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EXHIBIT 10.6
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EMPLOYMENT AGREEMENT
(XXXXXX X. XXXXXX)
EMPLOYMENT AGREEMENT (the "Agreement"), dated January 18, 2001, by and
among FNC Holdings Inc. ("Holdings"), Frank's Nursery & Crafts, Inc. (the
"Company") and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, Executive is currently employed as the Chief Executive Officer
of each of Holdings and the Company, and currently serves on the Board of
Directors of each of Holdings and the Company as Chairman of the Board and as a
member of the Executive Committee;
WHEREAS, Holdings and the Company desire to continue to employ
Executive and to enter into an agreement embodying the terms of such employment;
WHEREAS, Executive desires to continue such employment and enter into
such an agreement;
WHEREAS, Holdings and the Company each consider it essential to its
best interests and the best interests of its stockholders to xxxxxx the
continued employment of Executive by Holdings and the Company during the term of
this Agreement; and
WHEREAS, Executive is willing to accept and continue his employment on
the terms hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. TERM OF EMPLOYMENT; EXECUTIVE REPRESENTATION.
a. Employment Term. Subject to the remaining provisions of
this Agreement, Executive shall be employed by Holdings and the Company for a
period commencing on the date hereof and ending on January 31, 2003 (the
"Employment Term") on the terms and subject to the conditions set forth in this
Agreement.
b. Executive Representation. Executive hereby represents to
Holdings and the Company that (i) the execution and delivery of this Agreement
by Executive, Holdings and the Company and the performance by Executive of the
Executive's duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any employment agreement or other agreement or policy
to which Executive is a party or otherwise bound, and (ii) Executive has acted
in compliance with the provisions of Section 9 below at all times prior to the
date hereof.
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c. Prior Agreements. This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between Executive,
Holdings and/or the Company and/or any of their affiliates regarding the terms
and conditions of Executive's employment with Holdings, the Company and/or any
of their affiliates.
2. POSITION.
a. During the Employment Term, Executive shall serve as the
Chief Executive Officer of Holdings and the Company, and the Company shall use
reasonable best efforts to ensure that Executive is elected to serve, following
due nomination and Executive's agreement to run, as a member of the Executive
Committee (as long as such Executive Committee exists) and as Chairman of the
Board of Directors of each of Holdings and the Company. Executive shall
principally perform his duties to Holdings and the Company from the Company's
offices in the Troy, Michigan metropolitan area, subject to normal and customary
travel requirements in the conduct of such business. In such positions,
Executive shall have such duties and authority as shall be determined from time
to time by the Board of Directors of Holdings (the "Board"), and the Executive
shall report directly to the Board.
b. During the Employment Term, Executive will devote his full
business time and best efforts to the performance of his duties hereunder and
will not engage in any other business, profession or occupation for compensation
or otherwise which would conflict with the rendition of such services either
directly or indirectly, without the prior written consent of the Board.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of five hundred
seventy-five thousand dollars ($575,000), payable in regular installments in
accordance with the Company's usual payment practices. Executive shall be
entitled to such increases in his Base Salary, if any, as may be determined from
time to time in the sole discretion of the Compensation Committee of the Board.
4. ANNUAL BONUS. With respect to each calendar year during the
Employment Term, Executive shall be eligible to earn an annual bonus award (an
"Annual Bonus") in such amount, if any, as determined in the sole discretion of
the Compensation Committee of the Board.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
provided, in accordance with the terms of the Company's employee benefit plans
as in effect from time to time, health insurance and short term and long term
disability insurance, retirement benefits, vacation and fringe benefits
(collectively "Employee Benefits") on the same basis as those benefits are
generally made available to other senior executives of the Company.
6. BUSINESS EXPENSES. During the Employment Term, reasonable business
expenses incurred by Executive in the performance of his duties hereunder shall
be reimbursed by the Company in accordance with Company policies.
