EXHIBIT 10.1
DURA AUTOMOTIVE SYSTEMS. INC.
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of April 8, 1998 by and among J. Xxxxxxx Xxxxx
("Consultant"), and Dura Automotive Systems, Inc., a Delaware corporation (the
"Company"). The Company and Consultant are sometimes collectively referred to
herein as the "Parties" and individually as a "Party".
Consultant has been an employee, officer, director and stockholder of Trident
Automotive, plc, registered in England No. 3437274 (the "Subsidiary"), and as
such, possesses special knowledge, abilities and experience regarding the
business of the Subsidiary. Dura Automotive Systems (UK) Ltd., a private United
Kingdom corporation ("Buyer") and certain sellers listed therein (the "Sellers")
are parties to a Stock Purchase Agreement, of even date herewith (the "Purchase
Agreement"), whereby Buyer shall purchase all of the outstanding ordinary shares
of $1 each (the "Dollar Shares") and ordinary shares of (pound)1 each
(collectively, the "Common Stock") of the Subsidiary from the Sellers (the
"Acquisition"). Capitalized terms used herein and not otherwise defined shall
have the meaning given to such terms in the Purchase Agreement.
Upon consummation of the Acquisition, and as a condition thereto, the Company
desires to obtain the services of Consultant to consult with and perform
services as an independent contractor for the Company and its subsidiaries with
respect to its businesses, and Consultant desires to provide services to the
Company and its subsidiaries upon the terms and conditions set forth in this
Agreement.
In consideration of the mutual covenants and agreements set forth herein,
subject to Section 18 below, the Parties agree as follows:
1. Consulting Services. Upon the consummation of the Closing (the
"Closing Date"), the Company shall engage Consultant as an independent
contractor, and not as an employee, to render consulting services to the Company
as hereinafter provided, and Consultant hereby accepts such engagement, for a
period (the "Consulting Period") commencing on the Closing Date and terminating
on the earlier of (a) termination by Consultant (including death or disability),
(b) termination by the Company for Cause (as defined herein) or without Cause,
or (c) the fifth anniversary of the Closing Date. Consultant shall not have any
authority to bind or act on behalf of the Company or any of its subsidiaries.
During the Consulting Period, Consultant shall (i) render such consulting
services to the Company and its subsidiaries in connection with the Company's
business as Consultant and the President of the Company from time to time agree,
and (ii) serve on the Board of Directors of the Company (the "Board") as Vice
Chairman. Consultant shall not be required to perform such services more than 10
days per month for the first two years of this Agreement, and 5 days per month
thereafter, and such services shall not require Consultant's full time and
attention nor require Consultant to relocate or spend a significant amount of
time away from the metropolitan Detroit area.
2. Release of the Company. Effective upon the Closing, Consultant
and the Company on behalf of itself and the Subsidiary each hereby irrevocably
terminates, and releases and discharges forever the Consultant and the Company,
the Subsidiary and their respective subsidiaries and each of their respective
directors, officers and employees from any and all contracts and agreements
entered into prior to the date hereof between and among such Consultant and the
Subsidiary and its subsidiaries, including, without limitation, that certain
Employment Agreement dated December 12, 1997, by and between the Consultant and
the Subsidiary (the "Employment Agreement"), and all of the obligations, rights
and liabilities of the Subsidiary and Consultant thereunder (other than
Consultant's rights to indemnification under Section 8(d) of the Employment
Agreement).
3. Compensation: Reimbursement.
(a) In consideration of Consultant's consulting services set forth
in Section 1 above, during the Consulting Period the Company or one of its
subsidiaries shall pay Consultant $300,000 per annum (the "Consulting
Payments") which will be payable in regular installments in accordance
with the Company's general payroll practices.
(b) During the Consulting Period, Consultant will be entitled to
such other benefits approved by the Board, and shall include those
benefits set forth in Appendix A attached hereto. The Company or one of
its subsidiaries shall reimburse Consultant for all reasonable expenses
incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from
time to time with respect to travel, entertainment and other business
expenses, subject to the Company's requirements with respect to reporting
and documentation of such expenses.
