EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made as of this 28th day of January, 2004, by and between
Xxxxx Xxxxxx International, Inc., a Florida corporation (the "Company"), and Xx.
Xxxx Xxxxxxxxx (the "Executive").
Recitals
The Company desires to employ the Executive and the Executive desires to be
employed by the Company, upon the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of (a) the Executive's employment with the
Company, (b) the compensation paid to the Executive and the benefits provided to
the Executive in connection with such employment, (c) the Executive's use of the
equipment, supplies, facilities and other resources of the Company and (d) the
opportunity provided to the Executive by the Company to acquire or use
information relating to or based on the Company's business and to work and
develop in the field for which the Executive is hereby employed, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows.
Article 1
INTERPRETATION OF THIS AGREEMENT
1.1 Defined Terms. As used herein, capitalized terms when used in this
Agreement shall have the meanings set forth in Annex 1.
1.2 Interpretation. The words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement and not any particular section,
paragraph, subparagraph or clause contained in this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and the plural, and pronouns stated in
masculine, feminine or neuter gender shall include the masculine, feminine and
the neuter.
Article 2
EMPLOYMENT
2.1 Duration. The Company agrees to employ the Executive and the Executive
agrees to be so employed for the period beginning on the date of this Agreement
and ending upon the close of business on December 31, 2006 (the "Initial Term");
provided, that the duration of the Executive's employment shall be automatically
renewed for successive periods of one (1) year each (each a "Renewal Term")
unless either party sends written notice to the other of such party's decision
not to renew the duration of the Executive's employment no later than the close
of business sixty (60) days prior to the date on which the Initial Term or the
then current Renewal Term, as the case may be, is set to expire (a "Non-Renewal
Notice").
2.2 Termination. The Initial Term or the then current Renewal Term, as
applicable, may be earlier terminated on any one or more of the following dates:
(a) the date specified in a Notice of Termination given by the Executive in
connection with his resignation (which shall not be less than sixty (60) days
from the date such Notice of Termination is given, unless a shorter period is
subsequently requested by the Company after receipt of such Notice of
Termination); (b) the date specified in a Notice of Termination stating that the
Board has determined that the Executive's employment be terminated for Cause;
(c) the date specified in a Notice of Termination given by the Company stating
that the Board has determined that the Executive's employment with the Company
is no longer in the best interest of the Company (in which event, the Executive
will be entitled to severance pay as described in Section 2.5.1 below); (d) the
date of the Executive's death; or (e) the date specified in a Notice of
Termination given by the Company in connection with a termination of the
Executive's employment by reason of his Incapacity. Notwithstanding the
foregoing, if a Notice of Termination is delivered under Section 2.2(b) above
and Cause did not in fact exist, such notice shall be deemed to be a Notice of
Termination under Section 2.2(c). For purposes of this Agreement, the term
"Employment Period" shall mean the period of the Executive's employment, and the
term "Termination Date" shall mean the date on which the Executive's employment
with the Company expires or is terminated (whether by the Executive or the
Company). Any purported termination of the Executive's employment by the Company
or by the Executive shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 4.1 below, which notice shall
indicate the specific termination provision in this Section 2.2 relied upon (a
"Notice of Termination").
2.3 Salary and Benefits. During the Employment Period:
2.3.1 the Company will pay the Executive a base salary at the rate of Two
Hundred and Sixty Thousand Dollars ($260,000), per annum ("Base Salary"),
payable in installments consistent with the Company's normal payroll schedule,
subject to applicable withholding and other taxes;
2.3.2 the Executive will be entitled to participate in all medical and
hospitalization, dental, group life insurance, retirement, and any and all other
fringe benefit plans as are from time to time provided by the Company to its
executives, subject to the provisions of such plans, including, without
limitation, eligibility criteria and contribution requirements, as the same may
be in effect from time to time;
2.3.3 the Executive will be entitled to a maximum of four (4) weeks
vacation each year with salary; provided, that in no event may a vacation be
taken at a time when to do so could, in the reasonable judgment of the Chairman
of the Board on behalf of the Company, have an adverse effect on the business,
financial condition, results of operations, reputation, prospects or interests
of the Company;
2.3.4 the Executive will be entitled to reimbursement of reasonable
business expenses incurred by the Executive (subject to submission of
appropriate substantiation by the Executive in accordance with the rules in
place for other executives of the Company);
2.3.5 the Executive will be entitled to either (x) a Company provided
automobile of a type equal or similar to a BMW 5-series or (y) an automobile
allowance of Seven Hundred and Fifty Dollars ($750) per month less all
applicable withholding, whichever is better for the Company;
2.3.6 the Executive will be entitled to a signing bonus of Twenty Five
Thousand Dollars ($25,000) less all applicable withholding, payable on the first
normally scheduled payroll after the date hereof; and
2.3.7 the Executive will be entitled to reimbursement of certain costs and
expenses and the associated tax impact of such costs and expenses, incurred by
the Executive associated with (x) the remaining lease payment obligations on a
home the Executive is leasing in Connecticut, and (y) moving his automobile and
personal affects from Connecticut to Florida; provided, that the costs and
expenses of (x) and (y) above shall not exceed $11,000 without obtaining the
approval of the Chairman of the Board.
