EXHIBIT 10.200
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of
October 1, 2000, by and between Catalina Lighting, Inc., a Florida corporation
(the "Company"), and Xxxxx Xxxxxxx (the "Executive").
WHEREAS, the Executive and the Company entered into an Employment
Agreement, dated as of May 7, 1998, as amended; and
WHEREAS, the Company desires to continue to employ the Executive, and
the Executive desires to remain employed by the Company, in accordance with the
provisions contained in this Agreement,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. Employment, Duties and Acceptance. The Company agrees to employ the Executive
during the Term of this Agreement (as defined in Article 2 of this Agreement),
and the Executive accepts such employment. Subject to the direction of the Board
of Directors of the Company, the Executive shall serve as the Senior Vice
President of the Company. The Executive shall have such responsibilities,
perform such duties, and exercise such power and authority as are inherent in,
or incident to, the offices of Senior Vice President. The Executive shall devote
his full business time and attention and his best efforts to the performance
of his duties as an employee of the Company.
2. Term. The Term of this Agreement shall be for a period commencing on October
1, 2000, and ending on the earlier of (a) September 30, 2001, or (b) such date
as the Executive's employment may be terminated by either the Company or the
Executive pursuant to Article 4 of this Agreement.
3. Compensation.
3.1 Salary. As compensation for all services to be performed by the
Executive pursuant to this Agreement, the Company shall pay the Executive during
the Term a salary of $210,000 per annum, less all required and authorized
withholdings and deductions. Salary payments shall be made to the Executive in
accordance with the Company's regular pay practices for executives.
3.2 Bonus. The Executive shall receive one or more bonus payments to be
calculated and paid in such a manner as will be determined by the Compensation
Committee of the Board of Directors or the Company.
3.3 Employee Benefit Plans. The Executive shall be entitled to receive
such benefits and to participate in such benefits plans as are generally
provided from time to time by the Company to its senior management employees;
provided, however, that nothing in this Agreement shall be construed to obligate
the Company to provide any specific benefits to employees generally.
3.4 Vacation. The Executive shall be entitled to four (4) weeks of paid
vacation time on an annual basis, or such greater amount of vacation time as may
be provided in accordance with
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the policies as are from time to time adopted by the Company's Board of
Directors with respect to its senior management employees. Such paid vacation
must be taken at a time and in a manner consistent with the duties of the
Executive.
3.5 Business Expenses. The Executive shall be entitled to reimbursement
for reasonable business expenses incurred in connection with his employment,
including customer entertainment.
3.6 Automobile. The Company shall either (i) lease an automobile for
the Executive's use and pay the cost of insurance, maintenance and gasoline for
the automobile to the extent it is utilized for the Company's business, or (ii)
provide the Executive with a comparable automobile allowance.
3.7 Nonrenewal; Severance.
(a) The Company shall notify the Executive on or before the
last business day that is at least six months prior to the expiration of the
then-current term of this Agreement, whether the Company intends to renew this
Agreement. The failure of the Company to provide timely notice of intent to
renew this Agreement shall not result in automatic renewal of this Agreement.
This Agreement may not be renewed except by written amendment jointly executed
by the parties hereto; notice of intent to renew shall not itself constitute
renewal of the Agreement.
(b) If the Company elects not to renew the Agreement, then the
Company shall, within thirty (30) days after the expiration of the then-current
term, pay to the Executive an amount equal to the annual base salary of the
Executive immediately prior to the expiration of the then-current term, less all
required and authorized withholdings and deductions. Additionally, the Company
shall continue to provide all benefits and allowances to the Executive and/or
the Executive's immediate family members for a period of one year following the
expiration of the then-current term, less any insurance amounts available to the
Executive and/or his immediate family members from other sources; provided,
however, that the Company may, at its option, elect to pay the Executive the
value of such benefits and allowances in a lump sum payment within thirty (30)
days after the expiration of the then-current term.
4. Termination of Employment
4.1 Termination upon Death
(a) The Company shall provide life insurance to the Executive
on the same or substantially the same terms provided to the Executive on the
Effective Date of this Agreement. The life insurance policies provided by the
Company to the Executive on the Effective Date of this Agreement are set forth
in Exhibit D.
