Exhibit (c)(4)
President's Agreement
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made as of the day of
December, 1997, between TriMas Corporation, a Delaware corporation and Xxxxx
X. Xxxxxxxx (the "Employee").
RECITALS
The Employee has actively and significantly participated in the
management and development of the business, assets and value of the Company
and the Company considers the retaining of the Company's existing management
essential to protecting and enhancing the best interest of the Company and
enhancing shareholder value;
The Company believes that executing this Agreement is in the
best interest of the Company and its shareholders and the Employee believes
that the execution of this Agreement is in his best interests; and
The Company and the Employee desire to enter into this
Agreement;
NOW, THEREFORE, to induce the Employee to remain in the employ
of the Company, and for other good and valuable consideration, the Company and
the Employee agree as follows:
1. Definitions.
(a) "Benefit Period" shall mean the period commencing on the
date of this Agreement and continuing through the later of (i)
the end of the Contract Employment Period or (ii) the date which
is one (1) year after the Termination Date, but in no event to
end later than March 8, 2004.
(b) "Board" shall mean the Company's Board of Directors.
(c) "Business Activities" shall mean the design, development,
manufacture, distribution, sale and marketing of products or
services sold, distributed or provided by TriMas Corporation or
any of its subsidiaries prior to the Termination Date. Business
Activities shall not include the provision of services of a
professional nature (including but not limited to the provision
of financial, treasury, consulting or accounting services) by an
individual professionally licensed or trained to perform such
services ("Professional Services") in any capacity as an
employee, partner, owner or otherwise for any enterprise
generally engaged in the provision of such Professional Services
to the public.
(d) "Cause," when used in connection with the termination of
the Employee's employment by the Company, shall mean (i) the
willful and continued failure (after written notice from the
Company to the Employee) by the Employee to substantially perform
the Employee's primary duties and obligations (of a nature
consistent with this Agreement including without limitation
Section 3 hereof) to the Company (other than any failure
resulting from the Employee's Disability or actions taken by the
Company which prevent the Employee's performance), (ii) the
engaging by the Employee in willful misconduct which is
materially injurious to the Company, monetarily or otherwise, or
(iii) the commission of any act constituting a felony under the
laws of any state within the United States or of the United
States.
(e) "Company" shall mean TriMas Corporation and any
corporation or entity that is a successor (whether by purchase of
all or substantially all of the business and/or assets, merger,
consolidation or liquidation) of the Company.
(f) "Contract Employment Period" shall mean that period
commencing with the date of this Agreement and continuing to
March 8, 2001.
(g) "Disability" shall mean a physical or mental incapacity
of the Employee which entitles the Employee to benefits under the
long term disability plan applicable to the Employee and
maintained by the Company as in effect at the time of such
disability, provided however the TriMas Corporation Supplemental
Executive Retirement and Disability Plan shall not be deemed to
be such a long term disability plan. However, if the Company has
no such plan at that time, "Disability" shall mean any physical
or mental condition that renders the Employee unable to
substantially perform the Employee's duties with the Company for
a period of one hundred and eighty (180) days during any period
of twelve (12) consecutive months.
(h) "Employment Term" shall have the meaning set forth in
Section 2 of this Agreement.
(i) "Good Reason," when used with reference to a oluntary
termination by the Employee of the Employee's employment with the
Company, shall mean:
(i) a substantial diminution in the Employee's
position such that the Employee's job is no longer of a
significant or responsible management or professional
nature;
(ii) at any time on or after March 31, 1999, the
demotion or a continuation of a prior demotion of the
Employee to a position where the Employee is no longer
discharging as the principal part of that position,
responsibilities of a general nature substantially
consistent with the type of responsibilities being
discharged by the Employee as of the date hereof;
(iii) a reduction in the Employee's base salary as
in effect on the date of this Agreement or as the same
may be increased from time to time; or the Company's
failure to pay to the Employee at least the Minimum
Bonus Compensation for the year ended December 31, 1997
or December 31, 1998; or a failure of the Company to
include the Employee as an eligible participant in the
Company's bonus plan, stock incentive plan and other
management incentive programs in which the Employee
currently participates other than as part of a broad-
based restructuring of benefits of the Company
affecting no less than substantially all comparably
compensated employees of the Company, provided that the
awarding of any such incentive compensation is in the
Board's discretion;
(iv) a change in the Employee's principal work
location to any location more than forty miles outside
of Ann Arbor, Michigan, except for required travel on
the Company's business to an extent substantially
consistent with the Employee's current business travel
obligations on the date of this Agreement; or
(v) the failure by the Company to comply with any
of its obligations under Section 13(a).
(j) "Minimum Bonus Compensation" shall apply to the years
ended December 31, 1997 and December 31, 1998 only and shall mean
the bonus amount of $__________.
(k) "Protected Vesting Period" shall have the meaning set
forth in Section 9(g) of this Agreement.
(l) "Termination Date" shall mean the effective date as
provided under this Agreement of the termination of the
Employee's employment.
