EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 1st day of April, 1997, by and between INTERFACE, INC., a corporation
organized under the laws of the State of Georgia, U.S.A. (the "Company"), and
XXXXX X. XXXXXXX, a resident of the State of Maine ("Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into an employment agreement,
effective as of September 8, 1995, setting forth the terms of Executive's
employment with the Company (the "Prior Agreement");
WHEREAS, the parties desire to continue the employment arrangement and
to modify the Prior Agreement in certain respects; and
WHEREAS, the terms of this Agreement, which continues, amends and
restates the Prior Agreement in its entirety, reflect the modified terms of
employment which the parties desire to have govern their employment
relationship commencing on the date hereof.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration
(including, without limitation, certain stock option and restricted stock
awards granted to Executive subject to Executive's entering into this
Agreement), the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Employment. Subject to the terms and conditions of this
Agreement, Executive shall be employed by the Company as Senior Vice President
of the Company (and President and Chief Executive Officer of the Interface
Interior Fabrics Group), and shall perform such duties and functions for the
Company and its subsidiaries and affiliates as shall be specified from time to
time by the President, Chief Executive Officer ("CEO") or Board of Directors of
the Company; Executive hereby accepts such employment and agrees to perform
such executive duties as may be assigned to Executive. Executive may be
relocated, Executive's titles and duties may be changed, and Executive may be
promoted to a higher position within the Company, but Executive will not be
demoted or given lesser titles.
2. Duties. Executive shall devote his full business related time
and best efforts to accomplishing such executive duties at such locations as
may be requested by the President or CEO of the Company acting under
authorization from the Board of Directors of the Company.
3. Avoidance of Conflict of Interest. While employed by the
Company, Executive shall not engage in any other business enterprise without
the prior written consent of the Company. Without limiting the foregoing,
Executive shall not serve as a principal, partner, employee, officer or
director of, or consultant to, any other business or entity conducting business
for profit without
the prior written approval of the Company. In addition, under no circumstances
will Executive have any financial interest in any competitor of the Company;
provided, however, Executive may invest in no more than one percent of the
outstanding stock or securities of any competitor, the stock or securities of
which are traded on a national stock exchange of any country.
4. Term. The duration of this Agreement (the "term") shall be
for a rolling, two-year term commencing on the date hereof, and shall be deemed
automatically (without further action by either the Company or Executive) to
extend each day for an additional day such that the remaining term of the
Agreement shall continue to be two years; provided, however, that on
Executive's 63rd birthday, this Agreement shall cease to extend automatically
and, on such date, the remaining term of this Agreement shall be two years;
and, provided further, the Company may, by notice to Executive, cause this
Agreement to cease to extend automatically and, upon such notice, the term of
this Agreement shall be two years following such notice.
5. Termination. Executive's employment with the Company may be
terminated as follows:
(a) Voluntary Termination. Executive may voluntarily terminate
his employment hereunder at any time, effective 90 days after delivery to the
Company of Executive's signed, written resignation; the Company may accept said
resignation and pay Executive in lieu of waiting for passage of the notice
period.
(b) Termination by Company. Subject to the terms of Sections 5(c)
and (d) below, the Company may terminate Executive's employment hereunder, in
its sole discretion, whether with or without "just cause", at any time upon
written notice to Executive.
(c) Termination Without Just Cause. If, prior to the end of the
term of this Agreement, the Company terminates Executive's employment without
"just cause" (as defined in subsection (d) below), Executive shall be entitled
to receive, as damages payable as a result of, and arising from, the Company's
breach of this Agreement, the compensation and benefits set forth in clauses
(i) through (vi) below. The time periods for which compensation and benefits
will be provided with respect to (i) through (iv) below is referred to herein
as the "Continuation Period", which means the time period remaining from the
date of Executive's termination of employment to the end of the remaining term
of this Agreement as provided in Section 4 above. Except to the extent
provided in clause (x) hereof, Executive shall have no duty to mitigate any of
the damages payable hereunder. The fact that Executive is eligible for
retirement, including early retirement, under applicable retirement plans or
his Salary Continuation Agreement (see clause (vi) below) at the time of
Executive's termination shall not make Executive ineligible to receive benefits
under this Section 5(c).
(i) Salary. Executive will continue to receive his
current salary (subject to withholding of all applicable taxes) for the
Continuation Period in the same manner as it was being
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paid as of the date of termination. For purposes hereof, Executive's "current
salary" shall be the highest rate in effect during the six-month period prior
to Executive's termination.
