EXHIBIT 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of January 23, 2001 (the
"Commencement Date") by and between, U.S. Industries, Inc., a Delaware
corporation, (the "Company"), and Xxxxx X. Xxxxxxxxxx, ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive and the Company have previously entered into a
consulting agreement effective January 2, 2001 (the "Consulting Agreement"); and
WHEREAS, effective on the Commencement Date, the Company has elected
Executive as Senior Vice President, Chief Financial Officer and Treasurer and
the Executive desires to accept such position and employment; and
WHEREAS, the Company is going to relocate its principal executive
offices to Florida from its current New Jersey location; and
WHEREAS, the Company and Executive desire to enter into this
employment agreement (the "Agreement") as to the terms of his employment by the
Company, with such employment based in the Company's Florida office.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. TERM OF EMPLOYMENT. Except for earlier termination as provided in
Section 7 hereof, Executive's continuing employment under this Agreement shall
be for a two-year term (the "Employment Term") commencing on the Commencement
Date and ending two (2) years thereafter. Subject to Section 7 hereof, the
Employment Term shall be automatically extended for additional terms of
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successive one (1) year periods unless the Company or Executive gives written
notice to the other at least ninety (90) days prior to the expiration of the
then current Employment Term of the termination of Executive's employment
hereunder at the end of such current Employment Term.
2. POSITIONS. (a) Executive shall serve as a senior executive of the
Company, and effective on the Commencement Date, as the Senior Vice President,
Chief Financial Officer and Treasurer of the Company. If requested by the Board
of Directors of the Company (the "Board") or the Chief Executive Officer of the
Company (the "Chief Executive Officer"), Executive shall also serve on the
Board, as an executive officer and director of subsidiaries and a director of
associated companies of the Company without additional compensation and subject
to any policy of the Compensation Committee of the Company's Board (the
"Compensation Committee") with regard to retention or turnover of the director's
fees.
(b) Executive shall have such duties and authority, consistent with
his then position as shall be assigned to him from time to time by the Board or
the Chief Executive Officer or his designee.
(c) During the Employment Term, Executive shall devote all of his
business time and efforts to the performance of his duties hereunder; provided,
however, that Executive shall be allowed, to the extent that such activities do
not materially interfere with the performance of his duties and responsibilities
hereunder, to manage his passive personal interests and to serve on civic or
charitable boards or committees, and subject to the next sentence, serve on
corporate boards of directors. Executive may serve on corporate boards of
directors only if approved in advance by the Board (which approval may be
withdrawn at any time) and shall not serve on any corporate board of directors
if such service would be inconsistent with his fiduciary responsibilities to the
Company. Effective on the Commencement Date, it is deemed approved that the
Executive may continue as a member of the board of directors of Programmers
Paradise Inc. (NASDAQ:PROG) and AXS-One Inc. (AMEX:AXO).
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3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of not less than $265,000. Base
salary shall be payable in accordance with the usual payroll practices of the
Company. Executive's Base Salary shall be subject to annual review by the Board
or the Compensation Committee during the Employment Term and may be increased,
but not decreased, from time to time by the Board or the Compensation Committee,
except that, prior to a Change in Control (as defined in Exhibit A), it may be
decreased proportionately in connection with an across the board decrease
generally applying to senior executives of the Company. The base salary as
determined as aforesaid from time to time shall constitute "Base Salary" for
purposes of this Agreement.
4. INCENTIVE COMPENSATION. (a) BONUS. For each fiscal year or
portion thereof during the Employment Term, Executive shall be eligible to
participate in an annual incentive bonus plan of the Company in accordance with,
and subject to, the terms of such plan, that provides an annualized cash target
bonus opportunity equal to at least 70% of Base Salary (the "Target Bonus").
(b) EQUITY. The Company shall recommend to the Compensation
Committee at its next regularly scheduled meeting that Executive be granted
nonqualified stock options to purchase 100,000 shares of common stock of the
Company, upon such terms and conditions specified by the Compensation Committee.
(c) SIGNING BONUS. Executive shall receive a signing bonus ("Signing
Bonus") of $50,000, payable within ten (10) days following the Commencement
Date, provided, however, that the Signing Bonus shall be repaid to the Company
by Executive in the event that the Executive's employment is terminated for any
reason prior to the earlier of (i) the second anniversary of the Commencement
Date or (ii) a Change in Control.
