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EXHIBIT 10.u
February 28, 1995
Dear :
As you know, our company's Board of Directors has adopted a Plan whereby
supplemental retirement and other benefits, in addition to those provided under
the Company's pension and other benefit plans, will be made available to those
Company and subsidiary executives as may be designated from time to time by the
company's Chief Executive Officer. You have been previously designated as a
participant in the Plan by a letter agreement signed by you and dated February
14, 1994. This agreement amends and replaces in its entirety your previously
signed letter agreement and describes in full your benefits pursuant to the
Plan and all of the Company's obligations to you and yours to the Company under
the Plan. These benefits as described below are contractual obligations of the
Company.
For the purposes of this Agreement, words and terms are defined as follows:
a. "Retirement" shall mean your termination of employment with the
Company, on or after you attain age 65. Your acting as a consultant shall
not be considered employment.
b. "Average Compensation" shall mean the aggregate of your highest
three years' total annual cash compensation paid to you by the Company,
consisting of (i) base salaries and (ii) regular year-end cash bonuses
paid with respect to the years in which such salaries are paid, divided
by three.
c. If you become Disabled, "Total Compensation" shall mean your
annual base salary rate in the year in which you become Disabled plus the
regular year-end cash bonus paid to you for the year immediately prior
thereto.
d. "Surviving Spouse" shall be the person to whom you shall be
legally married (under the law of the jurisdiction of your permanent
residence) at the date of (i) your Retirement or death after attaining age
65 (if death
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terminated employment with the Company) for the purposes of paragraphs 1,
2 and 3, (ii) your death for the purposes of paragraph 5, and (iii) your
Disability for the purposes of paragraphs 6 and 7. For the purposes of
paragraphs 10a, 10e, 10f, 10g and 10h, "Surviving Spouse" shall be any
spouse entitled to survivor's benefits.
e. "Disability" and "Disabled" shall mean your being unable to
perform your duties as a Company executive by reason of your physical or
mental condition, prior to your attaining age 65, provided that you have
been employed by the Company for two consecutive Years or more.
f. "Company" shall mean TriMas Corporation or any corporation in
which TriMas Corporation or a subsidiary owns stock possessing at least
20% of the total combined voting power of all classes of stock.
g. "Year" shall mean twelve full consecutive months, and "year"
shall mean a calendar year.
h. "Plan Limitation" for any year shall mean (x) for 1989,
$300,000 multiplied by the Cost of Living Factor for 1988, and (y) for any
year subsequent to 1989, the Plan Limitation for the immediately
preceding year multiplied by the Cost of Living Factor for such preceding
year.
i. "Cost of Living Factor" for any year shall mean, except as
otherwise provided generally with respect to the Plan by the Company's
Board of Directors, the quotient (in no event to exceed 1.03 or to be
less than .97) obtained by dividing the monthly Consumer Price Index
Number (as compiled in the Consumer Price Index for Urban Consumers by the
Bureau of Labor Statistics) for the month of December in such year by the
monthly Consumer Price Index Number for the immediately preceding month of
December.
j. A "Change in Control" shall be deemed to have occurred if,
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
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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.
1. In accordance with the Plan, upon your Retirement the Company will
pay you annually during your lifetime 60% of your Average Compensation, less:
(i) a sum equal to the annual benefit which would be payable to you upon your
Retirement if benefits payable to you under the Company funded qualified
pension plans and the defined benefit (pension) plan restoration provisions of
the Company's Retirement Benefits Restoration Plan and any similar plan were
converted to a life annuity, or if you are married when you retire, to a joint
and spouse survivor life annuity, (ii) a sum equal to the annual benefit which
would be payable to you upon Retirement if your vested accounts in the
Company's Future Service Profit Sharing Trust and the defined contribution
(profit sharing) restoration provisions of the Company's Retirement Benefits
Restoration Plan and any similar plan were converted to a life annuity, and
(iii) any retirement benefits payable to you by reason of employment by your
prior employers (excluding, however, from such deduction any portion thereof,
and earnings thereon, determined by the committee referred to in paragraph 10
to have been contributed by you rather than your prior employers). In all
cases the amount offset pursuant to these subsections (i) and (ii) shall be
determined prior to the effect of any payments from the plans and trust
referred to therein which are authorized pursuant to a Qualified Domestic
Relations Order under ERISA.
2. Upon your death after Retirement or while employed by the Company
after attaining age 65, your Surviving Spouse shall receive for life 75% of the
annual benefit pursuant to paragraph 1 of this Agreement which was payable to
you prior to your death (or, if death terminated employment after attaining age
65, which would have been payable to you had your Retirement occurred
immediately prior to your death).
3. Upon your Retirement the Company will provide or
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purchase for you and your spouse's benefit, or at its option reimburse you or
your Surviving Spouse for premiums paid, during your joint and several lives,
such supplemental medical insurance as the Company may deem advisable from time
to time.
