EXHIBIT 10.22
Execution Copy
Employment Letter
December 20, 2006
Xx. Xxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
Please allow this letter to serve as the entire agreement between Dura
Automotive Systems (the "Company") and you, Xxxxx X. Xxxxxxx (the "Employee")
with respect to certain aspects of your employment with the Company. The Company
acknowledges and agrees that the Employee is and will remain a Partner of, and
has and will retain an interest in, Xxxxx, LLC ("Xxxxx"), which will benefit the
Company in that the Employee will have access to certain Xxxxx resources.
The Company is currently operating as a debtor-in-possession under chapter 11 of
the United States Code (the "Bankruptcy Code"), with its case currently pending
before the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court"). This agreement remains subject to approval of the
Bankruptcy Court, and upon such approval, will be effective as of December 9,
2006.
Beginning Date
The Employee will work for the Company beginning on December 9, 2006 ("Beginning
Date").
Position and Duties
During the term of employment, the Employee will be employed as the Chief
Financial Officer of the Company and shall perform all duties as are consistent
therewith as the Chief Executive Officer or the Board of Directors of the
Company shall designate. The Employee shall report directly to the Company's
Chief Executive Officer. Notwithstanding the foregoing, the Company acknowledges
that the Employee shall not be required to sign any financial statements or
other certifications required by the Principal Accounting Officer or Principal
Financial Officer until such time as the Employee is comfortable with taking on
such responsibility; provided, however, that the Employee shall notify the
Company not later than February 15, 2007, whether he will sign the certification
which must be provided by the Principal Financial Officer of the Company for the
Report on Form 10-K for the year ending December 31, 2006. In the event that the
Employee does not agree to sign the certification for the Report on Form 10-K by
February 15 2007, he will cease to serve as Chief Financial Officer of the
Company as of March 1, 2007.
During his employment, the Employee shall devote his full time and attention and
expend his best efforts, energies and skills on behalf of the Company in the
performance of the foregoing duties and responsibilities.
Compensation
The Company shall pay to the Employee a salary of $43,200 a month ("Salary")
payable in accordance with the Company's normal payroll periods and procedures,
but no less frequently than on a semi-monthly basis. The Employee's Salary may
be increased from time to time by the Company in its discretion. Should the
Company elect to terminate this agreement within 90 days of the Beginning Date,
the Company will pay the Employee an early termination fee ("Early Termination
Fee") in an amount such that the total of Salary and Early Termination Fee paid
is equal to $2,250 per day worked by the Employee from the Beginning Date to
such date of termination of this agreement. The Early Termination fee, if any,
will be paid to the Employee upon a termination of this agreement that occurs
within 90 days of the Beginning Date.
Other Compensation Provisions:
During the course of the Employee's employment hereunder, the Employee will
remain a Partner of Xxxxx. As a Partner of Xxxxx, Employee will share with Xxxxx
a portion of his or her economic interest in any stock options or equity bonus
that the Company may, in its discretion, grant the Employee and may also share
with Xxxxx a portion of any cash bonus and severance the Company may, in its
discretion, pay the Employee, but only to the extent specified in that certain
Interim Engagement Resources Agreement between the Company and Xxxxx (the
"Resources Agreement"). The Company acknowledges and consents to such
arrangement.
The Company will promptly reimburse the Employee directly for reasonable travel
and out-of-pocket business expenses in accordance with the expense reimbursement
policies and procedures of the Company and a per diem of $50.00. All
reimbursement of expenses shall occur within 14 days of submission of expense
reports to the Company. Reasonable travel and out-of-pocket expenses will
include but not be limited to coach-class transportation to and from Minneapolis
and Detroit on a weekly basis, a corporate apartment, access to a local health
club agreeable to both the Company and the Employee, and local transportation.
Benefits
The Employee will be eligible for (1) any 401(k) plan offered to senior
management of the Company in accordance with the terms and conditions of such
401(k) plan, (2) holidays consistent with the Company's policy as it applies to
senior management, and (3) vacation accrued at 1.67 days per month. The Employee
will be exempt from any waiting periods required for eligibility under any
benefit plan of the Company, other than a qualified retirement plan or if such
exemption would otherwise cause impermissible discrimination under the income
tax laws applicable to employee benefit plans.
The Employee must receive written evidence that the Company maintains directors'
and officers' insurance to cover him in an amount comparable to that provided to
senior management of the Company at no additional cost to the Employee, and the
Company will maintain such insurance at all times while this agreement remains
in effect.
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Furthermore, the Company will maintain such insurance coverage with respect to
occurrences arising during the term of this agreement for at least three years
following the termination or expiration of this agreement or will purchase a
directors' and officers' extended reporting period, or "tail," policy to cover
the Employee.
Indemnification
The Company agrees to indemnify the Employee pursuant to the following terms and
conditions, and to the extent provided below:
(a) Subject to the provisions of subparagraphs (c) and (d) below, the
Company will indemnify the Employee for any claim arising from,
related to or in connection with the Employee's performance of the
services described in this agreement.
(b) The Employee shall not be entitled to indemnification, contribution or
reimbursement pursuant to this agreement for services other than those
services provided for under this agreement, unless such services and
the indemnification, contribution, or reimbursement therefor are
approved by the Bankruptcy Court.