(ii) Bonuses and Incentives. Executive shall receive
bonus payments from the Company for the Continuation Period in an amount for
each calendar month during such period equal to one-twelfth of the average of
the bonuses paid to Executive for the two calendar years immediately preceding
the year in which such termination occurs ("Average Bonus"). Executive shall
also receive a prorated bonus for the year in which such termination occurs
equal to the Average Bonus multiplied by the number of days Executive worked in
such year divided by 365 days. Said prorated bonus shall be paid within 30
days of the date of termination. Any bonus amounts that Executive had
previously earned from the Company but which may not yet have been paid as of
the date of termination shall not be affected by this provision; provided,
however, if the amount of the bonus for such prior year has not yet been
determined, the bonus shall be an amount not less than the Average Bonus.
(iii) Health and Life Insurance Coverages. The health and
life insurance benefit coverages (including any executive medical and/or life
insurance plans) provided to Executive at Executive's date of termination shall
be continued for the Continuation Period by the Company at its expense at the
same level and in the same manner as if Executive's employment had not
terminated (subject to the customary changes in such coverages upon Executive's
retirement, reaching age 65 or similar events). Any additional coverages
Executive had at termination, including dependent coverage, will also be
continued for the Continuation Period on the same terms, to the extent
permitted by the applicable policies or contracts. Any costs Executive was
paying for such coverages at the time of termination shall be paid by Executive
by separate check payable to the Company each month in advance (or in such
other manner as the Company may agree). If the terms of any benefit plan
referred to in this subsection do not permit continued participation by
Executive, then the Company will arrange for other coverage at its expense
providing substantially similar benefits. The coverages provided for in this
subsection shall be applied against and reduce the period for which COBRA
benefits will be provided. If Executive is covered by a split-dollar or
similar life insurance program as of the date of termination, Executive shall
have the option in Executive's sole discretion to have such policy transferred
to Executive upon termination, provided that, except as may otherwise be
provided in a separate agreement, the Company is paid for its interest (i.e.,
the cash surrender value) in the policy upon such transfer.
(iv) Employee Retirement Plans. If applicable law and the
provisions of the applicable plan permit continued participation, Executive
will be entitled to continue to participate, consistent with past practices, in
the tax qualified employee retirement plans maintained by the Company in effect
as of Executive's date of termination, including, to the extent such plans are
still maintained by the Company, the Interface Flooring Systems, Inc.
Retirement Plan and Trust, and the Interface, Inc. (or Guilford of Maine, Inc.,
now known as Interface Interior Fabrics, Inc.) Savings and Investment Plan (the
"Savings Plan"). Executive's participation in such retirement plans shall
continue for the Continuation Period (at the end of which Executive will be
considered to have terminated employment within the meaning of the plans), and
the compensation payable to Executive under subsections (c)(i) and (ii) above
shall be treated (unless otherwise excluded under
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the terms of such retirement plans) as compensation when computing benefits
under the plans. For purposes of the Savings Plan, Executive will be credited
with an amount equal to the Company's contribution to the plan, assuming
Executive had participated in such plan at the maximum permissible contribution
level. To the extent permissible under applicable law, Executive shall also be
considered fully vested under such plans. If continued participation in any
plan is not permitted or if Executive's benefits are not fully vested, the
Company shall pay to Executive and, if applicable, Executive's beneficiary, a
supplemental benefit equal to the present value on the date of termination of
employment (calculated as provided in each plan) of the excess of (A) the
benefit Executive would have been paid under such plan if Executive had
continued to be covered for the Continuation Period (less any amounts Executive
would have been required to contribute) and been treated as fully vested, over
(B) the benefit actually payable under such plan. The Company shall pay such
additional benefits (if any) in a lump sum within 30 days of the date of
termination.
(v) Stock Awards. As of Executive's date of termination,
all outstanding stock options granted to Executive under the Interface, Inc.
Omnibus Stock Incentive Plan, the Interface, Inc. Key Employee Stock Option
Plan (1993), the Interface, Inc. Offshore Stock Option Plan and the Interface
Flooring Systems, Inc. Key Employee Stock Option Plan shall become 100% vested
and thus immediately exercisable. To the extent inconsistent with this
immediate vesting requirement, the provisions of this clause (v) shall
constitute an amendment of Executive's stock option agreements under such stock
plans. In addition, but only to the extent expressly provided in any
restricted stock agreement associated with the Interface, Inc. Omnibus Stock
Incentive Plan, restrictions on all shares of restricted stock (and other
performance shares, performance units or deferred shares) awarded to Executive
under said plan shall lapse, and the affected shares shall become 100% vested.
