EMPLOYMENT AGREEMENT
AGREEMENT made as of September 28, 1999 (the "Effective Date"), between
XXXXX-CRAFT INDUSTRIES, INC., a Delaware corporation ("Xxxxx-Craft"), and XXXXX
X. XXXXX (the "Executive").
The Executive currently serves as Vice President and General Counsel
and Secretary of Xxxxx-Craft. Xxxxx-Craft wishes to promote the Executive to the
position of Senior Vice President and to secure the continued services of the
Executive in that position and as General Counsel and Secretary for an
additional extended period. In addition, because of the position the Executive
holds with Xxxxx-Craft and the position that he will hold during the term of his
full-time employment under this Agreement, Xxxxx-Craft wishes to secure the
further services of the Executive as a consultant to Xxxxx-Craft, and wishes to
insure that the Executive will refrain from competing with Xxxxx-Craft, after
the termination of his full time employment under specified circumstances.
In consideration of the covenants and agreements herein contained, the
parties agree as follows:
1. Employment Term.
1.1 Xxxxx-Craft shall employ the Executive, and the Executive
shall serve, as Senior Vice President of Xxxxx-Craft during the Employment Term
(as defined in Section 1.2).
1.2 The term of the Executive's employment under Section 1.1
of this Agreement (the "Employment Term") shall commence on the Effective Date
and end on December 31, 2004, unless sooner terminated pursuant to the
provisions of Section 9 or Section 10.
2. Duties and Authority.
2.1 During the Employment Term, the Executive shall devote his
full business time and energies to the business and affairs of Xxxxx-Craft and
shall not accept other employment or permit such personal business interests as
he may have to interfere with the performance of his duties hereunder. The
Executive agrees, during the Employment Term, to use his best efforts, skill and
abilities to promote Xxxxx-Craft's interests; to be available to serve as a
director and officer of Xxxxx-Craft and any of its domestic subsidiary
corporations if elected by the Board of Directors of Xxxxx-Craft (the "Board")
or stockholders of Xxxxx-Craft or any such subsidiary corporation; and to
perform such duties (consistent with his status set forth below in this Section
2) as may be assigned to him by the Chief Executive Officer of Xxxxx-Craft (the
"Chief Executive Officer") or the Board.
2.2 Subject only to the direction and control of the Chief
Executive Officer and the Board (which direction and control shall be consistent
with the past practice of Xxxxx-Craft), the Executive shall perform all services
and duties necessary or appropriate for the management of Xxxxx-Craft's business
and that of its subsidiaries.
2.3 Throughout the Employment Term, the Executive shall be
continued in the offices denominated those of Senior Vice President and General
Counsel and Secretary of Xxxxx-Craft and shall perform on behalf of Xxxxx-Craft
such functions of an executive nature, and shall have such authority, duties and
responsibilities of an executive nature as shall be assigned to the Executive by
the Chief Executive Officer or the Board.
3. Location.
During the Employment Term, the Executive's services under
this Agreement shall be performed principally in the location in which the
Executive principally performs such services on the Effective Date. The parties,
however, acknowledge and agree that the nature of the Executive's duties
hereunder shall require reasonable domestic and international travel from time
to time.
4. Cash Compensation.
4.1 Base Salary. During the Employment Term, Xxxxx-Craft shall
pay to the Executive, in monthly or more frequent installments in accordance
with Xxxxx-Craft's regular payroll practices for senior executives, a base
salary at the rate per annum of $525,000, which shall be increased by the amount
of $25,000 on each of January 1, 2001 and the immediately following anniversary
of such date. As of January 1, 2003 and as of each successive January 1 to the
end of the Employment Term, the Executive's base salary shall be adjusted
upward, in proportion to any increase in the Consumer Price Index, as defined in
Section 4.4, between the December levels of the two immediately preceding years
("COLA Adjustment"). Each such adjustment shall be made retroactively when the
Consumer Price Index for the December next preceding the date of such adjustment
becomes available. It is understood that Xxxxx-Craft may, at any time, in the
discretion of its Board increase, but not decrease, the Executive's base salary.
4.2 Deferred Compensation. During the Employment Term, Xxxxx-Craft shall
credit to the Executive's Account (as defined in Section 4.2.1) the amount
specified in Section 4.2.2.
4.2.1 Xxxxx-Craft shall maintain, on its books, a special account,
comprised of two sub-accounts, Subaccount A and Subaccount B, with respect to
the Executive (the "Account"), in accordance with the terms of this Agreement,
until the Executive shall have been paid all amounts required by Section 4.2.3
to be paid to the Executive with respect thereto. Prior to December 1 of each
year, Xxxxx-Craft's General Counsel and Secretary shall notify the Executive of
the option to select the periods to which compensation payable pursuant to this
Section 4.2 will be deferred and, within fifteen (15) days following receipt of
such notice, the Executive shall notify Xxxxx-Craft's Treasurer, if the
Executive wishes that the Deferred Compensation (as defined in clause (a) of the
first sentence of Section 4.2.2) be credited to Subaccount A, Subaccount B, or a
combination of both Subaccount A and Subaccount B (any such combination to be
specified in a manner that will not prevent Xxxxx-Craft's Treasurer from
computing on a monthly basis the amounts to be credited to each subaccount in
accordance with Section 4.2.2). Absent such notice from the Executive, Deferred
Compensation for such year shall be credited to Subaccount B.
