Exhibit 10(o)
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into on January 29,
1998 (the "Effective Date") by and between Thomasville Furniture
Industries, Inc., a Delaware corporation ("Thomasville") and Xxxxxxxxx
X. Xxxxx ("Executive").
WHEREAS, Executive is now and has been employed by Thomasville in
senior management executive positions and is broadly experienced in
all facets of Thomasville's operations; and
WHEREAS, it is in the best interests of Thomasville to assure
that it will have the continued dedication of Executive;
NOW THEREFORE, for good and valuable consideration and in order
to induce Executive to remain in the employ of Thomasville, the
parties covenant and agree as follows:
1. Definitions. The following terms shall have the following
meanings for purposes of this Agreement.
a. "Cause" means (i) an act or acts of personal dishonesty taken
by Executive and intended to result in substantial personal
enrichment of Executive at the expense of Thomasville, (ii)
violations by Executive of this Agreement or Executive's
employment obligations to Thomasville which are demonstrably
willful on Executive's part and which are not remedied within
a reasonable period of time after receipt of written notice
from Thomasville, or (iii) the conviction of Executive of a
felony involving moral turpitude.
b. "Disability" means the incapacity to attend to and perform
effectively one's duties and responsibilities which continues
for at least 26 weeks after its commencement, as determined
by a physician selected by Thomasville.
c. "Employment Period" that period beginning on the Effective
Date and ending upon Executive's retirement or earlier
termination of employment.
2. Employment. Thomasville agrees to employ Executive, and
Executive agrees to serve Thomasville in an executive, managerial
and supervisory capacity, subject to the direction and control of
the Board of Directors of Thomasville, all upon the terms and
conditions hereinafter set forth. During the Employment Period:
a. Executive's position (including, without limitation, status,
offices, titles and reporting requirements), authority, duties
and responsibilities shall be at least commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date,
b. Executive's services shall be performed at the location where
the Executive is employed on the Effective Date, or at any office
or location not more than thirty-five (35) miles from such
location,
c. Executive shall continue to receive an annual base salary at
least equal to the annual base salary payable to the Executive by
Thomasville on the Effective Date ("Base Salary"),
d. Executive shall continue to have an annual cash bonus
potential, either pursuant to the Lane Profit Sharing Plan in
effect on the Effective Date or pursuant to a similar incentive
compensation plan of Thomasville, at least equal to the level in
existence on the Effective Date ("Annual Bonus"), and
e. Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs
applicable to other key executive employees of Thomasville
("Benefit Plans").
The failure of Thomasville, without Executive's consent, to comply
with the terms and conditions of employment as set forth in this
Section 2 shall constitute "Good Reason" for Executive's termination
of his employment with Thomasville.
3. Best Efforts. Executive agrees during the Employment Period
to devote his best efforts and substantially all of his business time
and attention to the business of Thomasville, it being agreed that the
Executive will have complied with this obligation if he devotes to the
business of Thomasville his same best efforts and the same time and
attention to the business of Thomasville that he has devoted to the
business of Thomasville during the twelve months next preceding the
Effective Date. Executive agrees that he will perform such other
executive duties for Thomasville and for Thomasville's subsidiaries
relating to its business as the Board of Directors of Thomasville may
reasonably direct.
4. Term. Subject to the provisions of Sections 4 and 5 of this
Agreement, either party shall have the right to terminate the
Employment Period at any time. If Executive's employment with
Thomasville is terminated by Thomasville, other than for Cause or as a
result of his death or Disability, or if Executive terminates his
employment with Thomasville for Good Reason, then Thomasville will,
for a period of one year after the termination date (or, if shorter,
until Executive reaches "Normal Retirement Age" (as such concept is
used in the primary retirement plan in which Executive is a
participant on the Effective Date)), (i) pay to Executive as and when
normally payable his Base Salary as in effect on the date of
termination and an amount equal to the average Annual Bonus received
by such Executive for the past three years prior to termination (or a
pro-rated portion of such average Annual Bonus) and (ii) subject to
program eligibility requirements and continuation of programs by
Thomasville, continue his participation in the Benefit Plans in which
he was participating on the date of termination of employment.
