EMPLOYMENT AGREEMENT
This Agreement is made by and between TriMas Corporation, a Delaware
corporation ("Company") and Xxxxxx X. Xxx (hereinafter "Executive") effective
September 3, 2003 ("Effective Date"). In order to induce Executive to serve as
its Chief Financial Officer, Company enters into this Agreement with Executive
to set out the terms and conditions that will apply to Executive's employment
with Company. Executive is willing to accept such employment and assignment and
to perform services on the terms and conditions hereinafter set forth. It is
therefore hereby agreed by and between the parties as follows:
SECTION 1 - EMPLOYMENT.
(a) Company employs Executive as its Chief Financial Officer. In this
capacity, Executive shall report to the President and Chief
Executive Officer ("CEO"). Executive accepts employment in
accordance with this Agreement and agrees to devote his full
business time and efforts to the performance of his duties and
responsibilities hereunder.
(b) Nothing in this Agreement shall preclude Executive from engaging
in charitable and community affairs, from managing any passive
investment (i.e., an investment with respect to which Executive
is in no way involved with the management or operation of the
entity in which Executive has invested) made by him in publicly
traded equity securities or other property (provided that no such
investment may exceed five percent (5%) of the equity of any
entity, without the prior approval of the Board of Directors of
Company (the "Board")), or from serving, subject to the prior
approval of the Board, as a member of boards of directors or as a
trustee of any other corporation, association or entity, to the
extent that any of the above activities do not conflict with any
provision of this Agreement.
SECTION 2 - TERM OF EMPLOYMENT. Executive's term of employment under
this Agreement ("Term of Employment") shall commence on the Effective Date and,
subject to the terms hereof, shall terminate on the earlier of: December 31,
2004 ("Initial Period"); or the date that either party terminates Executive's
employment under this Agreement; provided that subsequent to the Initial Period,
the Term of Employment shall automatically renew each January 1 for one year
("Renewal Period"), unless Company delivers to Executive or Executive delivers
to Company written notice at least thirty (30) days in advance of the expiration
of the Initial Period or any Renewal Period, that the Term of Employment shall
not be extended, in which case the Term of Employment shall end at the end of
the Year in which such notice was delivered and shall not be further extended
except by written agreement of Company and Executive. The expiration of the Term
of Employment under this Agreement shall not be a termination of this Agreement
to the extent that other provisions of this Agreement by their terms survive the
Term of Employment.
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(x) Salary. During the Initial Period, Company shall pay Executive at
the rate of Three Hundred and Twenty Thousand Dollars ($320,000)
per annum ("Base Salary"). Base Salary shall be payable in
accordance with the ordinary payroll practices of Company and
shall be subject to all applicable federal, state and local
withholding and reporting requirements. Base Salary may be
adjusted by the CEO during the Term of Employment.
(b) Annual Value Creation Plan ("AVCP"). Executive shall be eligible
to participate in the AVCP, a copy of which has been provided to
Executive, subject to all the terms and conditions of such plan,
as such plan may be modified from time to time.
SECTION 4 - EMPLOYEE BENEFITS.
(a) Employee Retirement Benefit Programs, Welfare Benefit Programs,
Plans and Practices. Company shall provide Executive with
coverage under any retirement benefit programs, welfare benefit
programs, plans and practices, that Company makes available to
its senior executives, in accordance with the terms thereof, as
such programs, plans and practices may be amended from time to
time in accordance with their terms.
(b) Vacation. Executive shall be entitled to twenty (20) business
days of paid vacation each calendar year, which shall be taken at
such times as are consistent with Executive's responsibilities
hereunder. Vacation days shall be subject to the Company's
general policies regarding vacation days, as such policies may be
modified from time to time.
(c) Perquisites. During Executive's employment hereunder, Company
shall provide Executive, subject to review and approval by the
CEO, with such additional perquisites as are generally available
to similarly-situated executives.
(d) Stock Options. Executive shall be eligible to participate in the
TriMas Corporation 2002 Long Term Equity Incentive Plan in
accordance with the terms and conditions of such plan and any
grant agreements thereunder.
SECTION 5 - EXPENSES. Subject to prevailing Company policy or such
guidelines as may be established by the CEO or his delegee, Company will
reimburse Executive for all reasonable expenses incurred by Executive in
carrying out his duties.
SECTION 6 - TERMINATION OF EMPLOYMENT. The respective rights and
responsibilities of the parties to this Agreement notwithstanding, Executive
remains an employee-at-will, and his Term of Employment may be terminated by
either party at any time for any reason by written notice.
