May 20, 2005
Xx. Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxx, XX 00000
Dear Xxxxx:
This letter agreement (the "Agreement") details the understanding that TriMas
Corporation ("TriMas") and you have reached regarding the separation of your
employment with TriMas, and the benefits that TriMas is willing to provide you
as consideration for the execution of this Agreement. For purposes of this
Agreement, TriMas includes all of its subsidiaries and affiliates.
1. Employment and Severance Benefits
Your employment with TriMas terminates effective as of April 14, 2005 (the
"Termination Date"). Except as noted below, TriMas, effective on the Termination
Date, will discontinue your compensation and benefits, except that TriMas will
pay you any accrued and unused vacation time for calendar year 2005.
As consideration for the execution of this Agreement and after it becomes
binding on both parties, TriMas agrees to pay you the compensation benefits
described below ("Compensation Benefits").
(a) Cash Compensation. Compensation equal to one hundred twenty five
thousand dollars ($125,000) to be paid over a period of sixteen (16)
months following the Termination Date. Payments will be made via
direct deposit, to an account you specify, in equal, bi-weekly
installments, less applicable withholding and payroll taxes.
(b) COBRA Continuation of Health Care. Continuation of medical benefits
under TriMas group benefits (including health, dental and prescription
plans), as defined by the plan documents, until the earlier of sixteen
(16) months from the date of this Agreement or the date on which you
become eligible to receive any medical benefits under any plan or
program of any other employer; provided, that you timely elect to
continue group health coverage under COBRA and subject to TriMas's
COBRA policies. You will be charged and responsible for payment of the
COBRA premium equal to the employee portion of the premium for the
selected coverage that you
Xxxxx X. Xxxxxxx
May 20, 2005
Page 2
would have paid if you continued to be a TriMas employee. TriMas will
pay the employer-portion of the medical coverage. After the stated
continuation period, you will be responsible for 100% of the COBRA
premiums.
(c) Executive Outplacement Services. Outplacement services will be
provided via Right Management Consultants. TriMas's obligation to
provide or pay for this service will termination upon your obtaining
any new employment or the last day of the 16th month following the
Termination Date, whichever occurs first.
2. Termination of Accruals Under Retirement Plans. Notwithstanding anything to
the contrary stated herein, you shall cease to be an active participant under
the TriMas retirement programs and other benefit plans pursuant to the terms of
those plans, and no additional benefits or compensation shall accrue to you
after the Termination Date. No amounts paid under this Agreement shall
constitute compensation for purposes of any such retirement plan. Your rights to
any accrued and vested benefits under a qualified retirement plan shall be
determined in accordance with the applicable plan document.
3. Taxes. Any payments made by TriMas hereunder are subject to applicable
federal, state and local tax withholding. You agree that you are exclusively
liable for the payment of any federal, state, local or other taxes that may be
due as a result of any benefits received by you as provided in this Agreement.
You further agree to indemnify and hold TriMas harmless from any payment of
taxes or penalties, if any, that may be required of you as a result of any
benefits received by you pursuant to this Agreement. You may wish to consult
with your financial or tax advisor with regard to the tax implication of any
benefits described in this Agreement. You acknowledge and agree that no
representations or warranties have been made to you with regard to the tax
consequences of any payment provided for under this Agreement.
4. Stock Option Surrender. In exchange for the Compensation Benefits and other
valuable financial consideration, you surrender any and all stock option shares
(vested or unvested) or other long term incentives, including restricted shares
or units, granted to you under any stock option or other long term incentive
plans of TriMas and irrevocably waive any and all claims, rights or entitlements
under any stock option agreement with TriMas.
5. Confidentiality; Release Consideration. You agree that you are subject to
the restrictive covenants and remedies set forth on Attachment A, which is
hereby incorporated into and made part of to this Agreement. You acknowledge
that this Agreement provides additional and sufficient consideration for the
release contained herein.
Xxxxx X. Xxxxxxx
May 20, 2005
Page 3
6. Executive's Duty to Provide Materials. Upon termination you will surrender
to TriMas all correspondence, letters, files, contracts, mailing lists, customer
lists, advertising material, ledgers, equipment, checks and all materials and
records of any kind that are the property of TriMas that may be in your
possession or under your control, including all copies of the foregoing, as well
as all other property of TriMas.
7. Cooperation.
(a) You agree that you will not to in any way criticize, disparage, attempt
to discredit, demean or otherwise call into disrepute TriMas, or its successors,
assigns, officers, directors, employees or agents, or any of TriMas's products
or services.
