EXHIBIT 10.3
SALARY CONTINUATION AGREEMENT
THIS SALARY CONTINUATION AGREEMENT (this "Agreement") is made and
entered into as of the 1st day of October, 2002, by and between INTERFACE, INC.,
a Georgia corporation (the "Company"), and XXX X. XXXXXXXX, a resident of
Atlanta, Georgia ("Employee").
W I T N E S S E T H:
WHEREAS, Employee is currently employed by the Company in the capacity
of Chairman of the Board;
WHEREAS, Employee has performed his duties in a capable and efficient
manner;
WHEREAS, the experience of Employee is such that assurance of his
continued service to the Company is considered essential to its future growth
and profits, and the Company desires to retain the valuable services and
business counsel of Employee and to induce Employee to remain in his capacity
with the Company;
WHEREAS, the Company further wishes to retain Employee so as to prevent
a substantial financial loss which the Company would incur if Employee left the
employment of the Company and entered the employment of a competitor;
WHEREAS, Employee is willing to continue in the employ of the Company,
provided the Company will agree to provide to Employee and his beneficiaries an
additional benefit in the form of certain payments in the event of Employee's
retirement, disability or death;
WHEREAS, Employee is considered a highly compensated employee or member
of a select management group of the Company;
WHEREAS, the Company and Employee entered into a salary continuation
agreement effective as of September 7, 1984, which was previously amended and
restated pursuant to an agreement dated April 1, 1997, an agreement dated
January 6, 1998 and an amendment thereto dated October 30, 1998 (collectively,
the "Prior Agreement");
WHEREAS, the Compensation Committee of the Company's Board of Directors
approved, on November 26, 2001, certain changes to the Prior Agreement, to be
effective October 1, 2002, and the parties now desire to modify the Prior
Agreement in certain respects; and
WHEREAS, this Agreement, which continues, amends and restates the Prior
Agreement in its entirety, shall be deemed effective as of the original
effective date (September 7, 1984) of the Prior Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. In addition to the terms defined elsewhere in
this Agreement, the following terms, when used with an initial capital letter,
shall have the meanings ascribed to them below:
(a) Annual Compensation means salary and cash bonus paid by the
Company to Employee for a particular calendar year, and excludes compensation
from stock options, restricted stock and any other benefit or compensation
program. (The cash bonus applicable to a particular calendar year is the bonus
paid typically within the first calendar quarter of the following year.)
(b) Authorized Leave of Absence means any period not to exceed one
year during which the Company, in its sole discretion, permits Employee to be
away from work and which the Company designates as an "authorized leave of
absence".
(c) Beneficiary means the person or persons (which may be the
Employee's estate) designated (or deemed designated) by Employee in accordance
with the terms of Section 6(a) hereof to receive any death benefit payable under
this Agreement upon Employee's death.
(d) Cause means the reason for termination of Employee's
employment is (i) Employee's fraud, dishonesty, gross negligence or willful
misconduct with respect to business affairs of the Company, (ii) Employee's
refusal or repeated failure to follow the established lawful policies of the
Company applicable to persons occupying the same or similar positions; or (iii)
Employee's conviction of a felony or other crime involving moral turpitude.
(e) Change in Control shall mean and be deemed to occur on the
earliest of, and upon any subsequent occurrence of, the following:
(i) during such period as the holders of the Company's
Class B common stock are entitled to elect a majority of the Company's Board of
Directors, the Permitted Holders (defined below) shall at any time fail to be
the "beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934) of a majority of the issued and outstanding
shares of the Company's Class B common stock;
(ii) at any time during which the holders of the Company's
Class B common stock have ceased to be entitled to elect a majority of the
Company's Board of Directors, the acquisition by any "person", entity or "group"
of "beneficial ownership" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, and rules promulgated thereunder) of more
than 30 percent of the outstanding capital stock entitled to vote for the
election of directors ("Voting Stock") of (A) the Company, or (B) any
corporation which is the surviving or resulting corporation, or the transferee
corporation, in a transaction described in clause (iii)(A) or (iii)(B)
immediately below;
(iii) the effective time of (A) a merger, consolidation or
other business combination of the Company with one or more corporations as a
result of which the holders of the outstanding Voting Stock of the Company
immediately prior to such merger or consolidation hold less than
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51 percent of the Voting Stock of the surviving or resulting corporation, or (B)
a transfer of all or substantially all of the property or assets of the Company
other than to an entity of which the Company owns at least 51 percent of the
Voting Stock, or (C) a plan of complete liquidation of the Company; and
(iv) the election to the Board of Directors of the
Company, without the recommendation or approval of Xxx X. Xxxxxxxx if he is then
serving on the Board of Directors, or, if he is not then serving, of the
incumbent Board of Directors of the Company, of the lesser of (A) four
directors, or (B) directors constituting a majority of the number of directors
of the Company then in office.
(f) Claims Manager means the Chief Financial Officer of the
Company or such other executive officer of the Company as may be designated by
the Company's Chief Executive Officer or Board of Directors to serve in such
capacity (which designation shall be communicated to Employee by written
notice). In the absence of a designated Claims Manager, the Board of Directors
shall function as Claims Manager.