(c) In consideration of the release set forth in Section 2 above,
and the covenants set forth in Sections 6, and 7 below, the Company or one
of its subsidiaries shall pay to Consultant $2,000,000 in cash by wire
transfer on the Closing Date (the "Release and NonCompete Payment").
4. Termination. In the event that the Consulting Period is
terminated prior to the fifth anniversary hereof by the Consultant (other than
for Good Reason) or by the Company for Cause, Consultant shall not be entitled
to receive the Consulting Payment or any fringe benefits for periods after the
termination of the Consulting Period, and upon any termination of the Consulting
Period as a result of a permanent disability, by the Company without Cause, or
by the Consultant for Good Reason, Consultant shall be entitled to receive the
Consulting Payment and fringe benefits until the fifth anniversary of the date
hereof. For purposes hereof, "Cause" shall mean (a) Consultant's breach of
Section 6 or 7 of this Agreement; (b) Consultant's material breach of any other
provision of this Agreement; (c) Consultant's failure to adhere to any written
Company or Subsidiary policy if Consultant has been given written notice and a
reasonable opportunity to comply with such policy or cure his failure to comply;
(d) the appropriation (or attempted appropriation) of a material business
opportunity of the Company or any of its subsidiaries, including attempting to
secure or securing any personal profit in connection with any transaction
entered into on behalf of the Company's or any of its subsidiaries' funds or
property; or ( e) the conviction of or the entering of a guilty plea of no
contest with respect to, a felony or the equivalent thereof. For purposes
hereof, "Good Reason" shall mean the Company's material breach of any provision
of this Agreement.
5. Stock Options. Effective on the Closing Date, the Company hereby
agrees to grant to Consultant options to purchase 50,000 shares of the Company's
common stock (the "Company Options"), and the Company and Consultant shall
execute on the Closing Date a Dura Automotive Systems, Inc. Grant of
Nonqualified Stock Option letter agreement (the "Company Option Agreement") in
the form of Exhibit A hereto.
6. Certain Agreements.
(a) Customers, Suppliers. The Consultant does not have, and at any
time during the term of his employment under this Agreement shall not
have, any employment with or any direct or indirect interest in (as owner,
partner, shareholder, employee, director, officer, agent, consultant or
otherwise) any customer of or supplier to the Company or its subsidiaries.
Nothing in this Section 6( a) shall prohibit Consultant from acquiring or
holding not more than three percent (3%) of any class of publicly traded
securities of any business.
(b) Certain Activities. The Consultant during the term of this
Agreement shall (i) not give or agree to give, any gift or similar benefit
of more than nominal value to any customer, supplier, or governmental
employee or official or any other person who is or may be in a position to
assist or hinder the company in connection with any proposed transaction,
which gift or similar benefit, if not given or continued in the future,
might adversely affect the business or prospects of the Company or its
subsidiaries, (ii) use any corporate or other funds for unlawful
contributions, payments, gifts or entertainment, (iii) make any unlawful
expenditures relating to political activity to government officials or
others, (iv) establish or maintain any unlawful or unrecorded funds or
make any expenditures in violation of Section 30A of the Securities
Exchange Act of 1934, or (v) accept or receive any unlawful contributions,
payments, gifts, or expenditures.
(c) Employee Inventions. Each of Consultant's Inventions will belong
exclusively to the Company. The Consultant acknowledges that all of
Consultant's Inventions are works made for hire and the property of the
Company, including any copyrights, patents, or other intellectual property
rights pertaining thereto. If it is determined that any such works are not
works made for hire, Consultant hereby assigns to the Company all of
Consultant's rights, title and interest, including all rights of
copyright, patent, and other intellectual property rights, to or in such
Inventions. The Consultant covenants that he will promptly:
(i) disclose to the Company in writing any Invention;
(ii) assign to the Company or to a party designated by the
Company at the Company's request and without additional
compensation, all of Consultant's right to the Invention for the
United States and all foreign jurisdictions;
(iii) execute and deliver to the Company such applications,
assignments, and other documents as the Company may request in order
to apply for and obtain patents or other registrations with respect
to any Invention in the United States and any foreign jurisdiction;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support
of the Company's rights to any Invention.