(b) The employment of the Executive under the Agreement shall
terminate upon the death of the Executive. In such case, the Company shall pay
the legal representatives of the Executive an amount in cash equal to the
compensation owing to the Executive as of the date of his death, less all
required and authorized withholdings and deductions.
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4.2 Termination upon Disability.
(a) The Company shall continue to provide disability insurance
to the Executive on the same or substantially the same terms as provided to the
Executive on the Effective Date of this Agreement. The disability insurance
policies provided by the Company to the Executive on the Effective Date of this
Agreement are set forth in Exhibit C.
(b) If, during the Term of his employment, the Executive
suffers a Disability (as hereinafter defined) for a period of three consecutive
months or more, the Company may, after the expiration of such three-month period
and prior to the Executive resuming his full-time duties hereunder, terminate
the employment of the Executive upon prior written notice to the Executive,
which notice shall specify a date (which may be the date of such notice or any
later date) as of which such termination is to become effective (the "Disability
Termination Date"). Subsequent to the Disability Termination Date, the Executive
or his legal representatives shall be entitled to receive any benefits which may
be payable under all disability insurance policies and disability plans provided
by the Company, without offset for any other insurance or disability payments to
which the Executive may be entitled under insurance policies owned by him.
(c) For purposes of this Article 4.2, Disability shall mean
any mental or physical condition or incapacity which prevents the Executive from
discharging his duties and responsibilities as an officer of the Company.
4.3 Termination for Cause. The Company may terminate the Executive's
employment for Cause (as hereinafter defined) at any time, with or without prior
notice. In the event of termination of the Executive's employment for Cause, all
compensation of the Executive and any other rights the Executive may have under
this Agreement shall cease upon the termination date of his employment, and no
further payments or benefits shall be paid or payable to the Executive by the
Corporation for any period thereafter, except to the extent that Executive shall
have accrued benefits under any retirement plan adopted by the Corporation for
the benefit of its employees. For purposes of this Agreement, Cause shall mean
(a) fraud, dishonesty, embezzlement or other similar acts of willful misconduct
by the Executive, or (b) any other act or omission of the Executive that could
reasonably be expected to result in material harm to the business or reputation
of the Company or any of its subsidiaries or joint ventures (as determined by
the Board of Directors of the Company), which conduct continues unremedied for
thirty (30) days after written notice from the Board of Directors of the Company
setting forth in reasonable detail a description of such conduct.
4.4 Termination by the Board of Directors. During the term of this
Agreement, the Company may, upon sixty days' notice, terminate the Executive's
employment other than for Cause or Disability upon resolution by the Board of
Directors in its sole discretion. Upon termination of employment other than for
Cause or Disability during the term of this Agreement:
(a) The Company shall pay to the Executive a contractual
termination payment in an amount equal to the sum of: (i) all unpaid salary and
bonus payments remaining over the balance of the then-current term of this
Agreement; (ii) the value of all benefits and allowances remaining over the
balance of the then-current term of this Agreement; (iii) the Executive's annual
base salary as of the effective date of termination; and (iv) a bonus payment,
calculated
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on the basis of the quarter in which the termination becomes effective and the
three quarters immediately preceding such quarter. The Company shall pay this
contractual termination amount within thirty (30) days after the effective date
of termination.
(b) For a period of one year after the Executive's
employment with the Company ends, the Company shall provide to the Executive, at
the Company's expense, such health (including dental), life, and long-term
disability insurance coverage then generally provided to employees of the
Company. During the one-year period after the date upon which the Executive's
employment with the Company ends, the insurance coverage that the Executive
would otherwise receive pursuant to this Article 4.4(b) shall be reduced by an
amount equal to any insurance coverage actually obtained by the Executive and/or
his family members from any source other than the Company.
(c) During the one-year period after the Executive's
employment with the Company ends, the Company shall continue to provide the
Executive, at the Company's expense, with an automobile in accordance with the
provisions of Article 3.6 of this Agreement.