(g) Code means the Internal Revenue Code of 1986, as amended.
(h) Disability or Disabled means (i) with respect to the first 60
months of the period in which Employee claims he is unable to work, Employee's
mental or physical condition that has lasted for at least six continuous months,
that appears to be permanent or indefinite in nature and that prevents Employee
from performing all of the substantial and material duties of his regular
occupation; and (ii) with respect to the continuous, succeeding period (after
such initial 60 months) in which Employee claims he is unable to work,
Employee's mental or physical condition resulting from an injury or sickness
that prevents Employee from performing all of the substantial and material
duties of any occupation for which he is reasonably fitted by education,
training or experience.
(i) Earliest Retirement Date means the first date on which
Employee both has attained age 55 (but is not yet age 65) and completed 15 Years
of Employment.
(j) Early Retirement Date means the date, on or after Employee's
Earliest Retirement Date but before his Normal Retirement Date, on which
Employee actually retires from the employ of the Company (or, under certain
circumstances where Employee's actual employment has terminated but Employee is
deemed to be continuously employed, the date Employee elects to "retire" and
commence early retirement payments), as described in Section 3 hereof.
(k) Early Retirement Payments means the early retirement salary
continuation payments that will become payable to Employee if he retires on his
Early Retirement Date, as described in Section 3 hereof.
(l) Normal Retirement Date means the first date on which Employee
both has attained age 65 and completed 15 Years of Employment.
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(m) Permitted Holders means the individuals listed on Schedule
10.11 to the Second Amended and Restated Credit Agreement dated as of June 25,
1997, by and among the Company, certain of its subsidiaries, SunTrust Bank and
the other banks parties thereto (regardless of whether said agreement is
terminated or continues in force and effect), provided that, for purposes of
this definition, the reference to each such individual shall be deemed to
include the members of such individual's immediate family, such individual's
estate, and any trusts created by such individual for the benefit of members of
such individual's immediate family.
(n) Salary Continuation Payments means the salary continuation
payments that will become payable to Employee if he retires on or after his
Normal Retirement Date, as described in Section 2 hereof.
(o) Schedule A means "Schedule A - Schedule of Benefit Amounts", a
copy of which is attached to this Agreement and incorporated herein by this
reference.
(p) Schedule B means "Schedule B - Beneficiary Designation Form",
a copy of which is attached hereto and incorporated herein by this reference.
(q) Spouse means the spouse of Employee to whom Employee is
married, pursuant to a religious or civil ceremony recognized by the laws of the
state where the marriage was contracted, on the date such status is being
determined.
(r) Voluntary Termination means termination of employment that is
voluntary on the part of Employee, and either (A) is subsequent to the Company
providing notice to Employee, in accordance with Section 2 of the Change in
Control Agreement between Employee and the Company, that the term of said Change
in Control Agreement will cease to extend automatically, or (B) in the judgment
of Employee, is due to (x) a reduction of Employee's responsibilities, title or
status resulting from a formal change in such title or status, or from the
assignment to Employee of any duties inconsistent with Employee's title, duties
or responsibilities in effect within the year prior to the Change in Control;
(y) a reduction in Employee's compensation or benefits; or (z) a Company-
required involuntary relocation of Employee's place of residence or a
significant increase in Employee's travel requirements.
(s) Year of Employment means each annual period, beginning on
April 1, 1973 (that is, the date Employee first became employed by the Company
or one of its affiliates), during which Employee is, or has been or is deemed to
be continuously employed by the Company or one of its affiliates. For purposes
hereof, Employee shall be deemed to be employed by the Company during any
Authorized Leave of Absence and any period of Disability. Furthermore, if
Employee's employment is terminated by the Company without Cause, or if a
Voluntary Termination occurs within six months prior to, or within 24 months
following, the date of a Change in Control, Employee shall be deemed for
purposes of this Agreement as continuing to be actively employed by the Company
and his Years of Employment shall include the period after any such termination.
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2. Normal Retirement Benefit.
(a) Amount of Salary Continuation Payments. If Employee retires or
becomes Disabled on or after his Normal Retirement Date, the Company shall make
Salary Continuation Payments to Employee in the amount described under the
heading entitled "Salary Continuation Payments" in Schedule A.
(b) Commencement; Preservation. Employee's Salary Continuation
Payments shall commence within 30 days after Employee's retirement and shall be
made monthly thereafter for and during the lifetime of Employee (provided,
however, that certain payments may continue after Employee's death pursuant to
subsection (c) or (d) below). If the Company terminates Employee's employment
without Cause (or if a Voluntary Termination occurs within six months prior to,
or within 24 months following, the date of a Change in Control) before
Employee's Normal Retirement Date, Employee nevertheless shall remain eligible
to receive Salary Continuation Payments as described in Schedule A upon
attainment of his Normal Retirement Date; provided, however, that if at the time
Salary Continuation Payments first become payable to Employee the term of
Employee's employment agreement with the Company has not yet expired and the
Company has an obligation under said employment agreement to continue to pay
amounts of salary and bonus to employee for all or a portion of the remaining
term of said employment agreement, then the commencement of Salary Continuation
Payments to Employee hereunder shall be delayed until the earlier of (i) the end
of the term of said employment agreement for which payments of salary and bonus
are payable, or (ii) the date of the final payment of such amounts.