(b) You agree that you will not assist any party other than TriMas in any
claim, litigation, proceeding or investigation against TriMas or other Released
Parties (as defined below), except as require by law. You further agree that if
you believe any such action is required by law, you will first afford TriMas the
opportunity to raise and obtain a ruling on any claim of attorney-client or
other privilege, attorney work product protection, contractual or other defense
that may be applicable.
(c) You agree to provide, at TriMas's reasonable expense, your cooperation
to TriMas and the Released Parties in any existing or future claim, litigation,
proceeding, investigation or other judicial, administrative or legislative
matter in which your assistance may be desired by TriMas.
(d) Upon execution of this Agreement, you and TriMas will enter into a
Consulting Services Agreement (in the form attached as Attachment B) which
Consulting Services Agreement will become effective upon the expiration of any
revocation period set forth in Section 11 below.
8. Release.
(a) you and TriMas, without any admission of liability, desire to settle
with finality, compromise, dispose of, and release all claims, demands, and
causes of action you have asserted or which you could assert against TriMas or
any of the Released Parties in connection with or related to stock options, any
agreement with a predecessor to TriMas, your employment or the termination of
your employment, or any condition or benefit of employment or otherwise. This
Agreement is not and shall not be construed as an admission by either party that
your employment was terminated voluntarily or involuntarily, with or without
cause, or as an admission by TriMas of any liability, an admission against
interest, or any violation of TriMas's policies or procedures.
(b) You, your heirs, executors, administrators, successors and assigns,
hereby release and forever discharge TriMas, direct or indirect parents,
subsidiaries and their
Xxxxx X. Xxxxxxx
May 20, 2005
Page 4
affiliates and respective officers, directors, agents, representatives,
shareholders, employees (current and former), employee benefit plans,
fiduciaries, successors, predecessors, assigns, and any and all other persons,
firms, corporations and other legal entities associated with TriMas
(collectively referred to as the "Released Parties"), of and from any and all
claims, demands, actions, causes of action, debts, damages, expenses, suits,
contracts, agreements, costs and liabilities of any kind, nature or description,
whether direct or indirect, known or unknown, in law or in equity, in contract,
tort or otherwise, which you ever had, now have or may have against any of the
Released Parties as of the date of execution of this Agreement, whether known or
unknown, suspected or unsuspected, or which may be based upon pre-existing acts,
claims or events occurring at any time up to the present date, including, but
not limited to, (i) claims arising under any written or oral agreement regarding
compensation, benefits, or options or equity grants, (ii) claims arising under
Title VII of the Civil Rights Act of 1964 or state civil rights statutes, the
Age Discrimination in Employment Act of 1967 ("ADEA"), the Older Worker Benefit
Protection Act ("OWBPA"), the Americans with Disabilities Act ("ADA"), the
Family and Medical Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"),
the National Labor Relations Act ("NLRA"), the Employee Retirement Income
Security Act ("ERISA"), (iii) claims for breach of express or implied contract,
breach of promise, promissory estoppel, loss of income, back pay, reinstatement,
front pay, impairment of earning capacity, wrongful termination, defamation,
libel, slander, discrimination, damage to reputation, fraud, violation of public
policy, retaliation, negligent or intentional infliction of mental or emotional
distress, intentional tort or any other federal, state or local common law or
statutory claims, and all other claims and rights, whether in law or equity. It
is the intention of the parties that this paragraph will be construed as broadly
as possible; however, this paragraph does not include claims arising under state
workers' compensation laws and state unemployment laws. This paragraph also
does not affect your right to file a charge or otherwise participate in an EEOC
proceeding insofar as it is required by current EEOC regulations. You understand
that TriMas will assert this Agreement as an affirmative defense against any
claim asserted by you in any forum.
(c) In signing this Agreement, you agree to waive any rights you might have
to pursue any claims against the Released Parties through any alternative
dispute resolution process, or through any court or administrative agency, to
the extent permitted by law, and further agree not to bring any suit or action
in any court or administrative agency, to the extent permitted by law, against
any of the Released Parties, arising out of or relating to the subject matter of
this Agreement.