2.4 Duties and Services. During the Employment Period, the Executive will
render such services of an executive and administrative character as the Chief
Administrative Officer and as an Executive Vice President for the benefit of the
Company or any of the Company's Subsidiaries as either the Chairman of the Board
or the Company's Chief Executive Officer may from time to time direct. The
Executive's duties and services will include, without limitation, being
primarily responsible for all aspects of the Company's finances, financial
reporting, human resources, information technology, and legal. The Executive
will devote his best efforts and substantially all of his business time and
attention (except for vacation periods and reasonable periods of illness or
other incapacity) to the provision of duties and services under this Agreement.
Nothing in this Agreement shall prohibit the Executive from engaging in trade
association activities, including serving as a board member or committee member
to trade associations or charitable organizations; provided, that none of such
activities interfere with the performance of the Executive's duties and
responsibilities to the Company under this Agreement; and, provided, further,
that such activities are previously approved by the Chairman of the Board. The
Executive shall travel at such times and to such locations as the Executive's
duties and responsibilities shall require.
2.5 Severance Pay.
2.5.1 If the Executive's employment is terminated by the Company without
Cause pursuant to Section 2.2(c) above at any time during the Initial Term or
any Renewal Term then in effect, or expires due to delivery of written notice by
the Company of its decision not to renew this Agreement at the end of the
Initial Term or any Renewal Term, then, subject to the provisions of Section
2.5.4 below, the Company will pay to the Executive as severance pay an amount
equal to the amount of Base Salary then in effect.
2.5.2 The payments to be made by the Company to the Executive under this
Section 2.5 shall be made either (at the Company's sole option), (a) in
installments, and on the payment dates, during the twelve months following the
Termination Date (the "Severance Period") on which Base Salary would have
otherwise been paid had the Executive's employment not been terminated, or (b)
in a single payment not later than sixty (60) days after the Termination Date,
in which event the single payment will be an amount equal to the net present
value (calculated using a seven percent (7%) discount rate per annum) of all
future payments of such Base Salary through the end of the Severance Period.
Upon the making of the last of such payments, the Company will have no further
obligation to the Executive. All payments shall be subject to applicable
withholding and other taxes.
2.5.3 During any Severance Period and subject to the provisions of Section
2.5.4 below, the Company will, in addition to such payments, arrange to provide
the Executive with benefits substantially similar to those which the Executive
was receiving or entitled to receive under the Company's life, disability,
accident and group health insurance plans or any similar plans in which the
Executive was participating immediately prior to the Termination Date ("Welfare
Plan Benefits") at a cost to the Executive which is not substantially greater
than the cost to him in effect at the Termination Date; provided, that to the
extent any such coverage is prohibited, whether by any judicial or legislative
authority or otherwise, the Company shall make alternative arrangements to
provide the Executive with Welfare Plan Benefits or to provide the Executive
with a payment in an amount equal to the Company's cost of purchasing its
portion of the Welfare Plan Benefits. Benefits otherwise receivable by the
Executive pursuant to the preceding sentence shall be reduced to the extent
comparable benefits are actually received on the Executive's behalf during the
Severance Period. The Executive shall promptly report to the Company of the
Executive's participation in, or receipt of, any such comparable benefits.
2.5.4 The Executive's right to receive, and the Company's obligation to pay
and provide, any of the payments and benefits provided for in this Section 2.5
shall be subject to (a) the Executive's compliance with, and observance of, all
of the Executive's obligations under this Agreement that continue beyond the
Termination Date and (b) the Executive's execution, delivery and non-revocation
of, and performance under, a release in favor of the Company and its Affiliates
in form attached hereto as Exhibit A (as such form may be modified by the
Company so as to comply with all applicable laws as then in effect) within seven
(7) business days of the Termination Date.