(c) Post-Retirement Death Benefit. Unless Employee has elected a
Joint and Survivor Annuity pursuant to subsection (d) below, in the event
Employee should die after his Salary Continuation Payments have commenced, but
before 120 payments have been made to or for his benefit, then the unpaid
balance of such 120 payments shall continue to be paid by the Company to
Employee's Beneficiary. If Employee's Beneficiary dies before a total of 120
monthly payments have been made to Employee and his Beneficiary, then the unpaid
balance of such 120 payments shall continue to be paid by the Company to
Employee's estate.
(d) Optional Forms of Salary Continuation Payments.
If Employee has a Spouse, he may waive the normal form of payment of
Salary Continuation Payments described in Section 2(b) above and elect an
optional form of payment in accordance with the following:
(i) Such waiver and election must be made by Employee at least six
months prior to the date Salary Continuation Payments are to
commence to Employee (unless the Company establishes a shorter
time period).
(ii) Employee may elect from the following optional forms of
payment: A monthly annuity for the life of Employee, with a
survivor monthly income for the life of Employee's Spouse in
an amount equal to either 50% or 100% of the monthly
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annuity payable during the life of Employee (the "Joint and
Survivor Annuity"). If Employee elects the 50% Joint and
Survivor Annuity, his Salary Continuation Payments (the
monthly annuity) will be reduced to 92.5% of the amount
otherwise payable (and his Spouse would receive, after
Executive's death, 46.25% of the amount otherwise payable); if
he elects the 100% Joint and Survivor Annuity, his Salary
Continuation Payments will be reduced to 83.33% of the amount
otherwise payable (and his Spouse would continue to receive,
after Executive's death, 83.33% of the amount otherwise
payable).
(iii) If Employee elects the Joint and Survivor Annuity and he or
his Spouse shall die or they are divorced before the date
Salary Continuation Payments are to commence, his election of
the Joint and Survivor Annuity shall be revoked automatically.
If Employee elects the Joint and Survivor Annuity and Salary
Continuation Payments (the monthly annuity) commence to
Employee, his Salary Continuation Payments thereafter shall
not be changed by reason of the death of his Spouse during his
own lifetime. If the person who was Employee's Spouse at the
date Salary Continuation Payments commence to Employee ceases
to be his Spouse prior to his date of death, such person shall
continue to be entitled to the survivor annuity provided for
in clause (ii) above.
(iv) If Employee's Spouse is receiving survivor monthly annuity
payments and the Spouse dies before a total of 120 monthly
payments have been made to Employee and his Spouse, then the
unpaid balance of such 120 monthly payments (in the monthly
amount the Spouse was receiving) shall continue to be paid by
the Company to Employee's estate.
3. Early Retirement Benefit.
(a) General Eligibility for Benefit. If Employee retires or
becomes Disabled on or after his Early Retirement Date, the Company shall make
Early Retirement Payments to Employee, in accordance with the terms of this
Section 3. For such Early Retirement Payments to be due and payable, Employee
must have given the Company at least five months prior written notice of such
early retirement (unless the Company establishes a shorter time period), and
such notice shall specify Employee's Early Retirement Date; provided, however,
that if Employee is Disabled he shall not be required to give such notice, and
his Early Retirement Payments automatically shall commence as of the later of
(i) the date he becomes Disabled, or (ii) his Earliest Retirement Date.
(b) Amount of Early Retirement Payments. The amount of Employee's
Early Retirement Payments will be the respective percentage (set forth below
opposite Employee's age on his Early Retirement Date) of the Salary Continuation
Payments which he would have otherwise received if he was retiring on his Normal
Retirement Date:
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Percentage of Salary
Age On Early Retirement Date Continuation Payments
55 60%
56 64%
57 68%
58 72%
59 76%
60 80%
61 84%
62 88 %
63 92%
64 96%
(c) Commencement; Preservation. Employee's Early Retirement
Payments shall commence within 30 days after Employee's Early Retirement Date
and shall be made monthly thereafter for and during the lifetime of Employee
(provided, however, that certain payments may continue after Employee's death
pursuant to subsection (e) or (f) below). If the Company terminates Employee's
employment without Cause (or if a Voluntary Termination occurs within six months
prior to, or within 24 months following, the date of a Change in Control) on or
before Employee's Earliest Retirement Date, Employee nevertheless shall remain
eligible to elect and receive Early Retirement Payments upon attainment of his
Earliest Retirement Date; provided, however, that if at the time Early
Retirement Payments first become payable to Employee the term of Employee's
employment agreement with the Company has not yet expired and the Company has an
obligation under said employment agreement to continue to pay amounts of salary
and bonus to employee for all or a portion of the remaining term of said
employment agreement, then the commencement of Early Retirement Payments to
Employee shall be delayed until the earlier of (i) the end of the term of said
employment agreement for which payments of salary and bonus are payable, or (ii)
the date of the final payment of such amounts; and, provided further, in this
case, the Company shall calculate the percentage reduction applicable to
Employee's salary continuation benefit based on Employee's age on the date Early
Retirement Payments actually commence.