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SECTION 6(a)
(a) Termination Without Cause or for Good Reason. If Executive's
employment is terminated during the Term of Employment by Company
for any reason other than Cause (as defined in Section 6(c)
hereof), Disability (as defined in Section 6(e) hereof) or death,
or if Executive's employment is terminated by Executive for Good
Reason (as defined in Section 6(a)(2) hereof), then Company shall
pay Executive the Severance Package. Any termination of
employment that results from a notice of nonrenewal given in
accordance with Section 2 of this Agreement shall not be a
termination under this Section 6(a) but shall instead be a
termination under Section 6(b) below. Likewise, a termination by
Executive without Good Reason shall be a termination under
Section 6(b) below and not a termination under this Section 6(a).
(1) For purposes of this Agreement, "Severance Package" shall
mean:
(A) Base Salary continuation for twenty-four (24) months at
Executive's annual Base Salary rate in effect on the
date of termination, subject to all applicable federal,
state and local withholding and reporting requirements.
These salary continuation payments shall be paid in
accordance with usual Company payroll practices;
(B) A bonus equal to two hundred percent (200%) of the
target bonus opportunity under AVCP, payable in equal
installments over the twenty-four (24) month period
described in Section 6(a)(1)(A) above, subject to the
same withholding and reporting requirements. In
addition, Executive shall receive the bonus for the
most recently completed bonus term if a bonus has been
declared for such term but not paid, and a pro rata
bonus for the year of termination through the date of
termination calculated at one hundred percent (100%) of
the bonus opportunity for target performance for that
term, multiplied by a fraction the numerator of which
is the number of days that Executive was employed
during such bonus term and the denominator of which is
365. The prorated bonus for the final year shall be
paid in a single sum within ten (10) days of the
termination of Executive's employment with Company. Any
unpaid bonus shall be paid in accordance with customary
practices for payment of bonuses under AVCP; and
(C) Continuation of benefits under any life, group medical,
and dental insurance benefits substantially similar to
those which Executive was receiving immediately prior
to termination of employment until the earlier of:
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SECTION 6(a)(1)(C)(i)
(i) the end of the twenty-four (24) month period
following Executive's termination of employment,
or
(ii) the date on which Executive becomes eligible to
receive any benefits under any plan or program of
any other employer.
The continuing coverage provided under this Section
6(a)(1)(C) is subject to Executive's eligibility to
participate in such plans and all other terms and
conditions of such plans, including without limitation,
any employee contribution requirements and Company's
ability to modify or terminate such plans or coverages.
Company may satisfy this obligation in whole or in part
by paying the premium otherwise payable by Executive
for continuing coverage under Section 601 et seq. of
the Employee Retirement Income Security Act of 1974, as
it may be amended or replaced from time to time. If
Executive is not eligible for continued coverage under
one of the Company-provided benefit plans noted in this
paragraph (C) that he was participating in during his
employment, Company shall pay Executive the cash
equivalent of the insurance cost for the duration of
the applicable period at the rate of the Company's cost
of coverage for Executive's benefits as of the date of
termination. Any obligation to pay the cash equivalent
of such cost under this item may be settled, at
Company's discretion, by a lump-sum payment of any
remaining premiums.
(2) For purposes of this Agreement, a termination of employment
by Executive for "Good Reason" shall be a termination by
Executive following the occurrence of any of the following
events unless Company has cured as provided below:
(A) A material and permanent diminution in Executive's
duties or responsibilities;
(B) A material reduction in the aggregate value of Base
Salary and bonus opportunity; or
(C) A permanent reassignment of Executive to another
primary office, or a relocation of the Company office
that is Executive's primary office, unless Executive's
primary office following such reassignment or
relocation is within thirty-five (35) miles of
Executive's primary office before the reassignment or
relocation or Executive's permanent residence on the
date of the reassignment or relocation.
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SECTION 6(a)(2)(C)
Executive must notify Company of any event constituting
Good Reason within one hundred twenty (120) days after
Executive becomes aware of such event or such event
shall not constitute Good Reason for purposes of this
Agreement provided that Company shall have fifteen (15)
days from the date of such notice to cure the Good
Reason event. Executive cannot terminate his employment
for Good Reason if Cause exists at the time of such
termination. A termination by Executive following cure
shall not be a termination for Good Reason. A failure
of Executive to notify 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.