4.2.2 During each year of the Employment Term, Xxxxx-Craft shall credit to
the appropriate Subaccount, as of the end of each month, (a) an amount equal to
one-twelfth of $100,000, subject to COLA Adjustment commencing as of January 1,
2001 ("Deferred Compensation"), and (b) interest on the Account balance as of
the end of the preceding month, computed at a rate to be adjusted as of the last
day of each calendar quarter to equal the yield, as of the last business day of
such quarter, as reported in The Wall Street Journal, on U.S. Treasury Notes
maturing in the month that is five years after the last month of such quarter
(the "Interest Rate"). Amounts credited to the Account, excluding interest,
shall be deemed compensation for the year credited, for purposes of determining
benefits under the Xxxxx-Craft Industries, Inc. Salaried Employees' Pension
Plan, Xxxxx-Craft/UTV Employees' Stock Purchase Plan, Xxxxx-Craft Industries,
Inc. Profit-Sharing Plan and Xxxxx-Craft Industries, Inc. Benefit Equalization
Plan. If no yield for such notes is so published as of the last day of a
particular quarter, there shall be substituted the average of the yields so
published for the months next preceding and following. If The Wall Street
Journal is not published on the last day of a particular quarter, there shall be
substituted the appropriate yield reported on the last previous day on which The
Wall Street Journal was published. Following the Employment Term, Xxxxx-Craft
shall credit to the Account, as of the last day of each month, interest on the
Account Balance as of such date, computed at the Interest Rate.
4.2.3 On the January 15 first-occurring following the year in which
expiration or termination of the Employment Term shall have occurred,
Xxxxx-Craft shall pay a lump sum equal to the Subaccount A balance as of such
January 15 (including interest accrued in accordance with Section 4.2.2 at the
Interest Rate used for the last quarter of the previous year through such
January 15), and Xxxxx-Craft will have no further obligation to make any payment
to the Executive with respect to Subaccount A. On such January 15, Xxxxx-Craft
also shall pay to the Executive an amount equal to one-fifth of the Subaccount B
balance as of such January 15 (including interest accrued through such January
15) (the "First Payment"), and the balance of such Subaccount shall be reduced
by the amount of such First Payment. On each succeeding January 15, until
Xxxxx-Craft shall have made five payments with respect to Subaccount B
(including the First Payment) pursuant to this Section 4.2.3, Xxxxx-Craft shall
pay to the Executive a sum equal to the amount of the First Payment, plus
interest credited to Subaccount B through the date of such payment, from the
first day after the date of the immediately preceding payment, and the balance
shall be reduced by the amount of such sum, such that the entire Amount of
Subaccount B plus any interest thereon shall have been paid to the Executive by
the fourth anniversary of the First Payment. In the event that for tax purposes
Xxxxx-Craft is required to treat any portion of Subaccount B in a manner
consistent with the notion that the Executive should include any unpaid amount
(determined without regard to this sentence) in taxable income, Xxxxx-Craft
shall pay such amount to the Executive at the time such portion is so treated.
4.3 Bonus. In addition to his base salary and the deferred
amounts referred to in Section 4.2.2 above, the Executive shall be entitled,
with respect to fiscal year 1999, to receive a bonus determined and payable in
accordance with the past practice of Xxxxx-Craft and, for fiscal years
commencing with Xxxxx-Craft's 2000 fiscal year, to participate in the
Xxxxx-Craft Management Incentive Compensation Plan (the "Incentive Plan"), which
Incentive Plan shall be subject to the approval of Xxxxx-Craft's shareholders at
the annual shareholders meeting to be held in 2000. The Incentive Plan shall set
forth the terms and conditions of awards to be made thereunder. Such terms and
conditions shall include, but not be limited to, the following: The Incentive
Plan shall be administered by the Compensation Committee of the Board of
Directors; shall be designed to meet the requirements of Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"); shall provide for the
Compensation Committee to convene within the first quarter of each fiscal year
to establish annual performance goals that must be satisfied for minimum, target
and maximum bonuses; and shall provide for annual awards to range from .3 to 2.0
times annual base salary.
4.4 Consumer Price Index. The words "Consumer Price Index," as
used in this Agreement, shall mean the Consumer Price Index for All Urban
Consumers, U.S. City Average, All Items (1982-84=100), as reported by the Bureau
of Labor Statistics of the U.S. Department of Labor. In the event that this
Consumer Price Index shall be superseded or shall be published by a different
agency, then the superseding index shall be substituted for this Consumer Price
Index in such a manner as to implement the intent of this Agreement that the
Executive's base salary shall be adjusted, beginning as of January 1, 2003, and
Deferred Compensation shall be adjusted annually, beginning as of January 1,
2001, so that the purchasing power thereof shall be maintained at a level at
least equivalent to the purchasing power thereof at the immediately preceding
January 1.