4. Under no circumstances (i) will any retirement benefits be paid to
you or your Surviving Spouse pursuant to this Agreement unless you were employed
by the Company or Disabled on your Retirement, or were employed by the
Company at the time of your death after attaining age 65, and (ii) will you or
your Surviving Spouse be entitled to receive retirement benefits under this
Agreement if your Retirement commences prior to your attaining age 65.
5. If while employed by the Company you die prior to your attaining
age 65 leaving a Surviving Spouse, and provided you shall have been employed by
the Company for two consecutive Years or more, your Surviving Spouse shall
receive annually for life 45% of your Average Compensation, less: (i) a sum
equal to the annual benefit which would be payable to your Surviving Spouse
under Company funded qualified pension plans and the defined benefit (pension)
plan restoration provisions of the Company's Retirement Benefits Restoration
Plan and any similar plan if such benefit were converted to a life annuity, and
(ii) a sum equal to the annual payments which would be received by your
Surviving Spouse as if your spouse were designated as the beneficiary of your
vested accounts in the Company's Future Service Profit Sharing Trust and the
defined contribution (profit sharing) restoration provisions of the Company's
Retirement Benefits Restoration Plan and any similar plan and such accounts were
converted to a life annuity. In all cases the amount offset pursuant to these
subsections (i) and (ii) shall be determined prior to the effect of any payments
from the plans and trust referred to therein which are authorized pursuant to a
Qualified Domestic Relations Order under ERISA. No death benefits are payable
except to your Surviving Spouse.
6. If you shall have been employed by the Company for two Years or more
and while employed by the Company you become Disabled prior to your
attaining age 65, until the earlier of your death, termination of Disability or
attaining age 65 the
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Company will pay you an annual benefit equal to 60% of your Total Compensation
less any benefits payable to you pursuant to long-term disability insurance or
other plans the cost of which is paid by the Company. If your Disability
continues until you attain age 65, you shall be considered retired and you shall
receive retirement benefits pursuant to paragraph 1 above, based upon your
Average Compensation as of the date it is determined you became Disabled.
7. If you die leaving a Surviving Spouse while receiving Disability
benefits pursuant to paragraph 6 of this Agreement, notwithstanding paragraph 4
you will be deemed to have retired on your death and your Surviving Spouse shall
receive for life 75% of the annual benefit which would have been payable to you
if you had retired on the date of your death and your benefit determined
pursuant to paragraph 1, based upon your Average Compensation as of your
becoming Disabled.
8. Notwithstanding any of the provisions of this Agreement, the maximum
retirement, disability and death benefits payable to you and your spouse
pursuant to this Agreement for any year shall in no event exceed the higher of
(A) $500,000 less those sums to be deducted from benefits pursuant to clauses
(i), (ii) and (iii) of paragraph 1, clauses (i) and (ii) of paragraph 5, or
under paragraph 6, whichever is applicable, or (B) the Plan Limitation for the
year in which such benefits were first paid, less the aggregate annual benefit
with respect to the Company's Retirement Benefits Restoration Plan (and any
future non-qualified retirement plan) to be deducted (x) under clauses (i) and
(ii) of paragraph 1, (y) under paragraph 5 should you die while employed prior
to attaining age 65 or (z) under paragraph 6 should you become disabled prior to
attaining age 65.
9. If you are eligible to receive benefits hereunder, unless otherwise
specifically agreed by the Company in writing, you will not be able to receive
benefits under any other Company sponsored non-qualified retirement plans other
than the Company's Retirement Benefits Restoration Plan.
10. We also agree upon the following:
a. The Compensation Committee of the company's
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Board of Directors, or any other committee however titled which shall be
vested with authority with respect to the compensation of the company's
officers and executives, shall have the exclusive authority to make all
determinations which may be necessary in connection with this Agreement
including the date of and whether you are Disabled, the amount of annual
benefits payable to you by reason of employment by other employers, the
interpretation of this Agreement, and all other matters or disputes
arising under this Agreement. The determinations and findings of the
Compensation Committee or such other committee of the company's Board
of Directors shall be conclusive and binding, without appeal, upon both of
us.
b. You will not during your employment or Disability, and after
Retirement or the termination of your employment, for any reason disclose
or make use of for your own or another person's benefit under any
circumstances any of the Company's Proprietary Information.
Proprietary Information shall include trade secrets, secret processes,
information concerning products, developments, manufacturing techniques,
new product or marketing plans, inventions, research and development
information or results, sales, pricing and financial data, information
relating to the management, operations or planning of the Company and any
other information treated as confidential or proprietary.
c. If your employment by the Company shall terminate for any
reason whatsoever prior to your Retirement other than by reason of your
death or Disability, for a period of two years after the termination of
your employment, and if your employment shall be terminated by reason of
Retirement or any Disability during such time as you shall receive
retirement or disability benefits pursuant to this Agreement, you agree
that you will not directly or indirectly engage in any business
activities, whether as a consultant, advisor or otherwise, in which the
Company is engaged in any geographic area in which the products or
services of the Company have been sold, distributed or provided during the
five year period prior to the date of termination of employment or
Retirement.
