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EXHIBIT 10.82
Employment & Retainer Agreement
This Agreement is entered into on May 8, 2000 by Decora Industries, Inc. (the
"Company"), Xxxxx CFO Partners, LLP ("Xxxxx") and Xxxxxx X. Xxxxxx, Xx. (the
"CFO") (collectively, the "parties").
WHEREAS, the Company wishes to engage the CFO to provide certain services and
Xxxxx wishes that the CFO provide such services in return for certain
consideration; the parties after full and careful negotiation agree as follows:
I. Services; Fees; Payments
A. Beginning on May 8, 2000, (the "Effective Date"), the CFO will perform,
under the title chief financial officer, CFO Services as set forth in
Section II for a total monthly fee of $20,000 (the "Monthly Fee")
B. The CFO will provide CFO Services for 5 days per week.
C. The Company will pay the CFO directly according to the Company's normal
payroll process a portion of the Monthly Fee equal to $16,666 (the
"Salary") and will pay Xxxxx the remaining portion of $3334 ("Retainer
Fee").
D. This Agreement will expire on December 31, 2001.
E. The Company also will provide Xxxxx the incentive bonus or warrants or
options set forth in Schedule A.
F. The Company will pay all amounts owed Xxxxx no later than the same day of
the month for which amounts are invoiced.
G. The Company will promptly reimburse the CFO for reasonable travel and
out-of-pocket business expenses.
II. CFO Services
CFO Services are defined as those certain services as specified and directed by
the Company from time to time and which the CFO is able to perform within the
time allotted under this agreement.
III. The Relationship of the CFO and the Company
A. The Company, Xxxxx and the CFO agree that the CFO will be an employee of
the Company.
B. As an employee of the Company, the CFO will work under the exclusive
management and authority of the Company.
C. The CFO will serve the Company as an officer of the Company, but only if
the following conditions are met without exception; the CFO is duly elected
as an officer by its Board of Directors; and the CFO has received written
evidence that he or she is covered as an officer by director and officer
insurance maintained by the Company at no additional cost to the CFO or
Xxxxx.
D. The CFO may sign federal or state securities filings but only if the
following condition is met without exception; the CFO receives written
evidence that he or she in signing such filings is covered by applicable
insurance (whether director
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and officer insurance or a special policy) maintained by the Company at no
additional cost to the CFO or Xxxxx.
E. The CFO will be eligible for vacation and holidays consistent with the
Company's policy as it applies to senior management and the CFO will be
exempt from any delay periods required for eligibility.
F. The CFO elects not to participate in the Company's employee retirement plan
or any other employee benefit plan, and waives any coverage that may
otherwise exist. The Company will not include the CFO as participant in any
such plan, unless required to do so by law for plan qualification. However,
notwithstanding the foregoing, the CFO may participate in the Company's
401(k) plan at the Company's option.
G. The CFO waives any past or present claim it may have against the Company
for any discrimination.
IV. The Relationship of Xxxxx and the Company
The Company, Xxxxx and the CFO agree that for purposes of this Agreement,
Xxxxx'x relationship with the Company is to make the CFO available to the
Company to provide CFO services. However, the Company is solely responsible for
its evaluation, management and use of the CFO and the CFO Services.
V. The Relationship of Xxxxx and the CFO
The Company, Xxxxx and the CFO agree that for purposes of this Agreement,
Xxxxx'x relationship with the CFO is to make available to the CFO certain
resources of Xxxxx. These resources are not warranted or guaranteed in any way
and the Company is solely responsible for its evaluation, management and use of
these resources.
VI. Standard Disclaimers
A. Neither Xxxxx nor the CFO will be liable for Y2K related losses, costs,
damages or expenses.
X. Xxxxx will not be liable for any non-compliance with federal, state or
local laws or regulations.
C. The Company agrees that reports, projections and/or forecasts can be
prepared only at the Company's direction and reflect the judgment of the
Company. Xxxxx makes no representation or warranty as to the accuracy or
reliability of reports, projections and/or forecasts; and will not be held
liable for any claims of reliance on such reports, projections and/or
forecasts.
VII. Indemnity Joint Defense; Liability Limitations; Arbitration; Insurance
A. The Company agrees to indemnify Xxxxx to the full extent permitted by law
for any losses, costs, damages and expenses, including attorneys' fees, as
such are incurred, in connection with (1) any cause of action, suit or
other proceeding arising in connection with Xxxxx'x engagement by the
Company under this Agreement, the CFO's employment with the Company or the
CFO's activities while employed by the Company, and (2) any legal
proceeding in which Xxxxx may be required or agree to participate, but in
which Xxxxx is not a party. This indemnification does not apply to actions
taken by Xxxxx in bad faith.