5. Expenses.
In addition to the compensation provided in Section 4 and in
Section 11, Xxxxx-Craft will pay or reimburse the Executive for all reasonable
expenses actually incurred or paid by him during the Employment Term or the
Consulting Term (as defined in Section 11) in the performance of his services
hereunder upon presentation of expense statements, vouchers, or such other
supporting information as Xxxxx-Craft may customarily require of its senior
executives. Such expense reimbursement policy shall be no less favorable to the
Executive than the policy in effect as of the Effective Date.
6. Additional Benefits.
6.1 During the Employment Term:
(a) The Executive will be entitled to reasonable annual vacation periods,
with full pay and allowances (in accordance with the past practice and policy of
Xxxxx-Craft with respect to its senior officers with the Executive's position
and title).
(b) The Executive will also be eligible for sick leave in accordance with
Xxxxx-Craft's customary practice for senior executives.
(c) The Executive will be entitled to participate in any insurance,
pension, profit-sharing, stock option, stock purchase or other benefit plan and
fringe benefit arrangements of Xxxxx-Craft now existing or hereafter adopted for
the benefit of the employees generally or of the executives of Xxxxx-Craft.
(d) Xxxxx-Craft shall match the Executive's contributions (including any
contribution by any trust of which the Executive is the grantor) to recognized
charities or educational institutions, during each fiscal year of the Employment
Term and the Consulting Term, in an amount equal to the sum of (i) $25,000, such
sum to be prorated with respect to any partial fiscal year occurring within the
Employment Term. Matching contributions made by Xxxxx-Craft pursuant hereto
shall be in addition to any contributions made to match Executive's
contributions under any other charitable gift matching program generally
applicable with respect to contributions made by employees or directors of
Xxxxx-Craft or any of its subsidiaries.
(e) The Executive shall be entitled to such additional compensation and
benefits
(including but not limited to additional grants of options and other
equity-based awards) as may be granted to him from time to time by the Board or
the Compensation Committee thereof. In this regard, it is the intention of the
Compensation Committee to consider the adoption of an equity plan, to submit
such plan to the shareholders of Xxxxx-Craft for approval at the annual meeting
of shareholders to be held in 2000 and, if such plan is so adopted and approved,
to make an additional grant or grants to the Executive pursuant to such plan.
6.2 Pursuant to the action of the Compensation Committee of
the Board, and subject to the execution of this Agreement by the Executive,
Xxxxx-Craft hereby grants to the Executive an option ("Option") to purchase
150,000 shares of the common stock of Xxxxx-Craft ("Shares"), effective as of
the Effective Date, under the Xxxxx-Craft Industries, Inc. 1999 Management
Incentive Plan, as amended (the "1999 Plan"), at a price per share equal to the
fair market value (as defined in the plan) of the Shares on the Effective Date.
As long as the Executive remains employed by or acts as a consultant to
Xxxxx-Craft (except as may otherwise be provided in Sections 10.1, 10.2, 10.5.1
and 10.5.2), (a) 50% of the Shares subject to the Option shall first become
exercisable on the fourth anniversary of the Effective Date and the remaining
Shares subject to the Option shall first become exercisable on the fifth
anniversary of the Effective Date, and (b) once exercisable, the Option shall
remain exercisable until the 10th anniversary of the Effective Date or, if
earlier, until the expiration of the period set forth in the 1999 Plan.
6.3 No payment or benefit made or provided under this
Agreement shall be deemed to constitute payment to the Executive, his legal
representatives or beneficiaries in lieu of, or in reduction of, any benefit or
payment under an insurance, pension, profit-sharing or other benefit plan, and
no payment under any such plan shall reduce any payment or benefit due under
this Agreement.
7. [This section has been intentionally left blank.]
8. Change in Control.
8.1 For the purposes of this Agreement, a "Change in Control" shall mean:
8.1.1 Individuals who, as of the Effective Date, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the Effective Date whose election, or nomination for election by the
stockholders of Xxxxx-Craft, shall be approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of any individual, entity or
group, within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
"Person"), other than the Board; or
8.1.2 Approval by the stockholders of Xxxxx-Craft of a reorganization,
merger or consolidation, in each case, unless, following such reorganization,
merger or consolidation: (a) more than 50% of the combined voting power of the
then outstanding voting securities ("Outstanding Voting Securities") of the
corporation resulting from such reorganization, merger, or consolidation, which
may be Xxxxx-Craft (the "Resulting Corporation"), entitled to vote generally in
the election of directors (the "Resulting Corporation Voting Securities") shall
then be owned beneficially, directly or indirectly, by all or substantially all
of the Persons who were the beneficial owners of Outstanding Voting Securities
immediately prior to such reorganization, merger, or consolidation, in
substantially the same proportions as their respective ownerships of Outstanding
Voting Securities immediately prior to such reorganization, merger or
consolidation; and (b) at least 50% of the members of the board of directors of
the Resulting Corporation shall have been members of the Incumbent Board at the
time of the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
8.1.3 Approval by the stockholders of Xxxxx-Craft of (a) a complete
liquidation or
dissolution of Xxxxx-Craft or (b) the sale or other disposition of all or
substantially all of the assets of Xxxxx-Craft, other than to a corporation (the
"Buyer") with respect to which (i) following such sale or other disposition,
more than 50% of the combined voting power of securities of Buyer entitled to
vote generally in the election of directors, shall be owned beneficially,
directly or indirectly, by all or substantially all of the Persons who were the
beneficial owners of the Outstanding Voting Securities immediately prior to such
sale or other disposition, in substantially the same proportion as their
respective ownerships of Outstanding Voting Securities immediately prior to such
sale or other disposition; and (ii) at least 50% of the members of the board of
directors of Buyer shall have been members of the Incumbent Board at the time of
the execution of the initial agreement or action of the Board providing for such
sale or other disposition of assets of Xxxxx-Craft.
