EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is effective as of
_________ __, 2001 (the "Effective Date"), and is entered into by and between ,
an individual ("Executive"), and [Fleetwood Enterprises, Inc.], a Delaware
corporation (the "Company").
R E C I T A L S
WHEREAS, the Company has determined that it is in its best interests to
implement a new compensation program to compensate certain of its employees on a
more competitive basis and thereby encourage such employees to further the
interests of the Company and its stockholders, which program shall be effective
as of the Company's fiscal year beginning May 1, 2001 (the "New Compensation
Program");
WHEREAS, the Company desires that Executive participate in the New
Compensation Program by entering into this Agreement and Executive desires to
participate in the New Compensation Program by entering into this Agreement; and
WHEREAS, by entering into this Agreement, the terms of Executive's
employment with the Company shall be governed by the terms and conditions of
this Agreement and any prior agreement between Executive and the Company or any
of the Company's affiliated entities relating to Executive's employment with the
Company or any of its affiliated entities shall be superseded by the terms of
this Agreement except to the extent set forth herein.
NOW, THEREFORE, in consideration of the recitals set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties hereto agree as
follows:
A G R E E M E N T
1. EMPLOYMENT. As of the Effective Date, the Company hereby employs
Executive to serve in the capacity of [Title] ("[Title]"). The Company's Board
of Directors (the "Board") and/or the Company's Chief Executive Officer (the
"CEO") may provide such additional designations of title to Executive as the
Board [and/or CEO], in its discretion, may deem appropriate.
Executive agrees to perform the executive duties and functions
customarily associated with the office of [Title] and as specified from time to
time by the Board [and/or the CEO]. Except for legal holidays, vacations and
absences due to temporary illness, Executive shall devote his time, attention
and energies to the business of the Company on a full-time basis. Executive
represents and warrants to the Company that he is under no restriction,
limitation or other prohibition to perform his duties as described herein.
2. EMPLOYMENT COMPENSATION AND BENEFITS.
(a) BASE SALARY. Executive's initial base salary shall be at
the annual rate of _________________________ Dollars ($____________)
(the "Base Salary"), which be payable at least as frequently as monthly
and subject to deductions and withholdings required by applicable law
and as customary in respect of the Company's salaried employees. This
salary level shall be reviewed at least annually by the Board's
Compensation Committee on the basis of Executive's performance and the
Company's financial success and progress.
(b) INCENTIVE COMPENSATION. As additional compensation to
provide incentives for Executive to extend efforts which will assist in
increasing the profits of the Company, Executive shall be eligible to
receive incentive compensation in accordance with the terms and
conditions of the Company's Senior Executive Incentive Compensation
Plan, as such plan has been established by the Company and as may be
modified from time to time (the "Plan"). A copy of the Plan has been
delivered to Executive along with this Agreement and the Company shall
provide Executive with a copy of any revisions to the Plan when such
revisions become effective. Executive's participation in the Plan and
the number of participant points granted under the Plan are subject to
adjustment by the Board's Compensation Committee at such Committee's
discretion.
(c) VACATION. Executive shall be entitled to annual vacations
in a manner commensurate with his status as a key executive and in
accordance with the Company's vacation policies in effect during the
term of this Agreement.
(d) EXPENSE REIMBURSEMENT. The Company shall reimburse
Executive for all reasonable amounts actually expended by Executive in
the course of performing his duties for the Company and in accordance
with any Company-established guidelines where Executive tenders
receipts or other documentation reasonably substantiating the amounts
as required by the Company.
(e) OTHER BENEFITS. Except as otherwise provided in this
Agreement, Executive shall be entitled to receive all of the rights,
benefits and privileges of an executive officer of the Company under
any retirement, pension, profit-sharing, group medical insurance, group
dental insurance, group-term life insurance, disability insurance and
other similar employee benefit plan or program which may be now in
effect or hereafter adopted, to the extent that Executive is eligible
under the provisions thereof.