(m) "Unvested Options" and "Unvested Stock Awards" shall
mean all (i) unvested restricted stock awards under the 1988
TriMas Corporation Restricted Stock Incentive Plan (Restated
December 5, 1995), (ii) unvested options under the 1988 TriMas
Corporation Stock Option Plan (Restated December 5, 1995), and
(iii) unvested restricted stock awards, options, or other awards
of any form under the TriMas Corporation 1995 Long Term Stock
Incentive Plan (Restated December 5, 1995) representing awards,
options or grants granted prior to February 28, 1998.
(n) "Without Cause" when used in connection with the
termination of the Employee's employment by the Company, shall
mean any termination of employment of the Employee by the Company
which is not a termination of employment for Cause or Disability.
2. Employment, Acceptance and Term. The Company hereby employs
the Employee in a senior management position with the Company and the Employee
hereby accepts such employment with the Company on the terms set forth in this
Agreement for the Contract Employment Period unless sooner terminated pursuant
to the provisions of Sections 7 or 8 of this Agreement or upon the Employee's
death (the "Employment Term").
3. Duties and Authority. During the Employment Term, the
Employee shall devote his full business time and energies to the business
and affairs of the Company and shall not, without the Company's written
consent, accept other employment or permit such personal business interests
as he may have to interfere with the performance of his duties under this
Agreement. The Employee agrees to use his best efforts, skill and
abilities to promote the interests of the Company, to work with other
employees of the Company in a competent and professional manner and
generally to promote the interests of the Company and to perform such other
duties of a management or professional nature as may be assigned to him by
the Chairman or Board of the Company.
4. Compensation. For all services to be performed by the
Employee during the Employment Term the Company shall pay the Employee an
annual base salary of not less than ___________________________________
($___________) Dollars per year, payable in accordance with the prevailing
payroll practices of the Company and less all applicable taxes required to
be withheld by federal, state or local laws. The Employee shall be
eligible for annual merit increases in base salary, consistent with the
annual merit increases granted to other comparably compensated employees of
the Company. In addition during the Employment Term, the Employee shall be
entitled to such bonus pursuant to the Company's bonus plan, in effect on
the date hereof or which may hereafter exist, to the extent the Employee
meets the eligibility requirements of such plan and such other
discretionary compensation as in each case may be awarded from time to time
in the discretion of the Board, provided that, during the Employment Term,
the Company shall pay to the Employee as a bonus (a) for 1997 and 1998 an
amount not less than the Minimum Bonus Compensation, and (b) for 1999 and
2000 an amount commensurate with other comparably compensated employees of
the Company but not less than ninety percent (90%) of the Employee's 1998
bonus.
5. Participation in Employee Benefit Plans. In addition to
the cash compensation payable hereunder, the Employee shall be entitled to
participate during the Employment Term in such employee benefit plans,
whether contributory or non-contributory, such as group insurance plans,
hospital, surgical, vision and dental benefit plans or other bonus
incentive, profit sharing, retirement or employee benefit plans of the
Company existing on the date hereof or as may be subsequently amended or
adopted by the Company for management employees in significant or
responsible management positions covered thereby to the extent that the
Employee meets the general eligibility requirements of any such plans.
These plans include, without limitation, the TriMas Corporation Pension
Plan, the TriMas Corporation Future Service Profit Sharing Plan, the TriMas
Corporation Salaried Savings Plan, the TriMas Corporation Retirement
Benefit Restoration Plan and the TriMas Corporation Supplemental Executive
Retirement and Disability Plan. The Employee shall be entitled during each
year of the Employment Term to paid vacation time consistent with past
practice and Company policy for comparable senior executives. Any
reference to a benefit plan under this Agreement, including without
limitation those referenced in this Section 5 and in Section 1(m), shall
include any successor plans (the "Plans").
6. Application of this Agreement: Term of Agreement. The
provisions of Sections 7 and 8 of this Agreement shall apply with respect
to any termination of employment of the Employee which occurs during the
period commencing on the date of this Agreement and ending on March 8,
2003. Such provisions shall not apply to any termination of employment of
the Employee which occurs following March 8, 2003 after which date the
Employee shall have no further rights under this Agreement except to the
extent they have heretofore accrued to the Employee, including without
limitation those which have accrued under Section 9. Continuation of
employment with a successor to TriMas Corporation, as described in Section
13(a), shall not alone constitute termination of the Employee's employment.
7. Termination of Employment of the Employee By the Company.
(a) The Company shall have the right to terminate the
Employee's employment hereunder at any time for Disability, for
Cause, or Without Cause in each circumstance; however if such
termination occurs during the Contract Employment Period, the
Company will be required to comply with the procedures
hereinafter specified.
(b) During the Contract Employment Period, termination of
the Employee's employment for Disability shall become effective
no sooner than thirty (30) days after a notice of intent to
terminate the Employee's employment, specifying Disability as the
basis for such termination, is given to the Employee by the
Board, by a committee of the Board or by the officer to whom the
Employee normally reports and any applicable requirements of the
Company's long term disability plan or, if the Company has no
such plan, its administrative practices then applicable to
disability have been met.