For purposes hereof, "Invention" means any idea, invention,
technique, modification, process, or improvement (whether patentable
or not), any industrial design (whether registerable or not), and
any work of authorship (whether or not copyright protection may be
obtained for it) created, conceived, or developed by Consultant,
either solely or in conjunction with others, during the term of this
Agreement, that relates in any way to, or is useful in any manner
in, the business then being conducted or proposed to be conducted by
the Company, and any such item created by Consultant, either solely
or in conjunction with others, following termination of Consultant's
association with the Company and its subsidiaries, that is based
upon or uses Confidential Information (as defined below).
7. Certain Restrictions.
(a) Confidentiality. The Consultant acknowledges that he had
acquired and will acquire information respecting the business and affairs
of the Company, its subsidiaries and affiliates that is non-public,
confidential and/or proprietary in nature ("Confidential Information").
Accordingly, Consultant shall keep confidential and not disclose to any
person or use (except as required in the conduct of the business of the
Company in the ordinary course and consistent with past practice) all such
Confidential Information. Upon termination of the Consulting Period for
any reason, Consultant shall deliver to the Company all documents, papers
and records (in any form, including, but not limited to, electronic media)
in his possession or subject to his control that (x) belong to the Company
or (y) contain or reflect any information concerning the Company, its
subsidiaries and affiliates. The provisions of this Section 7(a) shall not
apply to any information which becomes a matter of public knowledge other
than by breach of Consultant of this Section 7(a).
(b) Competitive Activity. The Consultant acknowledges that the
Company does business throughout the world, that the Company's products
are manufactured, distributed, sold and used throughout the world and that
the knowledge and relationships of Consultant with, among others,
customers of and suppliers to the Company, are an important asset of the
Company. Accordingly, Consultant agrees that during the Consultant Period
under this Agreement, any period during which he is entitled to receive
payments and benefits pursuant to Section 3 (provided that the Company has
not breached its obligations to make any such payments which breach
remains unremedied after reasonable notice), and for one (1) year after
the end of such period without the prior consent of the Board, directly or
indirectly, (i) except in the course of his consulting hereunder, engage
or invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connect with, lend
Consultant's name or any similar name to, lend Consultant's credit to or
render services or advice to, any business whose products or activities
compete in whole or in part with the products or activities of the Company
anywhere in the world; (ii) whether for Consultant's own account or for
the account of any other person, solicit business of the same or similar
type being carried on by the Company, from any person known by Consultant
to be a customer of the Company, whether or not Consultant had personal
contact with such person during and by reason of Consultant's activities
with the Company; (iii) whether for Consultant's own account or the
account of any other person (A) solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise any person who is or was an
employee of the Company at any time during the term of this Agreement or
in any manner induce or attempt to induce any employee of the Company of
the Company to terminate his employment with the Company; or (B) interfere
with the Company's relationship with any person, including any person who
at any time during the term of this Agreement was an employee, contractor,
suppler, or customer of the Company; or (iv) disparage the Company or any
of its shareholders, directors, officers, employees, or agents. Nothing in
this Section 7(b) shall prohibit Consultant from acquiring or holding not
more than three percent (3%) of any class of publicly traded securities of
any business.
(c) Remedy for Breach and Modification. The Consultant acknowledges
that the provisions of this Section 7 are reasonable and necessary for the
protection of the Company and that the Company may be irrevocably damaged
if these provisions are not specifically enforced. Accordingly, Consultant
agrees that, in addition to any other relief or remedies available to the
Company, the Company shall be entitled to seek and obtain an appropriate
injunction or other equitable remedy for the purposes of restraining
Consultant from any actual or threatened breach of or otherwise enforcing
these provisions and no bond or security will be required in connection
therewith unless the Company fails to demonstrate to a court having
jurisdiction that it has a likelihood of success on the merits. If any
provision of this Section 7 is deemed invalid or
unenforceable, such provision shall be deemed modified and limited to the
extent necessary to make it valid and enforceable. In addition to and not
in lieu of any other remedy that the Company may have under this Section 7
(c) or otherwise, in the event of any breach of any provision of this
Section 7 during the period during which Consultant is entitled to receive
payments and benefits pursuant to Section 3, such period shall terminate
as of the date of such breach and Consultant shall not thereafter be
entitled to receive any salary or other payments or benefits under this
Agreement.