(vi) Salary Continuation Agreement. From and after
Executive's date of termination, Executive shall continue to be covered by, and
entitled to the benefits provided under, Executive's Salary Continuation
Agreement with the Company, payable in accordance with the terms of said
agreement. If Executive is entitled to benefits under this Section 5(c), he
will be treated as having his employment terminated by the Company without
"Cause" as described in the Salary Continuation Agreement.
(vii) Cessation Upon Death. The continuation benefits
payable or to be provided under clauses (i), (ii), (iii) and (iv) of this
Section 5(c) shall cease in the event of Executive's death. (The foregoing
shall not operate or be construed to negate the benefits payable to Executive
and Executive's estate under the plans and policies referenced in clauses (iii)
and (iv) in the event of Executive's death during the Continuation Period.)
(viii) Additional Consideration. To be entitled to receive
the foregoing compensation, Executive shall sign whatever additional release of
claims, confidentiality agreements and other documents the Company may
reasonably request of Executive at the time of payment, and for so long as
Executive is entitled to the benefits of such compensation Executive shall
cooperate fully with and devote Executive's reasonable best efforts to
providing assistance requested by the Company. Such assistance shall not
require Executive to be active in the Company's day-to-day
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activities or engage in any substantial travel, and Executive shall be
reimbursed for all reasonable and necessary out- of-pocket business expenses
incurred in providing such assistance.
(ix) Effect of Other Termination Events. If Executive
voluntarily resigns from employment or is terminated for just cause prior to
the end of the term of this Agreement, then Executive shall be entitled to no
payment or compensation whatsoever from the Company under this Agreement, other
than as may be due Executive through Executive's last day of employment. If
Executive's employment is terminated due to Executive's disability or death (as
defined in the Company's long-term disability plan or insurance policy),
Executive shall be entitled to no payment or compensation other than as
provided by the Company's short and long-term disability plans or, in the case
of death, its life insurance payment policy in effect for executives of
Executive's level or pursuant to the terms of any separate agreement concerning
split-dollar or similar life insurance; provided, however, Executive or
Executive's estate, as the case may be, shall not by operation of this
provision forfeit any rights in which Executive is vested at the time of
Executive's disability or death (including, without limitation, the rights and
benefits provided under applicable retirement plans and Executive's Salary
Continuation Agreement with the Company).
(x) Change in Control. If Executive becomes entitled to
compensation and benefits under this Section 5(c) and such payments would be
considered to be severance payments contingent upon a change in control under
Internal Revenue Code Section 280G, Executive shall be required to offer to
perform the duties and job Executive was performing under this Agreement at the
time of the change in control and, if such offer is rejected, to mitigate
damages (but only with respect to amounts that would be treated as severance
payments under Code Section 280G) by reducing the amount of such severance
payments Executive is entitled to receive by any compensation and benefits
Executive earns from subsequent employment (but Executive shall not be required
to seek such employment) during the Continuation Period. If the compensation
and benefits payable to Executive under this Section 5(c) are reduced by
mitigation, Executive shall continue to be entitled to receive in the aggregate
under this Agreement and the Change in Control Agreement between Executive and
Company of even date herewith, an amount of compensation and benefits at least
equal to 2.99 times Executive's "Base Amount" as defined in Internal Revenue
Code Section 280G. In the event Executive's employment is terminated without
"just cause" within 24 months following the date of a "Change in Control" (as
defined in the Change in Control Agreement) or within six months prior to the
date of a Change in Control and is related to such Change in Control, the
amounts payable to Executive under clauses (i) and (ii) above shall be paid in
single lump sum payments determined in the same manner as provided in Sections
4(c)(i) and (ii) of the Change in Control Agreement.
