EXHIBIT 10.24
Execution Copy
Xxxxx, LLC
Interim Engagement Resources Agreement
December 21, 2006
Xx. Xxxxx Xxxxxx
Chief Executive Officer
Dura Automotive Systems
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Dear Xx. Xxxxxx:
Xxxxx, LLC ("Xxxxx") understands that Dura Automotive Systems (the "Company")
desires to hire Xxxxx X. Xxxxxxx, one of our partners, as an employee of the
Company (the "Xxxxx Partner"). Although the Xxxxx Partner will dedicate
substantially all of his business time and attention to the Company, the Company
acknowledges that the Xxxxx Partner is and will remain a partner in our firm so
that he will have access to our firm's resources for use in his employment with
the Company. This Interim Engagement Resources Agreement sets forth the rights
of the Company, through the Xxxxx Partner, to use such resources for the benefit
of the Company and for the payment for such services.
Since the Xxxxx Partner will be under the control and direct management of the
Company, and not Xxxxx, Xxxxx'x obligations to the Company are exclusively those
set forth in this agreement. Subject to Bankruptcy Court approval, this document
will serve as the entire agreement between the Company and Xxxxx, and will be
effective as of December 9, 2006.
Compensation
The Company will pay directly to Xxxxx a fee equal to 25% of the Partner's
Salary (initially $5,400 semi-monthly) as partial compensation for resources
provided. Should the Xxxxx Partner be paid a bonus the Company will pay Xxxxx
(whether cash or equity) 25% of the total bonus paid by the Company during the
term of this agreement.
For purposes hereof, (i) "Salary" means all compensation, including early
termination fee, if any, and pay in lieu of untaken vacation, paid to the Xxxxx
Partner, except bonuses if any, and benefits. All compensation payable or
deliverable to Xxxxx is referred to herein as the "Resource Fee."
Payments: Deposit
Payments to Xxxxx should be made by wire transfer or by an automated clearing
house payment in advance, on a semi-monthly basis.
Company agrees to pay Xxxxx and to maintain a security deposit of $30,000.00 for
the Company's future payment obligations to Xxxxx under this agreement or the
Xxxxx Partner under that certain Employment
Letter, dated on or about the date hereof (the "Employment Letter"), by and
between the Company and the Xxxxx Partner (the "Deposit"). If the Company
breaches this agreement or the Employment Letter and fails to cure such breach
as provided in this agreement or the Employment Letter, Xxxxx will be entitled
to apply the Deposit to its or the Xxxxx Partner's damages resulting from such
breach. Upon termination or expiration of this agreement, Xxxxx will return to
the Company the balance of the Deposit remaining after application of any
amounts to unfulfilled payment obligations of the Company to Xxxxx or the Xxxxx
Partner as provided for in this agreement or the Employment Letter.
Converting Interim to Permanent
The Company will have the opportunity to make the Xxxxx Partner a full-time
permanent member of Company management at any time during the term of this
agreement by entering into another form of Xxxxx agreement, the term so which
will be negotiated at such time.
Termination
This agreement will terminate immediately upon the earlier of the effective date
of termination or expiration of the Xxxxx Partner's employment with the Company
or upon the Xxxxx Partner ceasing to be a partner of Xxxxx.
In the event that either party commits a breach of this agreement and fails to
cure the same within seven (7) days following delivery by the non-breaching
party of written notice specifying the nature of the breach, the non-breaching
party will have the right to terminate this agreement immediately effective upon
written notice of such termination.
Hiring Xxxxx Partner Outside of Agreement
During the twelve (12)-month period following termination or expiration of this
agreement, other than in connection with another Xxxxx agreement, the Company
will not employ the Xxxxx Partner, or engage the Xxxxx Partner as an
independent contractor, to render services of substantially the same nature as
those for which Xxxxx is making the Xxxxx Partner available pursuant to this
agreement. The parties recognize and agree that a breach by the Company of this
provision would result in the loss to Xxxxx of the Xxxxx Partner's valuable
expertise and revenue potential and that such injury will be impossible or very
difficult to ascertain. Therefore, in the event this provision is breached,
Xxxxx will be entitled to receive as liquidated damages an amount equal to
forty-five percent (45%) of the Xxxxx Partner's Annualized Compensation (as
defined below), which amount the parties agree is reasonably proportionate to
the probable loss to Xxxxx and is not intended as a penalty. If, however, a
court or arbitrator, as applicable, determines that liquidated damages are not
appropriate for such breach. Xxxxx will have the right to seek actual damages.
The amount will be due and payable to Xxxxx upon written demand to the Company.
For this purpose, "Annualized Compensation" will mean the Xxxxx Partner's most
recent annual Salary and the maximum amount of any bonus for which the Xxxxx
Partner was eligible with respect to the then current bonus year.
Insurance
The Company will provide Xxxxx or the Xxxxx Partner with written evidence that
the Company maintains directors' and officers' insurance covering the Partner as
it covers similarly situated executive employees of the Company and at no
additional cost to the Xxxxx Partner, and the Company will maintain such
insurance at all times while this agreement remains in effect.