(d) OTHER COMPENSATION. The Company may, upon recommendation of the
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Compensation Committee, award to Executive such other bonuses and compensation
as it deems appropriate and reasonable.
5. EMPLOYEE BENEFITS AND VACATION. (a) During the Employment Term,
Executive shall be entitled to participate in all pension, long-term incentive
compensation, retirement, savings, welfare and other employee benefit plans and
arrangements and fringe benefits and perquisites generally maintained by the
Company from time to time for the benefit of senior executive officers of the
Company of a comparable level in each case in accordance with their respective
terms as in effect from time to time.
(b) During the Employment Term, Executive shall be entitled to
vacation each year in accordance with the Company's policies in effect from time
to time, but in no event less than four (4) weeks paid vacation per calendar
year. Executive shall also be entitled to such periods of sick leave as is
customarily provided by the Company to its senior executive employees.
6. BUSINESS EXPENSES. The Company shall reimburse Executive for the
travel, entertainment and other business expenses incurred by Executive in the
performance of his duties hereunder, in accordance with the Company's policies
as in effect from time to time.
7. TERMINATION. (a) The employment of Executive and the Employment
terms shall terminate as provided in Section 1 hereof or, if earlier, upon the
earliest to occur of any of the following events:
(i) the death of Executive;
(ii) the termination of Executive's employment by the Company
due to Executive's Disability (as defined in Exhibit A) pursuant to
Section 7(b) hereof;
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(iii) the termination of Executive's employment by Executive
for Good Reason (as defined in Exhibit A) pursuant to Section 7(c)
hereof;
(iv) the termination of Executive's employment by the Company
without Cause (as defined in Exhibit A) pursuant to Section 7(e)
hereof;
(v) the termination of employment by Executive without Good
Reason upon sixty (60) days prior written notice pursuant to Section
7(e) hereof;
(vi) the termination of Executive's employment by the
Company for Cause pursuant to Section 7(d) hereof; or
(vii) the retirement of Executive by the Company at or after
his sixty-fifth birthday.
(b) DISABILITY. If Executive incurs a Disability, the Company may
terminate Executive's employment pursuant to this Agreement for Disability upon
thirty (30) days written notice by a Notice of Disability Termination, at any
time thereafter during such twelve (12) month period while Executive is unable
to carry out his duties as a result of the same or related physical or mental
illness or incapacity. Such termination shall not be effective if Executive
returns to the full time performance of his material duties within such thirty
(30) day period.
(c) TERMINATION FOR GOOD REASON. A Termination for Good Reason means
a termination by Executive by written notice given (i) within ninety (90) days
after the occurrence of the Good Reason event (other than an Exhibit A (d)(iv)
event), unless such circumstances are fully corrected prior to the date of
termination specified in the Notice of Termination for Good Reason or (ii)
pursuant to an Exhibit A (d)(iv) event. A Notice of Termination for Good Reason
shall mean a notice that shall indicate the specific Good Reason event relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for Termination for Good Reason. The failure by
Executive to set forth in the Notice of Termination for Good Reason any facts or
circumstances which contribute to the
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showing of Good Reason shall not waive any right of Executive hereunder or
preclude Executive from asserting such fact or circumstance in enforcing his
rights hereunder. The Notice of Termination for Good Reason shall provide for a
date of termination not less than ten (10) nor more than sixty (60) days after
the date such Notice of Termination for Good Reason is given, provided that in
the case of the events set forth in Section (d)(iii) of Exhibit A the date may
be two (2) days after the giving of such notice and in the case of the event set
forth in Section (d)(iv) of Exhibit A, the date of termination shall be
immediate.
(d) CAUSE. Subject to the notification provisions of this Section
7(d), Executive's employment hereunder may be terminated by the Company for
Cause. A Notice of Termination for Cause shall mean a notice that shall indicate
the specific termination provision in Section (a) of Exhibit A relied upon and
shall set forth in reasonable detail the facts and circumstances which provide
for a basis for Termination for Cause. The date of termination for a Termination
for Cause shall be the date indicated in the Notice of Termination. Any
purported Termination for Cause which is held by a court not to have been based
on the grounds set forth in this Agreement or not to have followed the
procedures set forth in this Agreement shall be deemed a termination by the
Company without Cause.
(e) OTHER TERMINATIONS. The Executive's employment by the Company
shall be at will. Accordingly, the Company may terminate the Executive at any
time (with or without notice), for reasons other than Cause or for no reason.
