Exhibit (c)(5)
Executive Agreement
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made as of the ____ day of
December, 1997, between TriMas Corporation, a Delaware corporation and
_____________ (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:
Section 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 voluntary
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.
Section 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").
Section 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 President of the Company
or any other officers of the Company to whom the Employee normally reports.
Section 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, an (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.
Section 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").
Section 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.
Section 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.
Section 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.
Section 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 (1) in equal monthly installments
over the remaining months of the Benefit Period, or (2) (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 9(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, (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.
Section 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. If the amount to be paid to the
Employee under Section 9(c) hereof exceeds the Employee's Base Annual
Compensation, then any amount of such excess that would have been paid to the
Employee under Section 9(c) shall be reduced by any salary and bonus earned by
the Employee as the result of other employment or consulting services
performed during the period beginning one year after the Termination Date and
ending on the last day of the Benefit Period. Except for the reduction
required by the immediately preceding sentence, the amount of any payment
provided for in Section 9 shall not be reduced by any salary and bonus earned
by the Employee as the result of other employment or consulting services
performed.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 20. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original.
Section 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.
Section 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.
Section 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.
[Note: The Employment Agreements for Messrs. Xxxxxxxx and Xxxxx do not
contain any references to the Company's non-qualified Supplemental
Executive Retirement and Disability Plan or provide for any benefits
thereunder. Xx. Xxxxx'x Employment Agreement provides that any outstanding
relocation advance owing to the Company as of his termination date shall
not reduce any amount payable under his Employment Agreement but shall be
repaid to the Company under separate arrangements.]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TriMas Corporation
By:
---------------------------- ----------------------------
(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
------------------------------ ------------------------------
By:
---------------------------
Dated:
------------------------
TRIMAS CORPORATION WITNESS
------------------------------
By:
---------------------------
Its:
--------------------------
Dated:
------------------------