9. Nondisclosure. You agree not to disclose the existence of this Agreement or
any of its terms to any third parties other than your spouse, tax advisors,
accountants and attorneys, or as otherwise required by law. If you disclose the
contents of this Agreement to any person as permitted above, you shall use your
best efforts to prevent all such persons from disclosing the contents of this
Agreement. You agree that any violation of
Xxxxx X. Xxxxxxx
May 20, 2005
Page 5
this nondisclosure paragraph will result in substantial and irreparable injury
to TriMas. If any claim or demand is made to legally compel you to disclose the
terms and conditions of this Agreement, you will promptly notify TriMas's
General Counsel of such claim or demand before responding thereto, so that
TriMas may take such action as it deems appropriate.
10. References. In the event that you seek a reference for employment purposes,
you agree to direct inquiries to TriMas's Human Resources Department. Other than
the mutually agreed upon letter of reference attached hereto as Attachment C,
references to be provided by TriMas regarding you shall be limited to dates of
employment, positions held and compensation. Those making such inquiries will be
advised that it is the general policy of TriMas to provide only such neutral
references in response to employment inquiries.
11. Consideration Time and Revocation Period.
(a) You acknowledge you have sufficient time, totaling twenty-one (21) days
from receipt of this Agreement, to determine if you wish to accept the terms. In
the event you sign and return this Agreement before that time, you certify, by
such execution, that you knowingly and voluntarily waive the right to the full
time period, for reasons personal to you, with no pressure by TriMas to do so.
TriMas and you further agree that any changes, whether material or immaterial,
to this Agreement do not restart the running of the twenty-one (21) day
consideration period. TriMas has made no promises, inducements or threats to
cause you to sign this Agreement before the end of the twenty-one (21) day
period.
(b) You understand that you may revoke this Agreement for a period of
seven (7) calendar days following your execution of the Agreement. You
understand that any revocation, in order to be effective, must be: (1) in
writing and either postmarked within seven (7) days of your execution of the
Agreement and addressed to General Counsel, TriMas Corporation, 00000 Xxxxxxxx,
Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000 or (2) hand-delivered within seven (7)
days of your execution of the Agreement to TriMas's General Counsel at the
address listed above. If revocation is by mail, certified mail, return receipt
requested is required to show proof of mailing.
(c) No payments or benefits under this Agreement shall be made to you until
after the seven (7) day revocation period has expired. If you do not revoke this
Agreement within the seven (7) day revocation period, then this Agreement shall
become fully and finally effective and the payments and benefits provided
hereunder will be made to you in accordance with this Agreement.
12. Complete Agreement. In executing this Agreement, you are doing so knowingly
and voluntary and agree that you have not relied upon any oral statements by
TriMas or
Xxxxx X. Xxxxxxx
May 20, 2005
Page 6
its representatives, and that this Agreement, when signed by both parties,
supersedes any and all prior written agreements between the parties regarding
the terms of your employment or the termination of such employment. Any
modification of this Agreement must be made in writing and signed by you and an
authorized representative of TriMas and must specifically refer to and
expressly modify this Agreement.
13. Severability. Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the remaining parts, terms or
provisions shall not be affected thereby, and said illegal or invalid part, term
or provision shall be deemed not to be a part of this Agreement; provided that
such court may, in lieu of finding any provision hereof to be unenforceable,
illegal or invalid, modify any such provision to preserve to the greatest extent
possible the intended effect of such provision while otherwise rendering it
legal and enforceable.
14. Choice of Law. This Agreement shall be deemed to be made and entered into
in the State of Michigan and shall in all respect be interpreted, enforced and
governed under the laws of the State of Michigan, except if applicable federal
law provides differently.
13. Attorney. You acknowledge that you have had the opportunity to review this
Agreement with an attorney of your choosing and at your cost, and have been
encouraged and given sample time to consult with your own legal counsel prior to
executing this Agreement.
14. Deadline for Acceptance. You must accept this Agreement, by signing it
within twenty-one (21) days after delivery to you, or the offer contained in
this Agreement will be withdrawn.
Xxxxx X. Xxxxxxx
May 20, 2005
Page 7
15. Consequences of Violation of Promise. If you break the promise in paragraph
8 of this Agreement and file a lawsuit based on legal or equitable claims that
you have released, it is expressly understood and agreed that the covenant not
to xxx constitutes a complete defense to any such lawsuit. If litigation is
brought to enforce the terms of paragraph 8 and/or 15, the prevailing party shall
be entitled to recover reasonable costs and reasonable attorneys' fees incurred
in the litigation. This provision shall not apply to a claim by you under and/or
challenging this Agreement's validity under the ADEA or OWBPA and excludes any
such claim, unless authorized by federal law.