The Executive may terminate his employment with the Company at any time upon
sixty (60) days prior written notice.
8. CONSEQUENCES OF TERMINATION OF EMPLOYMENT. (a) DEATH, DISABILITY,
VOLUNTARY RESIGNATION WITHOUT GOOD REASON, RETIREMENT, FOR CAUSE, NONEXTENSION
OF THE EMPLOYMENT TERM BY EXECUTIVE. If Executive's employment and the
Employment Term are terminated by reason of (i) Executive's death or Disability,
(ii) by Executive without Good Reason or as a result of a notice of Nonextension
of the Employment Term by Executive or (iii) by the Company for Cause or
pursuant to Section 7(a)(vi) hereof, the employment period under this Agreement
shall terminate without further obligations to Executive or Executive's legal
representatives under this Agreement except for: (i) any Base
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Salary earned but unpaid, any accrued but unused vacation pay payable pursuant
to the Company's policies, and any unreimbursed business expenses payable
pursuant to Section 6 (collectively "Accrued Amounts") (ii) any other amounts or
benefits owing to Executive under the then applicable employee benefit plans,
long term incentive plans or equity plans and programs of the Company which
shall be paid in accordance with such plans and programs.
(b) TERMINATION BY EXECUTIVE FOR GOOD REASON, TERMINATION BY THE
COMPANY WITHOUT CAUSE, OR NONEXTENSION OF THE TERM BY THE COMPANY. If
Executive's employment and the Employment Term are terminated (i) by the
Executive for Good Reason, (ii) by the Company without Cause (and other than for
Disability or pursuant to Section 7(a)(vi)) or (iii) Executive's employment with
the Company terminates as a result of the Company giving notice of nonextension
of the Employment Term pursuant to Section 1 hereof, Executive shall be entitled
to receive the Accrued Amounts, and shall, subject to Sections 9(b), 9(c) and 10
hereof, be entitled to receive, (A) equal monthly payments of an amount equal to
his then monthly rate of Base Salary, but off the employee payroll, for a period
of twelve (12) months following the date of his termination; provided that if
such termination occurs within two (2) years after a Change in Control, in lieu
of the foregoing, Executive shall receive in a lump sum within five (5) days
after compliance with such Section 9(b), an amount equal to (i) two (2) times
Base Salary and (ii) two (2) times the Target Bonus; (B) any other amounts or
benefits owing to Executive under the then applicable employee benefit, long
term incentive or equity plans and programs of the Company which shall be paid
in accordance with such plans and programs; provided that, if such termination
occurs within two (2) years after a Change in Control, Executive shall in any
event receive any earned or declared annual bonus for any complete fiscal year
which has not then been paid; (C) if such termination is within two (2) years
after a Change in Control, two (2) years of additional service and compensation
credit (at the compensation level in the fiscal year ending immediately prior to
the Change in Control) for pension purposes under any defined benefit type
qualified or nonqualified pension plan or arrangement of the Company, which
payments shall be made through and in accordance with the terms of the
nonqualified defined benefit pension arrangement if any then exists, or, if not,
in an actuarially equivalent lump sum
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(using the actuarial factors then applying in the Company's defined benefit plan
covering Executive); (D) if such termination is within two (2) years after a
Change in Control, two (2) years of the maximum Company contribution (assuming
Executive deferred the maximum amount and continued to earn his then current
salary) under any type of qualified or nonqualified 401(k) plan; (E) if such
termination is prior to, or after two (2) years following, a Change in Control,
payment of Executive's and his dependents' COBRA coverage premiums to the
extent, and so long as, they remain eligible for COBRA coverage for up to one
(1) year; and (F) if such termination is within two (2) years after a Change in
Control, payment by the Company of the premiums for Executive and his
dependents' health coverage for two (2) years under the Company's health plans
which cover the senior executives of the Company or materially similar benefits.
Payments under (F) above may at the discretion of the Company be made by
continuing participation of Executive in the plan as a terminee, by paying the
applicable COBRA premium for Executive and his dependents, or by covering
Executive and his dependents under substitute arrangements.
9. (a) NO MITIGATION; NO SET-OFF. In the event of any termination of
employment under Section 8, Executive shall be under no obligation to seek other
employment and there shall be no offset against any amounts due Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain. Any amounts due under Section 8 are in the
nature of severance payments and are not in the nature of a penalty. Such
amounts are inclusive, and in lieu of any, amounts payable under any other
salary continuation or cash severance arrangement of the Company and to the
extent paid or provided under any other such arrangement shall be offset from
the amount due hereunder.