(b) Voluntary Termination by Executive; Expiration of Employment
Term. If Executive terminates his employment with Company without
Good Reason, or if the Employment Term expires following notice
of nonrenewal by either party under Section 2, then Company shall
pay Executive his accrued unpaid Base Salary through the date of
termination and the AVCP award for the most recently completed
year if an award has been declared for such year but not paid.
The accrued unpaid Base Salary amounts payable under this Section
6(b) shall be payable in a lump sum within ten (10) days of
termination of employment. Any accrued unpaid bonus amounts
payable under this Section 6(b) shall be payable in accordance
with customary practices for payment of bonuses under AVCP. No
prorated bonus for the year of termination shall be paid. Any
other benefits under other plans and programs of Company in which
Executive is participating at the time of Executive's termination
of employment shall be paid, distributed, settled, or shall
expire in accordance with their terms, and Company shall have no
further obligations hereunder with respect to Executive following
the date of termination of employment.
(c) Termination for Cause. If Executive's employment is terminated
for Cause, Company shall pay Executive his accrued but unpaid
Base Salary through the date of the termination of employment,
and no further payments or benefits shall be owed. The accrued
unpaid Base Salary amounts payable under this Section 6(c) shall
be payable in a lump sum within ten (10) days of termination of
employment. As used herein, the term "Cause" shall be limited to:
(1) Executive's conviction of or plea of guilty or nolo
contendere to a crime constituting a felony under the laws
of the United States or any state thereof or any other
jurisdiction in which Company conducts business;
(2) Executive's willful misconduct in the performance of his
duties to Company;
(3) Executive's willful and continued failure to follow the
instructions of Company's Board or the CEO; or
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SECTION 6(c)(4)
(4) Executive's willful and/or continued neglect of duties
(other than any such neglect resulting from incapacity of
Executive due to physical or mental illness);
provided, however, that Cause shall arise under items (3) or (4)
only following ten (10) days written notice thereof from Company
which specifically identifies such failure or neglect and the
continuance of such failure or neglect during such notice period.
Any failure by Company to notify Executive after the first
occurrence of an event constituting Cause shall not preclude any
subsequent occurrences of such event (or a similar event) from
constituting Cause.
(d) Termination Following a Change of Control. In the event
Executive's employment with Company terminates by reason of a
Qualifying Termination (as defined below) within three (3) years
after a Change of Control of Company (as defined below), then, in
lieu of the Severance Package, and subject to the limitations
described in Section 7 below, the Company shall provide Executive
the following termination benefits:
(1) Termination Payments. Company shall pay Executive:
(A) A single sum payment equal to two hundred and fifty
percent (250%) of Executive's annual Base Salary rate
in effect on the date of termination, subject to all
applicable federal, state and local withholding and
reporting requirements. This single-sum payment shall
be paid within ten (10) days of termination of
employment;
(B) A bonus equal to two hundred and fifty percent (250%)
of the target bonus opportunity under AVCP. In
addition, Executive shall receive the bonus for the
most recently completed bonus term if a bonus has been
declared for such term but not paid, and a pro rata
bonus for the year of termination through the date of
termination calculated at one hundred percent (100%) of
the bonus opportunity for target performance for that
term, multiplied by a fraction the numerator of which
is the number of days that Executive was employed
during such bonus term and the denominator of which is
365. The prorated bonus for the final year shall be
paid as a single sum within ten (10) days of
termination of employment. Any unpaid bonus shall be
paid in accordance with customary practices for payment
of bonuses under AVCP.
All payments under this Section 6(d), however, are
subject to the timing rules, calculations and
adjustments described in Sections 7 and 8.
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SECTION 6(d)(2)
(2) Benefits Continuation. Executive shall continue to receive
life, group medical and dental insurance benefits
substantially similar to those which Executive was receiving
immediately prior to the Qualifying Termination until the
earlier of:
(A) the end of the thirty (30) month period following
Executive's termination of employment, or
(B) the date on which Executive becomes eligible to receive
any benefits under any plan or program of any other
employer.