2.6 Incentive Compensation and Bonus Program.
2.6.1 During the Employment Period, the Executive shall be entitled to
receive incentive compensation in accordance with the terms and subject to the
conditions of such incentive compensation and bonus programs, if any, as are
agreed upon in writing from time to time between the Executive and the Chairman
of the Board or the Chief Executive Officer (on behalf of the Company). Unless
otherwise provided in the written incentive compensation and bonus program
agreed upon between the Executive and the Chairman of the Board or the Chief
Executive Officer with respect to any particular period, the target incentive
compensation shall be an amount equal to Fifty Percent (50%) of the Executive's
Base Salary during such period; provided, that the Executive shall be guaranteed
Forty Thousand Dollars ($40,000) of incentive compensation for 2004 on an
annualized basis, prorated from the date hereof through December 31, 2004.
2.6.2 If the Employment Period is terminated pursuant to Section 2.2 above
prior to the end of the period with respect to which any incentive compensation
or bonus is payable, then the Executive will be entitled to receive any payment
on account of any such incentive compensation or bonus on a pro rated basis from
the beginning of the incentive compensation period through the Termination Date,
if any. However, the Executive will not be entitled to participate in the
incentive compensation plans during the Severance Period.
2.6.3 The payment of all such incentive compensation and bonuses are
subject to applicable withholding and other taxes.
Article 3
PROPERTY AND BUSINESS OF THE COMPANY
3.1 Nondisclosure. During the Employment Period and during the periods
described in the last sentence of this Section 3.1, the Executive (a) will
receive and hold all Company Information in trust and in strictest confidence,
(b) will protect the Company Information from disclosure and will in no event
take any action causing, or fail to take any action reasonably necessary to
prevent, any Company Information to lose its character as Company Information,
(c) will not, directly or indirectly, use or assist others to use any
Confidential Information to the detriment of the Company, its business or its
interests, and (d) except as required by the Executive's duties in the course of
his employment by the Company or by applicable law, will not, directly or
indirectly, use, disseminate or otherwise disclose any Company Information to
any third party without the prior written consent of the Board, which may be
withheld in the Board's absolute discretion. The provisions of this Section 3.1
shall survive the Termination Date (i) for a period of five (5) years with
respect to Confidential Information, and (ii) with respect to Trade Secrets, for
so long as any such information qualifies as a Trade Secret under applicable
law.
3.2 Books and Records. All books, records, reports, writings, notes,
notebooks, computer programs, sketches, drawings, blueprints, prototypes,
formulas, photographs, negatives, models, equipment, chemicals, reproductions,
proposals, flow sheets, supply contracts, customer lists and other documents
and/or things relating in any manner to the business of any of the Parent, the
Company or any of their respective Subsidiaries (including but not limited to
any of the same embodying or relating to any Confidential Information or Trade
Secrets), whether prepared by the Executive or otherwise coming into the
Executive's possession, shall be the exclusive property of the Parent, the
Company or such Subsidiary, as the case may be, and shall not be copied,
duplicated, replicated, transformed, modified or removed from the premises of
the Company except pursuant to and in furtherance of the business of the Company
and shall be returned immediately to the Company on the Termination Date or on
the Company's request at any time.
3.3 Inventions and Patents. The Executive agrees that all inventions,
innovations or improvements related to the Company's, the Parent's or any of
their respective subsidiaries' business or planned business (including new
contributions, improvements, ideas and discoveries, whether patentable or not)
conceived or made by him during his employment with the Company belong to the
Company and the Executive hereby assigns all of such inventions, innovations and
improvements, contributions, ideas and discoveries to the Company. The Executive
will promptly disclose such inventions, innovations and improvements,
contributions, ideas and discoveries to the Board and perform all actions
reasonably requested by the Board to establish and confirm such ownership.
