EMPLOYMENT AGREEMENT
This Agreement is made by and between TRIMAS CORPORATION, a Delaware
corporation ("Company") and E.R "SKIP" ▇▇▇▇▇ (hereinafter "Executive"),
effective August 1, 2005 ("Effective Date"). In order to induce Executive to
serve as its Chief Financial Officer ("CFO"), Company enters into this Agreement
with Executive to set out the terms and conditions that will apply to
Executive's employment with Company during the term of this Agreement. Executive
is willing to accept such employment and assignment and to perform services on
the terms and conditions hereinafter set forth. It is therefore hereby agreed by
and between the parties as follows:
SECTION 1 - EMPLOYMENT.
(a) Scope. Company employs Executive as its CFO. In this capacity,
Executive shall report to the President and Chief Executive Officer
("CEO"). Executive accepts employment in accordance with this
Agreement and agrees to devote his full business time and efforts to
the performance of his duties and responsibilities hereunder.
(b) Other Activities. Nothing in this Agreement shall preclude Executive
from engaging in charitable and community affairs or managing any
passive investment (i.e., an investment with respect to which
Executive is in no way involved with the management or operation of
the entity in which Executive has invested) to the extent that such
activities do not conflict with any provision of this Agreement,
provided that Executive shall not, without the prior approval of the
Board of Directors of Company (the "Board"), serve as a director or
trustee of any other corporation, association or entity, or own more
than two percent (2%) of the equity of any publicly traded entity.
SECTION 2 - TERM OF AGREEMENT. This Agreement shall govern the terms of
Executive's employment from the Effective Date until the earlier of the date
that is six (6) months following the date on which Company gives written notice
to Executive of termination of the Agreement or the date that either party
terminates Executive's employment under this Agreement. Executive shall not be
guaranteed employment during the six (6) month period following any notice of
termination of this Agreement ("Notice Period"). If employment terminates during
a Notice Period, the rights and obligations of the parties shall be governed by
the terms of this Agreement, notwithstanding that a notice of termination was
given. The termination of this Agreement shall not be a termination of those
provisions of this Agreement which by their terms survive the termination of
this Agreement.
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SECTION 3 - COMPENSATION.
(a) Salary. Company shall pay Executive at the rate of Three Hundred and
Thirty thousand dollars ($330,000) per annum ("Base Salary"). Base
Salary shall be payable in accordance with the ordinary payroll
practices of Company and shall be subject to all applicable federal,
state and local withholding and reporting requirements. Base Salary
may be adjusted by the CEO during the term of this Agreement.
(b) Annual Value Creation Plan ("AVCP"). Executive shall be eligible to
participate in the AVCP, a copy of which has been provided to
Executive, subject to all the terms and conditions of such plan, as
such plan may be modified from time to time.
SECTION 4 - EMPLOYEE BENEFITS.
(a) Employee Retirement Benefit Programs, Welfare Benefit Programs, Plans
and Practices. Company shall provide Executive with coverage under any
retirement benefit programs, welfare benefit programs, plans and
practices, that Company makes available to its senior executives, in
accordance with the terms thereof, as such programs, plans and
practices may be amended from time to time in accordance with their
terms.
(b) Vacation. Executive shall be entitled to twenty (20) business days of
paid vacation each calendar year, which shall be taken at such times
as are consistent with Executive's responsibilities hereunder.
Vacation days shall be subject to Company's general policies regarding
vacation days, as such policies may be modified from time to time.
(c) Perquisites. During Executive's employment hereunder, Company shall
provide Executive, subject to review and approval by the CEO, with
such additional perquisites as are generally available to
similarly-situated executives.
(d) Stock Options. Executive shall be eligible to participate in the
TriMas Corporation 2002 Long Term Equity Incentive Plan in accordance
with the terms and conditions of such plan and any grant agreements
thereunder.
