EXHIBIT 10.10
GENERAL RELEASE AND SEVERANCE AGREEMENT
This General Release and Severance Agreement ("Agreement") is entered
into between Xxxxxx X. Xxxxxxxxx ("Employee") and Dura Automotive Systems, Inc.
("Company") in connection, with the termination of Employee's employment.
RECITALS
A. Company has employed Employee as an at-will employee; and
B. Employee's at-will employment will terminate for a legitimate
business reason, which will be Employee's voluntary
retirement; and
C. Employee and Company want to amicably provide for the orderly
termination of Employee's employment, for the payment by
Company of severance pay and benefits not otherwise due and
owing to Employee, for the waiver, release, and discharge by
Employee of any claims arising in the course of or out of
Employee's employment with Company or the termination of
Employee's employment with Company, and for Employee's
agreement not to xxx Company.
Based on the foregoing Recitals, which Employee and Company
accept as true and as part of the basis for this Agreement, and in consideration
of and in reliance upon the representations and promises in this Agreement,
Employee and Company agree as follows:
1. Termination of Employment and Final Pay
(a) Employee will voluntarily retire effective December
31, 2003 ("Retirement Date").
(b) Company will pay to Employee, with Employee's final
paycheck, all earned wages through the Retirement
Date, minus any applicable withholdings, and all
accrued unused vacation shown on the Termination
Benefit Calculation Worksheet attached as Exhibit A,
minus any applicable withholdings.
2. Severance Pay
Company will pay the Employee the severance pay specified in the
attached Termination Benefit Calculation Worksheet, minus any applicable
Withholdings, in equal installments on Company's regularly scheduled paydays.
The first payment will occur on or about the first regularly scheduled payday
after the following events:
(a) Employee has signed the Agreement; and
(b) The seven-day revocation period set forth in
paragraph 22.d of this Agreement has expired without
Employee's revocation of this Agreement.
3. RETIREE HEALTH INSURANCE
Effective on the Retirement Date, Employee will be eligible to
participate in the Xxxxxx Mobile Products Retiree Medical Plan, subject to and
in accordance with the provisions of that plan.
4. DEFERRED COMPENSATION
Effective January 1, 2004, Company will grant Employee credited vesting
service until March 1, 2005 for the purpose of the Excel Industries, Inc.
Restated 1989 Deferred Compensation Plan and Agreement, as amended June 1,2002.
5. LEADERSHIP ELECTIVE APPRECIATION DEFERRAL BENEFIT PLAN
Effective on the Retirement Date, Employee will be eligible to
participate as a retiree in the Leadership Elective Appreciation Deferral
Benefit Plan, subject to and in accordance with the provisions of that plan.
6. LEADERSHIP STOCK PURCHASE FLAN
Effective on the Retirement Date, all premium shares will be fully
vested. Stock certificates will be issued in accordance with the provisions of
the plan. Employee will be responsible for all tax obligations at the time the
certificates are issued.
7. LEADERSHIP TEAM BONUS
If Company, in its discretion, grants bonuses for calendar year 2003
to members of the leadership team, Employee will be eligible to receive a bonus
for calendar year 2003 on the sane basis as other members of the leadership
team.
8. STOCK DISCOUNT PURCHASE PLAN
Effective on the Retirement Date, Employee will be ineligible to
participate in the Stock Discount Purchase Plan.
9. RETURN OF COMPANY PROPERTY
(a) Employee shall return all property belonging to the
Company, including, but not limited to, all
documents, credit cards, keys, pagers, phones,
identification cards, computer software and hardware,
business plans, financial statements, or other
property on the Retirement Date, if practicable, but
in no event later than three business days after the
Retirement Date.
(b) On or before the close of business on December 31,
2003, Employee will return to Company, the Company's
vehicle, a 2003 BMW 745 LI, Vehicle Identification
Number XXXXX00000XX00000 or will purchase that
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vehicle from Company for its book value that will be
determined as of December 15, 2003.