(d) Request for Delay of Early Retirement Payments. If, at least
12 months before Employee otherwise would first be entitled to any Early
Retirement Payments, Employee makes an election to defer his receipt of all of
his Early Retirement Payments to a date that is on or before the date he attains
age 65, the Company shall delay the commencement of benefits payable under this
Section 3 and shall calculate the percentage reduction (if any) applicable to
Employee's benefit based on Employee's age as of the date he elects for his
benefits hereunder to commence. Employee may make three such elections to defer
the commencement of his Early Retirement Payments.
(e) Post-Retirement Death Benefit. Unless Employee has elected a
Joint and Survivor Annuity pursuant to subsection (f) below, in the event
Employee should die after his Early Retirement Payments have commenced, but
before 120 payments have been made to or for his benefit, then the unpaid
balance of such 120 payments shall continue to be paid by the Company to
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Employee's Beneficiary. If Employee's Beneficiary dies before a total of 120
monthly payments have been made to Employee and his Beneficiary, then the unpaid
balance of such 120 payments shall continue to be paid by the Company to
Employee's estate.
(f) Optional Forms of Early Retirement Payments. If Employee has a
Spouse, he may waive his normal form of payment of Early Retirement Payments
described in Section 3(c) above and elect an optional Joint and Survivor Annuity
payment in the same manner as provided with respect to a Normal Retirement
Benefit under Section 2(d) above. Employee's Early Retirement Payments shall
first be calculated in accordance with Section 3(b) above and then the Joint and
Survivor Annuity reduction factor in Section 2(d) (i.e., 92.5% of Early
Retirement Payments if Employee elects the 50% Joint and Survivor Annuity, and
83.33% of Early Retirement Payments if Employee elects the 100% Joint and
Survivor Annuity) shall be applied to such Early Retirement Payments. The terms
and conditions under which the Joint and Survivor Annuity is payable for early
retirement shall be the same as provided in Section 2(d).
4. Pre-Retirement Death Benefit. If Employee dies (i) while
actively employed by the Company, (ii) during a Disability, (iii) at any time
after his termination without Cause, or after a Voluntary Termination which
occurred within six months prior to, or within 24 months following, the date of
a Change in Control, or (iv) after his Early Retirement Date but before Salary
Continuation Payments or Early Retirement Payments have commenced (in accordance
with Section 3(d) above), the amount described in clause (i) under the heading
entitled "Death Benefit" in Schedule A shall be paid monthly, commencing within
30 days after Employee's death, in 120 payments over a 10-year period to
Employee's Beneficiary; provided, however, that if Employee's Beneficiary is his
Spouse, his surviving Spouse shall have the option to elect to receive the
amount described in clause (ii) under the heading entitled "Death Benefit" in
Schedule A (in lieu of the payment described in clause (i) thereof) payable
monthly for the life of the Spouse. The election by the surviving Spouse of the
alternative benefit under said clause (ii) shall be made and documented by the
surviving Spouse in such manner as the Company may specify. If Employee's
Beneficiary dies before a total of 120 monthly payments have been made to the
Beneficiary (whether under clause (i) or clause (ii) of Schedule A), then the
unpaid balance of such 120 payments shall continue to be paid by the Company to
Employee's estate. Notwithstanding anything in this Agreement to the contrary,
once Employee commences receiving Salary Continuation Payments or Early
Retirement Payments pursuant to the terms of Sections 2 or 3 hereof, no payments
shall be due or payable under this Section 4, and the death benefit payable to
Employee's Beneficiary under this Agreement shall be solely as described in
Section 2 or 3, as applicable.
5. Disability Benefit. If Employee becomes Disabled while
actively employed by the Company or following his termination by the Company
without Cause (or following a Voluntary Termination which occurred within six
months prior to, or within 24 months following, the date of a Change in
Control), the Company shall pay to Employee monthly payments, retroactive to the
date Employee's Disabled condition commenced, for a period of up to 60 months,
in the amount described under the heading entitled "Disability Benefit" in
Schedule A. Such payments shall commence within 10 days after the expiration of
the first six months of Employee's Disability, with the first payment being the
total amount payable for such six-month period then just ended. If
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Employee's Disability ends within such 60-month period, the Company's obligation
to make benefit payments under this Section 5 with respect to the just-ended
episode of Disability shall cease immediately, whether or not Employee returns
to work with the Company. If, after the expiration of such 60-month period of
Disability during which such monthly payments are made, Employee's Disability
(as defined in Section 1(h)(ii) hereof) continues, the Company will continue the
monthly disability payments until such Disability terminates. Notwithstanding
anything herein to the contrary, no disability payments (or, if disability
payments have begun, no further disability payments) shall be due or payable
under this Section 5 (whether during or after the first 60 months of Employee's
Disability) for any period for which Salary Continuation Payments or Early
Retirement Payments are payable under Sections 2 or 3 hereof.
