this Plan.
(b) The Company recognizes the express authority of the Plan
Administrator to administer the Plan, and hereby agrees to implement any
decisions of the Plan Administrator with respect to the Plan as if such
decisions were its own. In the event that the Company fails to implement any
decision of the Plan Administrator with respect to any Participant within thirty
(30) days of notification of such decision, all equity awards held by such
Participant shall vest.
(c) Any Participant whose employment has been terminated and who
believes he or she is entitled to a benefit under this Plan but who has not been
advised of such benefit or who believes that the calculation of the benefit is
in error shall file a claim to the Plan Administrator. The claim should be filed
within sixty (60) days of the date on which the Employee had been advised of the
Employee's scheduled termination or within sixty (60) days of the date that the
Employee has learned the amount of the benefit under this Plan, or that there
will be no benefit. The claim shall be in writing, signed by the Participant,
dated, and briefly explain the basis for the claim. Claims shall be decided by
the Plan Administrator and a written response to the claim shall be sent to the
Participant, within sixty (60) days of the date on which the claim was received
by the Committee.
(d) Any Participant not satisfied by the disposition of the claim by
the Plan Administrator shall have the right to appeal to the Plan Administrator.
A Participant's appeal must be filed within sixty (60) days following the denial
of the claim. The appeal shall be in writing and shall include a copy of the
previous claim made to the Plan Administrator and the previous decision by the
Plan Administrator. It shall briefly explain why the Participant believes that
the decision by the Plan Administrator was in error. The appeal shall be filed
by certified mail or in person to the Plan Administrator at the address set
forth in Section 10(i). Appeals shall be decided by the Plan Administrator,
whose determination shall be final and binding on the Participant, the Company
and the Committee, and a written response to the appeal sent to the Participant,
within sixty (60) days of the date on which the notice of appeal was received by
the Committee.
Section 4. Term of Plan. This Plan shall be in effect from the date of
a Change of Control (the "EFFECTIVE DATE") until the date two years following a
Change of Control, ("TERM OF PLAN") provided that the Plan shall terminate and
be of no further significance if no Change of Control has occurred by December
31, 2001; provided, further, that notwithstanding the foregoing, (i) Section 8
of this Plan shall survive the termination of this Plan, (ii) Section 9 of this
Plan shall be in effect until the latest date following the Effective Date upon
which may occur the final vesting of any Participant's incentive stock awards
which are outstanding on the date hereof or which are granted with respect to
the year 2000
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and (iii) the Plan Administrator shall continue in existence for any period that
any Participant continues to have any rights under this Plan.
Section 5. Eligibility. Each Employee designated by the Committee shall
be a Participant.
Section 6. Severance. Each Participant shall be entitled to the
following benefits in connection with his or her termination of employment which
occurs during the Term of the Plan:
(a) Without Cause by the Company or by the Participant with Good
Reason. If a Participant's employment with the Company is terminated during the
Term of this Plan by the Company without Cause (other than by reason of
disability, as disability is defined under the Company's long-term disability
program ("DISABILITY"), or death) or by the Participant with Good Reason, in
lieu of any other severance benefits to which such Participant would be entitled
under any other plans, programs or practices of the Company (which other
severance benefits the Participant shall waive as a condition of receipt of the
following benefits, or else the following benefits shall be reduced (but not
below zero) in equal measure to such other severance benefits), such Participant
shall be entitled to the following benefits:
(i) The Company shall pay such Participant, (A) unpaid base
salary and unpaid vacation accrued through the date of such termination
of employment (the "DATE OF TERMINATION"), (B) any prior year bonus
earned but not paid, (C) the Target Bonus for the year of termination
(unless termination occurs in calendar year 2000, in which case the
entitlement would be to the earned bonus rather than the Target Bonus),
pro-rated through the Date of Termination and (D) severance in an
amount determined by the Plan Administrator which shall be no less than
an amount equal to the Multiple times the Base Severance Amount (the
"MINIMUM SEVERANCE AMOUNT") in equal monthly payments from the Date of
Termination; provided, however, in the Committee's discretion in
individual cases, the Multiple may be increased by no more than six;
provided, further, that any such increased multiple may not exceed 30
and the Maximum Severance Amount obtained as the product of such
increased multiple times the Base Severance Amount shall not exceed
200% of such Participant's total W-2 earnings for the 12 month period
immediately preceding the Participant's Date of Termination. The number