SECTION 5 - EXPENSES. Subject to prevailing Company policy or such
guidelines as may be established by the CEO or his delegee, Company will
reimburse Executive for all reasonable expenses incurred by Executive in
carrying out his duties.
SECTION 6 - TERMINATION OF EMPLOYMENT. Executive remains an
employee-at-will, subject to the terms of this Agreement, and his employment may
be terminated by either party at any time for any reason by written notice. If
employment terminates during the term of this Agreement, this Agreement shall
govern the rights and responsibilities of the parties upon such termination. If
employment terminates after this Agreement has terminated, this Agreement shall
not apply except to the extent of those provisions that by their nature survive
the term of this Agreement.
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(a) Termination Without Cause or for Good Reason. If Executive's
employment is terminated during the term of this Agreement by Company
for any reason other than Cause (as defined in Section 6(c) hereof),
Disability (as defined in Section 6(e) hereof) or death, or if
Executive's employment is terminated by Executive for Good Reason (as
defined in Section 6(a) (2) hereof), then Company shall pay Executive
the Severance Package. Termination of employment after this Agreement
has terminated shall not be a termination under this Section 6(a).
Likewise, a termination by Executive without Good Reason shall be a
termination under Section 6(b) below and not a termination under this
Section 6(a).
(1) For purposes of this Agreement, "Severance Package" shall mean:
(A) Base Salary continuation for twelve (12) months at
Executive's annual Base Salary rate in effect on the date of
termination, subject to all applicable federal, state and
local withholding and reporting requirements. These salary
continuation payments shall be paid in accordance with usual
Company payroll practices;
(B) An amount equal to the Average Bonus. For purposes of this
Agreement, "Average Bonus" shall be the average of the
annual bonuses paid to Executive by Company for the last
three full annual bonus terms, or such shorter period as
Executive has participated in Company's bonus program,
provided that if Executive has not completed a full year of
service under this Agreement, the Average Bonus shall be
determined based on Executive's level of participation in
the AVCP for the year of termination with the payout rate
determined by reference to the average bonus, stated as a
percentage of base salary, paid to similarly-situated
executives in the preceding three full years. The Average
Bonus shall be paid in equal installments over the twelve
(12) month period described in Section 6(a)(1)(A) above,
subject to the same withholding and reporting requirements.
In addition, Executive shall receive the bonus for the most
recently completed bonus term if a bonus has been declared
for Executive for such term but not paid, and a pro rata
bonus for the year of termination through the date of
termination equal to the Average Bonus, multiplied by a
fraction the numerator of which is the number of days that
Executive was employed during such bonus term and the
denominator of which is 365. The prorated bonus shall be
paid in a single sum within ten (10) days of the termination
of Executive's employment with Company. Any unpaid bonus
shall be paid in accordance with customary practices for
payment of bonuses under AVCP; and
(C) Continuation of medical benefits under Company group
benefits (including health, dental and prescription plans),
as defined by the
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plan documents, until the earlier of twelve (12) months
following Executive's termination of employment or the date
on which Executive becomes eligible to receive any medical
benefits under any plan or program of any other employer;
provided, that Executive timely elects to continue group
health coverage under COBRA and subject to Company's COBRA
policies. Executive will be charged and responsible for
payment of the COBRA premium equal to the employee portion
of the premium for the selected coverage that Executive
would have paid if Executive continued to be a Company
employee. Company will pay the employer-portion of the
medical coverage. After the stated continuation period,
Executive will be responsible for 100% of the COBRA
premiums.
Any obligation to pay any portion of premium cost under this
item may be settled, at Company's discretion, by a lump-sum
payment of any remaining premiums.
In connection with the Severance Package, Executive shall cease
to be an active participant under Company retirement programs and
other benefit plans pursuant to the terms of those plans. No
amounts paid under this Agreement shall constitute compensation
for purposes of any such retirement plan. Executive's rights to
any accrued and vested benefits under a qualified retirement plan
shall be determined in accordance with the applicable plan
document.