5 Split Dollar Insurance Policy. If Executive's employment with
Thomasville is terminated by Thomasville other than for Cause or as a
result of his death or Disability, or if during such period Executive
terminates his employment with Thomasville for Good Reason, then
Thomasville will continue to make premium payments for so long as
Thomasville is making payments to Executive under Section 4 hereof
under any and all split dollar life insurance programs in effect on
the life of the Executive as of the Effective Date, after which the
Executive will be entitled to ownership of the policy and Thomasville
will be entitled to premium retrieval, all in accordance with the
terms of the program, but only to the extent of the cash value of the
policy, and without recourse to the Executive for the balance of any
such premium retrieval.
6. Non-Competition. During the period commencing on the
Effective Date and while employed by Thomasville, and for a period of
one year after termination of employment, Executive shall not, without
the prior written consent of Thomasville, directly or indirectly, own,
control, finance, manage, operate, join or participate in the
ownership, control, financing, management or operation of, or be
connected as an employee, consultant or in any other capacity with,
any business engaged in the manufacture or distribution of residential
furniture in the United States. Nothing in this Section 6 shall,
however, restrict Executive from making investments in other ventures
which are not competitive with Thomasville, or restrict Executive from
owning less than one percent (1%) of the outstanding securities of
companies listed on a national stock exchange or actively traded in
the "over-the-counter" market. In addition, if the Employment Period
is terminated by Thomasville (other than for Cause) and the Executive
elects to forego the payments called for in Sections 4 and 5 hereof,
the provisions of this Section 6 shall not apply. Should any of the
terms of this Section 6 be found to be unenforceable because they are
over-broad in any respects then they shall be deemed amended to the
extent, and only to the extent, necessary to render them enforceable.
Both parties stipulate that money damages would be inadequate to
compensate for any breaches of the terms of this Section 6, and that
such terms shall be enforceable through appropriate equitable relief,
without the necessity of proving actual damages and to an equitable
accounting of all earnings, profits, and other benefits arising from
such violation, which rights shall be cumulative and in addition to
any other rights and remedies to which Thomasville may be entitled.
7. Confidentiality. During the Employment Period and at all
times thereafter, Executive shall maintain the confidentiality of, and
shall not disclose to any person (except as his duties as an employee
of Thomasville may require) any non-public information concerning
Thomasville or its business.
8. Miscellaneous. This Employment Agreement shall be binding
upon and shall inure to the benefit of Executive's heirs, executors,
administrators and legal representatives, and shall be binding upon
and inure to the benefit of Thomasville and its successors and
assigns. This Agreement shall supersede and stand in place of any and
all other agreements between Executive and Thomasville regarding
severance pay and/or any and all severance pay benefits pursuant to
any plan or practice of Thomasville. This Employment Agreement shall
take effect as of the day and year first above set forth, and its
validity, interpretation, construction and performance shall be
governed by the laws of the State of Mississippi.
9. Indemnification. In the event that either party hereto is
required to pursue litigation against the other party to enforce his
or its rights hereunder, the prevailing party in any such litigation
shall be entitled to reimbursement of the costs and expenses of such
litigation, including attorney's fees.
10. Waivers. In consideration of the undertakings of
Thomasville set forth in this Agreement, Executive hereby irrevocably
waives and forever releases any and all claims and causes of action of
any nature whatsoever that Executive has or may have against
Thomasville or any of its officers, directors, employees or agents
arising out of the negotiation, execution, delivery or terms of this
Agreement, including, without limitation, any claims arising under the
Age Discrimination in Employment Act, 29 U.S.C. Subsection 21 et seq.,
and any state or local law relating to age discrimination.
11. Entire Agreement. This Agreement contains the entire
agreement of the parties with respect to its subject matter, and no
waiver, modification or change of any of its provisions shall be valid
unless in writing and signed by the party against whom such claimed
waiver, modification or change is sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have each executed this
Agreement the date set forth below.
THOMASVILLE FURNITURE
INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxxxxxx
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Vice-President
Agreed to and Approved:
FURNITURE BRANDS XXXXXXXXX X. XXXXX
INTERNATIONAL, INC.
By: /s/ X.X. Xxxxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
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President