The continuing coverage provided under this Section 6(d)(2)
is subject to Executive's eligibility to participate in such
plans and all other terms and conditions of such plans,
including without limitation, any employee contribution
requirements and Company's ability to modify or terminate
such plans or coverages. Company may satisfy this obligation
in whole or in part by paying the premium otherwise payable
by Executive for continuing coverage under Section 601 et
seq. of the Employee Retirement Income Security Act of 1974,
as it may be amended or replaced from time to time. If
Executive is not eligible for continued coverage under one
of the Company-provided benefit plans noted in this
paragraph (2) that he was participating in during his
employment, Company shall pay Executive the cash equivalent
of the insurance cost for the duration of the applicable
period at the rate of the Company's cost of coverage for
Executive's benefits as of the date of termination. Any
obligation to pay the cash equivalent of such cost of
coverage under this item may be settled, at Company's
discretion, by a lump-sum payment of any remaining premiums.
(3) Qualifying Termination. For purposes of this Agreement, the
term "Qualifying Termination" means a termination of
Executive's employment with the Company for any reason other
than:
(A) death;
(B) Disability, as defined herein;
(C) Cause, as defined herein; or
(D) A termination by Executive without Good Reason, as
defined herein.
(4) Change of Control Defined. For purposes of this Agreement, a
"Change of Control" means the first of the following events
to occur following the date hereof:
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SECTION 6(d)(4)(A)
(A) the sale, lease, or transfer in one or a series of
related transactions (i) of eighty percent (80%) or
more of the consolidated assets of the Company and its
subsidiaries, or (ii) of seventy-five percent (75%) or
more (appropriately adjusted for stock splits,
combinations, subdivisions, stock dividends and similar
events) of the Capital Stock (as defined below) of the
Company acquired by Heartland Industrial Partners, L.P.
on the closing date under the Stock Purchase Agreement
among the Company, Heartland Industrial Partners, L.P.
and Metaldyne Corporation, dated as of May 17, 2002
(the "Stock Purchase Agreement"), in either case to any
Person (within the meaning set forth in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 ("1934
Act") or any similar successor provision, and the
rules, regulations and interpretations promulgated
thereunder) other than an affiliate of Heartland
Industrial Partners, L.P., whether by way of any
merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning
under Rule 13d-3 of the 0000 Xxx) or otherwise, but not
including (x) sales or transfers which are effected in
order to comply with the preemptive rights provisions
of Section 4.05 of the Metaldyne Shareholders Agreement
with respect to the investment by Heartland Industrial
Partners, Inc. in the Company pursuant to the Stock
Purchase Agreement, or (y) sales or transfers which are
effected within one year after the date of closing
under the Stock Purchase Agreement at a price per share
of not greater than $20 plus any interest charged
(appropriately adjusted for stock splits, combinations,
subdivisions, stock dividends and similar events); or
(B) the date on which the individuals who constitute the
Company's Board of Directors on the date of this
Agreement, and any new members of the Company's Board
of Directors who are hereafter designated by the
Heartland Entities (as defined below) cease, for any
reason, to constitute at least a majority of the
members of the Board of Directors.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations, rights in or other equivalents
(however designated) of such person's capital stock, and any
rights (other than debt securities convertible into capital
stock), warrants or options exchangeable for or convertible into
such capital stock. "Heartland Entities" means Heartland
Industrial Partners, L.P., Heartland Industrial Partners (FF),
L.P., Heartland Industrial Partners (E1), L.P., Heartland
Industrial Partners (K1), L.P., Heartland Industrial Partners
(C1), L.P. or any controlled affiliate of any of these entities.
8
SECTION 6(e)
(e) Disability. In the event that Executive is unable to perform his
duties under this Agreement on account of a disability which
continues for one hundred eighty (180) consecutive days or more,
or for an aggregate of one hundred eighty (180) days in any
period of twelve (12) months, Company may, in its discretion,
terminate Executive's employment hereunder. Company's obligation
to make payments under this Agreement shall, except for earned
but unpaid Base Salary and AVCP awards, cease on the first to
occur of (i) the date that is six (6) months after such
termination or (ii) the date Executive becomes entitled to
benefits under a Company-provided long-term disability program.
For purposes of this Agreement, "Disability" shall be defined by
the terms of Company's long-term disability policy, or, in the
absence of such policy, as a physical or mental disability that
prevents Executive from performing substantially all of his
duties under this Agreement and which is expected to be
permanent. Company may only terminate Executive on account of
Disability after giving due consideration to whether reasonable
accommodations can be made under which Executive is able to
fulfill his duties under this Agreement. The commencement date
and expected duration of any physical or mental condition that
prevents Executive from performing his duties hereunder shall be
determined by a medical doctor selected by Company. Company may,
in its discretion, require written confirmation from a physician
of Disability during any extended absence.