(d) Just Cause. The Company, for just cause, may immediately
terminate Executive's employment hereunder at any time upon delivery of written
notice to Executive. For purposes of this Agreement, the phrase "just cause"
shall mean: (i) Executive's fraud, dishonesty, gross negligence, or willful
misconduct with respect to business affairs of the Company (including its
subsidiaries and affiliated companies), (ii) Executive's refusal or repeated
failure to follow the established lawful policies of the Company applicable to
persons occupying the same or similar positions, (iii) Executive's material
breach of this Agreement, or (iv) Executive's conviction of a
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felony or other crime involving moral turpitude. A termination of Executive
for just cause based on clause (i), (ii) or (iii) of the preceding sentence
shall take effect 30 days after Executive receives from the Company written
notice of intent to terminate and the Company's description of the alleged
cause, unless Executive shall, during such 30-day period, remedy the events or
circumstances constituting just cause; provided, however, such termination
shall take effect immediately upon the giving of written notice of termination
for just cause under any of such clauses if the Company shall have determined
in good faith that such events or circumstances are not remediable (which
determination shall be stated in such notice).
(e) Survival of Provisions. Upon termination of Executive's
employment for any reason whatsoever (whether voluntary on the part of
Executive, for just cause, or other reasons), the obligations of Executive
pursuant to Section 7 hereof shall survive and remain in effect.
6. Compensation and Benefits. During the term of Executive's
employment with the Company hereunder:
(a) Continuity. Executive's salary, current perquisites
(including, but not limited to, company car) and bonus opportunity (currently
expressed as a percentage of Executive's base salary) may be increased from
time to time as determined by the President, CEO or Board of Directors (or
Committee of the Board), but shall not be reduced or eliminated.
(b) Other Benefits. Executive shall be entitled to vacation with
pay, life insurance, health insurance and such other employee benefits as
Executive may be entitled to receive in accordance with the established plans
and policies of the Company, as in effect from time to time.
(c) Tax Equalization. In the event of Executive's relocation, the
Company and Executive will cooperate in good faith to agree on such adjustments
to Executive's compensation and benefits package as are appropriate to provide
consistent after-tax income to Executive equivalent to that of a person
receiving Executive's pay and benefits taxable under the terms of the U.S.
Internal Revenue Code, while also acting in the best interests of the Company.
7. Restrictive Covenants.
(a) Definitions. As used in this Section 7, the following terms
shall have the meanings ascribed to such terms as set forth below.
(i) "Company" - Interface, Inc. and its direct and
indirect subsidiaries and affiliated entities throughout the world.
(ii) "Confidential Information" - information relating to
Company's customers, operations, finances, and business in any form that
derives value from not being generally known to other persons or entities,
including, but not limited to, technical or nontechnical data, formulas,
patterns (including future carpet and fabric patterns), customer purchasing
practices and preferences, compilations (including compilations of customer
information), programs (including computer
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programs and models), devices (including carpet and fabric manufacturing
equipment), methods (including aesthetic and functional design and
manufacturing methods), techniques (including style and design technology and
plans), drawings (including product or equipment drawings), processes,
financial data (including sales forecasts, sales histories, business plans,
budgets and other forecasts), or lists of actual or potential customers or
suppliers (including identifying information about those customers), whether or
not reduced to writing. Confidential Information subject to this Agreement may
include information that is not a trade secret under applicable law, but such
information not constituting a trade secret shall be treated as Confidential
Information under this Agreement for only a two year period after the
expiration of this Agreement or termination of Executive's employment.
(iii) "Customers" - customers of Company that Executive,
during the two year period before the expiration of this Agreement or
termination of Executive's employment, (A) solicited or serviced or (B) about
whom Executive had Confidential Information. The parties acknowledge that a
two-year period for defining Customers (as well as "Suppliers", below) is
reasonable based on Company's typical sales cycle, budgetary requirements and
procurement procedures.
(iv) "Products" - specialty interior fabrics, including
(A) panel fabrics for open plan office systems, (B) furniture upholstery, (C)
wall and ceiling coverings and (D) window treatments, all for contract,
commercial and institutional markets and customers (including original
equipment manufacturers).
(v) "Services" - the services Executive shall provide as
a Company executive and that Executive shall be prohibited from providing in
competition with Company in accordance with the terms of this Agreement, which
are to manage and supervise, and to have responsibility for, the conduct of the
business of designing, developing, manufacturing, purchasing for resale,
marketing, selling, distributing, installing and maintaining, for contract,
commercial and institutional markets and customers (including original
equipment manufacturers), specialty interior fabrics, including (A) panel
fabrics for open plan furniture systems, (B) furniture upholstery, (C) wall and
ceiling coverings, and (D) window treatments; without limiting the foregoing,
Executive shall be responsible for: (1) preparation of business plans, budgets
and forecasts, (2) development of strategies for pricing of products to
customers, (3) supervision of marketing and sale of products and customer
service, (4) development of overall strategy for such business, (5) design and
development of products, (6) development and maintenance of relationships with
principal customers and suppliers, (7) employment and supervision of key
executives and sales personnel, (8) development of plans for expansion of such
business, including expansion through merger, acquisition, joint venture and
other combinations and affiliations, and (9) supervision and oversight of
interior fabrics manufacturing operations and quality control, including "mass
customization" production strategy and methods for reducing waste in the
production process. Executive acknowledges that he has been informed of and
had an opportunity to discuss with Company the specific activities Executive
will perform as Services, and that Executive understands the scope of the
activities constituting Services.