(b) Executive agrees that, as a condition to receiving the payments
and benefits provided under Section 8(b) hereunder he will execute, deliver and
not revoke (within the time period permitted by applicable law) a release of all
claims of any kind whatsoever against the Company, its affiliates, officers,
directors, employees, agents and shareholders in the then standard form being
used by the Company for senior executives (but without release of the right of
indemnification hereunder or under
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the Company's By-laws or rights under benefit or equity plans that by their
terms are intended to survive termination of his employment).
(c) Upon any termination of employment, Executive hereby resigns as
an officer and director of the Company, any subsidiary and any affiliate and as
a fiduciary of any benefit plan of any of the foregoing. Executive shall
promptly execute any further documentation thereof as requested by the Company
and, if the Executive is to receive any payments from the Company, execution of
such further documentation shall be a condition thereof.
10. CONFIDENTIAL INFORMATION, NON-COMPETITION AND NON-SOLICITATION
OF THE COMPANY. (a) (i) Executive acknowledges that as a result of his
employment by the Company, Executive will obtain secret and confidential
information as to the Company and its affiliates and create relationships with
customers, suppliers and other persons dealing with the Company and its
affiliates and the Company and its affiliates will suffer substantial damage,
which would be difficult to ascertain, if Executive should use such confidential
information or take advantage of such relationship and that because of the
nature of the information that will be known to Executive and the relationships
created it is necessary for the Company and its affiliates to be protected by
the prohibition against Competition as set forth herein, as well as the
Confidentiality restrictions set forth herein.
(ii) Executive acknowledges that the retention of nonclerical
employees employed by the Company and its affiliates in which the Company and
its affiliates have invested training and depends on for the operation of their
businesses is important to the businesses of the Company and its affiliates,
that Executive will obtain unique information as to such employees as an
executive of the Company and will develop a unique relationship with such
persons as a result of being an executive of the Company and, therefore, it is
necessary for the Company and its affiliates to be protected from Executive's
Solicitation of such employees as set forth below.
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(iii) Executive acknowledges that the provisions of this Agreement
are reasonable and necessary for the protection of the businesses of the Company
and its affiliates and that part of the compensation paid under this Agreement
and the agreement to pay severance in certain instances is in consideration for
the agreements in this Section 10.
(b) Competition shall mean: participating, directly or indirectly,
as an individual proprietor, partners, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant or in any capacity whatsoever
(within the United States of America, or in any country where the Company or its
affiliates do business) in a business in competition with any business conducted
by the Company, provided, however, that such participation shall not include (i)
the mere ownership of not more than one percent (1%) of the total outstanding
stock of a publicly held company; or (ii) any activity engaged in with the prior
written approval of the Board.
(c) Solicitation shall mean: recruiting, soliciting or inducing, of
any nonclerical employee or employees of the Company or its affiliates to
terminate their employment with, or otherwise cease their relationship with, the
Company or its affiliates or hiring or assisting another person or entity to
hire any nonclerical employee of the Company or its affiliates or any person who
within six (6) months before had been a nonclerical employee of the Company or
its affiliates and were recruited or solicited for such employment or other
retention while an employee of the Company, provided, however, that solicitation
shall not include any of the foregoing activities engaged in with the prior
written approval of the Chief Executive Officer.
(d) If any restriction set forth with regard to Competition or
Solicitation is found by any court of competent jurisdiction, or an arbitrator,
to be unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend over the maximum period of time, range of activities or
geographic area as to which it may be enforceable. If any provision of this
Section 10 shall be declared to be invalid or unenforceable, in whole or in
part, as a result of the foregoing, as a result of public policy or for any
other reason, such
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invalidity shall not affect the remaining provisions of this Section which shall
remain in full force and effect.
(e) During and after the Employment Term, Executive shall hold in a
fiduciary capacity for the benefit of the Company and its affiliates all secret
or confidential information, knowledge or data relating to the Company and its
affiliates, and their respective businesses, including any confidential
information as to customers of the Company and its affiliates, (i) obtained by
Executive during his employment by the Company and its affiliates and (ii) not
otherwise public knowledge or known within the applicable industry. Executive
shall not, without prior written consent of the Company, unless compelled
pursuant to the order of a court or other governmental or legal body having
jurisdiction over such matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In the event Executive is compelled by order of a court or other governmental or
legal body to communicate or divulge any such information, knowledge or data to
anyone other than the foregoing, he shall promptly notify the Company of any
such order and he shall cooperate fully with the Company in protecting such
information to the extent possible under applicable law.