3.4 Noncompetition. During the Employment Period and for a period of three
(3) years from and after the Termination Date, the Executive will not, directly
or indirectly, engage in, or have any interest in any other Person, whether as a
debt or equity holder, employee, officer, director, member, manager, partner,
agent, security holder, consultant or otherwise, that, directly or indirectly,
(a) manufactures, distributes, designs, sells or resells outdoor and contract
furniture or furnishings consistent with the Company's existing business and
actively planned business, or (b) is engaged in any other line of business that,
as of the Termination Date, any of the Parent, the Company or any of their
respective Subsidiaries is engaged in or has active plans to be engaged in
(collectively, the "Restricted Business") in any geographic area in which any of
the Parent, the Company or any of their respective Subsidiaries, directly or
indirectly, engaged in (or had active plans to engage in) the Restricted
Business as of the Termination Date and during the one (1) year period before
the Termination Date (the "Restricted Area"); provided, that nothing in this
Section 3.4 shall be deemed to prevent the Executive from acquiring through
market purchases and owning, solely as a passive investment, less than three
percent (3%) in the aggregate of the equity securities of any class of any
issuer to the extent such shares are registered under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, and are listed or admitted for trading on
any United States national securities exchange or are quoted on the National
Association of Securities Dealers Automated Quotations System, or any similar
system of automated dissemination of quotations of securities prices in common
use, so long as the Executive is not a member of any "control group" (within the
meaning of the rules and regulations of the United States Securities and
Exchange Commission) of any such issuer.
3.5 Non-Solicitation of Employees. During the Employment Period and for a
period of two (2) years from and after the Termination Date, the Executive will
not, directly or indirectly, (a) solicit for employment or employ (or attempt to
solicit for employment or employ), for the Executive or on behalf of any other
Person (other than the Parent, the Company or any of their respective
Subsidiaries), any employee of any of the Parent, the Company or any of their
respective Subsidiaries or any Person who was such an employee during the
one-year (1) period preceding the date of such solicitation, employment or
attempted solicitation or employment, or (b) encourage any such employee to
leave his or her employment with any of the Parent, the Company or any of their
respective Subsidiaries.
3.6 Non-Solicitation of Others. During the Employment Period and for a
period of three (3) years from and after the Termination Date, the Executive
will not, directly or indirectly, (a) solicit, call on or transact or engage in
any business activity related to the Restricted Business, with (or attempt to do
any of the foregoing with respect to) any customer, distributor, vendor,
supplier or agent with whom any of the Parent, the Company or any of their
respective Subsidiaries shall have dealt, or that any of the Parent, the Company
or any of their respective Subsidiaries shall have actively sought to deal, at
any time during the one year (1) period preceding the date of such solicitation,
call, transaction or engagement, for or on behalf of the Executive or any other
Person (other than the Parent, the Company or any of their respective
Subsidiaries) for a purpose which could be competitive with any of the Parent,
the Company or any of their respective Subsidiaries or (b) encourage any such
customer, distributor, vendor, supplier or agent to cease, in whole or in part,
its business relationship with any of the Parent, the Company, or any of their
respective Subsidiaries.
3.7 Impact of Reorganization Related to Federal Bankruptcy Proceedings. If
during the Initial Term or subsequent Renewal Term, the Company voluntarily or
involuntarily enters into a proceeding under Chapter 7 or Chapter 11 of Title 11
of the United States Bankruptcy Code and this agreement, as may be amended from
time to time, is not assumed by the Company and approved by the relevant
judicial authority, the obligations of Section 3 are not binding to the
Executive.
3.8 Covenants Reasonable. The Executive acknowledges and agrees that the
covenants provided for in this Article 3 are reasonable and necessary in terms
of scope, duration, area, line of business and all other matters to protect the
Parent's, the Company's and their respective Subsidiaries' legitimate business
interests, which include, among other, business interests in protecting (a)
valuable confidential business information, (b) substantial relationships with
customers throughout the Restricted Area and (c) customer goodwill associated
with their respective businesses.
3.9 "Blue-Pencil" Provision. To the extent that any of the provisions
contained in this Article 3 may later be adjudicated by a court to be too broad
to be enforced with respect to any of such provision's scope, duration, area,
line of business or any other matter, such provision shall be deemed amended by
limiting and reducing such provision's scope, duration, area, line of business
or other matter, as the case may be, so as to be valid and enforceable to the
maximum extent compatible with the applicable laws of such jurisdiction and this
Article 3 as drafted, such amendment only to apply with respect to the operation
of such provision in the applicable jurisdiction in which such adjudication is
made.
Article 4
MISCELLANEOUS
4.1 Notices. Any notice, request, demand, claim or other communication
hereunder that is required to be made in writing shall be deemed duly given on
the fifth (5th) business day after if it is sent by registered or certified
mail, return receipt requested, postage prepaid, or, on the next business day
after if sent by a reputable overnight courier such as Federal Express, and
addressed to the intended recipient as set forth below:
If to the Executive: To the Executive's last
known address as set forth
in the Company's payroll
records.