6. Other Provisions Relating to Benefits.
(a) Beneficiary Designation. Employee shall designate, and from
time to time may redesignate, his Beneficiary by completing the beneficiary
designation form attached hereto as Schedule B, or by notifying the Company in
such other form and manner as the Company may determine. If at the time of
Employee's death, (i) Employee has not designated a Beneficiary, (ii) all
designated Beneficiaries shall have predeceased Employee, or (iii) the
Beneficiary designated by Employee cannot be located by the Company within one
year from the date benefits are to be paid to such person, then, in any of such
events, the Beneficiary of such Employee with respect to any benefits and
amounts that remain payable under this Agreement shall be Employee's surviving
Spouse, if there be one and she can be located within the one year period, and
if not, Employee's estate.
(b) Acceleration of Payments. The Company shall not have a
unilateral right to accelerate the payment of any benefits payable under this
Agreement. Employee (or, in the case of Employee's death or mental incapacity,
his Beneficiary or Spouse, as applicable under Section 6(a), or the duly
appointed representative of his person or estate) may request in writing an
acceleration of the payment of any benefits payable under this Agreement,
provided that the Company shall have the sole discretion to determine whether
any such acceleration will be permitted and the Company may establish standards
for permitting such accelerated distributions. In the event such acceleration is
approved by the Company, the amount payable will be the single sum present value
of the payments otherwise due Employee and shall be determined in accordance
with the following:
(i) If, at the time of such acceleration, Employee has
already commenced receiving Early Retirement Payments or Salary
Continuation Payments, the amount payable shall be the single sum
present value of the scheduled Early Retirement Payments or Salary
Continuation Payments (using the mortality table and interest rate
assumptions set forth in clause (iv) below), whether such payments are
payable in the normal form under Section 2(b) or Section 3(c), or as a
Joint and Survivor Annuity under Section 2(d) or Section 3(f).
(ii) If, at the time of such acceleration, Employee has
not yet commenced receiving Early Retirement Payments or Salary
Continuation Payments, Employee shall be assumed to have continued his
employment with the Company and elected to commence his
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retirement on the date ranging from age 55 to age 65 (the "Maximum
Benefit Date") that will result in his receiving on the acceleration
payment date the greatest single sum present value benefit (of Early
Retirement Payments or Salary Continuation Payments, as the case may
be) that could be paid to Employee (using the mortality table and
interest rate assumptions set forth in clause (iv) below).
(iii) In addition, in the event Employee has been
terminated without Cause at any time following a Change in Control (or
a Voluntary Termination has occurred within six months prior to, or
within 24 months following, the date of a Change in Control), and at
the time of such acceleration Employee has not yet commenced receiving
Early Retirement Payments, the single sum present value benefit
otherwise payable to Employee under clause (ii) above shall be
increased by a percentage equal to: (x) the average annual percentage
increase in the U.S. consumer price index -- all cities -- urban
consumers, published by the U.S. Department of Labor (or if no longer
published, such other mutually agreed index) over the preceding 20
years, multiplied by (y) the number of years (and partial years
determined on a monthly basis) between the date of such termination and
the Maximum Benefit Date.
(iv) The calculations under this Section 6(b) shall be
made by applying the mortality tables prescribed in Code Section
417(e), and an interest rate that is the lesser of (x) six percent or
(y) the interest rate used by the Pension Benefit Guaranty Corporation
(or its successor organization) as of the first day of the calendar
year in which the acceleration occurs to value immediate annuities on
termination of a Code Section 401(a) qualified defined benefit pension
plan.
(c) Independence of Benefits. The benefits payable under this
Agreement shall be independent of, and in addition to, any other benefits or
compensation payable by the Company to Employee, whether as salary, bonus or
otherwise. This Agreement does not involve a reduction in salary or a foregoing
of an increase in future salary by Employee, nor does it in any way affect or
reduce the existing or future compensation or other benefits of Employee.
7. Conditions to Payment of Benefits. The benefits payable under
this Agreement to Employee or his Beneficiary shall be conditioned upon Employee
complying with the following provisions of this Section 7. In the event Employee
fails to comply with any such provision, only the future benefits (payable after
the date of such non-compliance) shall be subject to risk of forfeiture for
breach of this Agreement. Prior to terminating benefits for an actual or alleged
violation of subsection (b) or (c) below, the Company must have first provided
Employee with written notice of the violation and Employee shall have failed to
cure or cease such violation within 30 days after his receipt of such notice.
(a) Continuation of Employment. Employee shall be continuously
employed by the Company until Employee's Earliest Retirement Date or his death,
whichever first occurs. During any Authorized Leave of Absence, any period of
Disability and any period following the Company's termination of Employee's
employment without Cause (or a Voluntary Termination by Employee within six
months prior to, or within 24 months following, the date of a Change in
Control),
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Employee will still be considered to be in the continuous employment of the
Company for purposes of this Agreement.