TRIMAS CORPORATION
/s/ Xxxxx X. Xxxxxxx
-------------------------------
XXXXX X. XXXXXXX
DATE: May 23, 2005 By: /s/ Xxxxx X. Xxxxx
------------------------- --------------------------------
XXXXX X. XXXXX
ITS: PRESIDENT AND CEO
Date: May 20, 2005
Date of Delivery to Employee: May 20, 2005
Xxxxx X. Xxxxxxx
May 20, 2005
Page 8
Attachment A
(a) You shall not at any time disclose or use for your 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 TriMas, any trade secrets,
information, data, or other confidential information of TriMas,
including but not limited to, information 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 TriMas generally, 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 TriMas. The preceding sentence of
this paragraph shall not apply to information which is not unique to
TriMas or which is generally known to the industry or the public other
than as a result of your breach of this covenant. You further agree not
to retain or use for business purposes any trade names, trademark or
other proprietary business designation used or owned in connection with
the business of TriMas.
(b) You acknowledge and agree that TriMas's remedies at law for a breach or
threatened breach of any of the provisions of this Attachment A would be
inadequate and, in recognition of this fact, you agree that, in the
event of such a breach or threatened breach, in addition to any remedies
at law, you shall forfeit all payments otherwise due under the Agreement
and shall return any payments made under the Agreement. Moreover,
TriMas, 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. Further, a breach by you of any the provisions in
this Attachment A will subject you to pay damages for any such breach
which may include costs and attorneys' fees incurred by TriMas in
seeking to enforce this provision.
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT, dated as of May 20, 2005 ("Consulting
Services Agreement"), is made between TriMas Corporation, a Delaware
corporation with its principal place of business at 00000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000 ("Corporation") and Xxxxx X. Xxxxxxx
("Consultant"), an individual, whose principal residence is 000 Xxxxxxx
Xxxx, Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Corporation and the Consultant have entered into an agreement dated
May 20, 2005 ("Separation Agreement") regarding the terms and conditions of the
termination of the employment relationship between the Consultant and the
corporation;
WHEREAS, pursuant to the terms of the Separation Agreement, the Corporation and
the Consultant have agreed to enter into this Consulting Services Agreement
whereby the Corporation will agree to retain the services of the Consultant on
the terms and conditions contained herein; and
WHEREAS, the Consultant is willing to provide such services on such terms and
conditions;
NOW THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound hereby, the Corporation and the Consultant agree
as follows:
1. Consulting Services
(a) The Corporation hereby engages the Consultant with respect to the
organizational, product marketing and distribution and business
development aspects of the Corporation's Cequent Transportation
Accessories Group (the "Business"), in addition to such
responsibilities and duties within the experience, training and
ability of the Consultant as may be designated from time to time by the
President of the Corporation (the "Services"). The Consultant agrees
to be available to perform the Services at such reasonable times and
places as the President of the Corporation may direct.
(b) The Corporation and the Consultant hereby agree and acknowledge that
other than this Agreement, no independent contractor or employment
arrangement is in effect between the Consultant and the Corporation.
2. Term
The term of this Agreement shall commence as of the expiration of the
revocation date under the Separation Agreement, and terminate sixteen (16)
months thereafter (the "Term"). If the Separation Agreement is revoked,
this Agreement shall be null and void.
3. Fees
In consideration of the Services provided by the Consultant and other
undertakings set forth herein (including pursuant to Section 4 below), the
Corporation shall pay to the Consultant a fee of $425,000 in sixteen (16)
equal monthly installments commencing in the month in which the term set
forth in section 2 begins, which installments shall be made via direct
deposit to the account specified by the Consultant. Payments shall be made
by the last business day of the month for Services provided during that
month.
4. Confidentiality, Non-solicitation and Non-competition
(a) The Consultant acknowledges that in the course of providing the
Services, he may have access to and be entrusted with confidential
information relating to the Corporation's property, business affairs,
finances, clients, and employees (the "Confidential Information"), the
disclosure of which would be highly detrimental to the interests of
Corporation. The Consultant further acknowledges and agrees that such
Confidential Information constitutes a proprietary right which the
Corporation is entitled to protect. Accordingly, the Consultant hereby
agrees to make use of such Confidential Information only for the
purposes of providing Services to the Corporation pursuant to this
Agreement and shall not directly or indirectly communicate or disclose
such Confidential Information to any other person, firm, corporation
or entity, 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 the Corporation.