If to the Company: c/o Trivest Partners, L.P.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Either party hereto may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, messenger service, telecopy,
telex, ordinary mail or electronic mail), but no such notice, request, demand,
claim or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient; provided, that such
communication is also sent by registered or certified mail or by reputable
overnight courier within five business days of the original communication.
Either party hereto may change the address to which notices, requests, demands,
claims and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
4.2 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein; provided,
that if any of the provisions of Article 3 are held to be invalid, illegal or
unenforceable, then such provisions shall be deemed amended in the manner and to
the extent provided for in Section 3.9 above.
4.3 Complete Agreement. This Agreement embodies the complete agreement and
understanding among the parties relating to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
4.4 Counterparts. This Agreement may be executed on separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement. Any telecopied signature shall be deemed
a manually executed and delivered original.
4.5 Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of and be enforceable by the Executive and the Company and their
respective successors and assigns (and, in the case of the Executive, heirs and
personal representatives), except that Executive may not assign any of his
rights or delegate any of his obligations hereunder.
4.6 Equitable Remedies. The Executive acknowledges and agrees that the
Company would not have an adequate remedy at law in the event any of the
provisions of Article 3 above are not performed in accordance with their
specific terms, are breached or are threatened to be breached. Accordingly, the
Executive agrees that the Company shall be entitled, in addition to any other
rights and remedies which may be available to it, to an injunction or
injunctions to prevent breaches of Article 3 above and to enforce specifically
the terms and provisions thereof in any action instituted in any court of
competent jurisdiction, and without any requirement to post or bond or other
security.
4.7 Choice of Law; Jurisdiction and Venue. This Agreement shall be governed
and construed in accordance with the laws of the State of Florida without regard
to conflicts of laws principles thereof and all questions concerning the
validity and construction hereof shall be determined in accordance with the laws
of said state. Subject to the last sentence of this Section 4.7, by execution
and delivery of this Agreement, each party irrevocably submits to the personal
and exclusive jurisdiction of any federal or state court of competent
jurisdiction located in the County of Broward, State of Florida, in any action
or proceeding arising out of or relating to this Agreement and hereby
irrevocably agrees, on behalf of himself, herself or itself and on behalf of
such party's heirs, personal representatives, successors and assigns that all
claims in respect of such action or proceeding may be heard and determined in
any such court. Each party agrees that venue would be proper in any of such
courts, and hereby waives any objection that any such court is an improper or
inconvenient forum for the resolution of any such action. The parties further
agree that the mailing by certified or registered mail, return receipt
requested, to the addresses specified for notice in this Agreement, of any
process or summons required by any such court shall constitute valid and lawful
service of process against them, without the necessity for service by any other
means provided by statute or rule of court. Nothing in this Agreement shall
affect or limit any right to serve process in any other manner permitted by law
or shall be construed to prevent the Company from bringing and pursuing, or in
any way limit, the right of the Company to bring or pursue, any action arising
out of or in connection with this Agreement in any jurisdiction where the
Executive is subject to personal jurisdiction and venue is proper.
4.8 Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
4.9 Amendments and Waivers. No provision of this Agreement may be amended
or waived without the prior written consent of the parties hereto. The waiver by
either party to this Agreement of a breach of any provision of this Agreement
shall not be construed or operate as a waiver of any preceding or succeeding
breach of the same or any other term or provision or as a waiver of any
contemporaneous breach of any other term or provision or as a continuing waiver
of the same or any other term or provision.
4.10 Business Days. Whenever the terms of this Agreement call for the
performance of a specific act on a specified date, which date falls on a
Saturday, Sunday or legal holiday, the date for the performance of such act
shall be postponed to the next succeeding regular business day following such
Saturday, Sunday or legal holiday.
4.11 No Third Party Beneficiary. Except for the parties to this Agreement
and their respective successors and assigns, heirs and personal representatives
nothing expressed or implied in this Agreement is intended, or will be
construed, to confer upon or give any person other than the parties hereto and
their respective successors and assigns any rights or remedies under or by
reason of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XXXXX XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Chairman
EXECUTIVE
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
ANNEX 1
DEFINITIONS
"Agreement" means this Executive Employment Agreement, as the same may be
amended, supplemented, or modified.
"Affiliate" has the meaning given to it in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Base Salary" has the meaning given to it in Section 2.3.1 hereof.
"Board" means the Board of Directors of the Company.