(b) Consultation Services. Employee shall render such reasonable
business consulting and advisory services as the Board of Directors of the
Company by written request may call upon him to provide, and as his health (in
the opinion of Employee) may permit, from time to time during the period from
his retirement (meaning, the date Employee begins to receive Salary Continuation
Payments or Early Retirement Payments) to the earlier of the date of his death
or Disability. In this regard, it is understood that (i) such consulting and
advisory services shall not preclude, or be requested in a fashion which would
inhibit, Employee from engaging in other full-time employment not competitive
with the Company nor shall they require Employee to be active in the Company's
day-to-day activities or require Employee to engage in any substantial travel,
(ii) Employee shall perform such services as an independent contractor, and
(iii) Employee shall be reimbursed for all ordinary and necessary business
expenses incurred in performing such services.
(c) Conflict of Interest. During his employment with the Company,
Employee shall not engage in any other business enterprise without the prior
written consent of the Company. (The foregoing shall not be construed to
preclude Employee from serving on the Board of Directors of any other company or
entity not competitive with the Company or from performing services for civic,
social, religious or charitable purposes.) After his retirement from the Company
or after his Disability and while he is receiving benefits hereunder, he shall
not, without the Company's prior written consent, engage in any business
activity which is in competition with the Company.
(d) Suicide. Employee shall not commit suicide within two years
after the original effective date of the Prior Agreement, whether or not
Employee is then sane or insane.
8. Nature of Obligations.
(a) Currently Unfunded. The Company's obligations under this
Agreement shall be unfunded and unsecured promises to pay the benefits provided
for hereunder. Except as provided in subsection (b) hereof, in any other
agreement between the Company and Employee, or by the terms of any plan
sponsored by the Company, the Company shall not be obligated to fund its
obligations under this Agreement; provided, however, that even if not otherwise
required to do so, the Company, in its sole discretion, may elect to fund its
obligations under this Agreement in whole or in part.
(b) Funding Upon a Change in Control. Notwithstanding anything to
the contrary contained in this Agreement, immediately upon and coincident with a
Change in Control, the Company shall contribute to an irrevocable grantor trust
(generally referred to as a "rabbi trust"), for which an independent bank or
financial institution serves as the trustee, an amount of cash equal to the
current single sum present value of the Company's obligation hereunder to
Employee, assuming Employee were to remain actively employed until age 65. Such
single sum present value amount shall be measured as of the date the Change in
Control occurs and shall be determined by applying the mortality tables
prescribed in Code Section 417(e) and an interest rate that is the lesser of (i)
six
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percent or (ii) the interest rate used by the Pension Benefit Guaranty
Corporation (or its successor organization) as of the first day of the calendar
year in which the Change in Control occurs to value immediate annuities on
termination of a Code Section 401(a) qualified defined benefit pension plan. The
terms of such rabbi trust shall require the trustee thereof to make payments in
accordance with the terms of this Agreement and shall prohibit the trustee from
permitting a reversion to the Company of any trust assets until the Company's
obligations under this Agreement shall be satisfied in full. The terms of the
trust also shall prohibit the investment in any equity interests of the Company
with any cash (or investment earnings attributable thereto) contributed with
respect to the obligations hereunder. Notwithstanding this mandatory funding of
the rabbi trust, if the assets of the trust are insufficient or the trustee for
any reason is unable or unwilling to make the payments required hereunder, the
Company shall make such payments.
(c) Investments. It is understood that the Company may make
investments so that it will have segregated assets to help pay its obligations
hereunder; and, in this regard, Employee hereby agrees to submit to appropriate
medical examinations, supply such information and execute such documents, as the
Company may reasonably require with respect to such investments. It is
understood and agreed that Employee shall have no beneficial or other interest
in any such investment, which, subject to Section 8(a) and (b) above, at all
times shall remain a part of the Company's general assets accessible to its
creditors. Accordingly, subject to Section 8(a) and (b) above, the rights of
Employee, Employee's Beneficiary or any other person claiming through Employee
under this Agreement shall be solely those of an unsecured general creditor of
the Company. Employee, his Beneficiary or any other person claiming through
Employee, shall only have the right to receive from the Company those payments
which are specified under this Agreement. No asset used or acquired by the
Company in connection with its obligations and liabilities hereunder shall be
deemed to be held under any trust for the benefit of Employee or his Beneficiary
(except as provided in Section 8(a) and (b) above), nor shall any such asset be
considered as security for the performance of the obligations and liabilities of
the Company hereunder.
9. Employment Rights. This Agreement shall not itself be deemed
to constitute a contract of employment between the Company and Employee, and
shall not create any rights in Employee to continue in the Company's employ for
any specific period of time or any other rights in Employee or obligations on
the part of the Company, except as are expressly set forth herein. No provision
hereof shall restrict the right of the Company to discharge Employee or restrict
the right of Employee to terminate his employment with the Company.