In addition to the foregoing and provided no "Change in
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Control" has occurred, if while you are receiving retirement or other
benefits pursuant to this Agreement, in the judgment of the committee you
directly or indirectly engage in activity or act in a manner which can be
considered adverse to the interest of the Company or any of its direct or
indirect subsidiaries or affiliated companies, the committee may terminate
your rights to any further benefits hereunder.
d. Except as may be provided to the contrary in a duly authorized
written agreement between yourself and the Company you acknowledge that
the Company has made no commitments to you of any kind with respect to
the continuation of your employment, which we expressly agree is an
employment at will, and you or the Company shall have the unrestricted
right to terminate your employment with or without cause, at any time in
your or its discretion.
e. At the Company's request, expressed through a Company officer,
you agree to provide such information with respect to matters which may
arise in connection with this Agreement as may be deemed necessary by the
Company or the Compensation or other committee, including for example
only and not in limitation, information concerning benefits payable to
you from third parties, and you further agree to submit to such medical
examinations by duly licensed physicians as may be requested by the
Company or such committee from time to time. You also agree to direct
third parties to provide such information, and your Surviving Spouse's
cooperation in providing such information is a condition to the receipt of
survivor's benefits under this Agreement.
f. To the extent permitted by law, no interest in this Agreement
or benefits payable to you or to your Surviving Spouse shall be
subject to anticipation, or to pledge, assignment, sale or transfer in any
manner nor shall pledge, assignment, sale or transfer in any manner
nor shall you or your Surviving Spouse have the power in any
manner to charge or encumber such interest or benefits, nor shall such
interest or benefits be liable or subject in any manner for the
liabilities of you or your Surviving Spouse's debts, contracts, torts or
other engagements of any kind.
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g. No person other than you and your Surviving Spouse shall have
any rights or property interest of any kind whatsoever pursuant to this
Agreement, and neither you nor your Surviving Spouse shall have any rights
hereunder other than those expressly provided in this Agreement. Upon the
death of you and your Surviving Spouse no further benefits of whatsoever
kind or nature shall accrue or be payable pursuant to this Agreement.
h. All benefits payable pursuant to this Agreement shall be paid
in installments of one-twelfth of the annual benefit, or at such
shorter intervals as may be deemed advisable by the Company in its
discretion, upon receipt of your or your Surviving Spouse's written
application, or by the applicant's personal representative in the event of
disability.
i. All benefits under this Agreement shall be payable from the
Company's general assets, which assets are subject to the claims of
general creditors, and are not set aside for your or your Surviving
Spouse's benefit.
j. This Agreement shall be governed by the laws of the State of
Michigan.
11. We have agreed that the determinations of the committee described in
paragraph 10a shall be conclusive as provided in such paragraph, but if for any
reason a claim is asserted which subverts the provisions of paragraph 10a, we
agree that, except for causes of action which may arise under paragraph 10b and
the first paragraph of paragraph 10c, arbitration shall be the sole and
exclusive remedy to resolve all disputes, claims or controversies which could be
the subject of litigation (hereafter referred to as "dispute") involving or
arising out of this Agreement. It is our mutual intention that the arbitration
award will be final and binding and that a judgment on the award may be entered
in any court of competent jurisdiction and enforcement may be had according to
its terms.
The arbitrator shall be chosen in accordance with the commercial
arbitration rules of the American Arbitration
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Association and the expenses of the arbitration shall be borne equally by the
parties to the dispute. The place of the arbitration shall be the principal
offices of theAmerican Arbitration Association in the metropolitan Detroit area.
The arbitrator's sole authority shall be to apply the clauses of this
Agreement.
We agree that the provisions of this paragraph 11, and the decision of the
arbitrator with respect to any dispute, with only the exception provided in this
paragraph 11, shall be the sole and exclusive remedy for any alleged cause of
action in any manner based upon or arising out of this Agreement. Subject to
the foregoing exception, we acknowledge that since arbitration is the
exclusive remedy, neither of us or any party claiming under this Agreement has
the right to resort to any federal, state or local court or administrative
agency concerning any matters dealt with by this Agreement and that the decision
of the arbitrator shall be a complete defense to any action or proceeding
instituted in any tribunal or agency with respect to any dispute. The
arbitration provisions contained in this paragraph shall survive the termination
or expiration of this Agreement, and shall be binding on our respective
successors, personal representatives and any other party asserting a claim based
upon this Agreement.
We further agree that any demand for arbitration must be made within one
year of the time any claim accrues which you or any person claiming hereunder
may have against the Company; unless demand is made within such period it is
forever barred.
We are pleased to be able to make this supplemental plan available to you.
Please examine the terms of this Agreement carefully and at your earliest
convenience indicate your assent to all of its terms and conditions by signing
and dating where provided below and returning a signed copy to me.
Sincerely,
TRIMAS CORPORATION
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By/s/Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer
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DATE:
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