of such payments shall not exceed the lesser of 24, or the increased
multiple or the Multiple (as the case may be). Notwithstanding the
foregoing, if such Participant dies during the period severance is
being paid, any remaining payments hereunder will be made in a lump sum
benefit to such person or persons as the Committee determines to be the
Participant's beneficiary within thirty (30) days of notification to
the Committee of such Participant's death;
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(ii) In the discretion of the Committee, a Participant may be
provided medical benefits, or cash in lieu thereof, and outplacement
services following the Date of Termination for a period of time, which
in neither case may be greater than for the Multiple number of months
following such Date of Termination. Notwithstanding the foregoing,
outplacement and medical benefits shall terminate, at the time a
Participant obtains a job and becomes eligible for group coverage under
an employer's plan providing substantially comparable benefits to those
he or she is currently receiving from the Company or its subsidiaries;
(iii) Notwithstanding contrary terms of any stock incentive
plan or award agreement, any stock incentive awards held by Participant
for shares of the Company's common stock that have not vested as of the
Date of Termination shall continue to stay outstanding and vest as if
the Participant's employment had not terminated, provided that all
other provisions of such plan and awards shall continue in full force
and effect;
(iv) The Plan Administrator may provide for accelerated
vesting or service credit utilizing the benefit formula under the
Company's pension plan and provide that payments reflecting such
supplemental benefits be paid directly by the Company or through the
Company's qualified or non-qualified pension plans; and
(v) Such Participant shall receive any other benefits accrued
to the Date of Termination under other plans or programs of the Company
or its subsidiaries in which he or she is then currently participating,
in accordance with their terms.
Other than the benefits set forth in this Section 6(a), the Company and
its affiliates will have no further obligations under this Plan with respect to
such Participant following such Date of Termination.
(b) For Death or Disability. If a Participant's employment is
terminated during the Term of this Plan by reason of a Participant's death or
Disability, such Participant or his or her beneficiary shall be entitled to the
following benefits:
(i) The Company shall pay to or on behalf of such Participant,
on terms determined by the Plan Administrator, (A) unpaid base salary
and unpaid vacation accrued through the Date of Termination, (B) any
prior year bonus earned but not paid and (C) the Target Bonus for the
year of termination (unless termination occurs in calendar year 2000,
in which case the entitlement would be to the earned bonus rather than
the Target Bonus), pro-rated through the Date of Termination;
(ii) Notwithstanding contrary terms of any stock incentive
plan or award agreement, (A) in the event of a termination by reason of
a Participant's death, any stock incentive awards held by such
Participant
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for shares of the Company's common stock shall automatically vest as of
the date of such termination and (B) in the event of a termination by
reason of a Participant's Disability, any stock incentive awards held
by such Participant for shares of the Company's common stock that have
not vested as of the Date of Termination shall continue to stay
outstanding and vest in accordance with their terms as if the
Participant's employment had not terminated, provided that all other
provisions of such plan and awards shall continue in full force and
effect; and
(iii) Such Participant shall receive any other benefits
accrued to the Date of Termination under other plans or programs of the
Company or its subsidiaries in which he or she is then currently
participating, in accordance with their terms.
Other than the benefits set forth in this Section 6(b), the Company and its
affiliates will have no further obligations under this Plan with respect to such
Participant following such Date of Termination.
(c) Any Other Termination. If a Participant is terminated during the
Term of this Plan for any reason other than set forth in Section 6(a) or 6(b),
such Participant shall be entitled to receive his or her unpaid base salary and
unpaid vacation accrued through the Date of Termination, any prior year bonus
earned but not paid, payable in a lump sum within ten days of the Date of
Termination, and any other benefits accrued to the Date of Termination under
other plans and programs of the Company and its subsidiaries in which he or she
is then currently participating, in accordance with their terms, and the Company
and its affiliates will have no further obligations under this Plan with respect
to such Participant following the Date of Termination.
(d) Notice of Termination. Any termination of employment by the
Company or by a Participant during the Term of this Plan shall be communicated
by written notice by the party taking such action to the other party in
accordance with Section 10(i) hereof, which notice shall indicate the specific
termination provision in this Plan 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.