(f) Death. In the event of Executive's death during the Term of
Employment, all obligations of Company to make any further
payments, other than an obligation to pay any accrued but unpaid
Base Salary to the date of death and any accrued but unpaid
bonuses under AVCP to the date of death, shall terminate upon
Executive's death.
(g) No Duplication of Benefits. Notwithstanding any provision of this
Agreement to the contrary, if Executive's employment is
terminated for any reason, in no event shall Executive be
eligible for payments under more than one subsection of this
Section 6.
(h) Payments Not Compensation. Any participation by Executive in, and
any terminating distributions and vested rights under,
Company-sponsored retirement or savings plans, regardless of
whether such plans are qualified or nonqualified for tax
purposes, shall be governed by the terms of those respective
plans. For purposes of determining benefits and the amounts to be
paid to Executive under such plans, any salary continuation or
severance benefits other than salary or bonus accrued before
termination shall not be compensation for purposes of accruing
additional benefits under such plans.
(i) Executive's Duty to Provide Materials. Upon the termination of
the Term of Employment for any reason, Executive or his estate
shall surrender to Company all correspondence, letters, files,
contracts, mailing lists, customer lists, advertising material,
ledgers, supplies, equipment, checks, and all other materials and
records of
9
SECTION 7(b)(3)
any kind that are the property of Company or any of its
subsidiaries or affiliates, that may be in Executive's possession
or under his control, including all copies of any of the
foregoing.
SECTION 7 - CAP ON PAYMENTS.
(a) General Rules. The Internal Revenue Code (the "Code") may place
significant tax burdens on Executive and Company if the total
payments made to Executive due to a Change of Control exceed
prescribed limits. For example, if Executive's "Base Period
Income" (as defined below) is $100,000, Executive's limit or
"Cap" is $299,999. If Executive's "Total Payments" exceed the Cap
by even $1.00, Executive is subject to an excise tax under
Section 4999 of the Code of 20% of all amounts paid to Executive
in excess of $100,000. In other words, if Executive's Cap is
$299,999, Executive will not be subject to an excise tax if
Executive receives exactly $299,999. If Executive receives
$300,000, Executive will be subject to an excise tax of $40,000
(20% of $200,000). In order to avoid this excise tax and the
related adverse tax consequences for Company, by signing this
Agreement, Executive will be agreeing that, subject to the
exception noted below, the present value of Executive's Total
Payments will not exceed an amount equal to Executive's Cap.
(b) Special Definitions. For purposes of this Section, the following
specialized terms will have the following meanings:
(1) "Base Period Income". "Base Period Income" is an amount
equal to Executive's "annualized includable compensation"
for the "base period" as defined in Sections 280G(d)(1) and
(2) of the Code and the regulations adopted thereunder.
Generally, Executive's "annualized includable compensation"
is the average of Executive's annual taxable income from
Company for the "base period," which is the five calendar
years prior to the year in which the Change of Control
occurs. These concepts are complicated and technical and all
of the rules set forth in the applicable regulations apply
for purposes of this Agreement.
(2) "Cap" or "280G Cap". "Cap" or "280G Cap" shall mean an
amount equal to 2.99 times Executive's "Base Period Income."
This is the maximum amount which Executive may receive
without becoming subject to the excise tax imposed by
Section 4999 of the Code or which Company may pay without
loss of deduction under Section 280G of the Code.
(3) "Total Payments". The "Total Payments" include any "payments
in the nature of compensation" (as defined in Section 280G
of the Code and the
10
regulations adopted thereunder), made pursuant to this
Agreement or otherwise, to or for Executive's benefit, the
receipt of which is contingent on a Change of Control and to
which Section 280G of the Code applies.