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7. TERMINATION. The Employment Term and Executive's employment
hereunder may be terminated by Holdings or Executive at any time and for any
reason, subject to the notice requirements set forth below. Notwithstanding any
other provision of this Agreement, the provisions of this Section shall
exclusively govern Executive's rights upon termination of employment with the
Holdings and the Company.
a. By Holdings For Cause or By Executive Resignation Without
Good Reason.
(i) The Employment Term and Executive's employment hereunder
may be terminated by Holdings for Cause (as defined below) upon 30 days advance
written notice, unless within 15 days after receiving such notice, Executive
shall have cured Cause to the reasonable satisfaction of the Board. Termination
shall be effected by a majority vote of the Board at a meeting at which
Executive shall have had the opportunity (along with counsel) to be heard. Any
voluntary termination of employment by Executive in anticipation of an
involuntary termination of Executive's employment by Holdings for Cause shall be
deemed to be a termination of Executive's employment by Holdings for Cause. The
Employment Term and Executive's employment hereunder also may be terminated by
Executive's resignation without Good Reason (as defined in Section 7(c));
provided that Executive will be required to give Holdings at least 30 days
advance written notice of a resignation without Good Reason.
(ii) For purposes of this Agreement, "Cause" shall mean: (A)
gross neglect or willful and continuing refusal to substantially perform
Executive's duties hereunder (other than due to physical or mental disability or
infirmity), (B) willfully engaging in conduct which Executive knows or should
know is injurious to The Cypress Group L.L.C., Holdings or their affiliates
(including the Company), or (C) a conviction or plea of guilty or nolo
contendere to a felony or a misdemeanor involving moral turpitude.
(iii) If Executive's employment is terminated by Holdings for
Cause, or if Executive resigns without Good Reason, Executive shall be entitled
to receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed calendar year;
(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy prior
to the date of Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive may
be entitled under the employee benefit plans of the Company (the
amounts described in clauses (A) through (D) hereof being referred to
as the "Accrued Rights").
Following such termination of Executive's employment by Holdings for
Cause or resignation by Executive without Good Reason, except as set forth in
this Section 7(a),
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Executive shall have no further rights to any compensation or any other benefits
under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive's employment hereunder
shall terminate upon his death, and may be terminated by Holdings due to
Executive's Disability. For purposes of this Agreement, "Disability" shall mean
the inability of Executive to substantially perform in all material respects his
duties and responsibilities hereunder by reason of a physical or mental
disability or infirmity, which inability is reasonably expected to be permanent
and has continued (A) for a period of 6 consecutive months, or (B) such shorter
period as the Board (or a committee designated by the Board) may reasonably
determine in good faith. The determination of whether Executive is Disabled
shall be made by the Board (or such committee) based upon such evidence as it
deems necessary and appropriate.
(ii) Upon termination of Executive's employment hereunder for
either Disability or death, Executive or his estate (as the case may be) shall
be entitled to receive:
(A) the Accrued Rights; and
(B) a pro rata portion of any Annual Bonus that the Executive
would have been entitled to receive in such year based upon Executive's
actual prior year Annual Bonus and the percentage of the calendar year
that shall have elapsed through the date of Executive's termination of
employment, payable when such Annual Bonus would have otherwise been
payable had the Executive's employment not terminated; and
(C) in the case of a termination of Executive's employment due
to Disability, if Executive is covered by a permanent disability policy
sponsored by the Company and the Board (or a committee designated by
the Board) determines a period in Section 7(b)(i)(B) above that is
shorter than the elimination period of such policy, continued payment
of the Base Salary until the earlier of (x) six months following the
date of termination due to Disability, and (y) the date that benefits
become available to Executive under such policy.
Following Executive's termination of employment due to death or
Disability, except as set forth in this Section 7(b), Executive shall have no
further rights to any compensation or any other benefits under this Agreement.
c. By Holdings Without Cause or Resignation by Executive for
Good Reason.