(c) During the Contract Employment Period, termination of
the Employee's employment for Cause shall be effective
immediately upon written notification from the Board, a committee
of the Board, or the officer to whom the Employee normally
reports, to the Employee stating in such notice that the Employee
is terminated for Cause and providing reasonable detail of the
facts and circumstances claimed by the Company to constitute
Cause. In the event the Employee believes that there was not
Cause for such termination, the Employee may notify the Company
in writing of such belief within fifteen (15) days after the
Company's delivery of written notice of termination for Cause to
the Employee. In the event the Employee gives notice to the
Company within such fifteen (15) day period, the Employee shall
(unless such an opportunity has been previously offered to the
Employee) within fifteen (15) days of the giving of such notice
be afforded an opportunity, together with the Employee's counsel,
to be heard before the superior to the officer to whom the
Employee normally reports. If, pursuant to such hearing, such
superior officer determines that there was no Cause for such
termination, then such termination shall be deemed to be Without
Cause. Any determination by such superior officer shall be in
addition to and shall not limit the right of the Employee to
arbitrate whether such termination was for Cause under Section 16
hereof.
(d) The Company shall have the absolute right to
terminate the Employee's employment Without Cause by notice from
the President of the Company or the Board; however, during the
Contract Employment Period, termination of the Employee's
employment Without Cause shall be effective on the date specified
in the notice but no sooner than five (5) business days after the
date of the Company's giving to the Employee a notice of
termination, specifying that such termination is Without Cause.
(e) Upon a termination of the Employee's employment for
Cause or (except as provided to the contrary in Section 14) for
Disability, the Employee shall have no right to receive any
compensation or benefits based on the provisions of this
Agreement provided, however, with respect to Disability nothing
in this sentence shall restrict any benefits that the Employee
would otherwise receive upon the occurrence of the Employee's
disability under any benefit plans of the Company covering the
Employee. Upon a termination of the Employee's employment
Without Cause, the Employee shall be entitled to receive the
benefits provided in Section 9 hereof.
8. Termination of Employment By the Employee. The Employee shall
be entitled at any time to terminate employment with the Company for any
reason and, if such termination is for Good Reason, to receive the benefits
provided in Section 9 hereof in the same manner as if such Employee had been
terminated Without Cause. The Employee shall give the Company notice of
voluntary termination of employment, which notice need specify only the
Employee's desire to terminate employment and, if such termination is for Good
Reason, also set forth in reasonable detail the facts and circumstances
claimed by the Employee to constitute Good Reason. Any notice by the Employee
pursuant to this Section shall be effective five (5) business days after the
date it is given by the Employee. If the Employee terminates his employment
with the Company other than for Good Reason, the Employee shall not be
entitled to receive benefits under this Agreement except those provided in
Section 9(a) and 9(b) hereof.
9. Benefits Upon Termination in Certain Circumstances. Upon the
termination of the Employee's employment by the Company Without Cause pursuant
to Section 7(d) hereof or by the Employee for Good Reason pursuant to Section
8 hereof during the period commencing on the date of this Agreement and ending
on March 8, 2003, the Employee shall execute a Separation Agreement and
Complete Release of Liability in the form attached as Exhibit A hereto (the
"Release") in favor of the Company and commencing eight (8) days thereafter,
provided the Employee did not revoke the Release pursuant to Section 8
thereof, the Employee shall be entitled to receive the following benefits:
(a) The Company shall pay to the Employee, not later than
thirty (30) days after the Termination Date, a lump sum cash
amount equal to the sum of (i) the full base salary earned by the
Employee through the Termination Date and unpaid at the
Termination Date, (ii) the amount of any base salary attributable
to vacation earned by the Employee but not taken before the
Termination Date, (iii) all other amounts earned by the Employee
and unpaid at the Termination Date (including any amount of a
bonus remaining unpaid from a prior performance year), and (iv)
all amounts owing by the Company on account of expenditures by
the Employee on behalf of the Company, including without
limitation all amounts due as reimbursement of travel and
entertainment expenses.
(b) The Company shall pay to the Employee, not later than
thirty (30) days after the Termination Date, the greater of (i) a
pro-rata amount of any bonus award earned by the Employee during
the year in which the Termination Date occurred; or (ii) a pro-
rata amount (x) in cases in which the Termination Date occurs
during 1997 and 1998, of the Minimum Bonus Compensation, and (y)
in cases in which the Termination Date occurs after December 31,
1998, of the Employee's cash bonus incentive compensation for the
immediately preceding full year prior to the Termination Date.
In each case, the proration shall be based on the number of days
in the year through the Termination Date compared with 365 days.