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B. If the Company and Xxxxx are defendants in any action, suit, or other
proceeding, the defense of Xxxxx will be represented by counsel selected by
Xxxxx.
C. The Company and Xxxxx agree to binding arbitration under the rules of the
American Arbitration Association ("AAA"), to take place in the AAA's
Atlanta office, if any dispute arises between them.
D. The parties recognize and agree that any breach by Xxxxx of this Agreement
would result in injury that would be impossible to accurately ascertain.
Therefore, Xxxxx shall pay to the Company as liquidated damages, and not as
a penalty, an amount equal to two full months of Retainer Fee. The parties
agree that this amount of liquidated damages represents a reasonable
approximation of the damages that would be incurred as a result of a breach
by Xxxxx of this Agreement.
E. In any event, at any time, Xxxxx may pay a sum equal to the total Retainer
Fee paid under this Agreement for the most recent four months, which
payment the Company agrees shall serve as final satisfaction and accord for
any and all such liabilities of Xxxxx under this Agreement.
F. As a precondition for recovery of any alleged liability, the Company shall
give Xxxxx notice, in writing, of the alleged basis for liability within
thirty (30) days of discovering the circumstances giving rise to such
alleged liability, and no legal or other action shall be taken by the
Company against Xxxxx (i) more than (60) days after such notice has been
given or (ii) less than thirty (30) days after such notice has been given,
in order that Xxxxx shall have the opportunity to investigate in a timely
manner and, where possible, correct or rectify the alleged basis for
liability.
X. Xxxxx will not be liable in any event for incidental or consequential
damages, including without limitation, any interruption of business or loss
of business, profit, or goodwill.
H. To the extent the Company has directors' and officers' liability insurance
("including entity coverage") and/or errors and omissions liability
insurance in effect, the Company will provide such insurance coverage for
the CFO.
VIII. General Terms and Conditions
X. Xxxxx retains the right to terminate this agreement immediately if the
Company has not remained current with its obligations to Xxxxx under this
Agreement, the Company is engaged in or asks the CFO to engage in an
illegal or unethical activity, or by death or disability of the CFO.
B. The provisions on the attached Schedule A are incorporated by reference as
if set forth herein; and the provisions concerning the bonus in Schedule A
will survive any cancellation of this Agreement. (Use only if a Schedule A
is included.)
C. Neither the Company, Xxxxx or the CFO shall be deemed to have waived any
rights or remedies accruing under this Agreement unless such waiver is in
writing and signed by the party electing to waive the right or remedy.
D. This Agreement is governed by Georgia law.
E. The terms of this Agreement are severable, and they may not be amended
except in writing signed by the parties. This Agreement binds and benefits
the successors of the parties.
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F. This Agreement contains the entire agreement between the parties,
superseding any prior oral or written statements or agreements.
G. The persons signed below are authorized to sign on behalf of each party,
and their signatures are all necessary.
The COMPANY XXXXX CFO The CFO
PARTNERS, LLP
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx Luergo /s/ Xxxxxx X. Xxxxxx
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Signature Signature Signature
Xxxxxx X. Xxxxxx
President and CEO /s/ Xxxx Luergo Xxxxxx X. Xxxxxx
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Name and Title Name, Area Limited Name
Partner
5/5/00 5/18/00 5/5/00
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Date Date Date
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SCHEDULE A
Employment & Retainer Agreement
A. Incentive Bonus or Options or Warrants
As Follows:
1. The Cfo will participate in the Executive Incentive plan at the target
rate of 60% of the annual base salary, Payment is based upon the
achievement of the corporation in three key areas: Sales, EBITDA, and
Earnings per share. A complete copy of the incentive plan will be made
available.
2. The CFO will receive options to purchase 50,000 shares of DECORA
Industries, Inc. at an exercise price of $5.00 per share. As an
officer of Decora, these options can be characterized as either
Incentive stock options (ISO's) or Non-qualified stock options
(NQSQ's). It has been Decoras prior practice to issue the maximum
number of ISO's under applicable tax law, with the remaining option
issued to NQSQ's. The maximum number of ISO's that may vest in any one
year is equal to $100,000 dividend by the fair market value of the
underlying securities as of the date of the grant.
