Exhibit 10.2
Description and Form of Agreement for certain executives of the
Company.
Three senior executives of the Company have entered into agreements in
substantially the form attached. These agreements provide for certain
payments to the executives in the event of a "Sale of the Company" (as
defined), as well as severance payments due upon certain terminations
of the executives' employment with the Company after a Sale of the
Company.
The aggregate potential amount of payments upon a Sale of the Company
is $5.5 million for the group of executives. The maximum aggregate
potential amount of severance payments is approximately $4.1 million
for the group of executives. The agreements contain non-disclosure and
non-competition restrictions on the executives upon termination of
their employment.
REWARD AND RETENTION AGREEMENT
This Reward and Retention Agreement ("AGREEMENT") is made as of
_________, 2001 by and among [______________] ("EXECUTIVE"), and Albecca Inc.,
a Georgia corporation ("ALBECCA").
Background
As a team member of Albecca and its Affiliates (as defined below),
Executive has been a valuable contributor to the success of Albecca. As ▇▇▇▇▇▇▇
considers entering into a sale of the company, ▇▇▇▇▇▇▇ desires to reward
Executive for past services rendered to Albecca if a sale is completed and to
give Executive an incentive to remain employed by Albecca or its successor
after the closing of such sale (referred to herein as the Post-Closing
Company).
The parties therefore agree as follows:
1. Bonus Payments.
(a) Upon any Sale of the Company (as defined below), the
Post-Closing Company shall pay Executive an amount equal to [$Amount] (the
"REWARD BONUS"). The Reward Bonus shall be payable in three equal cash
installments as follows: (1) the first installment shall be paid within one (1)
business day following the closing of the Sale of the Company (the "CLOSING
DATE"); (2) the second payment shall be paid on the first anniversary of the
Closing Date; and (3) the third payment shall be paid on the second anniversary
of the Closing Date. The Reward Bonus payments are referred to collectively as
the "BONUS PAYMENTS."
(b) Provided, however, if Executive terminates his employment
with the Post-Closing Company for any reason other than for Good Reason (as
defined below), or if the Post-Closing Company terminates Executive for Cause
(as defined below), at any time after the closing of the Sale of the Company
but prior to the payment in full of the Bonus Payments owed hereunder, then the
Post-Closing Company shall not be obligated to make any such further payments;
it being understood and agreed that all Bonus Payment obligations shall survive
any termination of Executive's employment except a termination by Executive
other than for Good Reason, or a termination by the Post-Closing Company for
Cause, prior to the second anniversary of the Closing Date.
(c) For the purposes of this Agreement:
"AFFILIATE" shall mean any person or entity controlling, controlled by
or under common control with the entity in question.
"CAUSE" shall mean either (a) the conviction of Executive of a felony
involving the Company, (b) Executive's gross and intentional repeated neglect
of his duties which continues and remains uncured for thirty (30) days after
the Company sends written notice to Executive of such gross and intentional
repeated neglect, and (c) any failure by Executive to comply in any material
respect with the provisions of Section 3 of this Agreement.
"GOOD REASON" shall mean any of the following, if the action
complained of by Executive is not cured within ten (10) business days after the
receipt of written notice of such action from Executive to the Post-Closing
Company: (i) any action taken by the Post-Closing Company which results in a
diminution in Executive's duties or responsibilities, other than an action
taken with the written consent of Executive; (ii) a reduction in the amount of
any material element of Executive's compensation and
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benefits, other than a reduction in benefits that applies to all key executives
of the Post-Closing Company; or (iii) the Post-Closing Company's requiring
Executive to be based at any office or location other than the Company's
offices in Norcross, Georgia.
"POST-CLOSING COMPANY" shall mean Albecca or any purchaser or
successor to Albecca in a Sale of the Company, including all Affiliates of any
such entity, by whom Executive is employed on or after the Closing Date.
"SALE OF THE COMPANY" shall mean any of the following to occur on or
after the date hereof: (i) a merger, consolidation, share exchange, combination
or other transaction or series of transactions (other than a private or public
offering by Albecca for cash of the capital stock, debt or other securities of
Albecca or an Affiliate for the purpose of raising money for working capital,
acquisitions or other corporate operations) in which securities possessing more
than 50% of the total combined voting power of Albecca's outstanding securities
are transferred to a person or persons who were not the beneficial holders of
those securities immediately prior to such transaction; (ii) a merger or
consolidation in which Albecca is not the surviving entity, unless more than
50% of the total combined voting power of the surviving entity is controlled,
directly or indirectly, by persons who beneficially owned Albecca's securities
immediately before such merger or consolidation; or (iii) the sale, transfer or
other disposition of all or substantially all of Albecca's assets to a
non-Affiliate person or entity.