(c) The Company shall pay to the Employee a cash amount
equal to, the Employee's Base Annual Compensation multiplied by a
fraction,
(i) the numerator of which is (x) if the
Termination Date occurs before March 8, 2000, the number of
days remaining in the Contract Employment Period or, (y) if
the Termination Date occurs on or after March 8, 2000, the
number 365 and
(ii) the denominator of which is 365 (the
"Termination Payment"). "Base Annual Compensation" shall be
the sum of (a) the Employee's base annual salary at the
highest rate in effect during the year of the Termination
Date plus (b) the greater of (x) the Employee's cash
incentive bonus compensation for the full year immediately
preceding the Termination Date or (y) in cases in which the
Termination Date occurs during 1997 or 1998, the Minimum
Bonus Compensation, and (z) in cases in which the
Termination Date occurs during the period from January 1,
1999 through March 8, 2003, an amount equal to the
Employee's cash bonus incentive compensation pursuant to
Section 4 hereof for the immediately preceding full year
prior to the Termination Date. The Termination Payment
shall be paid at the option of the Employer either (a) in
equal monthly installments over the remaining months of the
Benefit Period, or (b) (x) in a lump sum equal to the
lesser of the Termination Payment or the Employee's Base
Annual Compensation, payable within thirty (30) days of the
Termination Date, and (y) the amount, if any, by which the
Termination Payment exceeds such lump sum payment made, in
equal monthly installments commencing one (1) year after the
Termination Date and ending in the last month of the Benefit
Period.
(d) The Company shall also pay to the Employee all legal
fees and expenses incurred by the Employee as a result of
successfully enforcing any right or benefit provided to the
Employee by this Agreement.
(e) The Company shall pay, when due, for outplacement
services as requested by the Employee to assist in locating new
employment, up to a maximum amount of $30,000.
(f) The Company shall maintain in full force and effect for
the Employee's continued benefit, and for the benefit of the
Employee's dependents, until the earlier of (i) the end of the
Benefit Period or (ii) the Employee's commencement of employment
with a new employer, any medical or dental insurance plans or
medical or dental insurance arrangements in which the Employee
was entitled to participate upon the Termination Date (subject to
the Company's right under Section 5 of this Agreement to amend or
replace such plans or arrangements after the Termination Date),
provided that the Employee's continued participation is possible
under the general terms and provisions of such plans or
arrangements. In the event that the Employee's participation in
any plans or arrangements of a new employer is barred, then until
the end of the Benefit Period, the Company shall arrange to
provide the Employee with benefits substantially similar to those
which the Employee is entitled to receive under such plans or
arrangements of the Company. Should the medical insurance plans
or arrangements provided by the Employee's new employer not
entitle the Employee or the Employee's dependents (i) to any
coverage during an initial qualification period or (ii) to
coverage for any condition which is considered a pre-existing
condition under the new employer's plan and which was covered
under the Company's medical insurance plans or arrangements at
the Termination Date, then notwithstanding the Employee's
employment, the Company shall, until the end of the Benefit
Period, continue to provide medical benefits as stated above in
this Section 9(f) during such qualification period (if clause (i)
of this sentence is applicable) and for such pre-existing
condition (if clause (ii) of this sentence is applicable).
(g) Any Unvested Options of the Employee under the Company's
Plans shall, to the extent such Unvested Options have not been
converted or adjusted in any transaction approved by the
Company's Board of Directors as contemplated by the applicable
Plan, immediately vest at the Termination Date. All Unvested
Stock Awards under the Company's Plans shall continue to vest in
accordance with the terms of the respective Plans during the
period which (x) if the Termination Date occurs before March 8,
2000, shall extend until June 30, 2001, or (y) if the Termination
Date occurs on or after March 8, 2000, shall extend until the
last day of the end of the fifteen (15th) month following the
Termination Date, (the applicable time period of this sentence is
referred to as the "Protected Vesting Period"). All Unvested
Stock Awards, as to which restrictions have not lapsed under the
Plan as provided in the preceding sentence, shall be forfeited to
the Company.
(h) The Employee's right to participate in the Company's
non-qualified Supplemental Executive Retirement and Disability
Plan ("SERP"), shall terminate on the Termination Date unless the
Employee hereafter becomes entitled to vested benefits thereunder
as a result of future amendments to SERP agreements generally
implemented for Company's management employees with significant
or responsible management positions covered thereby.
Any payments to be made under this Section 9 (except payments under
subsection (f)) shall be reduced by the amount of (i) any loans or other
monetary advances made by the Company to the Employee which remain outstanding
on the Termination Date are to be paid back to the Company according to the
terms of the current arrangement, (ii) any payments made to the Employee
pursuant to the SERP, and (iii) any other retirement benefits received by the
Employee from the Company.