3. TERMINATION.
(a) AT WILL. The Company shall employ Executive at will, and
either Executive or the Company may terminate Executive 's employment
with the Company at any time and for any reason, with or without cause.
(b) SEVERANCE PAYMENT AND BENEFITS. If Executive 's employment
is terminated as a result of a Qualifying Termination, as defined
below, and if Executive delivers a fully executed release and waiver of
all claims against the Company in the
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form attached hereto as EXHIBIT A (the "Release Agreement"), then, upon
expiration of any applicable revocation period contained in the Release
Agreement, the Company shall pay or provide Executive the following
severance payment and benefits:
(i) Executive shall receive the Severance Payment, as
defined below, which shall be payable in equal monthly
installments beginning on the first day of the first full
month and continuing on the first day of each month thereafter
during the Severance Period. The Severance Payment is in lieu
of any severance payment benefits which otherwise may at that
time be available under the Company's applicable policies;
PROVIDED, HOWEVER, that nothing in this Agreement is intended
to modify or supersede the Agreement re: Change In Control
entered into between Executive and the Company as of ________,
2001 (the "Agreement re: Change In Control"), and Executive
shall be entitled to receive whatever additional severance pay
benefits, if any, for which he may qualify according to the
terms of the Agreement re: Change in Control.
As used herein, "Severance Payment" shall mean that
amount equal to the product of (A) the number of full months
immediately before the date of Executive's Qualifying
Termination during which Executive has been continuously
employed by the Company as a senior executive officer of the
Company or any of its affiliated companies, up to a maximum of
twelve (12) months (the "Measuring Period") and (B) the
average monthly amount of Executive's Base Salary plus all
bonuses and incentive compensation payments paid to Executive,
as averaged over the Measuring Period. Any Severance Payment
shall be subject to deductions and withholdings required by
applicable law and shall be reduced by an amount equal to the
incentive payments, if any, that become payable in connection
with the Qualifying Termination. As used herein, "Severance
Period" shall mean that period beginning upon Executive's
Qualifying Termination and ending upon the lapse thereafter of
that number of months equal to the Measuring Period.
(ii) During the Severance Period and to the extent
reasonably practicable, Executive shall be entitled to receive
benefits comparable to those which had been made available to
him (including his family) before the Qualifying Termination:
group medical insurance, group dental insurance, group-term
life insurance and disability insurance. These benefits shall
be provided at no cost to Executive, except to the extent that
tax rules require the inclusion of the value of such benefits
in Executive's income. To the extent reasonably practicable,
these benefits shall be continued in a comparable manner and
at a comparable level as immediately prior to the Qualifying
Termination. The provision of these benefits shall be earlier
terminated or reduced, as applicable, if and to the extent
Executive receives comparable benefits as a result of
concurrent coverage through another program.
(iii) Any and all of Executive's unvested stock
options shall immediately become fully vested and exercisable.
Notwithstanding anything to the contrary contained in the
equity incentive plan(s) pursuant to which such
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options were granted, any options that vest and become
exercisable pursuant to this Section 3(b)(iii) shall expire
sixty (60) days after the Qualifying Termination.
(c) QUALIFYING TERMINATION. Executive 's termination shall be
considered a "Qualifying Termination" unless:
(i) Executive voluntarily terminates his employment
with the Company and its affiliated companies. Executive,
however, shall NOT be considered to have voluntarily
terminated his employment with the Company and its affiliated
companies if his overall compensation is reduced or adversely
modified in any material respect or his authority or duties
are materially changed and he elects to terminate his
employment within sixty (60) days following such reduction,
modification or change. For the purposes of this subparagraph,
Executive's authority or duties shall be considered to have
been "materially changed" if, without Executive's express and
voluntary written consent, there is any substantial diminution
or adverse modification in his title, status, overall
position, responsibilities, reporting relationship, general
working environment (including without limitation secretarial
and staff support, offices, and frequency and mode of travel),
or if, without Executive's express and voluntary written
consent, his job location is transferred to a site more than
fifty (50) miles away from his place of employment.