The preceding sentence of this paragraph shall not apply to
information which is not unique to the Corporation or which is
generally known to the industry or the public other than as a result
of the Consultant's breach of this covenant.
(b) The Consultant agrees that he will promptly disclose to the
Corporation any and all ideas, improvements, inventions, discoveries,
or business opportunities (patentable or otherwise) derived during the
term of this Agreement and which pertain directly or indirectly to the
business of the Corporation. The Consultant further agrees to assign
all such rights and interests to the Corporation without additional
compensation, and agrees to cooperate in all other such acts and
things as may be reasonably necessary to exclusively vest such rights
and interests in the name of the Corporation.
(c) The Consultant will at all times, hold in the strictest confidence,
and will not disclose to anyone (either directly or indirectly)
confidential or proprietary information belonging to the Corporation,
except as may be required by law. The Consultant agrees that all such
information acquired through his dealings with the Corporation, its
shareholders, officers, directors, employees or agents relating to the
processes, practices, methods, products, inventions, marketing plans,
improvements, developments, suppliers, customers, trade secrets, work
methods, technical design, internal organization, investments,
finances, personnel, or pension plans of the Corporation will be held
in the strictest confidence. The Consultant agrees not to disclose any
such information without the prior written authorization of the
Company, with the exception of that information already in the public
domain (other than through a breach of this
2
Agreement), except as may be required by law. The Consultant further
agrees to use such information only for those purposes which are in
the best interests of the Corporation, and shall not make use of such
information for his own personal benefit or for the benefit of any
other person, firm, corporation or entity.
(d) Consultant acknowledges and recognizes the highly competitive nature
of the business of the Corporation and accordingly agrees that from
April 14, 2005 through the entire Term, Consultant shall not engage,
either directly or indirectly, as a principal for his own account or
jointly with others, or as a stockholder in any corporation or joint
stock association, or as a partner or member of a general or limited
liability entity, or as an employee, officer, director, agent,
consultant or in any other advisory capacity in any business which
designs, develops, manufacturers, distributes, sells, markets or is
otherwise engaged in activities related to the type of products or
services sold, distributed or provided by the Business during the
twelve (12) month period prior to April 14, 2005 or during the Term
(the "Business Activity"); provided that nothing herein shall prevent
Consultant 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 Activity and listed or
traded on a national securities exchanges or in an over-the-counter
securities market.
(e) From April 14, 2005 through the entire Term, Consultant shall not (i)
directly or indirectly employ or solicit, or receive or accept the
performance of services by, any active employee of the Corporation,
except in connection with general, non-targeted recruitment efforts
such as advertisements and job listings, or directly or indirectly
induce any employee of the Corporation to leave the Corporation, or
assist in any of the foregoing, or (ii) solicit for business (with
respect to the Business) any person who is a customer or former
customer of the Corporation, unless such person shall have ceased to
have been such a customer for a period of at least six (6) months.
(f) It is expressly understood and agreed that although Consultant and the
Corporation consider the restrictions contained in this Section 4 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 the Consultant, the provisions of this Section 4
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.
(g) The consultant acknowledges and agrees that the Corporation's remedies
at law for a breach or threatened breach of any of the provisions of
this Section 4 would be inadequate and, in recognition of this fact,
agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Consultant shall forfeit all
payments otherwise due under the Agreement and shall return any
payments made under the Agreement. Moreover, TriMas,
3
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. Further, a breach by the Consultant of any of
provisions in this Section 4 will subject the Consultant to pay
damages for any such breach which may include costs and attorneys'
fees incurred by the Corporation in seeking to enforce this provision.
(h) The Consultant hereby acknowleges and agrees that all covenants,
provisions and restrictions contained in this Section 4 of this
Agreement are reasonable and valid and that all defenses to the strict
enforcement thereof by the Corporation are hereby waived by the
Consultant.
5. Independent Contractor
(a) The Consultant is and shall remain at all times an independent
contractor and is not, and shall not represent himself to be a joint
venturer, partner or employee of the Corporation or to be related to
the Corporation in any fashion other than as an independent
contractor. The Consultant agrees not to knowingly make any
representations or engage in any acts which could establish an
apparent relationship of joint venture, partnership or employment with
the Corporation. For greater certainty, the Corporation shall not be
bound in any manner whatsoever by any agreement, warranties or
representations made by the Consultant to any other person, firm or
corporation or by any action of the Consultant, except where the
Consultant has first obtained the prior written consent of the
Corporation. Nothing contained in this Agreement is intended to create
nor shall be construed as creating an employment relationship between
the Consultant and the Corporation.