Subject to the succeeding paragraph, in the event that any
payments, distributions or benefits to or for the benefit of the Employee from
the Company, whether paid or payable, distributed or distributable, as provided
for in Section 9 hereof, any other section of this Agreement, or otherwise
under any other plan or arrangement of the Company would constitute a
"parachute payment", as defined in Section 280G of the Internal Revenue Code
of 1986, as amended, or any successors thereto (the "Code"), such payments
under the Agreement shall be reduced to the largest amount that will eliminate
both the imposition of the excise tax imposed by Section 4999 of the Code and
the disallowance as deductions to the Company under Section 280G of the Code
of any such payments under this Agreement. The determination of any reduction
in the payments under this Agreement pursuant to this paragraph shall be made
by a major accounting firm selected by the Company (which shall not be the
Company's independent auditors) and approved by the Employee, which approval
shall not be unreasonably withheld.
Upon the termination of the Employee's employment by the Company
Without Cause or by the Employee for Good Reason, in each case prior to March
31, 1999, then in the event that any payments, distributions or benefits to or
for the benefit of the Employee from the Company, whether paid or payable,
distributed or distributable, as provided for in Section 9 hereof, any other
section of this Agreement, or otherwise from the Company would be subject to
an excise tax pursuant to Section 4999 of the Code, or subject to any interest
or penalties with respect to such excise tax, the Employee shall be entitled
to receive, not later than three (3) days prior to the date upon which the
Employee is required to make any payment based on such determination,
additional payments from the Company in an amount equal to all additional
income and excise taxes (including interest and penalties thereon) payable,
including income and excise taxes, interest and penalties, on any payment
received pursuant to this sentence, by the Employee by reason of the
imposition of such excise tax pursuant to Section 4999 of the Code. All taxes
deemed payable hereunder are to be calculated by a major accounting firm
selected by the Company (which shall not be the Company's independent
auditors) and approved by the Employee, which approval shall not be
unreasonably withheld, using maximum marginal rates applicable to the
Employee. If, after the payment of any amount pursuant to this paragraph, the
Company elects to contest such tax or taxes, the Employee shall cooperate with
the Company, in good faith at the Company's sole expense, to contest such tax
or taxes. If the Company is successful in contesting any proposed tax, the
Employee shall return to the Company, upon receipt by the Employee, any
refunds (including any interest paid or penalties remitted on any such
refunds) with respect to such contested tax or taxes and any other payments
made by the Company to the Employee pursuant to this paragraph with respect
to the amount refunded.
10. Other Employment; Mitigation. The Employee shall not be
required to mitigate the amount of any payment or benefit provided for in
Section 9 by seeking other employment. The amount of any payment or benefit
provided for in Section 9 shall not be reduced by any compensation earned by
the Employee as the result of other employment or consulting services
performed.
11. Life and Disability Insurance. During the Benefit Period, the
Company will continue to maintain in effect and pay the premiums on any
insurance policies insuring the life or disability of the Employee which are in
effect on the effective date hereof or may hereafter be taken out by Company,
or substitute policies for all significant management employees covered
thereby.
12. Non-Competition. In consideration of the payments to be
received by the Employee hereunder, in recognition of the highly competitive
nature of the industries in which the Company conducts its business and to
further protect the goodwill of the Company and to promote and preserve its
legitimate business interests, the Employee agrees that during the period
commencing the date hereof and ending on the last day of the Protected Vesting
Period, he will not:
(a) Engage in any Business Activities (other than on
behalf of the Company) whether such engagement is as an officer,
director, proprietor, employee, partner, investor (other than as
a holder of less than 1% of the outstanding capital stock of a
publicly traded corporation), consultant advisor, agent or
otherwise, in any geographic area in which the products or
services of the Company have been distributed or provided during
the period commencing two years prior to the date hereof and
ending on the Termination Date;
(b) Other than on behalf of the Company supply products or
provide services (but only to the extent such restricted
activities constitute Business Activities) to any customer with
whom the Company has done any business during the period
commencing two years prior to the date hereof and ending on the
Termination Date, whether as an officer, director, proprietor,
employee, partner, investor (other than as a holder of less than
1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent or otherwise;
(c) Assist others in engaging in any of the Business
Activities in the manner prohibited to the Employee; and
(d) Induce or attempt to induce employees of the Company, or
its affiliates to engage in any activities hereby prohibited to
the Employee or to terminate their employment. It is expressly
understood and agreed that although the Employee and the Company
consider the restrictions contained in each of clauses (a)
through (d) above to be reasonable for the purpose of preserving
the Company's goodwill, proprietary rights, trade secrets,
valuable confidential business interests, relationships with
specific prospective and existing customers and going concern
value, and to protect the Company's business opportunities,
markets and trade areas, if a final judicial determination is
made by a court having jurisdiction that the time or territory or
scope of restricted activities or any other restriction contained
in this Agreement is an unenforceable restriction on the
activities of the Employee, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply
as to such maximum time, restricted activities and territory and
to such other extent as such court may judicially determine or
indicate to be reasonable. Alternatively, if the court referred
to above finds that any restriction contained in this Section 12
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
therein. It is further expressly understood and agreed that the
providing of Professional Services shall not be restricted under
this Agreement.