(i) The Employment Term and Executive's employment hereunder
may be terminated by Holdings without Cause or by Executive's resignation for
Good Reason; provided that notice of Good Reason shall be given to Holdings by
Executive at least 45 days prior to the intended termination date, and Holdings
and/or the Company shall have the opportunity to cure
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the Good Reason during the first 30 days of such notice period. If no notice is
given by Executive to Holdings within 90 days after the event giving rise to
Good Reason, the Good Reason shall be deemed to be waived.
(ii) For purposes of this Agreement, "Good Reason" shall mean:
(A) a significant reduction (10% or more) in Executive's Base Salary, (B) a
significant reduction (10% or more) in Executive's overall level of fringe
benefits taken as a whole (excluding for these purposes any bonus, incentive
compensation, stock option plan or other similar plan, program or benefit),
unless such reduction in benefits is generally applicable to other employees of
the Company or generally applicable to other participants in a particular plan
or program, (C) a substantial diminution in Executive's duties and
responsibilities which have the effect of causing Executive's position to be of
significantly lesser importance or influence, (D) a failure of Executive to be
elected to serve, following due nomination and Executive's agreement to run, as
a member of the Executive Committee (as long as such Executive Committee exists)
and as Chairman of the Board of Directors of each of Holdings and the Company,
or (E) a change in reporting requirements such that Executive is not reporting
directly and solely to the Board. Good Reason does not include voluntary
retirement.
(iii) If Executive's employment is terminated by Holdings
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights; and
(B) subject to Executive's continued compliance with the
provisions of Sections 8 and 9, continued payment of the Base Salary
until the later of (x) twelve months after the date of such termination
and (y) the expiration of the Employment Term determined as if such
termination had not occurred; provided that the aggregate amount
described in this clause (B) shall be reduced by the present value of
any other cash severance or termination benefits payable to Executive
under any other plans, programs or arrangements of the Company or its
affiliates.
Following Executive's termination of employment by Holdings without
Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
7(c), Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
d. Expiration of Employment Term.
(i) Election Not to Extend the Employment Term. In the event
the parties do not elect in writing to extend the Employment Term, Executive
shall be entitled to receive the Accrued Rights, but shall have no further
rights to any other compensation or any other benefits under this Agreement.
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(ii) Continued Employment Beyond the Expiration of the
Employment Term. Unless the parties otherwise agree in writing, continuation of
Executive's employment with Holdings and/or the Company beyond the expiration of
the Employment Term shall be deemed an employment at will and shall not be
deemed to extend any of the provisions of this Agreement and Executive's
employment may thereafter be terminated at will by either Executive, Holdings or
the Company, as applicable; provided that the provisions of Sections 8, 9 and 10
of this Agreement shall survive any termination of this Agreement or Executive's
termination of employment hereunder.
e. Notice of Termination. Any purported termination of
employment by Holdings or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of employment under the provision so
indicated.
8. NON-COMPETITION. Executive acknowledges and recognizes the highly
competitive nature of the businesses of Holdings, the Company and their
affiliates and accordingly agrees as follows:
(i) During the Employment Term and, for a period of one year
following the later of (A) the expiration of the Employment Term and (B) the
date the Executive ceases to be employed by either Holdings or the Company (the
"Restricted Period"), the Executive will not directly or indirectly, (w) engage
in any business for the Executive's own account that competes with the business
of Holdings, the Company or their affiliates (including, without limitation,
businesses which Holdings, the Company or their affiliates have specific plans
to conduct in the future and as to which Executive is aware of such planning),
(x) enter the employ of, or render any services to, any person engaged in any
business that competes with the business of Holdings, the Company or their
affiliates, (y) acquire a financial interest in, or otherwise become actively
involved with, any person engaged in any business that competes with the
business of Holdings, the Company or their affiliates, directly or indirectly,
as an individual, partner, shareholder, officer, director, principal, agent,
trustee or consultant, or (z) interfere with business relationships (whether
formed before or after the date of this Agreement) between Holdings, the Company
or any of their affiliates and customers, suppliers, partners, members or
investors of Holdings, the Company or their affiliates.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Executive may, directly or indirectly own, solely as an
investment, securities of any person engaged in the business of Holdings, the
Company or their affiliates which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if the Executive (A) is not a
controlling person of, or a member of a group which controls, such person and
(B) does not, directly or indirectly, own 5% or more of any class of securities
of such person.