"Cause" means any one or more of the following: (a) the repeated failure or
refusal by the Executive to perform the Executive's duties or render the
services reasonably assigned from time to time by the Board or the Chairman of
the Board or the Chief Executive Officer (other than any such failure resulting
from the Executive's incapacity during periods of sick leave); (b) the engaging
by the Executive in conduct which the Board reasonably determines is injurious
to the Company or any of its Affiliates, monetarily or otherwise, or which could
result in a Material Adverse Effect; (c) the commission by the Executive of an
act or acts involving fraud, embezzlement, misappropriation, theft, breach of
fiduciary duty or dishonesty against the property or personnel of the Company or
any of its Affiliates; (d) the Executive's gross negligence or willful
misconduct in the performance of his duties as an employee of the Company, (e)
the charging or indictment of the Executive (or Executive's plea of guilty or no
contest prior to any charge or indictment) in connection with a felony or crime
of moral turpitude, (f)) chronic absenteeism, (g) substance abuse, (h) any other
material breach by the Executive of any of the terms or provisions of this
Agreement (other than Article 3 of this Agreement) or any other agreement
between the Company and the Executive, which other material breach is not cured
within ten (10) business days of notice by the Company; or (i) any breach of any
of the terms of Article 3 of this Agreement.
"Chairman of the Board" means Xxxx X. Xxxxxx or any successor elected by a
majority of the Board.
"Chief Executive Officer" means Xxxxx Xxxxxxxxx or any successor elected by
a majority of the Board.
"Company" has the meaning given to it in the preamble hereof.
"Company Information" means Confidential Information and Trade Secrets.
"Confidential Information" means confidential data and confidential
information relating to the business of any of the Parent, the Company or any of
their respective Subsidiaries (that does not rise to the status of a Trade
Secret under applicable law) that is or has been disclosed to the Executive or
of which the Executive became aware as a consequence of or through his
employment with the Company or any of its Subsidiaries and that has value to the
Parent, the Company or any of their respective Subsidiaries and is not generally
known to any of their respective competitors. Confidential Information does not
include any data or information that (a) has been voluntarily disclosed to the
general public by the Company (other than by any act or omission of the
Executive in breach of this Agreement), or (b) otherwise enters the public
domain through lawful means.
"Employment Period" has the meaning given to it in Section 2.2 hereof.
"Executive" has the meaning given to it in the preamble of this Agreement.
"Incapacity" means the Executive's inability to perform the essential
functions of his employment as required by this Agreement as a result of
incapacity due to physical or mental injury or illness for any thirty (30)
consecutive days or more than sixty (60) days, in the aggregate (whether or not
consecutive), during any three hundred sixty-five (365) day period.
"Initial Term" has the meaning given to it in Section 2.1 hereof.
"Material Adverse Effect" means a material adverse effect on the business,
assets, properties, results of operations, financial condition, prospects,
reputation or interests of the Company or any of its Affiliates.
"Non-Renewal Notice" has the meaning given to it in Section 2.1 hereof.
"Notice of Termination" has the meaning given to it in Section 2.2 hereof.
"Parent" means WLFI Holdings, Inc., a Florida corporation.
"Person" means an individual, a partnership, a corporation, a limited
liability company or partnership, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization or a governmental entity
(or any department, agency or political subdivision thereof).
"Renewal Term" has the meaning given to it in Section 2.1 hereof.
"Restricted Area" has the meaning given to it in Section 3.4 hereof.
"Restricted Business" has the meaning given to it in Section 3.4 hereof.
"Severance Period" has the meaning given to it in Section 2.5.2 hereof.
"Subsidiary" when used with respect to any Person means any other Person,
whether incorporated or unincorporated, of which (a) more than 50% of the
securities or other ownership interests or (b) securities or other interests
having by their terms ordinary voting power to elect more than 50% of the board
of directors or others performing similar functions with respect to such
corporation or other organization, is, in either such case, directly or
indirectly owned or controlled by such Person or by any one or more of its
Affiliates.
"Termination Date" has the meaning given to it in Section 2.2 hereof.
"Trade Secrets" means information of any of the Parent, the Company or any
of their respective Subsidiaries including, but not limited to, technical or
non-technical data, formulas, patterns, compilations, programs, financial data,
financial plans, product or service plans, business plans or lists of actual or
potential customers or suppliers that (a) 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 (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
"Welfare Plan Benefits" has the meaning given to it in Section 2.5.3
hereof.