13. Successors: Binding Agreement.
(a) The Company shall require any successor (whether by
purchase of all or substantially all of the business and/or
assets, merger, consolidation or liquidation) of the Company to
expressly assume, by written agreement, the obligation of the
Company to perform this Agreement upon or prior to such
succession taking place. A copy of such written agreement shall
be delivered to the Employee promptly after its execution by the
successor or such person or group.
(b) Failure of the Company to obtain such agreement upon
or prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle the Employee to
benefits as set forth above in Section 9. These amounts shall
not be discounted to any present value.
(c) This Agreement is personal to the Employee and the
Employee may not assign or transfer any part of the Employee's
rights or duties hereunder, or any compensation due to the
Employee hereunder, to any other person, except that this
Agreement shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees or
beneficiaries.
14. Death: Disability. If the Employee dies or experiences a
Disability on or prior to March 8, 2003 and before the date that the Employee
gives notice of termination for Good Reason pursuant to Section 8 hereof, or
before the Company gives notice of termination Without Cause pursuant to
Section 7(d) hereof, or for Cause pursuant to Section 7(c) hereof, the
Employee shall not be entitled to any benefits under this Agreement provided,
however, such restriction shall not otherwise restrict any benefits that the
Employee would otherwise receive upon the occurrence of the Employee's death
or disability under any benefit plans of the Company covering the Employee. If
the Employee dies or experiences a Disability on or prior to March 8, 2003 and
on or after the date that the Employee gives notice of termination for Good
Reason pursuant to Section 8 hereof, or on or after the Company gives notice
of termination Without Cause pursuant to Section 7(d) hereof, the Employee
shall be entitled to the benefits available to the Employee under this
Agreement and any such benefits shall not be reduced in any way because of
such death or Disability. If the Employee dies on the date the Employee is
terminated for Cause the Employee shall not be entitled to any benefits
hereunder unless it is subsequently determined pursuant to this Agreement that
such termination was not for Cause.
15. Modification: Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in a writing signed by the Employee and by the Company, provided,
however, the Employee shall not be required to execute as a condition of
continued employment any additional agreement or any agreement which modifies
or replaces this Agreement during the Benefit Period. Waiver by any party of
any breach of or failure to comply with any provision of this Agreement by the
other party shall not be construed as, or constitute, a continuing waiver of
such provision, or a waiver of any other breach of, or failure to comply with,
any other provision of this Agreement.
16. Arbitration of Disputes.
(a) Except with respect to the enforcement of the
Company's rights under Section 12 hereof or the enforcement of
the Company's rights under the Release, any disagreement dispute,
controversy or claim arising out of or relating to this
Agreement, the interpretation or validity hereof, or the terms
and conditions of Employee's employment including the termination
thereof, shall be settled exclusively and finally by arbitration.
Except as provided in the preceding sentence, it is specifically
understood and agreed that any disagreement dispute or
controversy which cannot be resolved between the parties,
including without limitation any matter relating to the
interpretation of this Agreement, claims of discrimination under
state or federal law, shall be resolved solely by arbitration
irrespective of the magnitude thereof, the amount in controversy,
or the nature of the relief sought.
(b) The arbitration shall be conducted in accordance with
Employment Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA"), the terms of which
are incorporated herein.
(c) The arbitral tribunal shall consist of one arbitrator
skilled in arbitration of senior executive employment matters.
The parties to the arbitration shall jointly directly appoint
such arbitrator within thirty (30) days of initiation of the
arbitration. If the parties shall fail to appoint such
arbitrator as provided above, such arbitrator shall be appointed
by the AAA as provided in the Arbitration Rules and shall be a
person who has had substantial experience in senior executive
employment matters. The Company shall pay all of the fees, if
any, and expenses of such arbitrator and the arbitration.
(d) The arbitration shall be conducted in the
Southeastern Michigan area or in such other city in the United
States of America as the parties to the dispute may designate by
mutual written consent.
(e) At any oral hearing of evidence in connection with
the arbitration, each party thereto or its legal counsel shall
have the right to examine its witnesses and to cross-examine the
witnesses of any opposing party. No evidence of any witness
shall be presented in form unless the opposing party or parties
shall have the opportunity to cross-examine such witness, except
as the parties to the dispute otherwise agree in writing or
except under extraordinary circumstances where the interests of
justice require a different procedure.
(f) Any decision or award of the arbitral tribunal shall
be final and binding upon the parties to the arbitration
proceeding. The parties hereto agree that the arbitral award may
be enforced against the parties to the arbitration proceeding or
their assets wherever they may be found and that a judgment upon
the arbitral award may be entered in any court having
jurisdiction.
(g) Nothing herein contained shall be deemed to give the
arbitral tribunal any authority, power, or right to alter,
change, amend, modify, add to, or subtract from any of the
provisions of this Agreement.
