EXHIBIT 10.182
AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement dated as of July 26, 1999, by and
between Catalina Lighting, Inc. a Florida corporation (the "Company") and Xxxxxx
X. Xxxxx (the "Executive").
RECITALS
A. The Executive has rendered valuable services to the Company and the
Company desires to be assured that the Executive will continue rendering such
services to the Company; and
B. The Executive is willing to continue to serve the Company but
desires assurance that he will be protected in the event of any change in
control;
C. The Company and the Executive entered into an agreement dated May 7,
1998 regarding his compensation in the event of a change in control, a copy of
which is attached hereto as Exhibit "A" (the "Agreement");
D. The Company and the Executive amended the Agreement on March 3, 1999
providing for an extension of the term of the Agreement, and providing for
severance compensation if there was no change in control and the Executive was
terminated "without cause", a copy of which is attached hereto as Exhibit "B"
("Amendment No. 1").
E. The Company and the Executive now wish to further amend and to
restate the Agreement, as amended by Amendment No. 1; to provide a further
extension of the term of the Agreement; and to provide for vesting of the
options issued to the Executive and an extension of the time for the Executive
to exercise such options upon termination without cause or a change in control.
F. The Company and the Executive desire to execute this Amended and
Restated Agreement, dated as of July 26, 1999 ("First Amended and Restated
Agreement") incorporating the May 7, 1998 Agreement and amendments thereto.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein, the parties agree as follows.
1. TERM OF AGREEMENT
This First Amended and Restated Agreement shall be effective on April
1, 1998 (the "Effective Date") and shall continue in effect through September
30, 2001 provided however, if a change in control of the Company shall have
occurred during the term of this Agreement, this Agreement shall continue in
effect until all payments, if any, required to be made by the Company or
otherwise to the Executive under this Agreement shall have been paid in full.
1
2. CHANGE IN CONTROL
(i) No benefits shall be payable hereunder unless there shall have been
a change in control of the Company, as set forth below. For purposes of this
Agreement, a "change in control of the Company" shall mean (A) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
trustee or fiduciary holding securities under an employee benefit plan of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 51 percent or more of the combined voting power of the Company's
then outstanding voting securities; (B) there is a merger or consolidation of
the Company and the common stockholders of the Company immediately before the
merger or consolidation do not hold at least 85% of the common stock of the
surviving or resulting company immediately after the merger or consolidation; or
(C) the business or businesses of the Company are disposed of by the Company
pursuant to a partial or complete liquidation of the Company, a sale of assets
of the Company, or otherwise; and
(ii) The Executive agrees that in the event of such a change in control
of the Company the Executive will remain in the employ of the Company for a
period of thirteen (13) weeks from the occurrence of such change in control of
the Company or, if shorter, until the termination of the Executive's employment
by reason of the Executive's total disability or death.
3. COMPENSATION FOLLOWING CHANGE OF CONTROL
Subject to the terms and conditions of this Agreement, following a
change in control of the Company, as defined in Section 2(i), the Executive
shall be entitled to the following benefits:
(i) The Company shall notify the Executive of the date as of which
there occurs a change in control of the Company, provided that the failure of
the Company to so notify Executive shall not affect any of the Executive's
rights under this Agreement. If there is a change in control of the Company and
the Company terminates the Executive's employment with the Company (either
actually or constructively) within 13 weeks after the date of the change in
control of the Company, the Company within 5 business days of the Executive's
termination of employment shall pay the Executive an amount equal to two times
the Executive's base salary and an amount equal to two times the annual benefits
which the Company has provided to the Exectuive, including but not limited to
payments for medical insurance. For purposes of this First Amended and Restated
Agreement use of the term "Company" shall also refer to the successor/acquiror
of the Company if a change in control occurs, as defined in Section 2(i).
(ii) If (a) there is a change in control of the Company and (b) the
Company does not terminate Executive's employment with the Company within
2
13 weeks after the date of the change in control of the Company and (c)
Executive works for the Company through the end of the 13th week after the
change in control of the Company (subject to absences by Executive that are
consistent with the Company's sick leave, vacation and other absence policies as
in effect as of the Effective Date), then within 5 business days after the end
of the 13th week following the change in control, the Company shall pay the
Executive an amount equal to two times the Executive's base salary in effect as
of the date of change in control and an amount equal to two times the annual
benefits which the Company has provided to the Exectuive, including but not
limited to payments for medical insurance, provided however that the Company
shall not be obligated to make the payment which otherwise would be due the
Executive provided for in this Section 3(ii) if prior to the date such payment
otherwise would be due the Executive has executed an employment agreement with
the Company on terms acceptable to Executive in his sole discretion. If, after a
change in control of the Company, the Executive shall terminate his employment
with the Company prior to the end of the thirteen (13) weeks (other than on
account of Executive's death or disability or as a result of a constructive
discharge by the Company), the Company shall pay the Executive's full base
salary through the date of termination of the Executive's employment at the rate
in effect at the time of the Executive's termination of employment, plus any
other amounts to which the Executive is entitled under any compensation plan of
the Company, at the time such payments are due, but the Executive shall not be
entitled to the payment provided for in Section 3(i).