(f) Upon termination of his employment with the Company and its
affiliates, or at any time as the Company may request, Executive will promptly
deliver to the Company, as requested, all documents (whether prepared by the
Company, an affiliate, Executive or a third party) relating to the Company, an
affiliate or any of their businesses or property which he may possess or have
under his direction or control other than documents provided to Executive in his
capacity as a participant in any employee benefit plan, policy or program of the
Company or any agreement by and between Executive and the Company with regard to
Executive's employment or severance.
(g) During the Employment Term and for two (2) years following a
termination of Executive's employment for any reason whatsoever, whether by the
Company or by Executive and whether or not for Cause, Good Reason or
non-extension of the Employment Term, Executive will not engage in Solicitation.
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(h) During the Employment Term and for one (1) year following a
termination of Executive's employment for any reason whatsoever, whether by the
Company or by Executive and whether or not for Cause, Good Reason or
non-extension of the Employment Term, Executive will not enter into Competition
with the Company or its affiliates.
(i) In the event of a breach or potential breach of this Section 10,
Executive acknowledges that the Company and its affiliates will be caused
irreparable injury and that money damages may not be an adequate remedy and
agree that the Company and its affiliates shall be entitled to injunctive relief
(in addition to its other remedies at law) to have the provisions of this
Section 10 enforced. It is hereby acknowledged that the provisions of this
Section 10 are for the benefit of the Company and all of the affiliates of the
Company and each such entity may enforce the provisions of this Section 10 and
only the applicable entity can waive the rights hereunder with respect to its
confidential information and employees.
(j) Furthermore, in the event of breach of this Section 10 by
Executive, while he is receiving amounts under Section 8(b) hereof, Executive
shall not be entitled to receive any future amounts pursuant to Section 8(b)
hereof.
11. INDEMNIFICATION. The Company shall indemnify and hold harmless
Executive to the extent provided in the Certificate of Incorporation and By-Laws
of the Company for any action or inaction of Executive while serving as an
officer and director of the Company or, at the Company's request, as an officer
or director of any other subsidiary or affiliate of the Company or as a
fiduciary of any benefit plan. The Company shall cover Executive under directors
and officers liability insurance both during and, while potential liability
exists, after the Employment Term in the same amount and to the same extent as
the Company covers its other officers and directors.
12. SPECIAL TAX PROVISION. (a) Anything in this Agreement to the
contrary notwithstanding, in the event that any amount or benefit paid, payable,
or to be paid, or distributed,
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distributable, or to be distributed to or with respect to Executive by the
Company (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
change of ownership covered by Section 280G(b)(2) of the Internal Revenue Code
of 1986, as amended (the "Code") or any person affiliated with the Company or
such person) as a result of a change in ownership of the Company or a direct or
indirect parent thereof after the Spinoff covered by Code Section 280G(b)(2)
(collectively, the "Covered Payments") is or becomes subject to the excise tax
imposed by or under Section 4999 of the Code (or any similar tax that may
hereafter be imposed), and/or any interest or penalties with respect to such
excise tax (such excise tax, together with such interest and penalties, is
hereinafter collectively referred to as the "Excise Tax"), the Company shall pay
to Executive an additional amount (the "Tax Reimbursement Payment") such that
after payment by Executive of all taxes (including, without limitation, any
interest or penalties and any Excise Tax imposed on or attributable to the Tax
Reimbursement Payment itself), Executive retains an amount of the Tax
Reimbursement Payment equal to the sum of (i) the amount of the Excise Tax
imposed upon the Covered Payments, and (ii) without duplication, an amount equal
to the product of (A) any deductions disallowed for federal, state or local
income or payroll tax purposes because of the inclusion of the Tax Reimbursement
Payment in Executive's adjusted gross income, and (B) the highest applicable
marginal rate of federal, state or local income taxation, respectively, for the
calendar year in which the Tax Reimbursement Payment is made or is to be made.
The intent of this Section 12 is that (a) the Executive, after paying his
Federal, state and local income tax and any payroll taxes on Executive, will be
in the same position as if he was not subject to the Excise Tax under Section
4999 of the Code and did not receive the extra payments pursuant to this Section
12 and (b) that Executive should never be "out-of-pocket" with respect to any
tax or other amount subject to this Section 12, whether payable to any taxing
authority or repayable to the Company, and this Section 12 shall be interpreted
accordingly.