(ii) The termination is on account of Executive's
death or Disability. For such purposes, "Disability" shall
mean a physical or mental incapacity as a result of which
Executive becomes unable to continue the performance of his
responsibilities for the Company and its affiliated companies
and which, at least three (3) months after its commencement,
is determined to be total and permanent by a physician agreed
to by the Company and Executive, or in the event of
Executive's inability to designate a physician, his legal
representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified
physician and the two physicians so nominated shall select a
third physician who shall make the determination as to
Disability.
(iii) Executive is involuntarily terminated for
"Cause." For this purpose, "Cause" shall be limited to only
three types of events:
(A) Executive's refusal to comply with a
lawful, written instruction of the Board or
Executive's immediate supervisor, which refusal is
not remedied by Executive within a reasonable period
of time after his receipt of written notice from the
Company identifying the refusal, so long as the
instruction is consistent with the scope and
responsibilities of Executive's position;
(B) Executive's act or acts of personal
dishonesty which were intended to result in
Executive's substantial personal enrichment at the
expense of the Company or any of its affiliated
companies; or
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(C) Executive's conviction of any
misdemeanor involving an act of moral turpitude or
any felony.
(iv) Executive ceases to be employed by the Company
due to the sale or acquisition of all of the equity interests
in, or substantially all of the assets of, a subsidiary or
division of the Company with which Executive is affiliated, or
in connection with the merger of such a subsidiary or
division, and this Agreement is assumed in writing by such
acquiring or surviving person or entity or an affiliate
thereof.
(v) Notwithstanding anything in this Section 3(c) to
the contrary, if the Company relocates its principal
operational or executive headquarters and Executive is
transferred, or requested to transfer, to such headquarters,
then if Executive elects to terminate his employment because
of such a transfer or request to transfer, such termination
shall not be deemed a Qualifying Termination regardless of
whether such new headquarters is located more than fifty (50)
miles from the location of Executive's then-current place of
employment.
(d) RETURN OF MATERIALS. In the event of any termination of
Executive's employment for any reason whatsoever, Executive shall
promptly deliver to the Company all Company property, including, but
not limited to, documents, data, and other information pertaining to
Confidential Information, as defined below. Executive shall not take
with him any documents or other information, or any reproduction,
summary or excerpt thereof, containing or pertaining to any
Confidential Information.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Executive acknowledges
that during the term of his employment with the Company, he will have access to
and become acquainted with information of a confidential, proprietary or secret
nature which is or may be either applicable to, or related in any way to, the
present or future business of the Company, the research and development or
investigation of the Company, or the business of any customer of the Company
("Confidential Information"). For example, Confidential Information includes,
but is not limited to, devices, secret inventions, processes and compilations of
information, records, specifications, designs, plans, proposals, software,
codes, marketing and sales programs, financial projections, cost summaries,
pricing formula, and all concepts or ideas, materials or information related to
the business, products or sales of the Company and its customers and vendors.
Executive shall not disclose any Confidential Information, directly or
indirectly, or use such information in any way, either during the term of this
Agreement or at any time thereafter, except as required in the course of
employment with the Company. Executive also agrees to comply with the Company's
policies and regulations, as established from time to time for the protection of
its Confidential Information, including, for example, executing the Company's
standard confidentiality agreements. This section shall survive termination of
this Agreement.
5. NON-SOLICITATION. Executive agrees that so long as he is employed by
the Company and for a period of twelve (12) months after termination of his
employment for any reason, he shall not (a) directly or indirectly solicit,
induce or attempt to solicit or induce any employee of the Company or any of its
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affiliated companies to discontinue his or her employment with the Company; (b)
usurp any opportunity of the Company or any of its affiliated companies of which
Executive became aware during his tenure at the Company or which is made
available to him on the basis of the belief that Executive is still employed by
the Company; or (c) directly or indirectly solicit or induce or attempt to
influence any person or business that is an account, customer or client of the
Company or any of its affiliated companies to restrict or cancel the business of
any such account, customer or client with the Company or any of its affiliated
companies. This section shall survive termination of this Agreement.