10. CONSIDERATION IN EXCHANGE FOR EMPLOYEE'S PROMISES
The consideration set forth in paragraphs 2, 3, 4, 6, 7, and 9(b) of
this Agreement is not otherwise due and owing to Employee and is fair and
adequate consideration in exchange for Employee's promises contained in this
Agreement. Company will provide that consideration to Employee only in exchange
for Employee's promises and obligations under in this Agreement. Employee will
not receive that consideration unless Employee signs this Agreement, does not
revoke the Agreement, and fulfills Employee's promises and obligations under
this Agreement.
11. RELEASE
(a)
(i) In exchange for Company's obligations under this
Agreement, Employee, to the fullest extent permitted
by law, waives, releases, and discharges Company,
together with its current and former officers,
directors, agents, employees, parent company,
subsidiaries, affiliated entities, related entities,
attorneys, any other representatives, and successors
in interest (collectively referred to as "Released
Parties"), jointly and severally, from any claims and
any causes of action arising in the course of or out
of Employee's employment with Company or the
termination of Employee's employment with Company
under any state and federal statutes, including the
Age Discrimination in Employment Act, 29 USC Section
621 et sea, and under the common law.
(ii) In. exchange for Employee's obligations under
this Agreement, Company, together with its current
and former officers, directors, agents, employees,
patent company, subsidiaries, affiliated entities,
related entities, attorneys, any other
representatives, and successors in interest, waives,
releases, and discharges Employee, to the fullest
extent permitted by law, from any claims and any
causes of action, under any state and federal
statutes and under the common law.
(iii) Employee and Company intend that, to the
fullest extent permitted by law, these waivers,
releases, and discharges will be a general release,
will extinguish any claims and any causes of action,
and will preclude any lawsuit or any other legal
claim by either party against the other party about
anything that occurred before the date of the signing
of this Agreement This Agreement includes a release
of Employee's right to file a lawsuit or to seek
individual remedies or damages in any EEOC-filed
lawsuit, and this release will apply to any Charge of
Discrimination about any events that occurred up to
the date of the signing of this Agreement The only
claims and causes of action that Employee is not
waiving, releasing, and discharging are for the
consideration that Employee will
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receive under this Agreement and any claims and
causes of action that, as a matter of law, can not be
waived, released, and discharged.
(b)
(i) In exchange for Company's obligations under this
Agreement Employee gives up, to the fullest extent
permitted by law, any right to file any lawsuit
against Released Parties about anything arising in
the course of or out of Employee's employment or the
termination of Employee's employment under any state
and federal statutes, including the Age
Discrimination Act, 29 USC Section 621 el sea., and
under the common law.
(ii) In exchange for Employee's obligations under
this Agreement, Company gives up, to the fullest
extent permitted by law, any right to file any
lawsuit against Employee under any state and federal
statutes and under the common law.
(c) The consideration, set forth in this Agreement is in
full accord and satisfaction of:
(i) any claims and any causes of action that Employee
has, may have, or may have had against Company
arising in the course of or out of Employee's
employment with Company or the termination of
Employee's employment with Company; and
(ii) any claims and causes of action that Company
has, may have, or may have had against Employee.
(d)
(i) Except for any claim for unemployment insurance
benefits, Employee has not filed any claims, charges,
suits, or actions of any kind against any of the
Released Parties that have not been fully
resolved, and
(ii) Company has not filed any claims, charges,
suits, or actions of any kind against Employee.
(e) If either party asserts any claim against the other
party within the scope of paragraph 11.a or 11.b, the
other party may assert this Agreement as a complete
defense to that claim. Further, the party asserting a
claim will reimburse the other party for the
attorneys' fees and expenses that the other party
incurs in defending any claim, notwithstanding any
other relief to which the other party may be
entitled.
(f) Any lawsuit based upon a claim arising out of or
relating in any way to Employee's employment with
Company or the termination of that employment, or to
any alleged breach of this Agreement, will be
brought,
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if at all, in a state or federal court located in
Oakland County, Michigan, and the parties waive their
respective rights to commence or maintain any action
in any other forum. Further, the selection of
venue/forum is made without regard to forum
nonconveniens.
