EXHIBIT 10.13
CHIEF EXECUTIVE OFFICER
EMPLOYMENT AGREEMENT
This Agreement is made by and between TRIMAS CORPORATION, a Delaware
corporation ("Company") and XXXXX XXXXX (hereinafter "Executive") effective
September 23, 2002 ("Effective Date"). In order to induce Executive to serve as
its President and Chief Executive 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 President and Chief Executive
Officer. In this capacity, Executive shall report to the Board
of Directors of Company (the "Board"). 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, subject at all
times to review and control of the Board. During the Term of
Employment, Executive also agrees to serve, if elected, as an
officer or director, or both of any subsidiary, limited
liability company, or other business entity, of which Company
or Heartland Industrial Partners, L.P. of Greenwich,
Connecticut ("Heartland") holds at least a fifty percent (50%)
ownership interest, without the payment of any additional
compensation therefor.
(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 equity securities or other property (provided that
no such investment may exceed five percent (5%) of the equity
of any publicly traded entity, unless Executive receives the
prior approval of 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,
2006 ("Initial Period"); or the date that either party terminates Executive's
employment in accordance with the terms of this Agreement; provided that
subsequent to the Initial Period, the Term of Employment shall automatically
renew each January 1 for one year upon the same terms and conditions ("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.
SECTION 3 - COMPENSATION.
(a) Salary. During the Initial Period, Company shall pay Executive
at the rate of seven hundred fifty thousand dollars ($750,000)
per annum ("Base Salary"). Base Salary shall be payable in
accordance with the ordinary payroll practices of Company (but
not less often than monthly) and shall be subject to all
applicable federal, state and local withholding and reporting
requirements.
(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.
Executive and Company acknowledge that currently under the
AVCP Executive's annual target bonus equals one hundred (100%)
percent of Executive's annual Base Salary.
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-five (25)
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 a
Board member, 1) one country club membership and monthly dues,
2) one lease vehicle with value up to $55,000 or a monthly
allowance of $1,250.00 per month in lieu of vehicle, 3) use of
corporate chartered aircraft, 4) supplemental life insurance,
5) reimbursement of tax preparation and financial planning
fees within policy guidelines, and 6) annual executive
physical. Executive acknowledges that some portion of his
benefits or his personal use of perquisites will represent
additional personal income to him and will be reported to him
as such.
(d) Stock Options. Executive shall be eligible to participate in
the 2002 TriMas Long Term Equity Incentive Plan ("Company
Incentive Plan") in accordance with the terms and conditions
of such plan and any grant agreements thereunder. Executive
and Company acknowledge that currently under the Company
Incentive Plan Executive has been granted stock options for
555,500 shares of Company stock, none of which stock options
are vested as of the date hereof.
SECTION 5 - EXPENSES. Subject to prevailing Company policy or such
guidelines as may be established by the Board, Company will reimburse Executive
for all reasonable expenses incurred by Executive in carrying out his duties.
SECTION 6 - TERMINATION OF EMPLOYMENT. Either party may at any time for
any reason terminate Executive's Term of Employment, under the following terms
and conditions.
(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:
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(A) Base Salary continuation for thirty (30)
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 (but not
less often than monthly);
(B) A bonus equal to one hundred percent (100%)
of the highest level of the previous five
(5) years' award under AVCP, payable in
equal installments over the thirty (30)
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 health, and dental insurance benefits
substantially similar to those which
Executive was receiving immediately prior to
termination of employment until the earlier
of:
(i) the end of the thirty (30) 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 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.
(D) All other benefits then accrued to Executive
under all Company sponsored plans in
accordance with the terms and conditions of
those plans.
(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 the Company has
cured as provided below:
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(A) Removal from the position of President and
Chief Executive Officer of the Company
(other than as a result of a promotion or a
change in position which is not material);
or
(B) Any material and permanent diminution in
Executive's duties or responsibilities; or
(C) A material reduction in the aggregate value
of Base Salary or bonus opportunity or a
material and permanent reduction in the
aggregate value of other benefits provided
to Executive by the Company; or
(D) 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 a thirty-five (35) mile
radius of Executive's primary office before
the reassignment or relocation or
Executive's permanent residence on the date
of the reassignment or relocation.