10. Nonalienation of Benefits. No right or benefit under this
Agreement shall be subject to anticipation, alienation, sale, assignment,
pledge, encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge the same shall be void. No right or benefit
hereunder shall in any manner be liable for or subject to the debts, contracts,
liabilities or torts of Employee or his Beneficiary. If Employee or his
Beneficiary shall become bankrupt or attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge any right or benefit hereunder, then such
right or benefit shall, in the discretion of the Board of Directors of the
Company, cease and terminate; and in such event, the Company may hold or apply
same or any part
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thereof for the benefit of Employee or his Beneficiary, his spouse, children or
other dependents, or any of them, in such manner and in such proportion as the
Board of Directors of the Company may deem proper under the then existing
circumstances. Notwithstanding the foregoing, the Company shall have the right,
exercisable solely in its discretion, to offset against any benefits payable
hereunder, at the time same become payable to Employee (or to his Beneficiary in
the event of his death), any then existing indebtedness of any kind of Employee
to the Company, whether or not such indebtedness is otherwise deemed due and
payable. This right of offset shall be void and of no effect in the event of a
Change in Control, in which event the Company shall pay to Employee all of the
benefits due and owing under this Agreement, but without prejudice to the right
of the Company to take separate action to collect payment of any indebtedness
owed by Employee to the Company.
11. Agreement Binding on Successors. This Agreement is solely
between the Company and Employee, and Employee and his Beneficiary shall have
recourse only against the Company and its successors and assigns for enforcement
hereof (together with rights against and with respect to the "rabbi trust", if
established pursuant to Section 8(b) hereof). This Agreement will be binding
upon Employee's Beneficiary, heirs and personal representatives and upon the
successors and assigns of the Company. Any person or business entity succeeding
to all or substantially all of the business of the Company by stock purchase,
merger, consolidation, purchase of assets or otherwise, shall be bound by and
shall adopt and assume this Agreement (which assumption shall not negate the
obligation of the Company to immediately fund its obligations hereunder in the
event of a Change in Control, as provided in Section 8(b) hereof), and the
Company shall obtain the express assumption of this Agreement by any such
successor.
12. Claims Manager and Claims Procedure.
(a) Claims Procedure. Benefits shall be paid in accordance with
the provisions of this Agreement. The Claims Manager shall be the Company's
representative for purposes of making all determinations as to the right of
Employee or any other person to a benefit under this Agreement, and any requests
for such a benefit must be made in a writing mailed or delivered to the Claims
Manager. If such a request is wholly or partially denied, notice of the decision
shall be mailed to the claiming person no later than 45 days after the receipt
of the request by the Claims Manager. Such a notice of denial shall include the
following:
(i) The specific reason or reasons for such denial;
(ii) The specific reference to pertinent provisions of
this Agreement on which the denial is based;
(iii) A description of any additional material or
information necessary for the claimant to submit to perfect the claim and an
explanation of why such material or information is necessary; and
(iv) A description of this Agreement's claim review
procedure.
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(b) Claim Review Procedure. The claim review procedure is
available upon written request by the claimant to the Claims Manager within 60
days after receipt by the claimant of written notice of the denial of the claim,
and includes the right to examine pertinent documents and Company data and
submit issues and comments in writing to the Claims Manager. The decision on
review will be in writing and written in a manner calculated to be understood by
the claimant, will be made within 30 days after receipt of the request for
review (unless special circumstances warrant an extension of time not to exceed
an additional 30 days), and will include specific reasons for the decision with
references to the specific Agreement provisions on which the decision is based.
13. General Provisions.
(a) Notices. Except as may be otherwise specified herein, all
notices, consents and other communications required or authorized to be given by
either party to the other under this Agreement shall be in writing and shall be
deemed to have been given or submitted (i) upon actual receipt if delivered in
person or by facsimile transmission, (ii) upon the earlier of actual receipt or
the expiration of two business days after sending by express courier (such as
UPS or Federal Express), and (iii) upon the earlier of actual receipt or the
expiration of seven days after mailing if sent by registered or certified
express mail, postage prepaid, to the parties at the following addresses:
To the Company: Interface, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
Attn: Chief Executive Officer
With a copy to: Interface, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
Attn: General Counsel
To Employee: Xxx X. Xxxxxxxx
at the last address and fax number
shown on the records of the Company
Employee shall be responsible for providing the Company with a current address.
Either party may change its address (and facsimile number) for purposes of
notices under this Agreement by providing notice to the other party in the
manner set forth above.
(b) Entire Agreement; Governing Law. This Agreement contains the
entire agreement between the parties hereto relating to the matters provided
herein, and no representation or warranty not expressly contained or
incorporated by reference herein is made by either party. This Agreement shall
not be modified or amended in any manner except by an instrument in writing
executed by the parties or their respective successors in interest, which makes
reference to this Agreement. To the
- 14 -
extent not controlled by the terms of the Employee Retirement Income Security
Act of 1974, as amended, this Agreement shall be governed by, and construed and
enforced in accordance with, Georgia law. The provisions of this Agreement are
severable, and the validity or invalidity of one or more of the provisions
herein shall not have any effect upon the validity or enforceability of any
other provision.