9. Termination of Agreement for Cause.
Xxxxx-Craft may terminate this Agreement, and all of
Xxxxx-Craft's obligations hereunder except its obligation to pay to the
Executive the Account Balance pursuant to Section 4.2 and salary accrued to the
date of termination, "for cause" upon 30 days written notice. The Executive
shall also be entitled to normal post-termination compensation and benefits
under Xxxxx-Craft's retirement, insurance and other compensation or benefit
plans, program and arrangements as in effect immediately prior to the Date of
Termination. As used in this Agreement, the term "for cause" shall mean and be
limited to the following events: (a) the Executive's conviction (which
conviction, through lapse of time or otherwise, is not subject to appeal) in a
court of law of a felony involving moral turpitude; (b) the Executive's material
breach of any of the covenants set forth in Section 12; (c) prior to a Change in
Control, the Executive's dishonesty in the course of fulfilling his duties
hereunder; (d) the Executive's continuing, repeated, wilful failure or refusal
to perform his duties in accordance with the terms of Section 2; provided,
however, that this Agreement may not be terminated for cause under this clause
(d), unless the Executive shall have first received written notice from the
Chief Executive Officer or the Board advising him of the specific acts or
omissions alleged to constitute a failure or refusal to perform his duties, and
such failure or refusal to perform his duties continues after the Executive
shall have had a reasonable opportunity to correct the acts or omissions cited
in such notice; or (e) prior to a Change in Control, at least two-thirds ( ) of
the nonemployee members of the Board shall have determined that the Executive
has intentionally committed an act that could have a material adverse effect on
the reputation or business of Xxxxx-Craft.
10. Termination Other Than for Cause.
10.1 Death. If the Executive shall die during the Employment
Term, this Agreement, and all of Xxxxx-Craft's obligations hereunder, shall
terminate, except (a) with regard to payments from the Account pursuant to
Section 4.2.3 (which Account shall include Deferred Compensation payable through
the last day of the month in which his death occurred), (b) that Xxxxx-Craft
shall pay to the Executive's estate, (i) within 30 days after his death, the
base salary, and pro rata target bonus with respect to the then current fiscal
year, that would have been payable to the Executive under Section 4 had the
Employment Term ended on the last day of the month in which his death occurred,
and (ii) an amount (payable at the same times as salary is paid to other senior
executives of Xxxxx-Craft) equal to the Executive's "Average Annual
Compensation" (as defined in Section 10.3) at the date of his death, such amount
to be payable for the 12-month period beginning on the first day of the month
following the month in which the Executive's death shall occur, and (c) all
outstanding stock options, including the Option granted pursuant to Section 6.2,
held by the Executive shall become fully exercisable and shall remain
exercisable pursuant to the terms of the plan under which it was granted. The
Executive's estate shall also be entitled to normal post-termination
compensation and benefits under Xxxxx-Craft's retirement, insurance and other
compensation or benefit plans, program and arrangements as in effect immediately
prior to the Date of Termination.
10.2 Disability. If, during the Employment Term, the Executive
shall become disabled (as defined in Xxxxx-Craft's then existing disability
policy) so that he shall be unable substantially to perform his services
hereunder, (a) for a period of six consecutive months or (b) for an aggregate of
six months within any period of 12 consecutive months, then the Chief Executive
Officer or the Board may, at any time during the continuance of such disability,
terminate the Employment Term on 30 days' prior written notice to the Executive.
After such termination, the Executive shall have no further obligation to
perform services for Xxxxx-Craft pursuant to Section 2 but shall be entitled to
receive from Xxxxx-Craft, in lieu of the amounts which would otherwise be
payable under Section 4, (i) within 30 days after such termination, the base
salary, and pro rata target bonus with respect to the then current fiscal year,
that would have been payable to the Executive under Section 4, had the
Employment Term ended on the last day of the month in which the Employment Term
was terminated pursuant to this Section 10.2, (ii) an amount (payable at the
same times as salary is paid to the other senior executives of Xxxxx-Craft) at
an annual rate equal to one-half of the Executive's "Average Annual
Compensation" (as defined in Section 10.3) at the date of the termination of the
Employment Term, such amount to be payable for the 12-month period beginning on
the first day of the month following the month in which the Employment Term
shall have been terminated pursuant to this Section 10.2, and (iii) pursuant to
Section 4.2.3, all Deferred Compensation amounts previously deferred and
credited to the Account. The Executive shall also be entitled to normal
post-termination compensation and benefits under Xxxxx-Craft's retirement,
insurance and other compensation or benefit plans, program and arrangements as
in effect immediately prior to the Date of Termination. After such termination,
all outstanding stock options, including the Optiongranted pursuant to Section
6.2, held by the Executive shall become fully exercisable and shall remain
exercisable pursuant to the terms of the plan under which it was granted. The
Executive shall have no obligation to accept any employment offered to him by
others in order to minimize, or to be set off against, the amounts to which he
is entitled pursuant to this Section 10.2. Xxxxx-Craft shall not interpose any
defense against payment of such amounts based on refusal of the Executive to
seek or accept other employment. However, if the Executive shall obtain other
employment, then amounts due to him pursuant to clause (ii) of this Section 10.2
shall be reduced, pro tanto, by amounts actually received by him for services
rendered in such other employment during the time amounts are payable pursuant
to said clause (ii).