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Furthermore, the Company will maintain such insurance coverage with respect to
occurrences arising during the term of this agreement for at least three years
following the termination or expiration of this agreement or will purchase a
directors' and officers' extended reporting period, or "tail," policy to cover
the Xxxxx Partner.
Disclaimers, Limitations of Liability & Indemnity
The Company acknowledges to Xxxxx that, as of the date of this agreement the
Company's U.S. and Canadian operations are, and have been since October 30,
2006, operating under protection of Chapter 11 of the U.S. Bankruptcy Code in
the United States Bankruptcy Court for the District of Delaware. Xxxxx offers no
assurances that the resources to be provided under this agreement will enable
the Company to successfully emerge from Chapter 11.
It is understood that Xxxxx does not have a contractual obligation to the
Company other than to make its resources available to the Xxxxx Partner (by
virtue of the Xxxxx Partner being a partner in Xxxxx) for the benefit of the
Company under the terms and conditions of this agreement. The Resource Fee will
be for the resources provided. Xxxxx assumes no responsibility or liability
under this agreement other than to render the services called for hereunder and
will not be responsible for any action taken by the Company in following or
declining to follow any of Xxxxx'x advice or recommendations.
Xxxxx represents to the Company that Xxxxx has conducted its standard screening
and investigation procedures with respect to the Xxxxx Partner becoming a
partner in Xxxxx, and the results of the same were satisfactory to Xxxxx. Xxxxx
disclaims all other warranties, either express or implied. Without limiting the
foregoing, Xxxxx makes no representation or warranty as to the accuracy or
reliability of reports, projections, forecasts, or any other information derived
from use of Xxxxx'x resources, and Xxxxx will not be liable for any claims of
reliance on such reports, projections, forecasts, or information. Xxxxx will not
be liable for any non-compliance of reports, projections, forecasts, or
information or services with federal, state, or local laws or regulations. Such
reports, projections, forecasts, or information or services are for the sole
benefit, of the Company and not any unnamed third parties.
In the event that with respect, to services provided to the Company any partner
of Xxxxx (including without limitation the Xxxxx Partner to the extent not
otherwise entitled in his capacity as an officer of the Company) is subpoenaed
or otherwise required to appear as a witness or Xxxxx or such Partner is
required to provide evidence, in either case in connection with any action, suit
or other proceeding initiated by a third party or by the Company against a third
party, then the Company shall reimburse Xxxxx for the costs and expenses
(including reasonable attorneys' fees) actually incurred by Xxxxx or such
Partner and provide Xxxxx with compensation at Xxxxx'x customary rate for the
time incurred.
The Company agrees that, with respect to any claims the Company may assert
against Xxxxx in connection with this agreement or the relationship arising
hereunder, Xxxxx'x total liability will not exceed two (2) months of the then
current monthly Resource Fee.
Xxxxx will not be liable in any event for incidental, consequential, punitive,
or special, damages, including, without, limitation, any interruption of
business or loss of business, profit, or goodwill.
Miscellaneous
Xxxxx will be entitled to receive all reasonable costs and expenses incidental
to the collection of overdue amounts under this agreement, including but not
limited to attorneys' fees actually incurred.
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The Company agrees to allow Xxxxx to use the Company's logo and name on Xxxxx'x
website and other marketing materials for the sole purpose of identifying the
Company as a client of Xxxxx. Xxxxx will not use the Company's logo or name in
any press release or general circulation advertisement without the Company's
prior written consent.
Neither the Company nor Xxxxx will be deemed to have waived any rights or
remedies accruing under this agreement unless such waiver is in writing and
signed by the party electing to waive the right or remedy. This agreement binds
and benefits the successors of Xxxxx and the Company.
Neither party will be liable for any delay or failure to perform under this
agreement (other than with respect to payment obligations) to the extent such
delay or failure is a result of an act of God, war, earthquake, civil
disobedience, court order, labor dispute, or other cause beyond such party's
reasonable control.
The terms of this agreement are severable and may not be amended except in a
writing signed by Xxxxx and the Company. If any portion of this agreement is
found to be unenforceable, the rest of the agreement will be enforceable except
to the extent that the severed provision deprives either party of a substantial
portion of its bargain.
The provisions in this agreement concerning payment of compensation and
reimbursement of costs and expenses, limitation of liability, and directors' and
officers' insurance will survive any termination or expiration of this
agreement.
This agreement will be governed by and construed in all respects in accordance
with the laws of the State of New York, without giving effect to
conflicts-of-laws principles.
Nothing in this agreement shall confer any rights upon any person or entity
other than the parties hereto and their respective successors and permitted
assigns and the Xxxxx Partner.
Each person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one necessary.
Electronic Payment Instructions for Deposit and Resource Fee:
Bank Name: Bank of America
Branch: Atlanta
Routing Number: For ACH Payments: 061 000 052
For Wires: 026 009 593
Account Name: Xxxxx, LLC
Account Number: 003 279 247 763
Please reference Dura Automotive Systems in the body of the wire.
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Please sign below and return a signed copy of this letter to indicate the
Company's agreement with its terms and conditions.
We look forward to serving you.
Sincerely yours,
XXXXX, LLC
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Associate Managing Partner for XXXXX,
LLC
Acknowledged and agreed by:
Dura Automotive Systems
By: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President Human Resources
Date:
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