Except as stated in this Section 6(a) (1), Executive shall not be
entitled to any other benefit or compensation from Company.
(2) For purposes of this Agreement, a termination of employment by
Executive for "Good Reason" shall be a termination by Executive
following the occurrence of any of the following events unless
Company has cured as provided below:
(A) A material and permanent diminution in Executive's duties or
responsibilities;
(B) A material reduction in the aggregate value of Base Salary
and bonus opportunity; or
(C) A permanent reassignment of Executive to another primary
office, or a relocation of Company office that is
Executive's primary office, unless Executive's primary
office following such reassignment or relocation is within
thirty-five (35) miles of Executive's primary office before
the reassignment or relocation or Executive's permanent
residence on the date of the reassignment or relocation.
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Executive must notify Company of any event constituting Good
Reason within one hundred twenty (120) days after Executive
becomes aware of such event or such event shall not constitute
Good Reason for purposes of this Agreement provided that Company
shall have fifteen (15) days from the date of such notice to cure
the Good Reason event. Executive cannot terminate his employment
for Good Reason if Cause exists at the time of such termination.
A termination by Executive following cure shall not be a
termination for Good Reason. A failure of Executive to notify
Company after the first occurrence of an event constituting Good
Reason shall not preclude any subsequent occurrences of such
event (or similar event) from constituting Good Reason.
(b) Voluntary Termination by Executive. If Executive terminates his
employment with Company without Good Reason, then Company shall pay
Executive his accrued unpaid Base Salary through the date of
termination and the AVCP award for the most recently completed year if
an award has been declared for such year but not paid. The accrued
unpaid Base Salary amounts payable under this Section 6(b) shall be
payable in a lump sum within ten (10) days of termination of
employment. Any accrued unpaid bonus amounts payable under this
Section 6(b) shall be payable in accordance with customary practices
for payment of bonuses under AVCP. No prorated bonus for the year of
termination shall be paid. Any other benefits under other plans and
programs of Company in which Executive is participating at the time of
Executive's termination of employment shall be paid, distributed,
settled, or shall expire in accordance with their terms, and Company
shall have no further obligations hereunder with respect to Executive
following the date of termination of employment.
(c) Termination for Cause. If Executive's employment is terminated for
Cause, Company shall pay Executive his accrued but unpaid Base Salary
through the date of the termination of employment, and no further
payments or benefits shall be owed. The accrued unpaid Base Salary
amounts payable under this Section 6(c) shall be payable in a lump sum
within ten (10) days of termination of employment. As used herein, the
term "Cause" shall be limited to:
(1) Executive's conviction of or plea of guilty or nolo contendere to
a crime constituting a felony under the laws of the United States
or any state thereof or any other jurisdiction in which Company
conducts business;
(2) Executive's willful misconduct in the performance of his duties
to Company;
(3) Executive's willful and continued failure to follow the
instructions of the Board or the CEO; or
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(4) Executive's willful and/or continued neglect of duties (other
than any such neglect resulting from incapacity of Executive due
to physical or mental illness);
provided, however, that Cause shall arise under items (3) or (4) only
following ten (10) days written notice thereof from Company which
specifically identifies such failure or neglect and the continuance of
such failure or neglect during such notice period. Any failure by
Company to notify Executive after the first occurrence of an event
constituting Cause shall not preclude any subsequent occurrences of
such event (or a similar event) from constituting Cause.