(c) Calculating the Cap and Adjusting Payments. If Company believes
that these rules will result in a reduction of the payments to
which Executive is entitled under this Agreement, it will so
notify Executive as soon as possible. Company will then, at its
expense, retain a "Consultant" (which shall be a law firm, a
certified public accounting firm, and/or a firm of recognized
executive compensation consultants) to provide an opinion or
opinions concerning whether Executive's Total Payments exceed the
limit discussed above. Company will select the Consultant. At a
minimum, the opinions required by this Section must set forth the
amount of Executive's Base Period Income, the present value of
the Total Payments and the amount and present value of any excess
parachute payments. If the opinions state that there would be an
excess parachute payment, Executive's payments under this
Agreement will be reduced to the extent necessary to eliminate
the excess. Executive will be allowed to choose the payment that
should be reduced or eliminated, but the payment Executive
chooses to reduce or eliminate must be a payment determined by
such Consultant to be includable in Total Payments. Executive's
decision shall be in writing and delivered to Company within
thirty (30) days of Executive's receipt of such opinions. If
Executive fails to so notify Company, Company will decide which
payments to reduce or eliminate. If the Consultant selected to
provide the opinions referred to above so requests in connection
with the opinion required by this Section, a firm of recognized
executive compensation consultants selected by Company shall
provide an opinion, upon which such Consultant may rely, as to
the reasonableness of any item of compensation as reasonable
compensation for services rendered before or after the Change of
Control. If Company believes that Executive's Total Payments will
exceed the limitations of this Section, it will nonetheless make
payments to Executive, at the times stated above, in the maximum
amount that it believes may be paid without exceeding such
limitations. The balance, if any, will then be paid after the
opinions called for above have been received. If the amount paid
to Executive by Company is ultimately determined, pursuant to the
opinion referred to above or by the Internal Revenue Service, to
have exceeded the limitation of this Section, the excess will be
treated as a loan to Executive by Company and shall be repayable
on the ninetieth (90th) day following demand by Company, together
with interest at the lowest "applicable federal rate" provided in
Section 1274(d) of the Code. If it is ultimately determined,
pursuant to the opinion referred to above or by the Internal
Revenue Service, that a greater payment should have been made to
Executive, Company shall pay Executive the amount of the
deficiency, together with interest thereon from the date such
amount should have been paid to the date of such payment, at the
rate set forth above, so that Executive will have received or be
entitled to receive the maximum amount to which Executive is
entitled under this Agreement.
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SECTION 7(d)
(d) Effect of Repeal. In the event that the provisions of Sections
280G and 4999 of the Code are repealed without succession, this
Section shall be of no further force or effect.
(e) Exception. The Consultant selected pursuant to Section 7(c) will
calculate Executive's "Uncapped Benefit" and Executive's "Capped
Benefit." The limitations of Section 7(a) will not apply to
Executive if Executive's Uncapped Benefit is at least one hundred
and five percent (105%) of Executive's Capped Benefit. For this
purpose, Executive's "Uncapped Benefit" is the amount to which
Executive would be entitled pursuant to Section 6(d), without
regard to the limitations of Section 7(a). Executive's "Capped
Benefit" is the amount to which Executive would be entitled
pursuant to Section 6(d) after the application of the limitations
of Section 7(a).
SECTION 8 - TAX GROSS-UP.
(a) Gross-Up Payment. If the Cap imposed by Section 7(a) does not
apply to Executive because of the exception provided by Section
7(e), Company will provide Executive with a "Gross-Up Payment" if
an excise tax is imposed on Executive pursuant to Section 4999 of
the Code. Except as otherwise noted below, this Gross-Up Payment
will consist of a single lump sum payment in an amount such that
after payment by Executive of the "total presumed federal and
state taxes" and the excise taxes imposed by Section 4999 of the
Code on the Gross-Up Payment (and any interest or penalties
actually imposed), Executive would retain an amount of the
Gross-Up Payment equal to the remaining excise taxes imposed by
Section 4999 of the Code on Executive's Total Payments
(calculated before the Gross-Up Payment). For purposes of
calculating Executive's Gross-Up Payment, Executive's actual
federal and state income taxes will not be used. Instead, Company
will use Executive's "total presumed federal and state taxes."
For purposes of this Agreement, Executive's "total presumed
federal and state taxes" shall be conclusively calculated using a
combined tax rate equal to the sum of the maximum marginal
federal and applicable state income tax rates. The state tax rate
for Executive's principal place of residence will be used and no
adjustments will be made for the deduction of state taxes on the
federal return, any deduction of federal taxes on a state return,
the loss of itemized deductions or exemptions, or for any other
purpose.
(b) Calculations. All determinations concerning whether a Gross-Up
Payment is required pursuant to Section 8(a) and the amount of
any Gross-Up Payment (as well as any assumptions to be used in
making such determinations) shall be made by the Consultant
selected pursuant to Section 7(c). The Consultant shall provide
Executive and Company with a written notice of the amount of the
excise taxes that Executive is required to pay and the amount of
the Gross-Up Payment. The notice from the Consultant shall
include any necessary calculations in support of its conclusions.
All fees and expenses of the Consultant shall be paid by Company.