6. SUCCESSORS.
(a) This Agreement is personal to Executive, and without the
prior written consent of the Company shall not be assignable by
Executive other than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by
Executive 's legal representatives.
(b) The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
7. GOVERNING LAW. This Agreement is made and entered into in the State
of California, and the internal laws of California shall govern its validity and
interpretation in the performance by the parties hereto of their respective
duties and obligations hereunder.
8. MODIFICATIONS. This Agreement may be amended or modified only by an
instrument in writing executed by all of the parties hereto.
9. ENTIRE AGREEMENT. Except as otherwise set forth herein, this
Agreement, together with the exhibits attached hereto, supersedes any and all
prior written or oral agreements between Executive and the Company, including,
without limitation, that [Employment Contract] dated as of , 2000. This
Agreement contains the entire understanding of the parties hereto with respect
to the terms and conditions of Executive's employment with the Company;
PROVIDED, HOWEVER, that this Agreement is not intended to supersede the
Agreement re: Change in Control, or any agreements which Executive may
previously have entered into regarding the protection of trade secrets and
confidential information.
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10. DISPUTE RESOLUTION.
(a) Any controversy or dispute between the parties involving
the construction, interpretation, application or performance of the
terms, covenants, or conditions of this Agreement or in any way arising
under this Agreement (a "Covered Dispute") shall, on demand by either
of the parties by written notice served on the other party in the
manner prescribed in Section 11 hereof, be referenced pursuant to the
procedures described in California Code of Civil Procedure ("CCP")
Sections 638, ET SEQ., as they may be amended from time to time (or
such procedures as nearly the same as may be available under the laws
of California, the "Reference Procedures"), to a retired Judge from the
superior court of California for the County of Riverside (the "Venue
County") for a decision.
(b) The Reference Procedures shall be commenced by either
party by the filing in the superior court of Venue County a petition
pursuant to CCP Section 638(1) (or such procedures as nearly the same
as may be available under the laws of California, a "Petition"). Said
Petition shall designate as a referee a Judge from the list of retired
superior court Judges from the Venue County who have made themselves
available for trial or settlement of civil litigation under said
Reference Procedures. If the parties hereto are unable to agree on the
designation of a particular retired superior court Judge of the Venue
County, or the designated Judge is unavailable or unable to serve in
such capacity, request shall be made in said Petition that the
Presiding or Assistant Presiding Judge of the superior court of the
Venue County appoint as referee a retired superior court Judge from the
aforementioned list.
(c) Except as hereafter agreed by the parties, the referee
shall apply the internal law of the State of California in deciding the
issues submitted hereunder. Unless formal pleadings are waived by
agreement among the parties and the referee, the moving party shall
file and serve its complaint within fifteen (15) days from the date a
referee is designated as provided herein, and the other party shall
have fifteen (15) days thereafter in which to plead to said complaint.
Each of the parties reserves its respective rights to allege and assert
in such pleadings all claims, causes of action, contentions and
defenses which it may have arising out of or relating to the general
subject matter of the Covered Dispute that is being determined pursuant
to the Reference Procedures. Reasonable notice of any motions before
the referee shall be given, and all matters shall be set at the
convenience of the referee. Discovery shall be conducted as the parties
agree or as allowed by the referee. Unless waived by each of the
parties, a reporter shall be present at all proceedings before the
referee.
(d) It is the parties' intention by this Section 10 that all
issues of fact and law and all matters of a legal and equitable nature
related to any Covered Dispute will be submitted for determination by a
referee designated as provided herein. Accordingly, the parties hereby
stipulate that a referee designated as provided herein shall have all
powers of a Judge of the superior court including, without limitation,
the power to grant equitable and interlocutory and permanent injunctive
relief.
(e) Each of the parties specifically (i) consents to the
exercise of jurisdiction over his person by a referee designated as
provided herein with respect to any and all
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Covered Disputes; and (ii) consents to the personal jurisdiction of the
California courts with respect to any appeal or review of the decision
of any such referee.