(d) Termination Following a Change of Control. Notwithstanding any
provision of Section 2 to the contrary, upon the occurrence of a
Change of Control (as defined below), the Notice Period required to
terminate this Agreement shall continue until the later of the date
that is six (6) months from the date of such notice or the third
anniversary of such Change of Control. In the event Executive's
employment with Company terminates by reason of a Qualifying
Termination (as defined below) within the three (3) years after a
Change of Control, then, in lieu of the Severance Package, and subject
to the limitations described in Section 7 below, Company shall provide
Executive the following termination benefits:
(1) Termination Payments. Company shall pay Executive:
(A) A single sum payment equal to two hundred percent (200%) of
Executive's annual Base Salary rate in effect on the date of
termination, subject to all applicable federal, state and
local withholding and reporting requirements. This
single-sum payment shall be paid within ten (10) days of
termination of employment;
(B) An amount equal to two hundred percent (200%) of the Average
Bonus, as that term has been defined above. In addition,
Executive shall receive the bonus for the most recently
completed bonus term if a bonus has been declared for such
term but not paid, and a pro rata bonus for the year of
termination through the date of termination equal to the
Average Bonus, multiplied by a fraction the numerator of
which is the number of days that Executive was employed
during such bonus term and the denominator of which is 365.
The prorated bonus for the final year shall be paid as a
single sum within ten (10) days of termination of
employment. Any unpaid bonus shall be paid in accordance
with customary practices for payment of bonuses under AVCP.
All payments under this Section 6(d), however, are subject to the
timing rules, calculations and adjustments described in Sections
7 and 8.
(C) Medical Benefits Continuation. Continuation of medical
benefits under Company group benefits (including health,
dental and
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prescription plans), as defined by the plan documents, until
the earlier of twenty four (24) months following the
Qualifying Termination or the date on which Executive
becomes eligible to receive any medical benefits under any
plan or program of any other employer; provided, that
Executive timely elects to continue group health coverage
under COBRA and subject to Company's COBRA policies.
Executive will be charged and responsible for payment of the
COBRA premium equal to the employee portion of the premium
for the selected coverage that Executive would have paid if
Executive continued to be a Company employee. Company will
pay the employer-portion of the medical coverage. After the
stated continuation period, Executive will be responsible
for 100% of the COBRA premiums.
Any obligation to pay a portion of the premium cost under this
item may be settled, at Company's discretion, by a lump-sum
payment of any remaining premiums.
In connection with the Termination Payments, Executive shall
cease to be an active participant under Company retirement
programs and other benefit plans pursuant to the terms of those
plans. No amounts paid under this Agreement shall constitute
compensation for purposes of any such retirement plan.
Executive's rights to any accrued and vested benefits under a
qualified retirement plan shall be determined in accordance with
the applicable plan document.
Except as stated in this Section 6(a)(2), Executive shall not be
entitled to any other benefit or compensation from Company.
(2) Qualifying Termination. For purposes of this Agreement, the term
"Qualifying Termination" means a termination of Executive's
employment with the Company for any reason other than:
(A) death;
(B) Disability, as defined herein;
(C) Cause, as defined herein; or
(D) A termination by Executive without Good Reason, as defined
herein.
(3) Change of Control Defined. "Change of Control" shall have the
same meaning as in the Indenture dated as of June 6, 2002 among
Company, each of the Guarantors named therein and the Bank of New
York, as Trustee, relating to the 9 7/8 % Senior Subordinated
Notes due 2012 of Company, as in effect on the date of this
Agreement and regardless of whether or not such notes or
Indenture are hereinafter discharged, defeased or repaid (the
"Indenture"); and all defined terms used in such definition of
Change of
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Control shall the meanings ascribed thereto under the Indenture
as well; provided that no acquisition by any employee benefit
plan (or related trust) sponsored or maintained by Company or any
of its subsidiaries shall result in a Change of Control
hereunder.
(e) Disability. In the event that Executive is unable to perform his
duties under this Agreement on account of a disability which continues
for one hundred eighty (180) consecutive days or more, or for an
aggregate of one hundred eighty (180) days in any period of twelve
(12) months, Company may, in its discretion, terminate Executive's
employment hereunder. Company's obligation to make payments under this
Agreement shall, except for earned but unpaid Base Salary and AVCP
awards, cease on the first to occur of (i) the date that is six (6)
months after such termination or (ii) the date Executive becomes
entitled to benefits under a Company-provided long-term disability
program. For purposes of this Agreement, "Disability" shall be defined
by the terms of Company's long-term disability policy, or, in the
absence of such policy, as a physical or mental disability that
prevents Executive from performing substantially all of his duties
under this Agreement and which is expected to be permanent. Company
may only terminate Executive on account of Disability after giving due
consideration to whether reasonable accommodations can be made under
which Executive is able to fulfill his duties under this Agreement.