(iii) During the Restricted Period, the Executive will not,
directly or indirectly, (A) solicit or encourage any employee of Holdings, the
Company or their affiliates to leave the
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employment of Holdings, the Company or their affiliates, or (B) hire any such
employee who was employed by Holdings, the Company or their affiliates as of the
date of Executive's termination of employment with Holdings, the Company or
their affiliates or who left the employment of Holdings, the Company or their
affiliates within one year prior to or after the termination of Executive's
employment.
(iv) During the Restricted Period, the Executive will not,
directly or indirectly, solicit or encourage to cease to work with Holdings, the
Company or their affiliates any consultant then under contract with Holdings,
the Company or their affiliates.
b. It is expressly understood and agreed that although
Executive, Holdings and the Company consider the restrictions contained in this
Section 8 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
9. CONFIDENTIALITY. Executive will not at any time (whether during or
after his employment with Holdings and/or the Company) disclose or use for his
own benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than Holdings, the Company and any of
their subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of Holdings or the Company generally, or of any subsidiary
or affiliate of Holdings or the Company, provided that the foregoing shall not
apply to information which is not unique to Holdings or the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with Holdings and the Company for any reason, he will return
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of Holdings, the Company and their affiliates, except that he may retain
personal notes, notebooks and diaries that do not contain confidential
information of the type described in the preceding sentence. Executive further
agrees that he will not retain or use for his account at any time any trade
names, trademark or other proprietary business designation used or owned in
connection with the business of Holdings, the Company or their affiliates.
10. SPECIFIC PERFORMANCE. Executive acknowledges and agrees that
Holdings' and the Company's remedies at law for a breach or threatened breach of
any of the provisions of Section 8 or 9 would be inadequate and, in recognition
of this fact, Executive agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, Holdings and/or
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the Company, without posting any bond, shall be entitled to cease making any
payments or providing any benefit otherwise required by this Agreement and
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
11. MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Executive
by Holdings and the Company. 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. 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.
d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement shall not be assignable by
Executive. This Agreement may be assigned by Holdings or the Company to a
company which is a successor in interest to substantially all of the business
operations of Holdings or the Company. Such assignment shall become effective
when Holdings or the Company notifies the Executive of such assignment or at
such later date as may be specified in such notice. Upon such assignment, the
rights and obligations of Holdings or the Company hereunder shall become the
rights and obligations of such successor company, provided that any assignee
expressly assumes the obligations, rights and privileges of this Agreement.
f. Mitigation. Executive shall be required to mitigate the
amount of any payment provided for pursuant to this Agreement by seeking other
employment, taking into account the provisions of Section 8 of this Agreement.
Anything in this Agreement to the contrary notwithstanding, in the event that
Executive provides services for pay to anyone other than Holdings, the Company
or any of their affiliates from the date Executive's employment hereunder is
terminated until the end of the Employment Term (determined as if Executive's
employment had not been terminated), the amounts paid to Executive during such
period pursuant to this Agreement shall be reduced by the amounts of salary,
bonus or other cash
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compensation earned by Executive during such period as a result of Executive's
performing such services (regardless of when such earned amounts are actually
paid to Executive).
g. Successors; Binding Agreement. This Agreement shall inure
to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributes, devises and legatees.
h. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below Agreement, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon receipt.
If to Holdings or the Company:
FNC Holdings Inc.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attention: _______________
With a copy to:
The Cypress Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
If to Executive:
To the most recent address of Executive set forth in the personnel
records of the Company.
i. Withholding Taxes. The Company may withhold from any
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.
j. 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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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
FNC HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Secretary
FRANK'S NURSERY & CRAFTS, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Secretary