10.3 Average Annual Compensation. As used in Sections 10.1 and
10.2, the term "Average Annual Compensation" shall mean the mean annual
compensation received or receivable by the Executive pursuant to Sections 4.1,
4.2 and 4.3 with respect to each of the three full fiscal years of Xxxxx-Craft,
or such shorter period of the Executive's employment with Xxxxx-Craft pursuant
hereto, immediately preceding the date of the Executive's death (in the case of
Section 10.1) or the date of the termination of the Employment Term (in the case
of Section 10.2).
10.4 Termination by Executive.
10.4.1 The Executive, on 30 days' prior written notice, may (but shall not
be obligated to) terminate the Employment Term effective as of any date
occurring during (1) the 90-day period commencing on the Designated Date (as
defined below in this Section 10.4.1) for any reason; or (2) the Employment Term
if, without the Executive's written consent, in the case of this clause (2)
only, (a) the Executive shall not be continued as Senior Vice President and
General Counsel and Secretary of Xxxxx-Craft, or the Executive shall be removed
from any such office; or (b) Xxxxx-Craft shall fail to cure a material breach of
this Agreement (including but not limited to a breach of Section 2 hereof)
within 10 days after written notice; or (c) following a Change in Control, the
Executive's authority, duties and responsibilities are materially reduced from
those in effect immediately prior to the Change in Control; or (d) Xxxxx-Craft
shall materially reduce any benefit to which the Executive is entitled pursuant
to Section 6.1 and, if the termination of the Employment Term shall occur prior
to a Change in Control, shall not have similarly reduced such benefit with
respect to Xxxxx-Craft senior executives generally; or (e) the Executive shall
be required to perform his principal services under this Agreement at a place
other than that set forth in Section 3. Such right to terminate the Employment
Term shall be the Executive's exclusive remedy in the event of the occurrence of
any of the events described in this Section 10.4.1. For purposes of clause (c)
of the preceding sentence, the Executive's authority, duties and
responsibilities shall be deemed to have been materially reduced if there shall
occur any material reduction in the scope, level or nature of the Executive's
authority, duties or responsibilities from those in effect immediately prior to
the Change in Control, or if there shall occur any demotion, any phasing out or
assignment to others, of the duties of the Executive as in effect immediately
prior to the Change i Control. For purposes of this Section 10.4, with respect
to any of the events described in clauses (a) through (e) of the first sentence
of this Section 10.4.1 alleged to have occurred on or after a Change in Control,
any determination made by the Executive in good faith that any such event has
occurred shall be conclusive. For purposes of this Section 10.4, "Designated
Date" shall mean the 12-month anniversary of the Change in Control; provided
that the number 12 shall be decreased (but not below 6) by the number of full
months between (x) the execution of the agreement that contemplates such Change
in Control transaction and (y) the consummation of such transaction.
10.5 Qualifying Termination. If the Executive shall elect to
terminate the Employment Term upon the occurrence of any event described in
Section 10.4.1, or if Xxxxx-Craft shall terminate this Agreement other than for
cause or disability pursuant to Sections 9 and 10 hereof (each, a "Qualifying
Termination"), then the Executive shall have no further obligation to perform
services for Xxxxx-Craft pursuant to Section 2, but he shall be entitled to
receive from Xxxxx-Craft the amounts and other benefits set forth in Sections
10.5.1 or 10.5.2 below.