8. Tax Returns. Consultant shall file all tax returns and reports
required to be filed by him on the basis that Consultant is an independent
contractor, rather than an employee, as defined in Treasury Regulation
Section 31.3121(d)-I(c)(2).
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company and its affiliates, successors and assigns
and shall be binding upon and inure to the benefit of Consultant and his legal
representatives and assigns; provided that in no event shall Consultant's
obligations to perform future services for the Company be delegated or
transferred by Consultant without the prior written consent of the Company
(which consent may be withheld in its sole discretion). The Company may assign
or transfer its rights hereunder to any of its affiliates or to a successor
corporation in the event of merger, consolidation or transfer or sale of all or
substantially all of the assets of the Company.
10. Modification or Waiver. No amendment, modification or waiver of
this Agreement shall be binding or effective for any purpose unless it is made
in a writing signed by the Party against whom enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Company or
Consultant in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by the Company or
Consultant of any such right or remedy shall preclude other or further exercises
thereof. A waiver of right or remedy on anyone occasion shall not be construed
as a bar to or waiver of any such right or remedy on any other occasion.
11. Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
Exhibits and Schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Michigan, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Michigan or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan. In furtherance of the foregoing,
the internal law of the State of Michigan shall control the interpretation and
construction of this Agreement (and all Schedules and Exhibits hereto), even
though under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
12. Severability. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then such provision or
term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement;
provided that if a court having competent jurisdiction shall find that the
covenant contained in
Section 7(a) hereof is not reasonable, such court shall have the power to reduce
the duration and/or geographic area and/or scope of such covenant, and the
covenant shall be enforceable in this reduced form.
13. NoStrict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Party.
14. Consultant's Representations. This Agreement has been duly
executed and delivered by Consultant. This Agreement constitutes a valid and
binding obligation of Consultant, enforceable in accordance with its terms.
Consultant represents and warrants to the Company that (i) his execution,
delivery and performance of this Agreement does not and shall not conflict with,
or result in the breach of or violation of, any other agreement, instrument,
order, judgment or decree to which he is a party or by which he is bound, (ii)
he is not a party to or bound by any employment agreement, noncompete agreement
or confidentiality agreement with any other person or entity (other than the
Employment Agreement) and (iii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and binding
obligation of his, enforceable in accordance with its terms.
15. Notice. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States Post Office mail, postage prepaid, addressed
to the other Party hereto at his or its address shown below:
If to the Company:
Dura Automotive Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
with a copy to (which shall not constitute notice):
Hidden Creek Industries
0000 XXX Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
and:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, P.C. Fax:
(000) 000-0000
If to Consultant:
J. Xxxxxxx Xxxxx
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000)000-0000
or at such other address as such Party may designate by ten days advance written
notice to the other Party.
16. Captions. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement and
shall not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this Agreement.
17. Counterparts. This Agreement may be executed in counterparts,
anyone of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same instrument.
18. Effectiveness. Notwithstanding anything to the contrary
contained herein, this Agreement and the rights and obligations of the parties
hereto shall become effective only upon the consummation of the Closing (as
defined in the Purchase Agreement).
* * * *
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Its: Vice President
-----------------------------
/s/ J. Xxxxxxx Xxxxx
------------------------------
J. Xxxxxxx Xxxxx
APPENDIX A
(i) Health care and similar benefits consistent with Consultant's current
level of benefits received from the UK Subsidiary or the US Subsidiary;
(ii) Annual automobile expense allowance of $8,300;
(iii) Annual country club membership of $9,000;
(iv) Life Insurance providing a death benefit to Consultant's beneficiary of
$900,000; and
(v) Participation in a nonqualified arrangement to provide Consultant with a
benefit under an "excess benefit plan" in the amount of $21,285 per annum
for Consultant's and his surviving spouse's lifetime, with payments
commencing as of the first day of the month in which Consultant reaches
age 65.