(c) Notwithstanding anything to the contrary in this letter, the Company
shall have no obligation to indemnify any person, or provide
contribution or reimbursement to any person, for any claim or expense
to the extent that it is either (i) judicially determined (the
determination having become final) to have arisen from that person's
gross negligence or willful misconduct, or (ii) settled prior to a
judicial determination as to that person's gross negligence or willful
misconduct, but determined by the Bankruptcy Court, after notice and a
hearing, to be a claim or expense for which that person should not
receive indemnity, contribution or reimbursement under the terms of
this agreement.
(d) If, before the earlier of (i) the entry of an order confirming a
chapter 11 plan in the Company's chapter 11 cases (that order having
become a final order no longer subject to appeal) and (ii) the entry
of an order closing the Company's chapter 11 cases, the Employee
believes that it is entitled to the payment of any amounts by the
Company on account of the Company's indemnification, contribution
and/or reimbursement obligations under this agreement, including
without limitation the advancement of defense costs, the Employee must
file an application before the Bankruptcy Court, and the Company may
not pay any such amounts to the Employee before the entry of an order
by the Bankruptcy Court approving the payment.
(e) Notwithstanding the foregoing provisions in subparagraphs (a) - (d),
if, upon the earlier of (i) the entry of an order confirming a chapter
11 plan in the Company's chapter 11 cases and (ii) the entry of an
order closing the Company's chapter 11 cases, this agreement has not
been terminated according to its terms or by separate order of the
Bankruptcy Court, the Company shall agree to indemnify the Employee
going-forward to the full extent permitted by law for any losses,
costs, damages and expenses, including reasonably attorneys' fees, as
they are incurred
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in connection with any cause of action, suit or other proceeding
arising in connection with Employee's employment with the Company,
except to the extent arising from the gross negligence or willful
misconduct of the Employee.
Termination
The Company may terminate the Employee's employment for any reason upon at least
30 days' prior written notice to the Employee, such termination to be effective
on the date specified in the notice, provided that such date is no earlier than
30 days from the date of delivery of this notice. Likewise, the Employee may
terminate his or her employment for any reason upon at least 30 days' prior
written notice to the Company, such termination to be effective on the date 30
days following the date of the notice. The Employee will continue to render
services and to be paid during such 30-day period, regardless of who give such
notice.
Notwithstanding the above: (1) the Employee may terminate this agreement
immediately if the Company has not remained current in its obligations under
this letter or the Interim Engagement Resources Agreement between the Company
and Xxxxx or if the Company engages in or asks the Employee to engage in or to
ignore any illegal or unethical conduct; (2) the Company may terminate this
agreement immediately for cause; and (3) either party may terminate this
agreement in the event the Bankruptcy Court declines to approve this agreement
on or before January 23, 2007. For purposes of this paragraph, "cause" shall be
defined as (a) the conviction of the Employee, or an agreement to a plea of nolo
contendere to, any felony or other crime involving moral turpitude, (b) willful
and continuing refusal to substantially perform his duties, or (c) in performing
such duties, conduct constituting gross negligence or gross misconduct.
This agreement will also terminate immediately upon the death or disability of
the Employee. For purposes of this agreement, "disability" will be as defined by
the applicable Company policy of disability insurance or, in the absence of such
insurance, by the Company's Board of Directors acting in good faith.
Upon termination of this agreement, the Employee's salary will be prorated for
the final pay period based on the number of days in the final pay period up to
the effective date of termination. Except for any Early Termination Fee that may
be payable hereunder, no other severance payments or benefits shall be provided
by the Company to the Employee.
Confidentiality
The Employee shall owe a duty of confidentiality to the Company for all
confidential information, knowledge or data obtained by the Employee during the
course of his employment. After termination of this agreement, the Employee
shall return all confidential information in his possession or control to the
Company and shall not, without prior written consent of the Company, communicate
or disclose any such information, knowledge, or data to anyone other than the
Company or those persons designated by the Company.
Miscellaneous
This agreement contains the entire agreement between the parties with respect to
the matters contain herein, superseding any prior oral or written statements or
agreements.
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The Employee may not assign or delegate any of his rights or obligations under
this agreement without first obtaining the written consent of the Company.
The Company agrees to allow Xxxxx to use the Company's logo and name on Xxxxx'x
website and other marketing materials for the sole purpose of identifying the
Company as a client of Xxxxx. Xxxxx will not use the Company's logo or name in
any press release or general circulation advertisement without the Company's
prior written consent.
The provisions in this agreement concerning the payment of Salary will survive
the termination of this agreement.
The terms of this agreement are severable and may not be amended except in a
writing signed by the parties. If any portion of this agreement is found to be
unenforceable, the rest of this agreement will be enforceable except to the
extent that the severed provision deprives either party of a substantial portion
of its bargain.
This agreement will be governed by and construed in all respects in accordance
with the laws of the State of Michigan, without giving effect to
conflicts-of-laws principles.
Each person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one necessary.
All notices or other communication described under this agreement shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee:
Xx. Xxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to the Company:
Dura Automotive Systems, Inc.
Attn: Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xx.
Xxxxxxxxx Xxxxx, XX 00000
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Please sign below and return a signed copy of this letter to indicate your
agreement with its terms and conditions.
Sincerely yours,
Dura Automotive Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Signature
Name: Xxxxxxx X. Xxxxxx
Title: Vice President Human Resources
Acknowledged and agreed by:
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
(Signature)
XXXXX X. XXXXXXX
(Print name)
Date: DECEMBER 22, 2006
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