(f) Each of the parties acknowledges that the decision by a
referee designated as provided herein shall be a basis for a judgment
as provided in CCP Section 644 and shall be subject to exception and
review as provided in CCP Section 645, or such procedures as nearly the
same as may be available under the laws of California.
(g) The Company shall pay all fees and costs incurred by
Executive in connection with the Reference Procedures for a Covered
Dispute other than attorneys' fees incurred by Executive.
11. NOTICES. Any notice or communications required or permitted to be
given to the parties hereto shall be delivered personally or be sent by United
States registered or certified mail, postage prepaid and return receipt
requested, and addressed or delivered as follows, or at such other addresses the
party addressed may have substituted by notice pursuant to this Section:
To the Company: To Executive:
Fleetwood Enterprises, Inc. ----------------------------
0000 Xxxxx Xxxxxx Home Address
Riverside, California 92503-5527 City, State, Zip
Attn: General Counsel
12. CAPTIONS. The captions of this Agreement are inserted for
convenience and do not constitute a part hereof.
13. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein and there shall be deemed substituted for such invalid,
illegal or unenforceable provision such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by the applicable
law. In case this Agreement, or any one or more of the provisions hereof, shall
be held to be invalid, illegal or unenforceable within any governmental
jurisdiction or subdivision thereof, this Agreement or any such provision
thereof shall not as a consequence thereof be deemed to be invalid, illegal or
unenforceable in any other governmental jurisdiction or subdivision thereof.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one in the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered effective as of the day and year first written
above.
-----------------------------
[Name of Executive]
[FLEETWOOD ENTERPRISES, INC.,]
a Delaware corporation
By:
---------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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EXHIBIT A
RELEASE AGREEMENT
I, ________________________, hereby enter into this Release Agreement
(this "Agreement"), pursuant to Paragraph 3(b) of my Employment Agreement with
[Fleetwood Enterprises, Inc.], a Delaware corporation (the "Company"), in
consideration for which the Company shall make the Severance Payment as
described in my Employment Agreement entered into effective as of __________,
2001.
1. The date of my Qualifying Termination is _________________, and I
have received a final paycheck for all wages due, including all accrued
vacation, through that date. Other than the Severance Payment as described in my
Employment Agreement and whatever additional severance pay benefits, if any, for
which I may qualify according to the terms of my Agreement re: Change in Control
with the Company, the foregoing payments are the only amounts which I am
entitled to receive from the Company, and I hereby waive all other payments or
claims for payments.
2. As consideration for the Severance Payment as described in my
Employment Agreement, I hereby release the Company, its successors, affiliates,
directors, employees and agents from any and all claims or lawsuits (including,
for example, equal employment claims, wrongful discharge claims and claims for
age discrimination under the Age Discrimination in Employment Act) which I may
have based either on my employment, my termination, or any other event occurring
prior to the date of this Agreement. This Release is intended to settle any and
all claims that I may have against the Company. Accordingly, I waive any and all
rights conferred under [Section 1542 of the California Civil Code], which
provides: ["A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the release
which if known by him must have materially affected his settlement with the
debtor."]
3. I acknowledge and understand my continuing obligation (a) to
maintain the confidentiality of the Company's trade secrets and other
confidential and proprietary information and (b) not to solicit the Company's
customers or employees, as set forth in Paragraphs 4 and 5 of my Employment
Agreement. I also warrant and represent that I have returned all Company
materials as required in Paragraph 3(d) of my Employment Agreement.
4. I acknowledge that I fully understand my right to discuss this
Agreement with an attorney, and I have carefully read and fully understand this
entire Agreement, and I am entering into this Agreement voluntarily.
5. I understand that I shall have twenty-one (21) days from the date of
receipt of this Agreement to consider this Agreement, I shall have seven (7)
days following the signing of this Agreement to revoke it in writing, and this
Agreement shall not be effective or enforceable until this revocation period has
expired.
Dated:
------------------- --------------------------------
[Name of releasing party]
Dated: [FLEETWOOD ENTERPRISES, INC.,]
------------------- a Delaware corporation
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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