10.5.1 If the Qualifying Termination shall occur prior to a Change in
Control:
(a) Xxxxx-Craft shall pay the Executive, within 30 days after the date of
termination of the Employment Term, in lieu of the amounts that would otherwise
be payable hereunder, a lump sum (or, if so elected by the Executive, on a
deferred basis) in cash of an amount equal to the sum of (i) the base salary,
and pro rata target bonus with respect to the then current fiscal year, that
would have been payable to the Executive under Section 4, had the Employment
Term ended on the last day of the month in which the Employment Term was
terminated; and (ii) the base salary that would have been payable to the
Executive pursuant to Section 4.1 (at the rate in effect on the date of the
termination of the Employment Term (including any COLA Adjustment theretofore
required to have been made)), for the period beginning on the date of such
termination and running through the last day of the calendar month in which
occurs the first anniversary of the date of such termination (the "Continuation
Period"), multiplied by 1.3. The Executive shall be entitled to receive, in
accordance with Section 4.2.3, all Deferred Compensation amounts previously
deferred and credited to the Account. The Executive shall also be entitled to
normal post-termination compensation and benefits under Xxxxx-Craft's
retirement, insurance and other compensation or benefit plans, program and
arrangements as in effect immediately prior to the Date of Termination;
(b) Until the last day of the Continuation Period, Xxxxx-Craft shall
maintain, at its expense, all insurance coverages and medical and health
benefits in respect of the Executive that shall have been in effect with respect
to him prior to the occurrence of the event entitling the Executive to terminate
this Agreement; provided, however, that this coverage shall be reduced to the
extent the Executive receives equivalent coverage and benefits during the
Continuation Period under the plans, programs and/or arrangements of a
subsequent employer without increased cost to the Executive (such coverage and
benefits to be determined on a coverage-by-coverage or benefit-by-benefit
basis); and
(c) With respect to the Option granted pursuant to Section 6.2, (i) if the
date of termination of the Employment Term shall occur following the third, and
prior to the fourth, anniversary of the Effective Date, 30% of the Shares
subject to the Option shall become exercisable on the date of such termination,
(ii) to the extent then exercisable, the Option shall remain exercisable for 90
days following the date of such termination, and (iii) to the extent not then
exercisable, the Option shall terminate.
10.5.2 If the Qualifying Termination shall occur on or after a Change in
Control:
(a) Xxxxx-Craft shall pay the Executive, within 30 days after the date of
termination of the Employment Term, in lieu of the amounts that would otherwise
be payable hereunder, a lump sum (or, if so elected by the Executive, on a
deferred basis) in cash of an amount equal to the sum of (i) the base salary,
and pro rata target bonus with respect to the then current fiscal year, that
would have been payable to the Executive under Section 4, had the Employment
Term ended on the last day of the month in which the Employment Term was
terminated; (ii) the aggregate of (A) the base salary that would have been
payable to the Executive pursuant to Section 4.1 (at the rate in effect on the
date of the termination of the Employment Term (including any COLA Adjustment
theretofore required to have been made)) and (B) an amount equal to .3 times the
base salary described in clause (i)(A) of this Section 10.5.2(a), such
aggregate, multiplied by three; and (iii) all consulting fees that would have
been payable pursuant to Section 11 hereof during the Consulting Term (without
regard to any adjustment thereof). The Executive shall be entitled to receive,
in accordance with Section 4.2.3, all Deferred Compensation amounts previously
deferred and credited to the Account. The Executive shall also be entitled to
normal post-termination compensation and benefits under Xxxxx-Craft's
retirement, insurance and other compensation or benefit plans, program and
arrangements as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive, immediately prior to the Change in Control;
(b) Xxxxx-Craft shall maintain, at its expense, all insurance coverages,
medical and health benefits in respect of the Executive that shall have been in
effect with respect to him prior to the occurrence of the event entitling the
Executive to terminate this Agreement (or, if more favorable to the Executive,
as in effect immediately prior to the Change in Control), for the period
beginning on the date of such termination and ending on the third anniversary of
the date of such termination; provided, however, this coverage shall be reduced
to the extent the Executive receives equivalent coverage and benefits during
such period under the plans, programs and/or arrangements of a subsequent
employer without increased cost to the Executive (such coverage and benefits to
be determined on a coverage-by-coverage or benefit-by-benefit basis);
(c) The Option granted pursuant to Section 6.2 shall become fully
exercisable, shall remain exercisable until the 10th anniversary of the
Effective Date and shall become transferable; and
(d) The Executive's account, if any, under the Executive Deferred Income
Plan shall become fully vested (to the extent not previously vested).
11. Consulting Services.
If the Employment Period shall terminate on December 31, 2004
or, if earlier, on account of disability, then during the five-year period (the
"Consulting Term") beginning on the date of termination of the Employment Term,
the Executive shall render to Xxxxx-Craft such consultation and advice as the
Board of Directors or the Chief Executive Officer of Xxxxx-Craft may request,
subject to the Executive's reasonable convenience and other business activities;
provided, however, that the Executive shall not be required to devote more than
240 hours in any twelve-month period to such services, which shall be performed
at a time and place mutually convenient to both parties. For his consulting
services, the Executive shall receive, as a consulting fee, compensation at the
rate of $100,000 per annum, payable in equal monthly installments. The
consulting fee shall be adjusted upward, as of each January 1 following the
beginning of the Consulting Term to the end of the Consulting Term, in
proportion to any increase in the Consumer Price Index, as defined in Section
4.4, between the December levels of the two immediately preceding years. Each
such adjustment shall be made retroactively when the Consumer Price Index for
the month next preceding the date of such adjustment becomes available. In
addition, the Executive shall be entitled to participate in each insurance plan
or medical or health plan generally available to Xxxxx-Craft senior executives
and to the reimbursement of expenses on the level made available to the
Executive immediately prior to the termination of the Employment Term. In the
event that the Executive shall be discharged by Xxxxx-Craft during the
Consulting Term other than for cause (as defined in Section 9) or disability (as
described below in this Section 11), he shall nevertheless be entitled to
continue to receive his full consulting fee, and the above-mentioned welfare
plan coverage, for the remainder of the Consulting Term. If the Executive shall
die during the Consulting Term, his estate shal be entitled to receive the full
consulting fee payable hereunder until the earlier to occur of (a) the first
anniversary of the date of his death or (b) the end of the Consulting Term. If,
during the Consulting Term, the Executive shall be disabled from performing his
consulting services, and such disability shall continue for a period of six
consecutive months or for an aggregate of six months within any period of 12
consecutive months, or if such disability shall exist at the start of the
Consulting Term and shall be a continuation of a disability for which the
Employment Term shall have been terminated pursuant to Section 10.2, and the
Board, by written notice to the Executive (before the Executive shall recover
from such disability) shall terminate the Executive's consulting services, the
Executive shall have no further obligation to perform consulting services for
Xxxxx-Craft and shall be entitled to receive compensation at the rate of
one-half of the consulting fee payable hereunder until the earlier to occur of
(a) the first anniversary of such termination or (b) the end of the Consulting
Term. In the event that the Executive voluntarily terminates the Consulting
Term, he shall, following such termination, forfeit his right hereunder to any
further consulting fees and to the above-mentioned welfare plan coverage, which
forfeiture shall constitute the full damages to which Xxxxx-Craft shall be
entitled in such event.