(iii) In the event of a dispute regarding this agreement and the
Executive is the prevailing party, the Company shall also pay the Executive
reasonable legal fees and expenses incurred by the Executive in seeking to
obtain or enforce any right or benefit provided by this Agreement.
(iv) When used herein the term "base salary" shall mean the greater of
the annual salary of the Executive at the time of change in-control or
termination occurs or (2) $140,000;
4. SEVERANCE COMPENSATION WHEN THERE IS NO CHANGE IN CONTROL. In the event there
is no change in control as defined in Section 2(1) of the Agreement, and the
Executive is terminated without "cause" (as defined in Section 8 (iii) below),
the Executive shall be entitled to the following benefits:
(i) payment of a lump sum amount equal to the Executive's
base salary and an amount equal to the annual
benefits which the Company has provided to the
Executive, including but not limited to payments for
medical insurance; provided however, if the Executive
is terminated "without cause" and a change in control
occurs within six (6) months subsequent to such
termination date, then the Executive shall be
entitled to receive an additional payment of one
year's base salary
3
and an amount equal to the annual benefits which the
Company has provided to the Executive, including but
not limited to payments for medical insurance. In no
event shall the Executive be entitled to payment both
under this Section 4 and the change in control
provisions of Section 3.
(ii) the Executive shall not be entitled to receive this
severance amount if the Executive is terminated with
"cause";
(iii) "Cause" shall mean any action by the Executive or any
inaction by the Executive which is reasonably
believed by the Company to constitute:
(a) fraud, embezzlement, misappropriation,
dishonesty or breach of trust;
(b) a felony or moral turpitude;
(c) material breach or violation of any or all
of the covenants, agreements and obligations
of the Executive, other than as the result
of the Executive's death or Disability;
(d) a willful or knowing failure or refusal by
the Executive to perform any or all of his
material duties and responsibilities as an
officer of the Company, other than as the
result of the Executive's death or
Disability; or
(e) gross negligence by the Executive in the
performance of any or all of his material
duties and responsibilities as an officer of
the Company, other than as the result of the
Executive's death or disability; provided,
however, that in the event that the basis
for any termination of the Executive's
employment by the Company as set forth in
the termination notice delivered by the
Company to the Employee is any or all of the
definitions of Cause set forth in Section
4(iii)(c) or Section 4(iii)(e) of this
Agreement, then, in such event, the Employee
shall have thirty (30) days from and after
the date of his receipt of such Termination
Notice to cure the action or inaction
specified therein to the reasonable
satisfaction of the Company.
5. The amounts paid to the Executive hereunder shall be considered severance pay
in consideration of the past services he has rendered to the Company and in
consideration of his continued service from the date hereof to his entitlement
to those payments. The Executive shall have no duty to mitigate his damages by
seeking other employment. Should the Executive actually receive other payments
from any such other employment, the payments called for hereunder shall not be
reduced or offset by any such future earnings.
4
6. The arrangements called for by this agreement are not intended to have any
effect on the Executive's participation in any other benefits available to
Executive personnel or to preclude other compensation or additional benefits as
may be authorized by the board of directors from time to time.
7. This agreement shall be binding and shall inure to the benefit of the
respective successors, assigns, legal representatives and heirs to the parties
hereto.
8. This agreement shall terminate, even though prior to any change in control of
the Company (as defined herein), if the Executive shall voluntarily resign,
retire, become permanently and totally disabled, voluntarily take another
position requiring a substantial portion of his time, or die. This agreement
shall also terminate if the Executive's employment as an officer of the Company
shall have been terminated for cause by the board of directors of the Company as
constituted prior to any acquisition of control of the Company as defined
herein.
9. In the event a change in control and the Executive is terminated or leaves
the Company pursuant to the terms of Sections 2 and 3 of this Agreement or the
Executive is terminated without cause pursuant to Section 4 of this Agreement,
all stock options previously issued to the Executive which are unvested at such
time shall vest immediately and the Executive shall have up to three months from
his termination date to exercise these and all other stock options of the
Company held by the Executive.
In witness whereof, the parties have signed this Amended and Restated
Agreement as of the 26th day of July, 1999.
CATALINA LIGHTING, INC.
BY: /s/ XXXXXX XXXXX
--------------------------------------
Xxxxxx Xxxxx
Chairman, President and Chief Executive Officer
ACCEPTED AND AGREED:
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Xxxxxx X. Xxxxx
5