(b) Except as otherwise provided in Section 12(a), for purposes of
determining whether any of the Covered Payments will be subject to the Excise
Tax and the amount of such Excise Tax,
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(i) such Covered Payments will be treated as "parachute
payments" (within the meaning of Section 280G(b)(2) of the Code) and such
payments in excess of the Code Section 280G(b)(3) "base amount" shall be treated
as subject to the Excise Tax, unless, and except to the extent that, the
Company's independent certified public accountants appointed prior to the change
in ownership covered by Code Section 280G(b)(2) or legal counsel (reasonably
acceptable to Executive) appointed by such public accountants (or, if the public
accountants decline such appointment and decline appointing such legal counsel,
such independent certified public accountants as promptly mutually agreed on in
good faith by the Company and the Executive) (the "Accountant"), deliver a
written opinion to Executive, reasonably satisfactory to Executive's legal
counsel, that Executive has a reasonable basis to claim that the Covered
Payments (in whole or in part) (A) do not constitute "parachute payments", (B)
represent reasonable compensation for services actually rendered (within the
meaning of Section 280G(b)(4) of the Code) in excess of the "base amount"
allocable to such reasonable compensation, or (C) such "parachute payments" are
otherwise not subject to such Excise Tax (with appropriate legal authority,
detailed analysis and explanation provided therein by the Accountants); and
(ii) the value of any Covered Payments which are non-cash
benefits or deferred payments or benefits shall be determined by the Accountant
in accordance with the principles of Section 280G of the Code.
(c) For purposes of determining the amount of the Tax Reimbursement
Payment, Executive shall be deemed:
(i) to pay federal, state, local income and/or payroll taxes
at the highest applicable marginal rate of income taxation for the calendar year
in which the Tax Reimbursement Payment is made or is to be made, and
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(ii) to have otherwise allowable deductions for federal, state
and local income and payroll tax purposes at least equal to those disallowed due
to the inclusion of the Tax Reimbursement Payment in Executive's adjusted gross
income.
(d)(i)(A) In the event that prior to the time Executive has filed
any of his tax returns for the calendar year in which the change in ownership
event covered by Code Section 280G(b)(2) occurred, the Accountant determines,
for any reason whatever, the correct amount of the Tax Reimbursement Payment to
be less than the amount determined at the time the Tax Reimbursement Payment was
made, the Executive shall repay to the Company, at the time that the amount of
such reduction in Tax Reimbursement Payment is determined by the Accountant, the
portion of the prior Tax Reimbursement Payment attributable to such reduction
(including the portion of the Tax Reimbursement Payment attributable to the
Excise Tax and federal, state and local income and payroll tax imposed on the
portion of the Tax Reimbursement Payment being repaid by Executive, using the
assumptions and methodology utilized to calculate the Tax Reimbursement Payment
(unless manifestly erroneous)), plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code.
(B) In the event that the determination set forth in (A) above is
made by the Accountant after the filing by Executive of any of his tax returns
for the calendar year in which the change in ownership event covered by Code
Section 280G(b)(2) occurred but prior to one (1) year after the occurrence of
such change in ownership, Executive shall file at the request of the Company an
amended tax return in accordance with the Accountant's determination, but no
portion of the Tax Reimbursement Payment shall be required to be refunded to the
Company until actual refund or credit of such portion has been made to
Executive, and interest payable to the Company shall not exceed the interest
received or credited to Executive by such tax authority for the period it held
such portion (less any tax Executive must pay on such interest and which he is
unable to deduct as a result of payment of the refund).
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(C) In the event Executive receives a refund pursuant to (B) above
and repays such amount to the Company, Executive shall thereafter file for
refunds or credits by reason of the repayments to the Company.
(D) Executive and the Company shall mutually agree upon the course
of action, if any, to be pursued (which shall be at the expense of the Company)
if Executive's claim for refund or credit is denied.
(ii) In the event that the Excise Tax is later determined by the
Accountants or the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Tax Reimbursement Payment is made (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Tax Reimbursement Payment), the Company shall make an
additional Tax Reimbursement Payment in respect of such excess (plus any
interest or penalties payable with respect to such excess) once the amount of
such excess is finally determined.