The Company may, at its option, elect to pay the Executive all or part
of the value of the benefits and allowances described in Articles 4.4(b) and
4.4(c) of this Agreement in a single lump sum payment within thirty (30) days
after the effective date of termination.
4.5 Termination by Executive. The Executive may terminate his
employment at any time. In such case, the Company shall pay the Executive his
salary (then in effect) accrued up to the date when such termination occurs,
less all required and authorized withholdings and deductions.
4.6 Stock Options. In the event of termination of the Executive's
employment with or without Cause, the Board of Directors in its sole discretion
may, upon ten days' written notice, terminate the Executive's right to
participate in any stock option plan of the Company.
5. Indemnification. To the fullest extent required by law, the Company shall
indemnify the Executive in the event the Executive is made or threatened to be
made a party to any action, suit, or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he is or was a
director, office, or employee of the Company.
6. Acquisition of Control. The terms of Appendix A to this Agreement shall be
applicable in the event of an Acquisition of Control. For purposes of this
Agreement, Acquisition of Control shall mean:
(a) any person or group, without the approval of a majority of
the incumbent directors, becoming the beneficial owner, (as defined by
applicable Florida law) of, or acquiring the power to direct the exercise of
voting power with respect to, directly or indirectly, securities which represent
twenty percent (20%) or more of the combined voting power of the Company's
outstanding securities thereafter, whether or not some portion of such
securities was previously owned by such person or by any member of such group.
(b) the election of three or more directors of the Company
within any twelve-month period without the approval of a majority of the
then-incumbent directors; or
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(c) the incumbent directors cease at any time to constitute a
majority of the Board of Directors, whether of (i) the Company or (ii) after any
cash tender offer or exchange offer, merger, consolidation or other business
combination, recapitalization of the Company, sale, liquidation or dissolution
(or adoption of a plan for liquidation or dissolution), or any combination of
any or all of the foregoing transactions, including but not limited to a series
of such transactions, any successor to the Company.
7. Confidential Information and Non-Competition Covenants.
7.1 Nondisclosure. The Executive shall not at any time during or after
the Term disclose, directly or indirectly, any confidential information
relating to the Company or any of its subsidiaries or affiliates, including but
not limited to any information concerning the financial condition, assets,
personnel, procedures, techniques, customers, sources of leads and methods for
obtaining new business, or the methods generally of doing and operating the
respective businesses of the Company and its subsidiaries and affiliates, except
to the extent that such information has already become a matter of public
knowledge by means not in violation of law or this Agreement, or is required to
be disclosed by law or judicial or administrative process.
7.2 Non-Competition: Non-Solicitation of Customers and Employees.
During the Term and for one (1) year after the termination of the Executive's
employment with the Company for any reason whatsoever, but provided the Company
complies with, performs and fulfills all its obligations, if any, to the
Executive following such termination, the Executive shall not, unless acting
with the Company's prior written consent or as an officer, employee or agent of
the Company, or of any corporation controlled by, controlling, or under common
control with the Company, (i) acquire or own in any manner any interest in, or
loan any amount to, any person, firm, partnership, corporation, association or
other entity which competes in any manner with the electric lighting fixtures
and lamps business of the Company or any of its subsidiaries or affiliates in
the United States of America of its territories or possessions (the
"Territory"), (ii) be employed by or serve as an employee, agent, officer,
director of, or as a consultant to, any person, firm, partnership, corporation,
association or other entity, other than the Company and its subsidiaries and
affiliates, which competes in any manner with the electric lighting fixtures and
lamps business of the Company or its subsidiaries and affiliates in the
Territory, or (iii) compete in any manner with the electric lighting fixtures
and lamps business of the Company or its subsidiaries or affiliates in the
Territory, (iv) induce or attempt to induce any major client of the Company (a
"major client" being defined as any client from which the Company obtained
purchase orders in the aggregate amount of $5,000,000 or more during the period
of time including the fiscal quarter in which the termination or the Executive's
employment occurs and the preceding three quarters) to cease doing business
with, or not to do business with the Company, or (v) induce or attempt to induce
any officer or employee of the Company to terminate his or her employment with
the Company.