2. Severance and Benefits.
(a) If after any Sale of the Company Executive's employment with
the Post-Closing Company is terminated by Executive for Good Reason, or by the
Post-Closing Company for any reason other than for Cause, then the Post-Closing
Company shall make severance payments to Executive as follows: (1) if such
termination occurs before the first anniversary of the Closing Date, then
Executive shall be entitled to severance in an amount equal to the total salary
and bonus payments Executive would have received from the effective date of
such termination through the second anniversary of the Closing Date had he
remained an employee of the Post-Closing Company (based on his then current
annual salary rate and most recent paid bonus, but at an annual rate of not
less than [$Amount] in total); or (2) if such termination occurs at any time
after the first anniversary of the Closing Date, then Executive shall be
entitled to severance in an amount equal to his then current annual salary and
most recent paid bonus, but not less than [$Amount] in total. In either case,
such severance shall be payable to Executive immediately upon termination (in
the event of a termination by the Post-Closing Company) or as soon as
practicable (but within 30 days) after termination (in the event of a
termination by Executive).
(b) If at any time before the second anniversary of the Closing
Date either Executive terminates his employment with the Post-Closing Company
for any reason other than for Good Reason, or the Post-Closing Company
terminates Executive for Cause, then Executive shall not be entitled to any
post-termination severance or benefits other than salary payments, benefit
payments and expense reimbursements accrued but unpaid prior to the effective
date of such termination.
(c) If after the second anniversary of the Closing Date Executive
terminates his employment for any reason (regardless of whether such reason
constitutes Good Reason) or is terminated by the Post-Closing Company for any
reason, then the Post-Closing Company shall pay Executive severance in an
amount equal to his then current annual salary and most recent paid bonus, but
not less than [$Amount] in total. Such severance shall be payable to Executive
immediately upon
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termination (in the event of a termination by the Post-Closing Company) or as
soon as practicable (but within 30 days) after termination (in the event of a
termination by Executive).
(d) Any and all severance payments owed hereunder shall be
subject to all applicable withholding tax requirements. To the extent that
applicable law and applicable policy provisions allow Executive to maintain
COBRA coverage for himself or his family after a termination of employment, and
Executive elects to maintain any such coverage, Executive shall be solely
responsible for payment of all applicable premiums and related costs.
3. Other Agreements. Executive acknowledges and recognizes the
highly competitive nature of ▇▇▇▇▇▇▇'s business and accordingly agrees to the
restrictions in this Section 3 in order to induce Albecca to consummate the
transactions contemplated by this Agreement.
(a) Confidentiality. Executive agrees to maintain in strict
confidence and not to use or disclose any Trade Secrets of Albecca, its
Affiliates or the Post-Closing Company at any time, for so long as the
information remains a Trade Secret. "TRADE SECRET" shall mean any information
(without regard to form, and including, but not limited to, technical or
non-technical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers) that: (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. In
addition, ▇▇▇▇▇▇▇▇▇ agrees to maintain in strict confidence and not to use or
disclose any Confidential Information (as defined herein) of Albecca, its
Affiliates or the Post-Closing Company for the shorter of five (5) years from
the date hereof or the period during which Executive is employed by Albecca,
its Affiliates or the Post-Closing Company plus thirty-six (36) months
thereafter. "CONFIDENTIAL INFORMATION" shall mean any internal, non-public
information (other than Trade Secrets already addressed above) concerning the
financial position and results of operations (including revenues, assets, net
income, etc.); pricing structure; annual and long-range business plans; product
or service plans; marketing plans and methods; training, educational and
administrative manuals; customer and supplier information and purchase
histories; and employee lists. Executive agrees that the provisions of this
Section 3(a) shall apply equally to protect Trade Secrets and Confidential
Information of third parties provided to Albecca, its Affiliates or the
Post-Closing Company on a confidential or otherwise restricted basis.
Notwithstanding the foregoing, it is understood that Executive may, while an
employee of the Post-Closing Company, disclose Confidential Information to
other employees of the Post-Closing Company whose responsibility it is to know
such information, or to others in the proper performance of his duties as
defined from time to time, or which Executive is required to disclose pursuant
to any law, regulation, or court or administrative order.
(b) Noncompetition. Executive agrees that, for the shorter of
five (5) years from the date hereof or the period during which Executive is
employed by Albecca, its Affiliates or the Post-Closing Company plus thirty-six
(36) months thereafter, he shall not: (i) engage directly or indirectly in any
Competitive Business anywhere in the Restricted Territory, whether as an
employer, officer, director, owner, investor, employee, partner, consultant or
other participant in any Competitive Business; (ii) without limiting the
foregoing, solicit business substantially similar to the business of Albecca or
the Post-Closing Company from anyone who is or becomes a customer of Albecca,
its Affiliates or the Post-Closing Company; or (iii) without limiting the
foregoing, solicit for employment any employee of Albecca, its Affiliates or
the Post-Closing Company. For the purpose of this Section 3, "RESTRICTED
TERRITORY" shall mean the fifty States of the United States of America and the
District
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of Columbia, Canada, the United Kingdom, The Netherlands, Italy, France,
Germany, and the Czech Republic, and "COMPETITIVE BUSINESS" shall mean any of
the design, manufacture, importation, sale, distribution or processing of
custom picture frames, mouldings and related products and services. ▇▇▇▇▇▇▇
agrees that if Executive is no longer employed by the Post-Closing Company, he
may be employed in a retail custom framing business provided that such business
is conducted at the retail level at one location only. The foregoing provisions
are also intended to protect the Confidential Information and Trade Secrets of
Albecca, its Affiliates and the Post-Closing Company as such terms are defined
in subsection 3(a). Notwithstanding anything to the contrary, the effectiveness
of this subsection 3(b) shall be suspended during any period(s) that the
Post-Closing Company fails to satisfy all its then current payment obligations
under this Agreement; provided, however, that Executive shall be required to
give the Post-Closing Company written notice of any such failure and the
Post-Closing Company shall have a thirty (30) day period in which to cure such
failure prior to any suspension in the effectiveness of this subsection.