(e) Gross-Up in connection with a Change of Control. In the event
that, as a result of the severance payments to which he or she becomes entitled
by reason of a Change of Control pursuant to the terms hereof or the terms of
any other agreement (including but not limited to the accelerated vesting of
stock options), a Participant becomes subject to excise tax (the "EXCISE TAX")
under Section 4999 of the Internal Revenue Code of 1986, as amended (the
"CODE"), the Company shall pay to such Participant as additional compensation an
amount (the "GROSS-UP PAYMENT") equal to an amount which, after payment by such
Participant of all taxes (including any federal, state and local income tax and
excise tax upon such amount) would allow such Participant to retain for use in
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paying the Excise Tax an amount equal to the Excise Tax, unless, if the
reduction of the severance payments hereunder to such Participant by no more
than 5% would avoid the imposition of Excise Tax, then the Company shall so
reduce such severance payments to a Participant and no Gross-up Payment will be
made.
For purposes of determining whether a Participant will be subject to
the Excise Tax and the amount of such Excise Tax, the following criteria shall
apply:
(i) All determinations required to be made under this Section
6(e) shall be made by the Company's independent auditors (the
"ACCOUNTING FIRM"), which shall provide detailed supporting
calculations to both the Company and the Participant within fifteen
(15) business days after the date of termination of the Participant's
employment or such earlier time as is requested by the Company,
provided that any determination that an Excise Tax is payable by the
Participant shall be made on the basis of substantial authority. If the
Accounting Firm determines that no Excise Tax is payable by the
Participant, it shall furnish the Participant with a written opinion
that the Participant has substantial authority not to record any Excise
Tax on his or her federal income tax return. Any determination by the
Accounting Firm meeting the requirements of this Section 6(e)(i) shall,
subject to possible adjustment as set forth in Section 6(e)(iii) below,
be binding upon the Company and the Participant.
(ii) The value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Accounting Firm in
accordance with the principles of Sections 280G(d)(3) and (4) of the
Code. For purposes of determining the amount of the Gross-Up Payment,
such Participant shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year
in which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and
locality of such Participant's residence on the date on which the
Excise Tax is incurred, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local
taxes.
(iii) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder,
such Participant shall repay to the Company, at the time that the
amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus
that portion of the Gross-Up Payment attributable to the Excise Tax and
federal, state and local income tax deduction) plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B)
of the Code. In the event that the Excise Tax is determined to exceed
the amount taken into account hereunder (including by reason of any
payment the existence or amount of which cannot be determined at the
time of the Gross-Up Payment), the Company shall make an additional
payment in respect of an amount equal
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to such excess (plus any interest, penalties or additions payable by
such Participant with respect to such excess) at the time that the
amount of such excess finally is determined. In the case of any payment
that the Company is required to make to a Participant pursuant to the
preceding sentence (a "LATER PAYMENT"), the Company shall also pay to
such Participant an additional amount such that after payment by such
Participant of all applicable Federal, state and local taxes, including
any interest, penalties or additions assessed by any taxing authority,
on such Later Payment, such Participant will retain an amount equal to
the Later Payment. Such Participant and the Company each shall
reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax.
Notwithstanding any provision of this Plan to the contrary, a
Participant shall pay his or her ordinary federal, state and local income taxes
to which he or she is subject as a result of the payments to which he or she
becomes entitled by reason of a Change of Control pursuant to the terms hereof
or the terms of any other agreement (including but not limited to the
accelerated vesting of stock options or restricted stock).
Section 7. Mitigation. (a) Participants shall not be required to
mitigate the amount of any payment provided for under this Plan by seeking other
employment or otherwise, nor will any payments hereunder be subject to offset in
respect of any claims which the Company may have against any Participant, nor,
except as provided in subparagraph (ii) of Section 6(a) or as set forth in (b)
and (c) below, shall the amount of any payment or benefit provided for in this
Plan be reduced by any compensation earned as a result of a Participant's
employment with another employer.
(b) In the discretion of the Plan Administrator, if a Participant is
offered employment by Masco Corporation ("MASCO") comparable to that which he or
she holds immediately prior to the Change of Control, notwithstanding any other
provision hereof, such Participant shall not be entitled to any severance
benefits hereunder.