Any Gross-Up
12
SECTION 8(b)
Payment shall be made by Company within fifteen (15) days after
the mailing of such notice. As a general rule, the Consultant's
determination shall be binding on Executive and Company. The
application of the excise tax rules of Section 4999, however, is
complex and uncertain and, as a result, the Internal Revenue
Service may disagree with the Consultant concerning the amount,
if any, of the excise taxes that are due. If the Internal Revenue
Service determines that excise taxes are due, or that the amount
of the excise taxes that are due is greater than the amount
determined by the Consultant, the Gross-Up Payment will be
recalculated by the Consultant to reflect the actual excise taxes
that Executive is required to pay (and any related interest and
penalties). Any deficiency will then be paid to Executive by
Company within fifteen (15) days of the receipt of the revised
calculations from the Consultant. If the Internal Revenue Service
determines that the amount of excise taxes that Executive paid
exceeds the amount due, Executive shall return the excess to
Company (along with any interest paid to Executive on the
overpayment) immediately upon receipt from the Internal Revenue
Service or other taxing authority. Company has the right to
challenge any excise tax determinations made by the Internal
Revenue Service. If Company agrees to indemnify Executive from
any taxes, interest and penalties that may be imposed upon
Executive (including any taxes, interest and penalties on the
amounts paid pursuant to Company's indemnification agreement),
Executive must cooperate fully with Company in connection with
any such challenge. Company shall bear all costs associated with
the challenge of any determination made by the Internal Revenue
Service and Company shall control all such challenges. The
additional Gross-Up Payments called for by the preceding
paragraph shall not be made until Company has either exhausted
its (or Executive's) rights to challenge the determination or
indicated that it intends to concede or settle the excise tax
determination. Executive must notify Company in writing of any
claim or determination by the Internal Revenue Service that, if
upheld, would result in the payment of excise taxes in amounts
different from the amount initially specified by the Consultant.
Such notice shall be given as soon as possible but in no event
later than fifteen (15) days following Executive's receipt of
notice of the Internal Revenue Service's position.
SECTION 9 - NOTICES. All notices or communications hereunder shall be
in writing, addressed as follows:
To Company: TriMas Corporation
c/o Heartland Industrial Partners, L.P.
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
13
SECTION 9
with a copy to: TriMas Corporation
00000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, General Counsel
To Executive: Xxxxxx X. Xxx
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with a copy to:
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Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third (3rd) business day
after the actual date of mailing shall constitute the time at which notice was
given.
SECTION 10 - SEPARABILITY; LEGAL FEES. If any provision of this
Agreement shall be declared to be invalid or unenforceable, in whole or in part,
such invalidity or unenforceability shall not affect the remaining provisions
hereof which shall remain in full force and effect. In the event of a dispute by
Company, Executive or others as to the validity or enforceability of, or
liability under, any provision of this Agreement, Company shall reimburse
Executive for all reasonable legal fees and expenses incurred by him in
connection with such dispute if Executive substantially prevails in the dispute
and if Executive has not substantially prevailed in such dispute one-half (1/2)
the amount of all reasonable legal fees and expenses incurred by him in
connection with such dispute except to the extent Executive's position is found
by a tribunal of competent jurisdiction to have been frivolous.
SECTION 11 - ASSIGNMENT AND ASSUMPTION. This contract shall be binding
upon and inure to the benefit of the heirs and representatives of Executive and
the assigns and successors of Company, but neither this Agreement nor any rights
or obligations hereunder shall be assignable or otherwise subject to
hypothecation by Executive (except by will or by operation of the laws of
intestate succession) or by Company, except that Company may assign this
Agreement to any successor (whether by merger, purchase or otherwise) to all or
substantially all of the stock, assets or business of Company.
SECTION 12 - AMENDMENT. This Agreement may only be amended by written
agreement of the parties hereto.
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SECTION 13
SECTION 13 - NON-COMPETITION; NON-SOLICITATION; CONFIDENTIALITY.
(a) Executive represents that acceptance of employment under this
Agreement and performance under this Agreement are not in
violation of any restrictions or covenants under the terms of any
other agreements to which Executive is a party.