(c) Miscellaneous. The parties agree that the restrictions set
forth in this Section 3 are fair and reasonable in light of the consideration
provided to Executive, and that the restrictions are necessary to protect the
legitimate business interests of Albecca, its Affiliates and the Post-Closing
Company. The parties further agree that the remedy at law for breach of any of
the covenants set forth in this Section 3 would be inadequate and that, in the
event of any breach or threatened breach by Executive, Albecca, its Affiliates
and the Post-Closing Company shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damages or harm or
waiting for actual damages or harm to be incurred, and that such remedies shall
be in addition to any other rights or remedies that such parties may have at
law or in equity. The obligations of Executive under this Section 3 are
independent of and in addition to the obligations of Executive under other
current or future agreements between Executive and the Post-Closing Company,
all of which other obligations shall remain in full force and effect.
4. Miscellaneous.
(a) Confidentiality of Terms. The parties agree to keep the terms
of this Agreement confidential, including but not limited to the amounts
payable hereunder, and will not disclose the contents or terms of this
Agreement unless such disclosure is: (1) lawfully required by any governmental
agency; (2) otherwise required by law (including legally required financial
reporting); (3) necessary in order to enforce any provision of this Agreement
or realize any benefit conferred by this Agreement; or (4) by the Company in
connection with a Sale of the Company. Notwithstanding the foregoing, (i)
either party may disclose the terms of this Agreement to its or his auditors,
accountants, tax advisors, and/or legal counsel to the extent required for
professional advice and services from those sources, (ii) Executive may discuss
the existence and terms of this Agreement with the Chairman of the Board or the
CEO of Albecca, and (iii) Executive may discuss the existence and terms of this
Agreement with a representative of a prospective buyer of Albecca in connection
with a sale of Albecca, provided that such representative is already aware of
the existence and terms of this Agreement through sources other than Executive
(directly or indirectly), and such representative initiates the discussion with
Executive.
(b) Further Assurances. Upon the reasonable request of any other
party, each party hereto agrees to take any and all actions, including, without
limitation, the execution of certificates, documents or instruments, necessary
or appropriate to give effect to the terms and conditions set forth in this
Agreement.
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(c) Interpretation. This Agreement shall not be construed more
strictly against either party hereto, regardless of which party is responsible
for its preparation, it being agreed that this Agreement was fully negotiated
by both parties. If any provision of this Agreement shall be held void,
voidable, invalid or inoperative, no other provision of this Agreement shall be
affected as a result thereof, and, accordingly, the remaining provisions of
this Agreement shall remain in force and effect as though such void, voidable,
invalid or inoperative provision had not been contained herein and all terms,
provisions, Sections, sub-sections or paragraphs shall be interpreted and
construed in such a manner as to carry out fully the intention of the parties
hereto.
(d) Modification by Court. If any court of competent jurisdiction
shall find any provision of this Agreement to be unenforceable, including the
scope of any non-competition provision (whether of time, geographic area, type
of activity, or otherwise), the court is specifically authorized and requested
by the parties to modify and limit the provisions of this Agreement to permit
its enforceability to the maximum extent allowed by applicable law.
(e) Governing Law. The validity and effect of this Agreement and
the rights and obligations of the parties hereto shall be governed by and
construed and enforced in accordance with the laws of the State of Georgia.
(f) Forum. Each party to this agreement consents to the
non-exclusive jurisdiction of the courts of the State of Georgia.
(g) Prior Discussions Superceded. Except as otherwise provided
herein, this Agreement supercedes all prior discussions between the parties
hereto with respect to all matters contained herein.
(h) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of Executive, Albecca, its Affiliates, the
Post-Closing Company and each of their respective successors and assigns;
provided, however, that no party to this Agreement may assign its rights
without the prior written consent of the other party. Notwithstanding the
foregoing, Albecca may assign its rights under this Agreement to any wholly
owned subsidiary of Albecca or to any purchaser in a Sale of the Company;
provided, however, no such assignment shall relieve the Post-Closing Company of
any of its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have duty executed and
delivered this Agreement as of the day and year first written above.
ALBECCA INC.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ [Executive Name]
Chairman of the Board
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