The commencement date and expected duration of any physical or mental
condition that prevents Executive from performing his duties hereunder
shall be determined by a medical doctor selected by Company. Company
may, in its discretion, require written confirmation from a physician
of Disability during any extended absence.
(f) Death. In the event of Executive's death before this Agreement
terminates, all obligations of Company to make any further payments,
other than an obligation to pay any accrued but unpaid Base Salary to
the date of death and any accrued but unpaid bonuses under AVCP to the
date of death, shall terminate upon Executive's death.
(g) No Duplication of Benefits. Notwithstanding any provision of this
Agreement to the contrary, if Executive's employment is terminated for
any reason, in no event shall Executive be eligible for payments under
more than one subsection of this Section 6.
(h) Payments Not Compensation. Any participation by Executive in, and any
terminating distributions and vested rights under, Company-sponsored
retirement or savings plans, regardless of whether such plans are
qualified or nonqualified for tax purposes, shall be governed by the
terms of those respective plans. For purposes of determining benefits
and the amounts to be paid to Executive under such plans, any salary
continuation or severance benefits other than salary or bonus accrued
before termination shall not be compensation for purposes of accruing
additional benefits under such plans.
(i) Executive's Duty to Provide Materials. Upon the termination of
Executive's employment for any reason, Executive or his estate shall
surrender to Company all
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correspondence, letters, files, contracts, mailing lists, customer
lists, advertising material, ledgers, supplies, equipment, checks, and
all other materials and records of any kind that are the property of
Company or any of its subsidiaries or affiliates, that may be in
Executive's possession or under his control, including all copies of
any of the foregoing.
(j) Timing of Payments. Notwithstanding any provision of this Agreement to
the contrary, if any amount payable under this Agreement is subject to
Section 409A of the Internal Revenue Code, then the payment of such
amount shall be restructured or delayed, as necessary, in a manner
that preserves as far as practically possible the form and timing of
benefit otherwise described herein, to ensure that the amount is paid
in compliance with Section 409A; provided that Company does not by
operation of this provision assume responsibility for compliance with
Section 409A. The parties agree that Executive shall be responsible
for any additional tax, interest or penalties under Section 409A
arising out of payments under this Agreement.
SECTION 7 - CAP ON PAYMENTS.
(a) General Rules. The Code may place significant tax burdens on Executive
and Company if the total payments made to Executive due to a Change of
Control exceed prescribed limits. In order to avoid this excise tax
and the related adverse tax consequences for Company, by signing this
Agreement, Executive will be agreeing that, subject to the exception
noted below, the present value of Executive's Total Payments will not
exceed an amount equal to Executive's Cap.
(b) Special Definitions. For purposes of this Section, the following
specialized terms will have the following meanings:
(1) "Base Period Income". "Base Period Income" is an amount equal to
Executive's "annualized includable compensation" for the "base
period" as defined in Sections 280G(d)(1) and (2) of the Code and
the regulations adopted thereunder. Generally, Executive's
"annualized includable compensation" is the average of
Executive's annual taxable income from Company for the "base
period," which is the five calendar years prior to the year in
which the Change of Control occurs. These concepts are
complicated and technical and all of the rules set forth in the
applicable regulations apply for purposes of this Agreement.
(2) "Cap" or "280G Cap". "Cap" or "280G Cap" shall mean an amount
equal to 2.99 times Executive's "Base Period Income." This is the
maximum amount which Executive may receive without becoming
subject to the excise tax imposed by Section 4999 of the Code or
which Company may pay without loss of deduction under Section
280G of the Code.