(c) Affiliates. For purposes of this Agreement, Employee shall be
considered as being employed by the Company if he is employed by any corporation
owned or controlled by the Company (such as a subsidiary, or a subsidiary of a
subsidiary) or a corporation which is a successor of the Company.
IN WITNESS WHEREOF, the individual party has executed this Agreement,
and the corporate party has caused this Agreement to be executed by its duly
authorized officers, as of the date first written above.
INTERFACE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President and Chief
Executive Officer
Attest: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
EMPLOYEE:
/s/ Xxx X. Xxxxxxxx
-------------------------------------
Xxx X. Xxxxxxxx
- 15 -
SCHEDULE A
SCHEDULE OF BENEFIT AMOUNTS
(as amended and restated effective October 1, 2002)
Salary Continuation Payments
A monthly payment equivalent to the amount which is 1/12th of 50% of
the average Annual Compensation paid by the Company for the three individual
calendar years of Employee's highest compensation during the last five full
calendar years of Employee's employment with the Company ending on December 31,
2001.
Death Benefit
(i) A monthly payment equivalent to the amount which is 1/12th of
50% of the average Annual Compensation paid by the Company for the three
individual calendar years of Employee's highest compensation during the last
five full calendar years of Employee's employment with the Company ending on
December 31, 2001.
(ii) A monthly payment equivalent to the amount which is 1/12th of
41.67% of the average Annual Compensation paid by the Company for the three
individual calendar years of Employee's highest compensation during the last
five full calendar years of Employee's employment with the Company ending on
December 31, 2001.
Monthly Disability Benefit
Employee's monthly disability payment shall be that percentage of his
compensation at the time of commencement of Disability which, combined with all
other Company-sponsored disability security payments (excluding Social Security)
then being paid to Employee (or to which he is entitled), equals 66 2/3% of the
compensation payable by the Company to Employee at the commencement of such
Disability. For purposes of this section, "compensation" shall have the same
meaning as in the Company's disability insurance policy covering Employee at the
time his Disability commenced, and if no such policy is then in effect or in the
event the Company has terminated Employee's employment without Cause prior to
such Disability, shall be construed to be average Annual Compensation as
described for the benefits above (i.e., average of three years of highest
compensation during the last five full calendar years of employment through
December 31, 2001).
Change in Control
Notwithstanding anything to the contrary contained herein, in the event
of a Change in Control, the benefits described in this Schedule A are subject to
certain protections and enhancements as described in Sections 6(b), 8(b) and 10
of the Agreement.
SCHEDULE B
BENEFICIARY DESIGNATION FORM
Effective Date:
A. EMPLOYEE INFORMATION
NAME:
-----------------------------------------------------------------
ADDRESS:
-------------------------------------------------------------
-------------------------------------------------------------
SOCIAL SECURITY NO.:
-------------------------------------------------
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B. BENEFICIARY DESIGNATION
I hereby revoke all previously designated beneficiaries, if any, and
hereby direct that, upon my death, any death benefit payable under the
Salary Continuation Agreement between Interface, Inc. and me, dated as
of October 1, 2002, to my survivor(s), shall be paid to the following
person (persons) as my primary or contingent beneficiary
(beneficiaries) in the following proportions:
Primary Beneficiary(ies) - Name & Address Relationship Social Security # Percentage
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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If no primary beneficiary shall survive me, I hereby designate the
following as my contingent beneficiary (beneficiaries):
Contingent Beneficiary(ies) - Name & Address Relationship Social Security # Percentage
--------------------------------------------------------------------------------
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C. SIGNATURE OF EMPLOYEE
I hereby acknowledge that I have read the instructions attached to this
form and that all of the information I have provided on this form is
true to the best of my knowledge and correctly indicates my wishes.
-------------------------------------
(Employee's Signature)
-------------------------------------
(Date)
INSTRUCTIONS
BE SURE THAT YOU READ THESE INSTRUCTIONS BEFORE COMPLETING THIS
BENEFICIARY DESIGNATION FORM.
--------------------------------------------------------------------------------
GENERAL INSTRUCTIONS
Under the terms of the Salary Continuation Agreement, you have the right to
designate the person or persons who will be your beneficiary and receive your
death benefit. To designate one or more beneficiaries, you should complete this
form.
--------------------------------------------------------------------------------
EMPLOYEE INFORMATION
Fill in the requested information completely and accurately.
--------------------------------------------------------------------------------
BENEFICIARY DESIGNATION
You may appoint one or more primary beneficiaries and one or more contingent
beneficiaries. A contingent beneficiary will only receive your unpaid death
benefit if none of your primary beneficiaries survive you. If you designate two
or more primary beneficiaries and one of the primary beneficiaries does not
survive you, the remaining primary beneficiary or beneficiaries will receive
your unpaid death benefit. The contingent beneficiary will only receive benefits
if no primary beneficiaries are surviving at your death.
You may designate the percentage of your unpaid death benefit each beneficiary
should receive. If you do not so indicate, your death benefit will be divided
equally among the named beneficiaries. You are advised to consult with an
attorney or estate planning professional in connection with completing this
form.
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SIGNATURE OF EMPLOYEE
The form will be rejected if you do not sign it.
