Exhibit (c)(6)
Management 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 of the business and assets 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 its shareholders;
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 the Employee's 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:
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 financial 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, 2000.
(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. 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) 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 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;
(iii) 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
(iv) the failure by the Company to comply with any of its
obligations under Section 13(i).
(j) "Protected Vesting Period" shall have the meaning set forth in
Section 9(vii) of this Agreement.
(k) "Termination Date" shall mean the effective date as provided
under this Agreement of the termination of the Employee's employment.
(l) "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.
(m) "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.
2. Employment, Acceptance and Term. The Company hereby employs
the Employee in a 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").
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.
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.
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 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, and the TriMas Corporation
Retirement Benefit Restoration 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 comparably compensated employees. Any
reference to a benefit plan under this Agreement, including without limitation
those referenced in this Section 5 and in Section 1(xii), shall include any
successor plans (the "Plans").
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.
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. Any
determination by the Board, such committee or such officer 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.
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.
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 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,
(A) the numerator of which is (x) if the Termination Date
occurs before March 8, 1999, the number of days
remaining in the Contract Employment Period or, (y) if
the Termination Date occurs on or after March 8, 1999,
the number 365, and
(B) the denominator of which is 365 (the "Termination Payment").
Base Annual Compensation shall be the sum of (i) the Employee's base annual
salary at the highest rate in effect during the year of the Termination Date
plus (ii) an amount equal to the Employee's cash bonus incentive compensation
for the full year immediately preceding the Termination Date. The Termination
Payment shall be paid at the option of the Employer either (a) in equal
monthly installments over the remaining months of the Benefit Period, or (b)
(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 (a) to any
coverage during an initial qualification period or (b) 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(vi)
during such qualification period (if clause (a) of this sentence is
applicable) and for such pre-existing condition (if clause (b) 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, 1999, shall extend until June
30, 2000, or (y) if the Termination Date occurs on or after March 8, 1999,
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.
Any payments to be made under this Section 9 (except payments
under subsection (vi)) 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 other than any advances for relocation expenses which
are to be paid back to the Company under other repayment arrangements and (ii)
any 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.
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(iii) 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(iii) 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.
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.
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, the Employee 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.
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.
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.
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.
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 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.
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.
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.
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.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
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.
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.
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.
24. Confidentiality. The Employee promises not to disclose the
contents of this Agreement to anyone other than his immediate family and to
attorneys or other counselors retained by the Employee for the purposes of
assisting or counseling the Employee with respect to this Agreement except by
an order of a court.
[Note: To the extent the Employee does not have a relocation advance
outstanding to the Company, the reference to such advance in Paragraph 9
has been deleted in such Employee's agreement.]
[Remainder of page intentionally left blank]
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:
------------------------