(b) The Consultant recognizes that he has the sole responsibility as an
independent contractor to comply with all requirements of applicable
laws, rules and regulations. The Corporation shall not make any
deductions or withholdings for pension plans, employment insurance,
taxes or any other similar amounts from the compensation set out in
paragraph 3 of this Agreement. It is agreed that the Consultant shall
be solely responsible for deducting all applicable federal and state
income tax, pension plan deductions, employment insurance premiums and
all other relevant deductions from all fees provided by the
Corporation to the Consultant and for remitting same to the Internal
Revenue Service and any other governmental authorities as may be
prescribed by law.
(c) As an independent contractor, the Consultant shall not be entitled to
any employment related benefits or vacation pay. Upon termination of
this Agreement, the Corporation shall only be responsible for the
payment of any reasonable expenditure incurred in the course of
providing services to the Corporation and approved in advance in
writing by the President of the Corporation. With the exception of
these amounts, the Consultant shall have no claim or cause of action
against the Corporation for any cause, matter or thing including,
without limitation, any claim or cause of action arising out of an
alleged employment relationship between the Consultant and the
Corporation (which specifically includes any claim for notice, pay in
lieu of notice, severance or vacation pay, whether arising by statute
or otherwise). It is agreed that the
4
provisions of this paragraph shall survive the termination of this
Agreement and shall remain binding on the Consultant.
6. Miscellaneous
(a) This Agreement contains the entire agreement between the Corporation
and the Consultant with respect to the transactions contemplated by
this Agreement and supersedes all prior arrangements or understandings
with respect thereto.
(b) This Agreement may be assigned by the Corporation to any person, firm,
corporation or other entity acquiring (by purchase, merger or
otherwise), directly or indirectly, the business and substantially all
of the assets of the Corporation and expressly assuming the
obligations of the Corporation under this Agreement.
(c) The performance by the Consultant of his duties under this Agreement
is the personal obligation of the Consultant and may not be delegated
by the Consultant; however, the Consultant may delegate duties and
responsibilities to other employees or agents of the Corporation
incident to normal and customary management practices.
(d) This Agreement is a contract made under, and the rights and
obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Michigan without
giving effect to choice of law provisions.
(e) The descriptive headings of this Agreement are for convenience only
and shall not control or affect the meaning or construction of any
provision of this Agreement.
(f) Any waiver of any term or condition, or any amendment or
supplementation, of this Agreement shall be effective only if in
writing signed by the party against whom enforcement is sought.
(g) In the event of the death of the Consultant, any accrued compensation
hereunder, the balance of the unpaid compensation set forth in Section
3 above, and outstanding expenses under this Agreement to which the
Consultant may be entitled shall inure to the benefit of Consultant's
heirs and estate.
(h) The invalidity or unenforceability of any provision or part of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision or part of any provision and any
such invalid or unenforceable provision or part thereof shall be
deemed to be severable.
(i) The Consultant agrees not to disclose the existence of this Agreement
or any of its terms to any third parties other than his spouse, tax
advisors, accountants and attorneys, or as otherwise required by law.
If Consultant discloses the contents of this Agreement to any person
as permitted above, he shall use his best efforts to prevent all such
persons from disclosing the
5
contents of this Agreement. The Consultant agrees that any violation
of section will result in substantial and irreparable injury to
TriMas. If any claim or demand is made to legally compel the
consultant to disclose the terms and conditions of this Agreement, he
will promptly notify the Corporation's General Counsel of such claim
or demand before responding thereto, so that the Corporation may take
such action as it deems appropriate.
(j) The Consultant acknowledges that he has read, considered, understands
and hereby accepts the terms and conditions contained in this
Agreement. The Consultant further acknowledges having been given an
opportunity to obtain independent legal advice, and hereby executes
this Agreement freely and voluntarily with a full understanding of its
content. The Consultant further acknowledges that he has not relied on
any representations made by the Corporation except as specifically set
forth in this Agreement.
The parties have executed this Agreement as of the date first above written.
TRIMAS CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------
Its: President & C.E.O.
--------------------------
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
XXXXX X. XXXXXXX
Signed: May 23, 2005
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