17. Notice. All notices, requests, demands and other
communications required or permitted to be given by either party to the other
party by this Agreement (including, without limitation, any notice of
termination of employment and any notice under the Arbitration Rules of an
intention to arbitrate) shall be in writing and shall be deemed to have been
duly given when actually received, or three (3) business days after being
mailed by certified or registered mail, return receipt requested, postage
prepaid, or one (1) business day after being sent by a nationally recognized
overnight courier service, with charges prepaid by sender and receipted for by
or on behalf of the intended recipient, in each case to the address of the
other party, as follows:
If to the Company, to:
TriMas Corporation
000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: President
With a copy to:
Corporate Counsel
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
If to the Employee:
----------------------------
----------------------------
----------------------------
Either party hereto may change its address for purposes of this Section 16 by
giving ten (10) days' prior notice to the other party hereto.
18. Severability. If any term or provision of this Agreement or
the application hereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
19. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not be a part of or control or affect
the meaning of this Agreement.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
21. Governing Law. This Agreement shall in all respects be
governed by, and construed and enforced in accordance with, the laws of the
State of Michigan, without regard to the conflicts of laws principles of such
state.
22. Payroll and Withholding Taxes. All payments to be made or
benefits to be provided hereunder by the Company shall be subject to reduction
for any then applicable payroll-related or withholding taxes, which the
Company shall timely pay or deposit as required by the Internal Revenue Code
of 1986, as amended and any successors thereto.
23. Entire Agreement. This Agreement supersedes any and all other
oral or written employment agreements heretofore made and constitutes the
entire agreement of the parties relating to the subject matter hereof.
Notwithstanding the forgoing, this Agreement is not intended to and does not
alter or amend any agreements between the Employee and the Company relating to
matters such as non-competition and non-disclosure of Company matters, and is
not intended to and does not limit the Employee's obligations under any
Company employee benefit or welfare plan or limit, restrict, or reduce any
employee benefit that the Employee is entitled to under any other agreement,
plan, or arrangement, including without limitation as applicable, those
providing for stock options, restricted stock, disability insurance or life
insurance.
24. Additional Benefits. During the Employment Term, the Company
shall provide the Employee with reasonable and suitable office space in Ann
Arbor, Michigan and a secretary located in Ann Arbor, Michigan at such office
for as long as the Employee is providing ongoing services hereunder to the
Company. The Employee shall be responsible for selecting his secretary and
the Company shall be responsible for the salary and other benefits of the
secretary, which shall approximate the current level of salary and benefits
payable to the Employee's secretary, subject to normal Company salary
increases.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TriMas Corporation
By:
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(Employee Signature)
Its:
------------------------
-------------------------------
(Employee Printed Name)
EXHIBIT A
SEPARATION AGREEMENT AND
COMPLETE RELEASE OF LIABILITY
This Separation Agreement and Complete Release of Liability
(this "Agreement') is made this ______ day of __________, ____ by and between
_________________ (the "Employee") and TriMas Corporation, a Delaware
corporation (the "Company").
The Company and Employee agree to the following terms:
1. Date of Separation. Employee's active full-time employment
with the Company will irrevocably and forever cease on ______________.
Employee will not seek employment with the Company thereafter.
2. Complete Release. In exchange for the compensation to be paid
to Employee pursuant to Section 9 of that certain Employment Agreement dated
November ____, 1997 between the Employee and the Company (the "Employment
Agreement"), which Employee acknowledges he would not otherwise be entitled to
receive without signing this Agreement, Employee forever discharges and
releases the Company, its affiliates, subsidiaries, and their respective
officers and directors, agents or representatives (the "Company Parties") from
and forever promises not to xxx the Company Parties for any and all claims,
demands, damages, rights and causes of action, including, without limitation,
claims for compensatory and punitive damages and for injunctive and other
equitable or declaratory relief, Employee now has or may have against the
Company Parties up to the date of signing this Agreement, whether known or
unknown, including, but not limited to, claims, demands, rights and causes of
action arising out of Employee's employment and termination thereof, claims of
employment discrimination or bias, wrongful discharge, severance pay, unused
vacation and breach of contract and any violation of Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Employee Retirement
Income Security Act of 1974 (ERISA), the Americans with Disabilities Act of
1990 (ADA), the Age Discrimination and Employment Act of 1967 (ADEA), the Older
Workers Benefit Protection Act, the Fair Labor Standards Act, the Occupational
and Safety & Health Act, the Equal Pay Act and any and all other federal, state
and local laws and regulations and ordinances and or public policy and any and
all claims, demands, rights and causes of action the Employee now has or may
have against the Company Parties under common law or in equity including,
without limitation, contract or tort actions.
Employee acknowledges and fully understands and agrees that the
Company Parties may plead this release as a complete defense to any claim or
entitlement that may be asserted by Employee or other persons or agencies on
the Employee's behalf in any suit, grievance or claim against the Company
Parties for or on account of any matter whatsoever. This does not preclude,
however, the right of Employee to enforce the terms of this Agreement.
This release does not include a release of any pension benefits
for which Employee may be eligible under the terms of applicable Company
benefits plans.