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 the AVCP award for the most recently completed year if an
award has been declared for such year but not paid. Executive
shall also be entitled to all other benefits then accrued to
Executive under all Company sponsored plans in accordance with
the terms and conditions of those plans. 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. Any accrued unpaid bonus amounts payable under
this Section 6(c) 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. As
used herein, the term "Cause" shall be limited to:
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(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
(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 three hundred
percent (300%) 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 three hundred percent
(300%) 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.
(C) All other benefits then accrued to Executive
under all Company sponsored plans in
accordance with the terms of those plans.
All payments under this Section 6(d), however, are
subject to the timing rules, calculations and
adjustments described in Sections 7 and 8.
(2) Benefits Continuation. Executive shall continue to
receive life, group health and dental insurance
benefits substantially similar to those which
Executive was receiving immediately prior to the
Qualifying Termination until the earlier of:
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(A) the end of the thirty-six (36) 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 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:
(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
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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.
(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 accrued but unpaid Base Salary and AVCP
awards (including the prorated AVCP award for the year of
Disability through the date of employment termination,
prorated in the same manner as provided in Section
6(a)(1)(B)), cease on the first to occur of (1) the date that
is six (6) months after such termination or (2) the date
Executive becomes entitled to benefits under a
Company-provided long-term disability program. Executive shall
be entitled to all other benefits then accrued to Executive
under all Company sponsored plans in accordance with the terms
and conditions of those plans. 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 and
reasonably acceptable to Executive. 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 (including a
prorated AVCP award for the year of death, prorated in the
same manner as provided in Section 6(a)(1)(B)), shall
terminate upon Executive's death. Executive shall be entitled
to all other benefits then accrued to Executive under all
Company sponsored plans in accordance with the terms and
conditions of those plans.
(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
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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 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
and only in the event that Sections 280G(d)(1) and (2) of the
Code, and related provisions and regulations apply, 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 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 or
Executive believes that these rules will result in a reduction
of the payments to which Executive is entitled under this
Agreement, it
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will so notify the other party 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 either Company or
Executive believes that Executive's Total Payments will exceed
the limitations of this Section, Company 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 promptly be repaid by Executive with
interest thereon 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.
(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
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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 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
with a copy to: R. Xxxxxxx Xxxxxxx, Esq.
McDonald, Hopkins, Xxxxx &
Xxxxx Co., L.P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
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To Executive: Xx. Xxxxx Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxxxx, XX 00000
with a copy to: Xxxxx X. X'Xxxxx, Esq.
Xxxxx Xxxxxxx, P.C.
000 Xxxxx Xxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
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.
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 year (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 an employee, as a partner or
member of a limited liability entity, or as principal for
Executive's own account or jointly with others, or as a
stockholder in any corporation or joint stock association, 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.
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(c) During the Non-Compete Term, Executive shall not (1) 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, or directly or indirectly induce
any employee of Company to leave Company, or assist in any of
the foregoing except in connection with general, non-targeted
recruitment efforts such as advertisements and job listings,
or (2) 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, or other confidential information of the
Company, including but not limited to 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
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 by Company 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. Notwithstanding the foregoing or anything else in
this Agreement to the contrary, this Section 13 shall
automatically terminate and be rendered null and void and of
no further force or effect in the event that: (i) Executive is
terminated without Cause, or (ii) Executive terminates his
employment with Company for Good Reason; provided that
Executive shall in no event be released from any prohibition
enforceable at law or in equity against the unlawful use of
confidential or propriety information, or other forms of
unfair competition.
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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.
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 Oakland County or 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. Company and Consultant shall, in good
faith, first attempt to resolve any dispute, controversy or claim arising out of
or relating to this Agreement by face-to-face negotiations. If any such dispute,
controversy or claim is not resolved within thirty (30) days after such
negotiations begin, such dispute, controversy or claim 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 affiliate of Company or any predecessor of Company 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.
SECTION 22 - INDEMNIFICATION. Company shall indemnify Executive for his
acts or omissions as a director or officer of the Company to the extent provided
by the Company's Amended and Restated Certificate of Incorporation, as may be
amended from time to time.
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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:
Date -----------------------------
Its:
-----------------------------
EXECUTIVE
________________________________________
Date ---------------------------------
XXXXX XXXXX
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