7.3 Remedies. If the Executive commits breach, or threatens to commit a
breach, of any of the provisions of this Section 7 the Company shall have the
following rights and remedies:
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(a) The right and remedy to have the provisions of this
Section 7 specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company; and
(b) The right and remedy to require the Executive to account
for and pay over to the Company all compensation, profits, monies, accruals,
increments, or other benefits (hereinafter collectively referred to as the
"Benefits") derived or received by the Executive as the result of any
transactions constituting a breach of any of the provisions of this Section 7,
the Executive hereby agreeing to account for and pay over the Benefits to the
Company.
7.4 Injunction. The Executive acknowledges and agrees that a breach by
the Executive of any of the provisions of this Section 7 will cause irreparable
harm to the Company and its subsidiaries and affiliates in a monetary amount
that would be virtually impossible to ascertain. Accordingly, the Executive
acknowledges and agrees that the Company, its subsidiaries, and affiliates shall
be entitled to a temporary restraining order and/or injunction from any court of
competent jurisdiction enjoining and restraining any actual or threatened
violation by the Executive and/or his affiliates employees, associates, partners
or agents, either directly or indirectly, of any or all of the Executive's
covenants contained in this Section 7. Nothing in this Agreement shall be
construed to prevent the Company and its subsidiaries and affiliates from
seeking and recovering damages where appropriate.
7.5 Savings Clause. If any covenant or agreement contained in this
Section 7 is held to be unenforceable in whole or in part by a court of
competent jurisdiction because of its duration, geographic area, or covered
activities, then such duration, area, or activities shall be reduced or amended
by the court to such an extent as to make it valid and enforceable in the
jurisdiction where the agreement is to be enforced, and in all other respects it
shall remain in full force and effect.
8. Arbitration of Disputes. The parties hereto shall use their best efforts to
settle amicably any disputes, differences, or controversies concerning the
interpretation or enforcement of this Agreement. However, in the event any such
disputes, differences, or controversies are not so settled, the same shall be
submitted to, and finally settled by, arbitration in accordance with the Rules
of American Arbitration Association then in effect or such other rules as the
parties may designate at such time. The arbitration shall be conducted by one or
more arbitrators appointed in accordance with said rules, and shall be held in
Miami, Florida. The fee(s) of the arbitrator(s) shall be borne equally by the
parties. Judgement upon the award rendered by the arbitrator(s) shall be entered
in any court having jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may
be. The provisions of this Section 8 shall not apply to actions in law or in
equity brought by the Company to enforce the provisions of Section 7
(Confidential Information and Noncompetition Covenants).
9. Attorneys' Fees. In the event a party seeks to enforce any provision of this
Agreement and receives any legal or equitable relief from an arbitrator or court
of competent jurisdiction which is final and not subject to appeal, such party
shall be entitled to recover its reasonable attorneys'
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fees and costs incurred with respect to obtaining such relief from the other
party. The provisions of this Section 9 are not intended to modify the
provisions of Sections 5 and 8 of this Agreement.
10. Other Provisions.
10.1 Notices. Any communication required or permitted hereunder shall
be in writing and shall be deemed given when delivered personally, telegraphed,
telexed, or sent by facsimile transmission (with confirmation) or, if sent by
regular mail, three days after the date of deposit in the United States mails
addressed as follows:
(a) if to the Company, to: Catalina Lighting, Inc.
00000 XX 00 Xxxxxx
Xxxxx, Xxxxxxx 00000
(b) if to the Executive, to: Xxxxx Xxxxxxx
Catalina Lighting, Inc.
00000 XX 00 Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other address as either party may from time to time provide to the
other in writing.
10.2 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the Company and the Executive, and supersedes all
prior negotiations, agreements, arrangements, and understandings, both written
or oral, between the Company and the Executive with respect to the subject
matter and the Term of this Agreement. This Agreement may not be amended except
by written instrument executed by each of the Company and the Executive.