12. NO REINSTATEMENT
Employee waives any right to reinstatement or reemployment with
Company or any affiliate.
13. CONFIDENTIAL INFORMATION
Employee will not, directly or indirectly, disclose or use any
Confidential Information for any purpose whatsoever. The term "Confidential
Information" means trade secrets and other information concerning Company not
generally known to the public which Employee acquired by virtue of his
employment including, but not limited to, internal business and marketing plans
and strategies; production, coating, and manufacturing processes and formulas;
financial information; pricing practices, policies, margins, and related
information; and customer lists and other information relating to customer
relationships.
14. NON-DISPARAGEMENT
After the Retirement Date, Employee will make no adverse or disparaging
comments about Company, its employees, or its products, which may tend to impugn
or injure their reputation, goodwill or relationships with Company's present or
prospective customers, employees, vendors, or with the business community
generally, and Company, its board of directors, and its officers will make no
adverse or disparaging comments about Employee,
15. NON-DISCLOSURE
Employee will not disclose the existence and terms of this Agreement to
any person (except as required by law or as necessary to enforce this
Agreement). Notwithstanding the foregoing, Employee may disclose .this
Agreement's terms to Employee's spouse and legal and financial advisors (each a
"Permitted Party"), who shall have the same responsibility as Employee to keep
confidential the existence and terms of this Agreement. If Employee or any
Permitted Party discloses the terms or existence of this Agreement in violation
of this paragraph, Company's obligations under paragraph 2 and 3 above will
cease, and Employee shall become obligated to repay immediately to Company any
severance benefits, including severance pay and health premiums, already paid.
16. NON-COMPETITION
(a) For a period of one year following the Retirement
Date, Employee may not serve or participate as an
employee, contract worker, independent contractor,
consultant, owner, or otherwise, either directly or
indirectly, in any enterprise that competes with the
Company in the Recreational and Specialty Vehicle
market or any market currently served by the Xxxxxx
Mobile Products Division ("Competitive Enterprise").
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(b) For a period of one year following the Retirement
Date, Employee will not have, either directly or
indirectly, any business contact with or perform any
work for any Company customers or prospective
customers with which Company bad any business contact
during the twelve month period before the Retirement
Date either on Employee's own behalf or in the
service of or on behalf of any Competitive
Enterprise.
(c) During the one year period following the Retirement
Date, Employee will immediately inform Company in
writing of the name and address of each relationship
with a Competitive Enterprise after beginning the
relationship.
17. NON-SOLICITATION OF CUSTOMERS
For a period of one year following the Retirement Date, Employee will
not, directly or indirectly, either on Employee's own behalf or in the service
of or on behalf of any Competitive Enterprise, divert, solicit, or attempt to
divert or solicit any Company customers or prospective customers, including, but
not limited to, any current Xxxxxx customers, for the purpose of providing
products to those customers or prospective customers. A "customer" is any entity
to which Company has provided products within the twelve month period before the
Retirement Date; a "prospective customer" is any entity that has been subject to
documented Company sales and marketing activity within the twenty-four month
period before the Retirement Date.
18. NON-SOLICITATION OF EMPLOYEES
For a period of one year following the Retirement Date, Employee will
not, directly, or indirectly, either on Employee's own behalf or in the service
of or on behalf of any Competitive Enterprise, divert, solicit, or hire away, or
attempt to divert, solicit or hire away to or for any Competitive Enterprise,
any person then employed by the Company.
19. COOPERATION IN LITIGATION
Employee will cooperate and assist in the prosecution, defense, and
trial of any lawsuit, charge, complaint, or any other legal issue, which is now
pending or may be filed in the future, asserted, or brought by or against
Company, and Company will reimburse Employee for reasonable travel and related
expenses in connection with that cooperation and assistance.
20. PENALTY FOR EMPLOYEE'S NON-COMPLIANCE
If Employee, in the judgment of Company, violates any of Employee's
obligations under paragraphs 13, 14, 15, 16, 17, or 18 of this Agreement, then
Company will discontinue any further payments under paragraphs 2 and 3 of this
Agreement, and Employee will be obligated both to repay all amounts paid by
Company under paragraphs 2 and 3 of this Agreement and to pay any costs and
attorney fees incurred by Company in the enforcement of this paragraph 20.