12. Protection of Confidential Information; Non-Competition.
12.1 The Executive agrees that, in view of the fact that his
work for Xxxxx-Craft will bring him into close contact with many confidential
affairs of Xxxxx-Craft not readily available to the public, he will not at any
time (whether during the Employment Term, the Consulting Term, or thereafter)
disclose to any person, firm, corporation, partnership or other entity
whatsoever (except Xxxxx-Craft or any of its subsidiaries), or any officer,
director, stockholder, partner, associate, employee, agent or representative of
any such firm, corporation or other entity, any confidential information or
trade secrets of Xxxxx-Craft which may come into his possession during the
Employment Term or the Consulting Term (the "Confidential Materials"). The term
"Confidential Materials" does not include information which at the time of
disclosure or thereafter is generally available to or known by the public
otherwise than by reason of the Executive's disclosure thereof in violation of
this Agreement (ii) is, was or becomes available to the Executive on a
non-confidential basis from a source other than Xxxxx-Craft, provided that the
Executive has no reason to believe that such source is or was bound by a
confidentiality agreement with Xxxxx-Craft, (iii) has been made available, or is
made available, on an unrestricted basis to a third party by Xxxxx-Craft, by an
individual authorized to do so, or (iv) is known by the Executive prior to its
disclosure to the Executive. The Executive may use and disclose Confidential
Materials to the extent necessary to assert any right or defend against any
claim arising under this Agreement or pertaining to Confidential Materials or
their use, to the extent necessary to comply with any applicable statute,
constitution, treaty, rule, regulation, ordinance or order, whether of the
United States, any state thereof, or any other jurisdiction applicable to the
Executive, or if the Executive receives a request to disclose all or any part of
the information contained in the Confidential Materials unde the terms of a
subpoena, order, civil investigative demand or similar process issued by a court
of competent jurisdiction or by a governmental body or agency, whether of the
United States or any state thereof, or any other jurisdiction applicable to the
Executive.
12.2 During the Noncompetition Period (as defined below in
this Section 12.2), the Executive will not, except on behalf of Xxxxx-Craft or
any of its subsidiaries, directly or indirectly, whether as an officer,
director, stockholder, partner, associate, employee, agent or representative,
become or be interested in, or associated with, any other person, firm,
corporation, partnership or other entity whatsoever, engaged in a business
competitive with any of the businesses of Xxxxx-Craft or any of its subsidiaries
in any of the markets in which Xxxxx-Craft or any of its subsidiaries carries on
such business; provided, however, that the Executive may own as an investor
securities of any such corporation which securities are registered under Section
12(b) or 12(g) of the Exchange Act, so long as he is not part of any control
group of such corporation. "Noncompetition Period" shall mean (a) any period
during which the Executive renders services to Xxxxx-Craft pursuant to Section
1.2 or 11 (the "Period of Service"), and (b) the one-year period following the
Period of Service (other than in the event of death), provided that this clause
(b) shall not apply in the event of a Qualifying Termination (whether occurring
before or after a Change in Control).
12.3 The Executive agrees that a violation of the covenants
set forth in Section 12.1 or 12.2, or any provision thereof, will cause
irreparable injury to Xxxxx-Craft and that Xxxxx-Craft shall be entitled, in
addition to any other rights and remedies it may have, at law or in equity, to
an injunction enjoining and restraining the Executive from doing or continuing
to do any such act and any other violation or threatened violation of said
Section 12.1 or 12.2.
12.4 If any provision of Section 12 as applied to any
circumstance shall be adjudged by a court to be invalid or unenforceable, the
same shall in no way affect any other provision of this Section 12, the
application of such provision in any other circumstances, or the validity or
enforceability of this Section 12. Xxxxx-Craft and the Executive intend this
Section 12 to be enforced as written. However, if any provision, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, or otherwise, Xxxxx-Craft and the Executive agree
that the court making such determination shall have the power to reduce the
duration and/or area of such provision, and/or to delete specific words or
phrases ("blue-penciling"), and in its reduced or blue-pencilled form such
provision shall then be enforceable and shall be enforced.