10.3 Waivers and Amendments. The waiver by either party of a breach or
violation of any term or provision of this Agreement by the other party shall
not operate nor be construed as a waiver of any subsequent breach or violation
of any provision of this Agreement nor of any other right or remedy.
10.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without regard to its
conflict of laws rules.
10.5 Assignment. This Agreement shall inure to the benefit of, and
shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, successors, and assigns.
10.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof. In the event that any part of this Agreement shall be declared
invalid by a court of competent jurisdiction, then, in such event, this
Agreement shall be construed as if such invalid part had not been inserted.
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10.7 Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect any way the meaning or
interpretation of any or all of the provisions of this Agreement.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties hereto in separate counterparts, each
of which shall be deemed to constitute an original and all of which shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
CATALINA LIGHTING, INC.
By: /s/ [SIGNATURE ILLEGIBLE] CEO
------------------------------
EXECUTIVE:
/s/ XXXXX XXXXXXX
------------------------------
XXXXX XXXXXXX
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APPENDIX A:
ACQUISITION OF CONTROL
1. In the event that (i) there is an Acquisition of Control and
(ii) either (A) the Executive is employed by the Company on the 180th day
following the date on which the Acquisition of Control occurs, or (B) the
Executive's employment with the Company is terminated either by the Company
without Cause or by the Executive within 180 days after the date on which the
Acquisition of Control occurs (the events referred to in clauses (A) and (B)
hereof being referred to hereinafter as "Triggering Events"), then:
a. the Company shall pay to the Executive an amount equal to
two (2) times the sum of (i) the Executive's Salary for the then current fiscal
year of the Company, and (ii) a bonus payment calculated on the basis of the
formula determined by the Compensation Committee pursuant to Section 3.2 of this
Agreement for the quarter in which the Triggering Event occurs and the three
quarters immediately preceding such quarter (the payment referred to in this
subparagraph (a) being referred to hereafter as a "Change in Control Payment");
b. the Company shall continue to provide welfare benefits and
automobile allowances to the Executive and/or the Executive's family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices and policies of the Company if the Executive's
employment had not been terminated, including health, dental, disability
insurance, life insurance, automobile lease and related expense allowances, in
accordance with the most favorable plans, practices, programs or policies of the
Company during the 180-day period immediately preceding the date on which the
Triggering Event occurs, or, if more favorable to the Executive, as in effect at
any time thereafter with respect to other key executives and their families, for
a period of three (3) years commencing as of the date on which the Triggering
Event occurs; and
c. the provisions of Section 7.2 of this Agreement shall be of
no force and effect.
2. The Change in Control payment shall be made by the Company to
the Executive in a single lump sum payment immediately upon the occurrence of a
Triggering Event. Notwithstanding anything in this Agreement to the contrary, if
the Executive's employment with the Company is terminated either by the Company
without Cause or by the Executive prior to the date on which an Acquisition of
Control occurs, and it is reasonably demonstrated that such termination (i) was
at the request of a third party who has taken steps reasonably calculated to
effect an Acquisition of Control, or (ii) otherwise arose in connection with an
Acquisition of Control, then the Acquisition of Control shall be deemed to be
Triggering Event for the Executive and the Executive shall be entitled to the
benefits under the Appendix A.
3. In addition to the foregoing, upon the termination of the
Executive's employment with the Company for any reason after the date on which
and Acquisition of Control occurs, the Company shall continue to pay to the
Executive the Executive's Compensation (as defined in
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Article 3 of this Agreement) as accrued through the date of termination of the
Executive's employment, less all required and authorized withholdings and
deductions.
4. If the Executive's employment with the Company terminates for
any reason other than for Cause or Disability within one (1) year following an
Acquisition of Control, then the Executive shall have the option, for thirty
(30) days after the date of such termination of employment, to enter into a two
(2) year consulting and non-competition agreement (the "Consulting Agreement")
with the Company, in the form attached as Appendix B to this Agreement, which
shall take effect as of the date it is executed and delivered to the Company.
5. Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the Company
to or for the benefit of the Executive, whether paid or payable or distributed
or distributable pursuant to the terms of the Agreement or otherwise
("Payment"), would be nondeductible by the Company for Federal income tax
purposes because of Section 280G of the Internal Revenue Code ("Code"), then the
aggregate present value of amounts payable or distributable to or for the
benefit of the Executive pursuant to this Agreement (such payments or
distributions pursuant to this Agreement are hereinafter referred to as
"Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced
Amount" shall be an amount expressed in present value which maximizes the
aggregate present value of Agreement Payments without causing any payment to be
nondeductible by the Company because of Section 280G of the Code. For purposes
of this Section 5 of Appendix A, present value shall be determined in accordance
with Section 280G(d)(4) of the Code. For purposes of this Section 5 of Appendix
A, the terms "Payment" and "Agreement Payments" shall not include any payments
required to be made to the Executive pursuant to the Consulting Agreement (as
defined in Section 4 of this Appendix A), and any payments pursuant to the
Consulting Agreement shall be disregarded in making any determinations, and thus
shall not be subject to any reductions or cause any Payments to be reduced,
pursuant to this Section 5 of Appendix A.
6. A1l determinations required to be made under Section 5 of this
Appendix A shall be made by Deloitte & Touche LLP or, at the Company's option,
any other nationally recognized firm or independent public accountants selected
by the Executive and approved by the Company, which approval shall not be
unreasonably withheld or delayed (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and the Executive as of the
date on which the Acquisition of Control occurs or such other time as is
requested by the Company. Any such determination by the Accounting Firm shall be
binding upon the Company and the Executive. The Executive shall determine which
and how much of the Payments shall be eliminated or reduced consistent with the
requirements of Section 5 of this Appendix A, provided that, if the Executive
does not make such determination within ten business days of the receipt of the
calculations made by the Accounting Firm, the Company shall elect which and how
much of the Payments shall be eliminated or reduced consistent with the
requirements of this Appendix A and shall notify the Executive promptly of such
election. All fees and expenses of the Accounting Firm incurred in connection
with the determinations contemplated by this Section 6 of Appendix A shall be
borne by the Company.
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APPENDIX B:
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
effective as of September 30, 1999, by and among CATALINA LIGHTING, INC., a
Florida corporation (the "Company") and XXXXX X. XXXXXXX (the "Consultant").
RECITATIONS
A. The Company recognizes that the Consultant possesses extensive
knowledge and experience regarding the businesses in which the Company is
engaged and all aspects of the Company's operations. The Company believes that
the Consultant's business advice will be extremely beneficial to the Company and
wishes to obtain such advice and the benefit of the Consultant's knowledge and
experience.
B. The Company desires to retain the services of the Consultant
and the Consultant desires to provide services to the Company, subject to the
terms and conditions set forth in this Agreement.
OPERATIVE PROVISIONS
In consideration of the foregoing recitations, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, the parties hereto, intending
legally to be bound, hereby covenant and agree as follows:
ARTICLE I
ENGAGEMENT OF SERVICES
1.1 Engagement of Consultant. The Company hereby engages the
Consultant and the Consultant hereby agrees to provide consulting services as
set forth in Section 1.2 of this Agreement.
1.2 Services to be Provided.
(a) Services. During the term of this Agreement, the
Consultant shall make himself available to consult with the Chief Executive
Officer (the "CEO"), upon reasonable notice from the Company, during the
Company's normal business hours. The Consultant shall report exclusively to the
CEO and shall perform such consulting services (consistent with the services the
Consultant previously provided to the Company while he was an employee) as shall
be requested by the CEO from time to time (collectively referred to herein as
the "Services").
(b) Performance of Services. The Consultant is
responsible for reasonably determining the method, details and means of
performing the Services required under this Agreement. The Consultant shall
maintain all permits, licenses and authorizations necessary to Consultant's
performance of Services hereunder and shall at all times perform such Services
and conduct Consultant's business and affairs in accordance with all applicable
federal, state and local laws and regulations. Such consultation may be by
telephone, in writing or by other method of communication selected in the
reasonable exercise of the Consultant's discretion. Unless otherwise agreed to
in writing by the Consultant, the Consultant shall provide the Services required
hereunder at Miami, Florida or the location or locations which the Consultant
and the Company mutually agree.