(3) "Total Payments". The "Total Payments" include any "payments in
the nature of compensation" (as defined in Section 280G of the
Code and the
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regulations adopted thereunder), made pursuant to this Agreement
or otherwise, to or for Executive's benefit, the receipt of which
is contingent on a Change of Control and to which Section 280G of
the Code applies.
(c) Calculating the Cap and Adjusting Payments. If Company believes that
these rules will result in a reduction of the payments to which
Executive is entitled under this Agreement, it will so notify
Executive as soon as possible. Company will then, at its expense,
retain a "Consultant" (which shall be a law firm, a certified public
accounting firm, and/or a firm of recognized executive compensation
consultants) to provide an opinion or opinions concerning whether
Executive's Total Payments exceed the limit discussed above. Company
will select the Consultant. At a minimum, the opinions required by
this Section must set forth the amount of Executive's Base Period
Income, the present value of the Total Payments and the amount and
present value of any excess parachute payments. If the opinions state
that there would be an excess parachute payment, Executive's payments
under this Agreement will be reduced to the Cap. Executive will be
allowed to choose the payment that should be reduced or eliminated,
but the payment Executive chooses to reduce or eliminate must be a
payment determined by such Consultant to be includable in Total
Payments. Executive's decision shall be in writing and delivered to
Company within thirty (30) days of Executive's receipt of such
opinions. If Executive fails to so notify Company, Company will decide
which payments to reduce or eliminate. If the Consultant selected to
provide the opinions referred to above so requests in connection with
the opinion required by this Section, a firm of recognized executive
compensation consultants selected by Company shall provide an opinion,
upon which such Consultant may rely, as to the reasonableness of any
item of compensation as reasonable compensation for services rendered
before or after the Change of Control. If Company believes that
Executive's Total Payments will exceed the limitations of this
Section, it will nonetheless make payments to Executive, at the times
stated above, in the maximum amount that it believes may be paid
without exceeding such limitations. The balance, if any, will then be
paid after the opinions called for above have been received. If the
amount paid to Executive by Company is ultimately determined, pursuant
to the opinion referred to above or by the Internal Revenue Service,
to have exceeded the limitation of this Section, the excess will be
treated as a loan to Executive by Company and shall be repayable on
the ninetieth (90th) day following demand by Company, together with
interest at the lowest "applicable federal rate" provided in Section
1274(d) of the Code. If it is ultimately determined, pursuant to the
opinion referred to above or by the Internal Revenue Service, that a
greater payment should have been made to Executive, Company shall pay
Executive the amount of the deficiency, together with interest thereon
from the date such amount should have been paid to the date of such
payment, at the rate set forth above, so that Executive will have
received or be entitled to receive the maximum amount to which
Executive is entitled under this Agreement.
(d) Effect of Repeal. In the event that the provisions of Sections 280G
and 4999 of the Code are repealed without succession, this Section
shall be of no further force or
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effect.
(e) Exception. The Consultant selected pursuant to Section 7(c) will
calculate Executive's "Uncapped Benefit" and Executive's "Capped
Benefit." The limitations of Section 7(a) shall not apply to
Executive's benefit if the Company reasonably determines that the
amount of the Uncapped Benefit that would be retained by Executive,
after payment of all applicable taxes by Executive, including excise
tax (but not the amount of any excise tax arising from any payment
under Section 8), exceeds the Capped Benefit, after payment by
Executive of all applicable taxes. If the after tax amount of the
Uncapped Benefit that would be retained by Executive is equal to or
less than the after tax amount of the Capped Benefit that would be
retained by Executive, then payments to Executive shall be adjusted,
as necessary, so Executive's Capped Benefit is not exceeded, as
provided in Section 7(a). For this purpose, Executive's "Uncapped
Benefit" is the amount to which Executive would be entitled pursuant
to Section 6(d), without regard to the limitations of Section 7(a).