(b) Executive acknowledges and recognizes the highly competitive
nature of the business of Company and accordingly agrees that, in
consideration of this Agreement, the rights conferred hereunder,
and any payment hereunder, during the Term of Employment and for
the two (2) year period following the termination of Executive's
employment with Company, for any reason ("Non-Compete Term"),
Executive shall not engage, either directly or indirectly, as a
principal for Executive's own account or jointly with others, or
as a stockholder in any corporation or joint stock association,
or as a partner or member of a general or limited liability
entity, or as an employee, officer, director, agent, consultant
or in any other advisory capacity in any business other than
Company or its subsidiaries which designs, develops,
manufacturers, distributes, sells or markets the type of products
or services sold, distributed or provided by Company or its
subsidiaries during the two (2) year period prior to the date of
termination (the "Business"); provided that nothing herein shall
prevent Executive from owning, directly or indirectly, not more
than five percent (5%) 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.
(c) During the Non-Compete Term, Executive shall not (i) directly or
indirectly employ or solicit, or receive or accept the
performance of services by, any active employee of 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 Company to leave
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 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 (6) months.
(d) Executive shall not at any time (whether during or after his
employment with Company) disclose or use for Executive's 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 Company and any of its subsidiaries, any trade
secrets, information, data, or other confidential information of
the Company, including but not limited to, 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
Company generally, or of any subsidiary of Company, unless
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SECTION 13(d)
required to do so by applicable law or court order, subpoena or
decree or otherwise required by law, with reasonable evidence of
such determination promptly provided to Company. The preceding
sentence of this paragraph (d) shall not apply to information
which is not unique to Company or which is generally known to the
industry or the public other than as a result of Executive's
breach of this covenant. Executive agrees that upon termination
of employment with Company for any reason, Executive will return
to 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 Company and its
subsidiaries, except that Executive may retain personal notes,
notebooks and diaries. Executive further agrees that Executive
will not retain or use for Executive's account at any time any
trade names, trademark or other proprietary business designation
used or owned in connection with the business of Company or its
subsidiaries.
(e) It is expressly understood and agreed that although Executive and
Company consider the restrictions contained in this Section 13 to
be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory or any
other restriction contained in this Agreement is an unenforceable
restriction against Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply
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
Agreement 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.
(f) As a condition to the receipt of any benefits described in this
Agreement, Executive shall be required to execute an agreement
pursuant to which Executive releases any claims he may have
against Company and agrees to the continuing enforceability of
the restrictive covenants of this Agreement.
(g) This Section 13 will survive the termination of this Agreement.
SECTION 14 - REMEDIES. Executive acknowledges and agrees that Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 13 would be inadequate and, in recognition of this fact, Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, Executive shall forfeit all payments otherwise due under
this Agreement and shall return any Severance Package payment made. Moreover,
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.
16
SECTION 15- SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 15 are in addition to the survivorship provisions of
any other section of this Agreement.
SECTION 16 - GOVERNING LAW; REVENUE AND JURISDICTION. If any judicial
or administrative proceeding or claim relating to or pertaining to this
Agreement is initiated by either party hereto, such proceeding or claim shall
and must be filed in a state or federal court located in Xxxxx County, Michigan
and such proceeding or claim shall be governed by and construed under Michigan
law, without regard to conflict of law and principals.
SECTION 17 - DISPUTE RESOLUTION. Any dispute related to or arising
under this Agreement shall be resolved in accordance with the TriMas Dispute
Resolution Policy in effect at the time such dispute arises. The TriMas Dispute
Resolution Policy in effect at the time of this Agreement is attached to this
Agreement.
SECTION 18 - EFFECT ON PRIOR AGREEMENTS. This Agreement contains the
entire understanding between the parties hereto and supersedes in all respects
any prior or other agreement or understanding, both written and oral, between
Company, any parent, subsidiary or affiliate of Company or any predecessor of
Company or parent, subsidiary, or affiliate of any predecessor of Company and
Executive.
SECTION 19 - WITHHOLDING. Company shall be entitled to withhold from
payment any amount of withholding required by law.
SECTION 20 - SECTION HEADINGS AND CONSTRUCTION. The headings of
sections in this Agreement are provided for convenience only and will not effect
its construction or interpretation. All references to "Section" or "Sections"
refer to the corresponding section or sections of this Agreement unless
otherwise specified. All words used in this Agreement will be construed to be of
such gender or number as circumstances require.
SECTION 21 - COUNTERPARTS. This Agreement may be executed in one (1) or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same Agreement.
17
Intending to be legally bound hereby, the parties have executed this
Agreement on the dates set forth next to their names below.
COMPANY
TRIMAS CORPORATION
By:
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Date
Its:
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EXECUTIVE
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Date Xxxxxx X. Xxx
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