(c) Hours. During the Term of this Agreement, it is
agreed that the Consultant shall not be required to devote more than ten (10)
hours (the "Agreed Hours") in any calendar month in the performance of the
Services set forth in subsection 1.2(a) hereof.
1.3 Term of Agreement. The term of this Agreement shall commence
on the date it is executed by the Consultant and delivered to the Company
pursuant to Section 10 of that certain Agreement, dated May 7, 1998, as amended
(the "Commencement Date") and shall continue for twenty-four (24) months after
the Commencement Date (the "Term").
1.4 Nature of Consulting Relationship. It is agreed and understood
by the parties to this Agreement that, for all purposes, during the term of this
Agreement, the Consultant shall serve solely as an independent contractor of the
Company and shall not be an employee of the Company in any capacity. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and Company. As an
independent contractor, the Consultant shall accept any directions issued by the
Company pertaining to the goals to be attained and the results to be achieved by
him, but shall be solely responsible for the manner and hours in which he will
perform his services under this Agreement.
ARTICLE II
COMPENSATION
2.1 Fees. In consideration for the services to be provided by the
Consultant pursuant to Section 1.2 hereof, the Company shall pay a fee to the
Consultant equal to One Hundred Thousand Dollars ($100,000) (the "Compensation")
for the Term of this Agreement, payable in twenty four (24) equal consecutive
monthly installments of Four Thousand One Hundred Sixty Six Dollars and 67 Cents
($4,166.67) per month, commencing on the Commencement Date.
2.2 Expense Reimbursement. During the Term of this Agreement, the
Company shall reimburse the Consultant for all reasonable business expenses
actually paid or incurred by the Consultant in the course of and pursuant to the
business of the Company, upon proper submission of supporting documentation by
the Consultant and in accordance with such policies and guidelines as from time
to time may be established by the Company.
-2-
ARTICLE III
DEATH & DISABILITY
3.1 Death or Disability. Notwithstanding anything to the contrary
contained in this Agreement, in the event of the Consultant's death or
Disability during the Term of this Agreement, the Consultant, his beneficiary,
his estate or personal representative shall continue to receive the Compensation
provided for in Section 2.1 hereof, at such times and in such amounts as if the
Consultant had not died or suffered a Disability. For purposes of this
Agreement, "Disability" shall mean if the Consultant shall as a result of mental
or physical incapacity, illness or disability, become unable to perform his
obligations hereunder for a period of 180 days in any 12-month period.
ARTICLE IV
MISCELLANEOUS
4.1 Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, among the parties hereto. This Agreement may
not be amended or modified in any way except by a written instrument executed by
the Company and the Consultant.
4.2 Notices. All notices under this Agreement shall be in writing
and shall be given by personal delivery, or by registered or certified United
States mail, postage prepaid, return receipt requested, to the address set forth
below:
If to the Consultant: Xxxxx X. Xxxxxxx
00000 XX 00xx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx 00000
with copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Lupidus, Esq.
If to the Company: CATALINA LIGHTING, INC.
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
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Attn: Corporate Secretary
or to such other person or persons or to such other address or addresses as the
Consultant and the Company or their respective successors or assigns may
hereafter furnish to the other by notice similarly given. Notices, if personally
delivered, shall be deemed to have been received on the date of delivery, and if
given by registered or certified mail, shall be deemed to have been received on
the fifth business day after mailing.
4.3 Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Florida,
without giving effect to the conflict of laws principles of each State. With
respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the Eleventh Circuit. The parties hereby
irrevocably waive their right to a jury trial.
4.4 Assignment: Successors and Assigns. Neither the Consultant nor
the Company may make an assignment of this Agreement or any interest herein, by
operation of laws or otherwise, without the prior written consent of the other
party; provided that the Company shall assign its rights and obligations under
this Agreement to any corporation, partnership, organization or other entity in
the event that the Company shall effect a reorganization, consolidate with or
merge into such other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to such other
corporation, partnership, organization or other entity. This Agreement shall
inure to the benefit of and be binding upon the Company and the Consultant,
their respective heirs, personal representatives, executors, legal
representatives, successors and assigns.