(c) In the discretion of the Plan Administrator, if a Participant
accepts employment other than with Masco comparable to that which he or she
holds prior to the Change of Control, such Participant shall, to the extent he
or she is otherwise entitled, be entitled to (i) full severance benefits
pursuant to Section 6 hereof limited to the period prior to the date he or she
begins to earn compensation for such employment (the "DATE OF EMPLOYMENT") and
(ii) one-half the severance benefits set forth in Section 6 hereof for the
period following such Date of Employment. Notwithstanding the foregoing, in no
case shall the amount of severance benefits payable to a Participant be less
than an amount determined as a Multiple of six times the Base Severance Amount.
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Section 8. Condition to Receipt of Benefits. As a condition to the
receipt of the benefits described in Section 6 hereof, each Participant is
required to execute an agreement pursuant to which such Participant releases any
claims he or she may have against the Company and agrees to be subject to the
following restrictive covenants.
(a) Each Participant, in acknowledgment and recognition of the highly
competitive nature of the business of the Company and its affiliates, and in
consideration of the benefits under this Plan, during the Non-Compete Term, will
not, engage, either directly or indirectly, as an employee, consultant or
independent contractor, as a principal for his or her own account or jointly
with others, or as a stockholder in any corporation or joint stock association,
in any business other than the Company or its subsidiaries which designs,
develops, manufactures, distributes, sells or markets the type of products or
services sold, distributed or provided by the Company or its subsidiaries during
the two year period prior to the Date of Termination (the "BUSINESS"); provided,
that nothing contained herein shall prevent a Participant from owning, directly
or indirectly, not more than five percent of the outstanding shares of, or any
other equity interest in, any entity engaged in the Business and listed or
traded on a national securities exchanges or in an over-the-counter securities
market. Notwithstanding the foregoing, in the event that the Company terminates
a Participant other than for Cause, or if a Participant terminates employment
with Good Reason, such Participant may elect at any time after such termination
by ten days advance written notice to the Company, to be relieved of the
provisions of this Section 8(a) by waiving his or her rights to any rights or
benefits hereunder.
(b) Each Participant, during the Non-Compete Term, will not (i)
directly or indirectly employ or solicit, or receive or accept the performance
of services by, any active employee of the Company or any of its subsidiaries
who is employed primarily in connection with the Business, except in connection
with general, non-targeted recruitment efforts such as advertisements and job
listings or directly or indirectly induce any employee of the Company to leave
the Company, or assist in any of the foregoing or (ii) solicit for business
(relating to the Business) any person who is a customer or former customer of
the Company or any of its subsidiaries, unless such person shall have ceased to
have been such a customer for a period of at least six months.
(c) Each Participant will not at any time (whether during or after his
or her employment with the Company) disclose or use for his or her own benefit
or purposes or the benefit or purposes of any other person, firm, partnership,
joint venture, association, corporation or other business organization, entity
or enterprise other than the Company and any of its subsidiaries or affiliates,
any trade secrets, information, data, or other confidential information relating
to customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, financing methods, plans, or
the business and affairs of the Company generally, or of any subsidiary or
affiliate of the Company, unless required to do so by applicable law or court
order, subpoena
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or decree or otherwise required by law, with reasonable evidence of such
determination promptly provided to the Company. The preceding sentence of this
paragraph (c) shall not apply to information which is not unique to the Company
or which is generally known to the industry or the public other than as a result
of a Participant's breach of this covenant. Upon termination of his or her
employment with the Company for any reason, each Participant will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom, in any way relating to the
business of the Company and its affiliates, except that he or she may retain
personal notes, notebooks and diaries. Each Participant will not retain or use
for his or her account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business
of the Company or its affiliates.
(d) If a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
the covenant in this Section 8 is an unenforceable restriction against a
Participant, the provisions of the covenant in this Section 8 shall not be
rendered void but shall be deemed amended to apply to such Participant as to
such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any
tribunal of competent jurisdiction finds that any restriction contained in this
Plan is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein to which a Participant is subject.
(e) Because the Company's remedies at law for a breach or threatened
breach of any of the provisions of this Section 8 would be inadequate, 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 seek 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.