3. Confidentiality and Non-Disparagement. Employee promises not
to disclose the contents of any Proprietary Information of the Company or any
of its affiliates or subsidiaries. Proprietary Information shall mean
information or material of the Company or any of its affiliates or
subsidiaries (1) which is not generally available to or used by others or (2)
the utility or value of which is not generally known or recognized as standard
practice, whether or not the underlying details are in the public domain and
includes, without limitation:
(a) Information or materials which relate to the Company's or
any of its affiliates' or subsidiaries' trade secrets,
manufacturing methods, machines, articles of manufacture,
compositions, inventions, engineering services, technological
developments, know-how, purchasing, accounting, merchandising or
licensing;
(b) Software in various stages of development (source code,
object code, documentation, diagrams, flow charts), designs,
drawings, specifications, models, data and customer information;
and
(c) Any information of the type described above which the
Company or any of its affiliates or subsidiaries obtained from
another party and which the Company or any of its affiliates or
subsidiaries treats as proprietary or designates as confidential,
whether or not owned or developed by the Company or any of its
affiliates or subsidiaries.
Employee agrees not to disparage the Company, its subsidiaries
or affiliates or their respective officers, directors or employees.
4. Non-Admission of Liability. This Agreement is made solely to
facilitate an arrangement reached by the Company with Employee. This
Agreement should not be construed as an admission by the Company of any
wrongdoing.
5. Consequences of Employee Violation of Promises. If Employee
(i) breaks the promises in Paragraph 2 of this Agreement and files a lawsuit or
makes a claim or charge based on legal claims that Employee has released, (ii)
breaks the promise made in Paragraph 3 of this Agreement and discloses
Proprietary Information to any non-authorized third party, and such disclosure
results in damage or injury to the Company or any of its affiliates or
subsidiaries, (iii) does not use his reasonable efforts to avoid disparaging
the Company, its subsidiaries and affiliates and their respective officers,
directors and employees, or (iv) without Company's prior written consent,
induces any Employee of the Company to leave the Company's employment,
Employee will reimburse the Company for all such damage or injury occasioned
by such action, including reasonable attorneys.
6. Period For Review and Consideration of Agreement - Employee
understands that Employee has been given a period of 21 days to review and
consider this Agreement before signing it. Employee further understands that
Employee may use as much of this 21 day period as Employee wishes prior to
signing and that Employee will have waived the full 21 day period by signing
this Agreement before the 21 day period expires.
7. Encouragement to Consult with Attorney - Employee is strongly
encouraged to consult with an attorney before signing this Agreement. Employee
understands that whether or not to do so is Employee's decision.
8. Employee's Right to Revoke Agreement - Employee may revoke this
Agreement within seven (7) days of Employee's signing it. Revocation can be
made only by delivering a written notice of revocation to
____________________________. For this revocation to be effective, written
notice must be received by _________________ no later than the close of
business on the seventh day after Employee signs this Agreement. If Employee
properly revokes this Agreement, it shall not be effective or enforceable, and
Employee will not receive the benefits described in Employee's Employment
Agreement.
9. Assistance in the Defense of Claims and Consultative Advice -
Employee agrees, upon reasonable notice from the Company, to assist the
Company in the defense of any legal or administrative proceeding now pending
or which later may be filed by or against the Company or by or against any
affiliated or related companies or any of their officers, directors or
employees. Company will reimburse and/or advance monies to Employee for lost
wages and out-of-pocket expenses incurred in connection with such assistance.
Employee agrees, in addition, to the extent requested from time to time by the
Company and provided such requests do not require more than a nominal amount
of Employee's time, to provide telephonic consultative advice with respect to
questions the Company may have regarding matters for which the Employee
previously had responsibility or otherwise possesses knowledge.
10. Company Property - Employee shall return to the Company upon
signing this Agreement any and all Company property which has been entrusted
to the Employee during the Employee's tenure with the Company.
11. Applicable Law; Severability - The parties agree that this
Agreement shall be governed by the laws of the State of Michigan. If any
provision of this Agreement is declared invalid, the remaining provisions
shall remain in effect.
12. Entire Agreement - The Company has used its best efforts to
compose this Agreement in a manner calculated to be readily understood by the
Employee. This Agreement is the complete, entire and final agreement between
Employee and the Company concerning the subject matter expressed herein. This
Agreement may not be modified or terminated except in writing signed by both
parties. The Company has made no promises to Employee other than those in
this Agreement and the Employment Agreement.
13. Successors/Assigns. This Agreement is personal to the Employee
and may not be assigned or transferred by the Employee. This Agreement shall
inure to the benefit of the Employee's personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees or
beneficiaries, and to the Company, and its successors and assigns.
EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT,
UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS
AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
EMPLOYEE WITNESS
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By:
---------------------------
Dated:
------------------------
TRIMAS CORPORATION WITNESS
------------------------------
By:
---------------------------
Its:
--------------------------
Dated:
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