4.5 Waiver. The waiver by any party hereto of the other party's
prompt and complete performance or breach or violation of any provision of this
Agreement shall not operate nor be construed as a waiver of any subsequent
breach or violation, and the waiver by any party hereto to exercise any right or
remedy which he or it may possess shall not operate nor be construed as the
waiver of such right or remedy by such party or as a bar to the exercise of such
right or remedy by such party upon the occurrence of any subsequent breach or
violation.
4.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall be
declared invalid by a court of competent jurisdiction, then this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
4.7 Attorneys Fees. In the event that any litigation shall arise
between the Company and the Consultant based, in whole or in part, upon this
Agreement or any provisions contained
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herein, the prevailing party in any litigation shall be entitled to recover from
the non-prevailing party, and shall be awarded by a court of competent
jurisdiction, any and all reasonable fees and disbursements of trial and
appellate counsel paid, incurred or suffered by such prevailing party as the
result of, arising from, or in connection with, any such litigation.
4.8 Compliance with Legal Requirements. The Company shall not be
required, by reason of this Agreement, to provide workers' compensation,
disability insurance, Social Security or unemployment compensation coverage nor
any other statutory benefit to the Consultant. The Consultant shall comply at
his expense with all applicable provisions of workers' compensation laws,
unemployment compensation laws, federal Social Security law, the Fair Labor
Standards Act, federal, state and local income tax laws, and all other
applicable federal, state and local laws, regulations and codes relating to
terms and conditions of employment required to be fulfilled by employers or
independent contractors.
4.9 Gender and Number. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
4.10 Section Headings. The section or other headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of any or all of the provisions of this Agreement.
4.11 No Third Party Beneficiary other than Company. Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person, firm, corporation, partnership, association or
other entity, other than the parties hereto and each of their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
4.12 No Authority to Bind Company. The Consultant does not and
shall not have any authority to enter into any contract or agreement for, on
behalf of or in the name of the Company, or to legally bind the Company to any
commitment or obligation.
4.13 Indemnification. To the maximum extent permitted by law, the
Company shall indemnify, hold harmless, protect and defend (with counsel
reasonably acceptable to Consultant) Consultant and all others who could be
liable for the obligations of any of them from and against any and all claims,
demands, actions, fines, penalties, liabilities, losses, damages, injuries and
expenses (including without limitation, actual attorneys', consultant's and
expert witness' fees and costs at the pre trial, trial and appellate levels and
in bankruptcy proceedings) related to, arising out of or resulting from the
performance by the Consultant of his obligations and duties hereunder in
accordance with the terms hereof, provided, however, that the Company does not
hereby agree, and shall not be obligated to, so indemnify the Consultant from
any such loss, cost, damage, liability or expense (i) arising out of any act or
ommission of the Consultant or any of his agents, officers, employees,
independent contractors or representatives, which act or omission constitutes
gross negligence, willful misconduct or fraud or is in material breach of this
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Agreement, and (ii) relating to any obligation of the Consultant to comply with
the provisions of Section 4.8 above including, but not limited to, the
Consultant's obligation to pay tax under any federal, state or local tax law.
Notwithstanding any other provisions of this Agreement to the contrary, the
Company's obligations under this Section 4.13 shall survive the expiration,
termination or cancellation of this Agreement.
IN WITNESS WHEREOF, the undersigned have entered this Agreement as of
the date first above written.
THE COMPANY:
CATALINA LIGHTING, INC., a Florida
corporation
----------------------------------
THE CONSULTANT:
----------------------------------
XXXXX X. XXXXXXX
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EXHIBIT C
SCHEDULE OF DISABILITY INSURANCE
Company Policy Number Annual Benefit
------- ------------- --------------
The Guardian Life 29627 $7,500 per month
Insurance Company of
America
EXHIBIT D
SCHEDULE OF LIFE INSURANCE
Company Policy Number
------- -------------
The Guardian Life 29627 $20,000
Insurance Company of
America