EXHIBIT A
FORM OF RELEASE
[DATE], 200__
[NAME OF EMPLOYEE]
[ADDRESS]
[CITY], Florida [ZIP]
Dear: [NAME OF EMPLOYEE]
Reference is made to the Executive Employment Agreement between the Company
and you dated [____________, 200__]. This letter serves to document our mutual
understanding regarding the terms of your severance payments, and a full release
of any and all actual or potential claims relating to periods prior to the date
that this letter becomes effective.
[40 YRS OLD OR ABOVE: Provided that you execute this letter (including
attachments A&B) prior to the expiration of twenty-two (22) days after the date
hereof and you do not subsequently revoke this letter in accordance with the
provisions on revocation set forth on Attachment B hereto] [UNDER 40 YEARS OLD:
Provided that you execute this letter (including attachment A)], we shall, as
severance pay, (1) continue to pay you your annual base salary of [$INITIAL BASE
SALARY] as presently in effect in installments in accordance with the Company's
normal pay periods (subject to our right under Section 2.5.2 (b) of the
Employment Agreement to pay severance in a discounted lump sum), subject to
applicable withholdings, with no further benefit accrual (except as provided in
the next clause (2)), and (2) continue to provide you with the benefits as
described in, and in accordance with the provisions of, Section 2.5.3 of the
Employment Agreement for a period ending on [DATE SEVERANCE ENDS]. As provided
in the Employment Agreement, our obligation to pay you such severance and to
provide you such benefits is subject to your continued compliance with, and
observance of, all of your obligations under the Employment Agreement which
continue beyond the date on which your employment with the Company terminated.
We look forward to working with you on a smooth transition of your
responsibilities to others. We all appreciate your past efforts on behalf of the
Company and will be happy to help you implement your future plans.
Very Truly Yours,
Agreed and accepted:
-----------------------------------------------------
[NAME OF EMPLOYEE]
Date: _______________________________________________
[NAME OF EMPLOYER]
-----------------------------------------------------
By:
Title:
Date: _______________________________________________
ATTACHMENT A: RELEASE AND COVENANT NOT TO XXX
1._______Release. I, [INSERT NAME], do hereby release and discharge [NAME
OF EMPLOYER], each of its partners, and each of their subsidiaries',
stockholders' and subsidiaries' officers, directors, members, managers,
partners, stockholders, employees, representatives, agents and affiliates
(collectively, the "Employer Affiliates", and each an "Employer Affiliate") from
any and all claims, demands or liabilities whatsoever, whether known or unknown
or suspected to exist by me, which I ever had or may now have against any
Employer Affiliate, from the beginning of time to the Effective Date of the
letter (including its attachments), including, without limitation, any claims,
demands or liabilities in connection with my employment, including wrongful
termination, constructive discharge, breach of express or implied contract,
unpaid wages, benefits, attorneys fees or pursuant to any federal, state, or
local employment laws, regulations, or executive orders prohibiting inter alia,
age, race, color, sex, national origin, religion, handicap, veteran status, and
disability discrimination, including, without limitation, the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act of 1991, the Civil Rights Act of 1866, the Employee Retirement
Income Security Act of 1974, any state statute relating to employee benefits or
pensions, the Americans with Disabilities Act of 1990, [INSERT APPLICABLE STATE
LAWS], the Florida Civil Rights Act of 1992 (formerly known as the Civil Rights
Act of 1977), and the Florida Whistle-Blower Law. This Release does not waive
rights or claims that may arise after the Effective Date. I fully understand
that if any fact with respect to which this Release is executed is found
hereafter to be other than or different from the facts in that connection
believed by me to be true, I expressly accept and assume the risk of such
possible difference in fact and agree that the release set forth herein shall be
and remain effective notwithstanding such difference in fact. I acknowledge and
agree that no consideration other than as provided for by the letter to which
this release is an attachment has been or will be paid or furnished by any
Employer Affiliate.
2. Covenant Not to Xxx. I covenant and agree never, individually or with
any person or in any way, to commence, aid in any way, prosecute or cause or
permit to be commenced or prosecuted against any Employer Affiliate any action
or other proceeding, including, without limitation, an arbitration or other
alternative dispute resolution procedure, based upon any claim, demand, cause of
action, obligation, damage, or liability that is the subject of this letter
(including its attachments). I represent and agree that I have not and will not
make or file or cause to be made or filed any claim, charge, allegation, or
complaint, whether formal, informal, or anonymous, with any governmental agency,
department or division, whether federal, state or local, relating to any
Employer Affiliate in any manner, including without limitation, any Employer
Affiliate's business or employment practices. I waive any right to monetary
recovery should any administrative or governmental agency or entity pursue any
claim on my behalf.