Notwithstanding any provision of this Plan to the contrary, from and
after any breach by any Participant of the covenants in this Section 8 to which
such Participant is subject, the Company shall cease to have any obligations to
make payments or provide benefits to such Participant under this Plan.
Section 9. Termination of Employment More Than Two Years After a Change
of Control. If a Participant's employment is terminated without Cause or for
Good Reason during the period following the second anniversary of the Effective
Date and ending on the latest date upon which may occur the final vesting of any
Participant's incentive stock awards which are outstanding on the date hereof or
which are granted with respect to the year 2000, notwithstanding the terms of
any stock incentive plan or award agreement, (i) such Participant shall be
entitled to receive (A) his or her unpaid base salary and unpaid vacation
accrued through the Date of Termination, (B) any bonus earned but not paid for
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the most recently completed bonus period, and (C) a pro rata portion of the
Target Bonus for the bonus period through the Date of Termination, all of the
foregoing payable in a lump sum within ten days of the Date of Termination, and
(D) any other benefits accrued through the Date of Termination under other plans
and programs of the Company in which he or she is then currently participating,
in accordance with their terms, (ii) any stock incentive awards held by
Participant for shares of the Company's common stock that have not vested as of
the Date of Termination shall continue to stay outstanding and vest in
accordance with their terms as if the Participant's employment had not
terminated, provided that all other provisions of such plan and awards shall
continue in full force and effect, and (iii) the Company and its subsidiaries
will have no further obligations hereunder with respect to Participant following
the Date of Termination.
Section 10. Miscellaneous.
(a) Governing Law. This Plan shall be governed by and construed in
accordance with the laws of Michigan to the extent not preempted by ERISA.
(b) Amendment and Termination. The Board may not amend, alter,
suspend, discontinue, or terminate the Plan or any portion thereof at any time;
provided, however, that the Plan Administrator may amend, alter, suspend,
discontinue or terminate the Plan with the consent of the Company if any such
amendment, alteration, suspension, discontinuance, cancellation or termination
would not adversely affect the rights of the Participants.
(c) No Waiver. The failure of the Company or any Participant to insist
upon strict adherence to any term of this Plan 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 Plan.
(d) Severability. In the event that any one or more of the provisions
of this Plan shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Plan outstanding shall not be affected thereby.
(e) Arbitration. Except as provided in Section 8 hereof, any dispute
arising from or relating to the terms of this Plan will be submitted to
arbitration in Michigan under the auspices of and pursuant to the employment
rules of the American Arbitration Association. The determination of the
arbitrator(s) shall be conclusive and binding on the Company, Committee and each
Participant, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
(f) Attorneys Fees. In the event of a dispute by the Company,
Participant or others as to the validity or enforceability of, or liability
under, any provision of this Plan, the Company shall reimburse Participant for
(i) all
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reasonable legal fees and expenses incurred by him or her in connection
with such dispute if the Participant substantially prevails in the dispute and
(ii) if Participant has not substantially prevailed as set forth in (i),
one-half the amount of all reasonable legal fees and expenses incurred by him or
her in connection with such dispute except to the extent Participant's position
is found by a tribunal of competent jurisdiction to have been frivolous.
(g) Assumption of Plan. The Company shall require any successor to
substantially all of the stock, assets or business of the Company or any
acquiror of any business of the Company which employs any Participant to assume
this Plan with respect to such Participant.
(h) Successors. This Plan shall inure to the benefit of and be binding
upon the personal or legal representatives, executors, administrators,
successors, including successors to all or substantially all of the stock,
business and/or assets of the Company and the heirs, distributees, devisees and
legatees of Participants.
(i) Notice. For the purpose of this Plan, notices and all other
communications provided for in this Plan shall be in writing and shall be deemed
to have been duly given when delivered or mailed by United States certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the payroll records of the Company and all notices to the
Plan Administrator shall be directed to the Employee Retention Committee c/o the
Company at MascoTech, Inc., 21001 Van Born Road, Taylor, Michigan 48180, Fax:
(313) 792-6135, with a copy to the General Counsel 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.
(j) Withholding Taxes. The Company may withhold from any amounts
payable under this Plan such U.S. federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
Adopted as of September 28, 2000
MASCOTECH, INC.
/s/ Richard A. Manoogian
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Chairman
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