EXHIBIT 10.23
Termination Agreement
March 30, 2007
Xx. Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
XX Xxx 000
Xxxxxxxx, XX 00000
Dear Xxxx:
Please allow this letter to serve as the entire agreement (the
"Agreement") between Dura Automotive Systems, Inc. (the "Company") and you, Xxxx
Xxxxx (the "Employee"), with respect to certain aspects of the termination of
your employment with the Company.
EFFECTIVE DATE
This Agreement is effective as of the date hereof (the "Effective
Date").
RECITALS
Whereas, the Employee was an employee of the Company and served as
Executive Vice President of the Company through the earlier of the Effective
Date and March 30, 2007;
Whereas, the Company determined that the Employee will no longer serve
as Executive Vice President, as of the earlier of the Effective Date and March
30, 2007; and
Whereas, the Company is currently operating as a debtor-in-possession
under chapter 11 of the United States Code (the "Bankruptcy Code"), with its
cases currently pending before the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court").
DURATION
As of the earlier of the Effective Date and March 30, 2007, the
Employee will cease to be employed by the Company. The terms of this Agreement
shall remain in effect from the Effective Date through April 1, 2008, or the
date that is twelve months after the Effective Date, whichever is later (the
"Duration").
The Duration of this Agreement may be modified only by mutual agreement
of the Company and the Employee, evidenced by written confirmation of same.
CONSIDERATION
To the extent permitted by an order of the Bankruptcy Court:
(i) The Company shall pay to the Employee an amount equal to the
accrued, but unused, vacation time the Employee earned during
his employment with the Company. For avoidance of doubt,
Employee's accrued vacation time is eight weeks as of March
30, 2007, and shall be paid in a lump sum of approximately
$125,000.00, within 5 days of the Bankruptcy Court's approval
of this Agreement, which is an amount equal to Employee's
regular salary for that period of time.
(ii) The Company shall pay the Employee, in consideration for the
Employee's assent to and performance under the
non-competition, non-disparagement, non-solicitation and
confidentiality provisions herein, a one-time payment of
$125,000 (the "Non-Compete Consideration") within 5 days of
the Bankruptcy Court's approval of this Agreement.
NON-COMPETITION; NON-DISPARAGEMENT; NON-SOLICITATION
For the Duration, the Employee will not directly or indirectly:
(i) Become employed by, consult for, provide or arrange financing
for, or own any interest in, any company that is in the same
business or substantially the same business as the Company and
its affiliates and is a direct competitor of the Company or
its affiliates (a "Competing Business"); provided, however,
that Employee may own not more than five percent of any class
of publicly-traded securities of any legal entity engaged in a
Competing Business.
(ii) Participate in any manner in the Chapter 11 bankruptcy cases
involving the Company; provided, however, that, consistent
with item (i) above and with his confidentiality obligations
under this Agreement, Employee may be employed by parties with
an interest in the Company's chapter 11 cases so long as his
duties do not involve the Company, whether directly,
indirectly or otherwise; provided further that the prospective
employer affirmatively screens him from any and all matters
involving the Company or its chapter 11 cases during the
Non-Compete Period.
For the Duration, the Employee will not directly or indirectly, make
any oral or written statement or publication with respect to the Company or its
affiliates or any stockholders, directors, officers, employees, lenders or their
respective affiliates, which disparages or denigrates, or could reasonably be
interpreted as, disparaging or denigrating, the Company or any of its affiliates
or any stockholders, directors, officers, employees, lenders or their respective
affiliates. This section shall not apply to testimony given under oath in any
legal or administrative proceeding.
For the Duration, the Company's officers will not directly or
indirectly, make any oral or written statement or publication with respect to
the Employee, which disparages or denigrates, or could reasonably be interpreted
as, disparaging or denigrating, the Employee. This section shall not apply to
testimony given under oath in any legal or administrative proceeding.
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For the Duration, Employee shall not directly or indirectly through
another person or entity (other than in the ordinary course of Employee's
employment with the Company or any of its affiliates (the "Affiliates")) (i)
induce or attempt to induce any employee of the Company or any Affiliate to
leave the employ of the Company or such Affiliate, or in any way interfere with
the relationship between the Company or any Affiliate and any employee thereof
(provided, nothing herein shall prohibit normal general advertising), (ii) hire
any person who was an employee of the Company or any Affiliate at any time
during the twelve month period immediately preceding the date of the intended
hire or (iii) induce or attempt to induce any customer, supplier, licensee,
licensor or other business relation of the Company or any Affiliate to cease
doing business with the Company or such Affiliate, or in any way interfere with
the relationship between any such customer, supplier, licensee, licensor or
other business relation and the Company or any Affiliate (including, without
limitation, making any negative or disparaging statements or communications
regarding the Company or its Affiliates).
If, at the time of enforcement of these non-competition,
non-disparagement and non-solicitation provisions, a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable under
circumstances then existing, the parties agree that the maximum duration, scope
or area reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area
permitted by law. Employee acknowledges that the restrictions contained in these
non-competition, non-disparagement and non-solicitation provisions are
reasonable and that Employee has reviewed the provisions of this Agreement with
Employee's legal counsel.
In the event of the breach or a threatened breach by Employee of any of
the provisions of these non-competition, non-disparagement and non-solicitation
provisions, the Company would suffer irreparable harm, and in addition and
supplementary to other rights and remedies existing in its favor, the Company
shall be entitled to specific performance and/or injunctive or other equitable
relief from a court of competent jurisdiction in order to enforce or prevent any
violations of the provisions hereof (without posting a bond or other security).