12.5 Xxxxx-Craft and the Executive intend to, and do hereby,
confer jurisdiction to enforce the covenants contained in this Section 12 upon
the courts of any state of the United States and any other governmental
jurisdiction within the geographical scope of such covenants. If the courts of
any one or more of such states or jurisdictions shall hold such covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of Xxxxx-Craft and the Executive that such determination shall not bar
or in any way affect Xxxxx-Craft's right to the relief provided above in the
courts of any other state or jurisdiction within the geographical scope of such
covenants, as to breaches of such covenants in such other respective states or
jurisdictions, the above covenants as they relate to each state or jurisdiction
being, for this purpose, severable into diverse and independent covenants.
13. Notices.
All notices, requests, consents and other communications, required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given (a) if delivered personally, when delivered; (b) if delivered by
overnight carrier, on the first business day following such delivery; (c) if
delivered by registered or certified mail, return receipt requested, on the
third business day after having been mailed. In any case, each such notice,
request, or consent or other communication shall be addressed as follows or to
such other address as either party shall designate by notice in writing to the
other in accordance herewith:
13.1 If to Xxxxx-Craft:
Xxxxx-Craft Industries, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Board of Directors
13.2 If to the Executive to him at his address set forth on the personnel
records of Xxxxx-Craft.
14. General.
14.1 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in New York.
14.2 The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
14.3 This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, between the parties. This Agreement does not apply to any stock options
granted to the Executive prior to the date on which the Option described in
Section 6.2 was granted.
14.4 This Agreement and the benefits hereunder are personal to
Xxxxx-Craft and are not assignable or transferable, nor may the services to be
performed hereunder be assigned by Xxxxx-Craft to any person, firm or
corporation; provided, however, that this Agreement and the benefits hereunder
may be assigned by Xxxxx-Craft to any corporation acquiring all or substantially
all of the assets of Xxxxx-Craft or to any corporation into which Xxxxx-Craft
may be merged or consolidated, and this Agreement and the benefits hereunder
will automatically be deemed assigned to any such corporation (and references
herein to Xxxxx-Craft will include any successor corporation), subject, however,
to the Executive's right to terminate the Employment Term in such event as
provided in Section 10.4. Xxxxx-Craft may delegate any of its obligations
hereunder to any subsidiary of Xxxxx-Craft, provided that such delegation shall
not relieve Xxxxx-Craft of its obligations hereunder.
14.5 This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by either
party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
14.6 Whenever this Agreement provides for any payment to the
Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Executive may have designated by written notice to
Xxxxx-Craft. The Executive shall have the right to revoke any such designation
and to redesignate a beneficiary or beneficiaries by written notice to
Xxxxx-Craft to such effect.
14.7 In case of any dispute or disagreement arising out of, or
in connection with, this Agreement, until the final determination of such
dispute or disagreement Xxxxx-Craft shall continue to pay to the Executive all
of the compensation provided in this Agreement, and the Executive shall be
entitled to continue to receive all of the other benefits provided herein. If,
following a Change in Control, any such dispute or disagreement shall result in
legal action between Xxxxx-Craft and the Executive, the Executive shall be
entitled to recover from Xxxxx-Craft any actual expenses for attorney's fees and
disbursements incurred by him in connection with the Executive's good faith
maintenance or defense of such action, on an after-tax basis. During the
pendency of any such action, Xxxxx-Craft shall pay all actual attorney's fees
and expenses incurred by the Executive in connection therewith upon receipt of
an undertaking by the Executive to repay such amounts as shall be found in such
action as having been incurred in connection with the Executive's maintenance or
defense of such action other than in good faith.
14.8 Xxxxx-Craft agrees that, if the Executive's employment
with Xxxxx-Craft terminates during the Employment Term, the Executive is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive by Xxxxx-Craft pursuant hereto. Further, the amount of
any payment or benefit provided for in this Agreement (other than as expressly
provided in Sections 10.2, 10.5.1(b) and 10.5.2(b)) shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to Xxxxx-Craft, or otherwise.
XXXXX-CRAFT INDUSTRIES, INC.
--------------------------------
Name:
Title:
--------------------------------
XXXXX X. XXXXX
Section Page
1. Employment Term 1
2. Duties and Authority 1
3. Location 2
4. Cash Compensation 2
4.1 Base Salary 2
4.2 Deferred Compensation 3
4.3 Bonus 4
4.4 Consumer Price Index 5
5. Expenses 5
6. Additional Benefits 5
7. [This section has been intentionally left blank.]
7
8. Change in Control 7
9. Termination of Agreement for Cause 8
10. Termination Other Than for Cause 9
10.1 Death 9
10.2 Disability 9
10.3 Average Annual Compensation 10
10.4 Termination by Executive 11
10.5 Qualifying Termination 12
11. Consulting Services 14
12. Protection of Confidential Information; Non-Competition 15
13. Notices 17
14. General 18