(iii) In the event of any controversy with the Internal Revenue
Service (or other taxing authority) under this Section 12, subject to subpart
(i)(D) above, Executive shall permit the Company to control issues related to
this Section 12 (at its expense), provided that such issues do not potentially
materially adversely affect Executive, but Executive shall control any other
issues. In the event the issues are interrelated, Executive and the Company
shall in good faith cooperate so as not to jeopardize resolution of either
issue, but if the parties cannot agree Executive shall make the final
determination with regard to the issues. In the event of any conference with any
taxing authority as to the Excise Tax or associated income taxes, Executive
shall permit the representative of the Company to accompany him and Executive
and his representative shall cooperate with the Company and its representative.
(iv) With regard to any initial filing for a refund or any other
action required pursuant to this Section 12 (other than by mutual agreement) or,
if not required, agreed to by the Company
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and Executive, the Executive shall cooperate fully with the Company, provided
that the foregoing shall not apply to actions that are provided herein to be at
the sole discretion of Executive.
(e) The Tax Reimbursement Payment, or any portion thereof, payable
by the Company shall be paid not later than the fifth (5th) day following the
determination by the Accountant and any payment made after such fifth (5th) day
shall bear interest at the rate provided in Code Section 1274(b)(2)(B). The
Company shall use its best efforts to cause the Accountant, to promptly deliver
the initial determination required hereunder and, if not delivered, within
ninety (90) days after the change in ownership event covered by Section
280G(b)(2) of the Code, the Company shall pay Executive the Tax Reimbursement
Payment set forth in an opinion from counsel recognized as knowledgeable in the
relevant areas selected by Executive, and reasonably acceptable to the Company,
within five (5) days after delivery of such opinion. The amount of such payment
shall be subject to later adjustment in accordance with the determination of the
Accountant as provided herein.
(f) The Company shall be responsible for all charges of the
Accountant and if (e) is applicable the reasonable charges for the opinion given
by Executive's counsel.
(g) The Company and Executive shall mutually agree on and promulgate
further guidelines in accordance with this Section 12 to the extent, if any,
necessary to effect the reversal of excessive or shortfall Tax Reimbursement
Payments. The foregoing shall not in any way be inconsistent with Section
12(d)(i)(D) hereof.
13. LEGAL AND OTHER FEES AND EXPENSES. In the event that a claim for
payment or benefits under this Agreement is disputed, the Company shall pay all
reasonable attorney, accountant and other professional fees and reasonable
expenses incurred by Executive in pursuing such claim, provided Executive is
successful with regard to a material portion of his claim.
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14. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without reference to
principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement and the instruments
contemplated herein, contain the entire understanding of the parties with
respect to the employment of Executive by the Company from and after the
Commencement Date. Effective on the day prior to the Commencement Date and upon
execution of this Agreement, Executive hereby acknowledges that the Consulting
Agreement terminates without any further obligation of the Company, and will be
of no force or effect. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein and therein.
This Agreement may not be altered, modified, or amended except by written
instrument signed by the parties hereto.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
Any such waiver must be in writing and signed by Executive or an authorized
officer of the Company, as the case may be.
(d) ASSIGNMENT. This Agreement shall not be assignable by Executive.
This Agreement shall be assignable by the Company only to an entity which is
owned, directly or indirectly, in whole or in part by the Company or by any
successor to the Company or an acquirer of all or substantial all of the assets
of the Company or all or substantially all of the assets of a group of
subsidiaries and divisions of the Company, provided such entity or acquirer
promptly assumes all of the obligations hereunder of the Company in a writing
delivered to Executive and otherwise complies with the provisions hereof with
18
regard to such assumption. Upon such assignment and assumption, all references
to the Company herein shall be to the assignee entity or acquirer, as the case
may be.
(e) SUCCESSORS; BINDING AGREEMENT; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees legatees and permitted assignees of the parties hereto.
In the event of the Executive's death while receiving amounts payable pursuant
to Section 8(b) hereof, any remaining amounts shall be paid to Executive's
estate.
(f) COMMUNICATIONS. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when faxed or delivered, or (ii) two
(2) business days after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the initial page of this Agreement, provided that all
notices to the Company shall be directed to the attention of the General Counsel
and Secretary of the Company, or to such other address as any party may have
furnished to the other in writing in accordance herewith. Notice of change of
address shall be effective only upon receipt.
(g) WITHHOLDING TAXES. The Company may withhold from any and all
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
(h) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder, including without limitation Section 11 hereof, shall survive
any termination of Executive's employment to the extent necessary to the agreed
preservation of such rights and obligations.