Executive's "Capped Benefit" is the amount to which Executive would be
entitled pursuant to Section 6(d) after the application of the
limitations of Section 7(a). In making this determination the Company
shall use Executive's total presumed taxes. "Total presumed taxes"
means all federal, state and local income taxes, excise taxes and
employment taxes. Executive's total presumed taxes shall be
conclusively calculated using a combined tax rate equal to the sum of
the maximum marginal federal and applicable state and local income tax
rates and employment and excise tax rates. The state tax rate for
Executive's principal place of residence will be used and no
adjustments will be made for the deduction of state taxes on the
federal return, any deduction of federal taxes on a state return, the
loss of itemized deductions or exemptions, or for any other purpose.
SECTION 8 - PAYMENT OF EXCISE TAX.
(a) If the Cap imposed by Section 7(a) does not apply to Executive because
of the exception provided by Section 7(e), Company shall pay Executive
an amount, in addition to the payments otherwise due hereunder, that
is calculated to equal the amount of excise tax that Executive will
incur under Section 4999 of the Code in connection with Total Payments
and this payment under Section 8. This amount will be calculated by
the Consultant and will paid by Company, less applicable tax
withholdings, as soon possible after the amount of the Uncapped
Benefit is determined. No adjustment shall be required if the actual
amount of the excise tax is more or less than the amount calculated by
the Consultant.
SECTION 9 - NOTICES. All notices or communications hereunder shall be in
writing, addressed as follows:
To Company: TriMas Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President, Human Resources
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with a copy to:
TriMas Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
To Executive: E. R. "Skip" ▇▇▇▇▇
287 Suffield
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third (3rd) business day
after the actual date of mailing shall constitute the time at which notice was
given.
SECTION 10 - SEPARABILITY; LEGAL FEES. If any provision of this Agreement
shall be declared to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the remaining provisions hereof
which shall remain in full force and effect. In the event of a dispute by
Company, Executive or others as to the validity or enforceability of, or
liability under, any provision of this Agreement, Company shall reimburse
Executive for all reasonable legal fees and expenses incurred by him in
connection with such dispute if Executive substantially prevails in the dispute
and if Executive has not substantially prevailed in such dispute one-half (1/2)
the amount of all reasonable legal fees and expenses incurred by him in
connection with such dispute except to the extent Executive's position is found
by a tribunal of competent jurisdiction to have been frivolous.
SECTION 11 - ASSIGNMENT AND ASSUMPTION. This contract shall be binding upon
and inure to the benefit of the heirs and representatives of Executive and the
assigns and successors of Company, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by Company, except that Company may assign this Agreement to any
successor (whether by merger, purchase or otherwise) to all or substantially all
of the stock, assets or business of Company.
SECTION 12 - AMENDMENT. This Agreement may only be amended by written
agreement of the parties hereto.
SECTION 13 - NON-COMPETITION; NON-SOLICITATION; CONFIDENTIALITY.
(a) Executive represents that acceptance of employment under this
Agreement and performance under this Agreement are not in violation of
any restrictions or covenants under the terms of any other agreements
to which Executive is a party.
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(b) Executive acknowledges and recognizes the highly competitive nature of
the business of Company and accordingly agrees that, in consideration
of this Agreement, the rights conferred hereunder, and any payment
hereunder, while he is employed by Company and for the two (2) year
period following the termination of Executive's employment with
Company, whether such termination occurs before or after this
Agreement has terminated, for any reason ("Non-Compete Term"),
Executive shall not engage, either directly or indirectly, as a
principal for Executive's 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 other than Company or its
subsidiaries which designs, develops, manufacturers, distributes,
sells or markets the type of products or services sold, distributed or
provided by Company or its subsidiaries during the two (2) year period
prior to the date of employment termination (the "Business"); provided
that nothing herein shall prevent Executive 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 and listed or traded on a national securities exchanges or in
an over-the-counter securities market.