3. Indemnification. I agree to indemnify and hold each Employer Affiliate
harmless from and against any and all claims, including each Employer
Affiliate's court costs and attorneys' fees, arising from or in connection with
any claim, action, or other proceeding made, brought, or prosecuted, or caused
or permitted to be commenced or prosecuted, by me, my successor(s), or assign(s)
contrary to the provisions of the letter (including its attachments). It is
further agreed that the letter (including its attachments) shall be deemed
breached and a cause of action accrued thereon immediately upon the commencement
of any action contrary to the letter (including the attachments), and in any
such action the letter (including its attachments) may be pleaded by the
Employer Affiliates, or any of them, both as a defense and as a counterclaim or
cross-claim in such action.
4. Important General Provisions. If any provisions of the letter (including
its attachments) is held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity
and enforceability of the other provisions thereof, and the provision held to be
invalid or unenforceable shall be enforced as nearly as possible according to
its original terms and intent to eliminate such invalidity or unenforceability.
The provisions hereof shall be governed by, and construed and enforced in
accordance with, the laws of the State of [_________], both substantive and
remedial. The undersigned hereby waives trial by jury in any judicial proceeding
involving, directly or indirectly, any matter (whether in tort, contract or
otherwise) in any way arising out of, related to, or connected hereto, the
partnership agreements or the relationship established under the letter
(including its attachments).
5. Right to Consult Attorney. I ACKNOWLEDGE THAT I HAVE BEEN ADVISED, IN
WRITING, TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THE LETTER (INCLUDING
ITS ATTACHMENTS).
______________________________ ______________________________
[NAME OF EMPLOYEE] Date
ATTACHMENT B: WAIVER OF CLAIMS UNDER OLDER WORKERS' BENEFIT PROTECTION ACT
PURSUANT TO THE OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA), WHICH APPLIES
TO THE WAIVER OF RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE
UNDERSIGNED STATES THAT HE/SHE HAS HAD A PERIOD OF 21 CALENDAR DAYS FROM THE
DATE HE/SHE WAS PRESENTED WITH THE LETTER (INCLUDING ITS ATTACHMENTS) ([INSERT
DATE]) WITHIN WHICH TO CONSIDER THE LETTER (INCLUDING ITS ATTACHMENTS) AND
HIS/HER DECISION TO EXECUTE THE SAME, THAT HE/SHE HAS CAREFULLY READ THE LETTER
(INCLUDING ITS ATTACHMENTS), THAT HE/SHE HAS HAD THE OPPORTUNITY TO HAVE IT
REVIEWED BY AN ATTORNEY, THAT HE/SHE FULLY UNDERSTANDS ITS FINAL AND BINDING
EFFECT, THAT THE ONLY PROMISES MADE TO HIS/HER TO SIGN THE RELEASE SET FORTH ON
ATTACHMENT A ARE THOSE STATED IN THE LETTER (INCLUDING ITS ATTACHMENTS), AND
THAT THE UNDERSIGNED IS SIGNING VOLUNTARILY WITH THE FULL INTENT OF RELEASING
THE EMPLOYER AFFILIATES OF ALL CLAIMS.
THE UNDERSIGNED SHALL HAVE A PERIOD OF SEVEN CALENDAR DAYS FOLLOWING
HIS/HER EXECUTION OF THE LETTER (INCLUDING ITS ATTACHMENTS) TO REVOKE THE LETTER
(AND ITS ATTACHMENTS). THE LETTER (AND ITS ATTACHMENTS), INCLUDING THE
OBLIGATION TO PAY SEVERANCE, SHALL NOT BECOME EFFECTIVE IF THE UNDERSIGNED
TIMELY EXERCISES THIS RIGHT OF REVOCATION. TO BE EFFECTIVE, ANY SUCH NOTICE OF
REVOCATION MUST BE IN WRITING, AND MUST BE RECEIVED WITHIN SAID SEVEN-DAY
PERIOD. THE LETTER (AND ITS ATTACHMENTS) SHALL BECOME EFFECTIVE UPON EXPIRATION
OF THE REVOCATION PERIOD, IF THE UNDERSIGNED HAS NOT PRIOR THERETO EXERCISED HER
RIGHT OF REVOCATION (THE "EFFECTIVE DATE").
____________________________ _____________________________
[NAME OF EMPLOYEE] Date