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21. COMPLETE AGREEMENT
(a) This Agreement and the attached Termination Benefit
Calculation Worksheet set forth the entire agreement
of the parries and supersede any prior agreements
between them.
(b) This Agreement may not be modified except in a
writing signed by both parties to this Agreement.
(c) Employee is not relying in any way on any statements,
promises, or representations made by Company or any
Company employee or agent in entering into this
Agreement.
(d) Employee is not entitled to any compensation,
bonuses, commission vacation pay, severance pay,
fees, or any other consideration from Company,
except as Employee may be entitled to by law, under
this Agreement, or under the terms and conditions of
any Company employee benefit plan, including
retirement plans.
22. KNOWING AND VOLUNTARY ACCEPTANCE
(a) Employee has read and understands this Agreement in
its entirety;
(b) Employee has been advised to seek legal counsel and
any other advice Employee wishes with respect to the
terms of this Agreement before signing it and has had
ample opportunity to do so;
(c) Employee has been offered twenty-one calendar days
after receipt of this Agreement to consider its terms
before signing it (but Employee may elect to return
the signed Agreement on any earlier date). Company
has made no promises, inducements, representations,
or threats to cause Employee to sign the Agreement
before the end of the twenty-one day period;
(d) The Agreement will not become effective until seven
days after its execution by Employee, and Employee
may revoke this Agreement during the first seven days
after signing it by providing written notice to
Company, to the attention of Xxxxxxx Xxxxxx, Vice
President, Human Resources;
(e) Employee enters into this Agreement knowingly and
voluntarily, without duress or reservation, of any
kind as of the date of this Agreement
23. GOVERNING LAW
The law of the state of Michigan will govern the interpretation and
enforcement of this Agreement.
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24. NON-ADMISSION OF LIABILITY
This Agreement shall not be used or construed as an admission of
liability or wrongdoing by either Company or Employee. Company denies that it
acted unlawfully, tortiously, or in violation of any employment contract toward
Employee.
25. SEVERABILITY
If any one or more than one of the provisions contained in this
Agreement are, for any reason, held to be invalid, illegal, or unenforceable in
any respect, the rest of this Agreement will remain enforceable. The Agreement
Will then be construed as if it never contained the invalid, illegal, or
unenforceable provision.
26. SUCCESSORS AND ASSIGNS
This Agreement is binding and shall take effect for the benefit of (i)
Company, its officers, directors, agents, employees, subsidiaries, affiliated
entities, related entities, attorneys, any other representatives, and successors
in interest; and (ii) Employee, Employee's heirs, assigns, executors,
administrators, other legal representatives, and successors.
27. BINDING AGREEMENT
This Agreement will become binding and enforceable after the seven day
revocation period in paragraph 22.d of this Agreement has expired with the
revocation of the Agreement by Employee.
XXXXXX X. XXXXXXXXX DURA AUTOMOTIVE SYSTEMS, INC.
/s/ XXXXXX XXXXXXXXX By: /s/ XXXXXXX XXXXXX
--------------------------------- ---------------------------------
Signature
Title: Vice President
Human Resources
Date: DECEMBER 29, 2003 Date: DECEMBER 19, 2003
Date of Delivery to Employee: December 19, 2003 via mail
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TERMINATION BENEFIT CALCULATION WORKSHEET
FOR
XXXXXX X. XXXXXXXXX
XXXXXXXXX PAY
a. Weeks Severance Pay: 26
b. Weekly Base Pay: $5637.50
c. Total Severance Pay (a times b) $ 146,575.00
Severance pay is paid in installments according to the Company's regular payroll
cycle beginning the first pay period after the expiration of the Agreement's
seven-day revocation period or January 1, 2004 whichever is later.
VACATION PAY
Vacation pay due to you will be paid with your final paycheck even if you have
not signed the General Release at that time.
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