(i) COUNTERPARTS. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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(j) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
(k) EXECUTIVE'S REPRESENTATION. Executive represents and warrants to
the Company that there is no legal impediment to him entering into, or
performing his obligations under this Agreement and neither entering into this
Agreement nor performing his contemplated service hereunder will violate any
agreement to which he is a party or any other legal restriction. Executive
further represents and warrants that in performing his duties hereunder he will
not use or disclose any confidential information of any prior employer or other
person or entity.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
U.S. INDUSTRIES, INC.
By:_______________________________
Its:
___________________________________
Xxxxx X. Xxxxxxxxxx ("Executive")
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EXHIBIT A
(a) CAUSE. For purposes of this Agreement, the term "Cause" shall be
limited to: (i) Executive's refusal or willful failure to perform his duties;
(ii) Executive's willful misconduct or gross negligence with regard to the
Company or its affiliates or their business, assets or employees (including,
without limitation, Executive's fraud, embezzlement or other act of dishonesty
with regard to the Company or its affiliates); (iii) Executive's willful
misconduct which has a material adverse impact on the Company or its affiliates,
whether economic, or reputation wise or otherwise, as determined by the Board;
(iv) Executive's conviction of, or pleading nolo contendere to, a felony or any
crime involving fraud, dishonesty or moral turpitude; (v) Executive's refusal or
willful failure to follow the lawful written direction of the Board, the Chief
Executive Officer or his designee; (vi) Executive's breach of a fiduciary duty
owed to the Company or its affiliates, including but not limited to Section 10
hereof; (vii) the representations or warranties in Section 14(k) hereof prove
false; or (vii) any other breach by Executive of this Agreement that remains
uncured for ten (10) days after written notice thereof is given to Executive.
(b) CHANGE IN CONTROL. For purposes of this Agreement, the term
"Change in Control" shall mean the occurrence of any of the following (i) any
"person" as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 ("Act") (other than the Company, any trustee or other
fiduciary holding securities under any employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of Common Stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; (ii) during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute the Board, and
any new director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described in clause
(i), (iii), or (iv) of this paragraph) whose election by the Board or nomination
for election by the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the two-year period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the Board; (iii) a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty percent (50%) of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation;
provided, however, that a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires more than twenty-five percent (25%) of the combined voting power of the
Company's then outstanding securities shall not constitute a Change in Control
of the Company; or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or the sale or disposition by the Company of
all or substantially all of the Company's assets other than (x) the sale or
disposition of all or substantially all of the assets of the Company to a person
or persons who beneficially own, directly or indirectly, at least fifty percent
(50%) or more of the combined voting power of the outstanding voting securities
of the Company at the time of the sale or (y) pursuant to a spinoff type
transaction, directly or indirectly, of such assets to the stockholders of the
Company.
(c) DISABILITY. For purposes of this Agreement, "Disability" shall
mean by reason of the same or related physical or mental illness or incapacity,
Executive is unable to carry out his material duties pursuant to this Agreement
for more than six (6) months in any twelve (12) month period.
i
(d) GOOD REASON. For purposes of this Agreement, "Good Reason" shall
mean the occurrence, without Executive's express written consent in the case of
(i), (ii) or (iii) of any of the following circumstances: (i) any material
demotion of Executive from his position as a Senior Vice President (except in
connection with the termination of Executive's employment for Cause or due to
Disability or as a result of Executive's death, or temporarily as a result of
Executive's illness or other absence); (ii) a failure by the Company to pay
Executive's Base Salary in accordance with Section 3 hereof; (iii) within two
(2) years after a Change in Control and if Executive is then based at the
Company's principal executive office, a relocation of the Company's principal
executive office to a location more than both thirty-five (35) miles from
Executive's residence at the time of the relocation and the Company's then
principal executive office or relocation of Executive from the principal
executive office; (iv) any resignation by Executive during the thirty (30) day
period after the first anniversary of a Change in Control; or (v) with regard to
a Relocation not covered by (iii) above, a failure of the Company to provide
Executive with a relocation program that is at least as favorable in aggregate
as the Relocation Program set forth in Exhibit B hereof. For purposes of the
foregoing, Relocation shall mean a relocation of Executive's office by the
Company, at any time during the Employment Term, to a location more than
thirty-five (35) miles further than Executive's then current principal residence
is from Executive's then office.
ii