(c) During the Non-Compete Term, Executive shall not (i) directly or
indirectly employ or solicit, or receive or accept the performance of
services by, any active employee of Company or any of its subsidiaries
who is employed primarily in connection with the Business, except in
connection with general, non-targeted recruitment efforts such as
advertisements and job listings, or directly or indirectly induce any
employee of Company to leave Company, or assist in any of the
foregoing, or (ii) solicit for business (relating to the Business) any
person who is a customer or former customer of Company or any of its
subsidiaries, unless such person shall have ceased to have been such a
customer for a period of at least six (6) months.
(d) Executive shall not at any time (whether during or after his
employment with Company) disclose or use for Executive's 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 Company and any of its
subsidiaries, any trade secrets, information, data, or other
confidential information of Company, 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 Company generally, or of any subsidiary of Company, 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 Company. The preceding sentence of
this paragraph (d) shall not apply to information which is not unique
to Company or which is generally known to the industry or the public
other than as a result of Executive's breach of this covenant.
Executive agrees that upon termination of employment with Company for
any reason, Executive will return to Company immediately all
memoranda, books, papers, plans, information, letters and other data,
and all copies thereof or therefrom, in any way
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relating to the business of Company and its subsidiaries, except that
Executive may retain personal notes, notebooks and diaries. Executive
further agrees that Executive will not retain or use for Executive's
account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of
Company or its subsidiaries.
(e) It is expressly understood and agreed that although Executive and
Company consider the restrictions contained in this Section 13 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 Executive, the provisions of this Agreement 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.
(f) As a condition to the receipt of any benefits described in this
Agreement, Executive shall be required to execute an agreement
pursuant to which Executive releases any claims he may have against
Company and agrees to the continuing enforceability of the restrictive
covenants of this Agreement.
(g) This Section 13 will survive the termination of this Agreement.
SECTION 14 - REMEDIES. Executive acknowledges and agrees that Company's
remedies at law for a breach or threatened breach of any of the provisions of
Section 13 would be inadequate and, in recognition of this fact, Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, Executive shall forfeit all payments otherwise due under
this Agreement and shall return any Severance Package payment made. Moreover,
Company, 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.
SECTION 15- SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 15 are in addition to the survivorship provisions of
any other section of this Agreement.
SECTION 16 - DISPUTE RESOLUTION; GOVERNING LAW. Any dispute related to or
arising under this Agreement shall be resolved in accordance with the TriMas
Dispute Resolution Policy in effect at the time such dispute arises. The TriMas
Dispute Resolution Policy in effect at the time of this Agreement is attached to
this Agreement. This Agreement and any dispute related hereto shall be governed
by and construed under Michigan law, without regard to conflict of law and
principles.
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SECTION 17 - EFFECT ON PRIOR AGREEMENTS. This Agreement contains the entire
understanding between the parties hereto and supersedes in all respects any
prior or other agreement or understanding, both written and oral, between
Company, any parent, subsidiary or affiliate of Company or any predecessor of
Company or parent, subsidiary, or affiliate of any predecessor of Company and
Executive.
SECTION 18 - WITHHOLDING. Company shall be entitled to withhold from
payment any amount of withholding required by law.
SECTION 19 - SECTION HEADINGS AND CONSTRUCTION. The headings of sections in
this Agreement are provided for convenience only and will not effect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding section or sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such
gender or number as circumstances require.
SECTION 20 - COUNTERPARTS. This Agreement may be executed in one (1) or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same Agreement.
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Intending to be legally bound hereby, the parties have executed this
Agreement on the dates set forth next to their names below.
COMPANY
TRIMAS CORPORATION
8/1/2005 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------- ------------------
Date
Its: Vice President - Human Resources
EXECUTIVE
8/4/2005 /s/ ▇. ▇. ▇▇▇▇▇
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Date ▇. ▇. ▇▇▇▇▇
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