In addition, in the event of a breach or violation by Employee of these
non-competition, non-disparagement and non-solicitation provisions which is
finally determined by a court of competent jurisdiction, the Non-Compete Period
shall be automatically extended by the amount of time between the initial
occurrence of the breach or violation and when such breach or violation has been
duly cured.
Employee's obligations pursuant to these non-competition,
non-disparagement and non-solicitation provisions shall terminate in the event
that the Company is in breach of its obligation to pay the Non-Compete
Consideration due herein; provided that the Company shall be given prior written
notice of any such breach and shall be given up to five business days after
receipt of such notice to cure such breach of its payment obligation.
CONFIDENTIAL INFORMATION
In the performance of Employee's duties as a former officer and
employee of the Company, Employee was brought into frequent contact with, had,
or may have had access to, and became or may have become informed of
confidential and proprietary information of the Company and information that is
a trade secret of the Company, or otherwise confidential
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(collectively, "Confidential Information"). Employee acknowledges
and agrees that the Confidential Information was or will be developed by and/or
for the Company through the substantial expenditure of time, effort and money
and constitutes valuable and unique property of the Company.
Employee will keep in strict confidence, and will not, directly or
indirectly, at any time, disclose, furnish, disseminate, make available, use or
suffer to be used in any manner, any Confidential Information of the Company
without limitation as to when or how Employee may have acquired such
Confidential Information; provided, however, that the foregoing shall not
preclude Employee's disclosure of Confidential Information pursuant to, or as
required by, law, subpoena, judicial process or to any governmental agency in
connection with any investigation or proceeding of such agency. Employee
specifically acknowledges that Confidential Information includes any and all
information, whether reduced to writing (or in a form from which information can
be obtained, translated, or derived into reasonably useable form), or maintained
in the mind or memory of Employee and whether compiled or created by the
Company, which derives independent economic value from not being readily known
or ascertainable by proper means by others who can obtain economic value from
the disclosure or use of such information, that reasonable efforts have been put
forth by the Company to maintain the secrecy of Confidential Information, that
such Confidential Information is and will remain the sole property of the
Company, and that any retention or use by Employee of Confidential Information
after the termination of Employee's employment by the Company will constitute a
misappropriation of the Company's Confidential Information.
Employee's obligation of confidentiality under this section will
survive, regardless of any termination or other breach of this Agreement or any
other agreement, by any party hereto, unless and until such Confidential
Information of the Company has become, through no fault of the Employee,
generally known to the public or the Employee is required by law (after
providing the Company with notice and the opportunity to contest such
requirement) to make such a disclosure. Employee's obligations under this
section are in addition to, and not in limitation or preemption of, all other
obligations of confidentiality, which Employee may have to the Company under the
Company's policies, general legal or equitable principles or statutes, and which
will remain in full force and effect following the Effective Date.
Upon the earlier of the Effective Date and March 31, 2007, Employee
shall deliver to the Company all memoranda, notes, plans, records, reports,
computer files, disks and tapes, printouts and software and other documents and
data (and copies thereof) embodying or relating to Confidential Information or
the business of the Company or any Affiliates which Employee may then possess or
have under Employee's control.
MISCELLANEOUS
This Agreement contains the entire agreement between the parties with
respect to the matters contained herein, superseding any prior oral or written
statements or agreements, specifically: Employee's entitlement to salary,
severance, vacation time or payment for unused vacation time, and payment for
his non-competition, non-disparagement, non-solicitation and confidentiality
covenants. Nothing in this Agreement is intended to deprive Employee from
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asserting entitlement to, or a claim for, such things as his vested retirement
benefits (SERP, LSPP, 401(k) and ESPP) or other items not specifically covered
in this Agreement.
The Employee may not assign or delegate any of his rights or
obligations under this Agreement without first obtaining the written consent of
the Company.
In the event the Company is requested to provide details of Employee's
employment or termination of that employment, the Company will indicate that the
Company and Employee have severed their relationship, and the Company will
furnish a letter of reference substantially in the form of attached Exhibit "A"
to this Agreement.
The Company will permit Employee and his counsel to prior review and
approval of any motion filed by the Company with the Bankruptcy Court seeking
approval of this Agreement, and any proposed order submitted to the Court for
entry on the same subject.
The terms of this Agreement are severable and may not be amended except
in a writing signed by the parties. If any portion of this Agreement is found to
be unenforceable, the rest of this agreement will be enforceable except to the
extent that the severed provision deprives either party of a substantial portion
of its bargain.
This Agreement will be governed by and construed in all respects in
accordance with the laws of the State of Michigan, without giving effect to
conflicts-of-laws principles.
Each person signing below is authorized to sign on behalf of the party
indicated, and in each case such signature is the only one necessary.
All notices or other communication described under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Employee: If to the Company:
Xx. Xxxxxx X. Xxxxx Dura Automotive Systems, Inc.
0000 Xxxxxxx Xxxx Xxxx: Xxxxxxx Xxxxxx
XX Xxx 000 2791 Research Dr.
Bellaire, MI 48615 Xxxxxxxxx Xxxxx, XX 00000
[NOTHING FURTHER ON THIS PAGE]
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Please sign below and return a signed copy of this letter to indicate your
agreement with its terms and conditions.
Sincerely yours, Acknowledged and agreed by:
Dura Automotive Systems, Inc. Xxxxxx X. Xxxxx
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
Signature (Signature)
Name: Xxxxxxx Xxxxxx Xxxxxx X. Xxxxx
Title: VP of Human Resources (Print name)
Date: 5-1-07 Date: 4-30-07