(vi) "Supplier" - a supplier of Company that Executive,
during the two year period before the expiration of this Agreement or
termination of Executive's employment, (A) had contact with on behalf of
Company or (B) about whom Executive had Confidential Information.
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(vii) "Territory" - North America, which is the geographic
area where Executive performs Services for Company and in which Company
continues to conduct business. Executive has been informed of and had an
opportunity to discuss with Company the specific territory in which Executive
will perform Services. Executive acknowledges that the market for Company
Products is worldwide, and that the Territory is the area in which Executive's
provision of Services in violation of this Agreement would cause harm to
Company.
(b) Non-disclosure and Restricted Use. Executive shall use best
efforts to protect Confidential Information. Furthermore, Executive will not
use, except in connection with work for Company, and will not disclose during
or after Executive's employment, Company's Confidential Information.
(c) Return of Materials. Upon the expiration of this Agreement or
termination for any reason of Executive's employment, or at any time upon
Company's request, Executive will deliver promptly to Company all materials,
documents, plans, records, notes or other papers and any copies in Executive's
possession or control relating in any way to Company's business, which at all
times shall be the property of Company.
(d) Non-solicitation of Customers. During employment and for two
years after the termination for any reason of Executive's employment, Executive
will not solicit Customers for the purpose of providing or selling any
Products.
(e) Non-solicitation of Suppliers. During employment and for two
years after the termination for any reason of Executive's employment, Executive
will not solicit any Supplier for the purpose of obtaining goods or services
that Company obtained from that Supplier and that are used in or relate to any
Products.
(f) Non-solicitation of Company Employees. During employment and
for two years after the termination for any reason of Executive's employment,
Executive will not solicit for employment with another person or entity, anyone
who is, or was at any time during the year prior to such termination of
Executive's employment, a Company employee.
(g) Limitations on Post-Termination Competition. During
employment and for two years after the termination for any reason of
Executive's employment, Executive will not provide any Services within the
Territory to any person or entity developing, manufacturing, marketing,
selling, distributing or installing any Products.
(h) Disparagement. Executive shall not at any time make false or
misleading statements about Company, including its products, management,
employees, customers and suppliers.
(i) Future Employment Opportunities. At any time before, and for
two years after, the termination for any reason of Executive's employment,
Executive shall, before accepting employment with another employer, provide
such prospective employer with a copy of this Agreement and, upon accepting any
employment with another employer, provide Company with such employer's name and
a description of the services Executive will provide to such employer.
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(j) Work For Hire Acknowledgment; Assignment. Executive
acknowledges that Executive's work on and contributions to documents, programs,
and other expressions in any tangible medium (collectively, "Works") are within
the scope of Executive's employment and part of Executive's duties and
responsibilities. Executive's work on and contributions to the Works will be
rendered and made by Executive for, at the instigation of, and under the
overall direction of, Company, and are and at all times shall be regarded,
together with the Works, as "work made for hire" as that term is used in the
United States Copyright Laws. Without limiting this acknowledgment, Executive
assigns, grants, and delivers exclusively to Company all rights, titles, and
interests in and to any such Works, and all copies and versions, including all
copyrights and renewals. Executive will execute and deliver to Company, its
successors and assigns, any assignments and documents Company requests for the
purpose of establishing, evidencing, and enforcing or defending its complete,
exclusive, perpetual and worldwide ownership of all rights, titles and
interests of every kind and nature, including all copyrights, in and to the
Works, and Executive constitutes and appoints Company as Executive's agent to
execute and deliver any assignments or documents Executive fails or refuses
promptly to execute and deliver, this power and agency being coupled with an
interest and being irrevocable.
(k) Inventions, Ideas and Patents. Executive shall disclose
promptly to Company (which shall receive it in confidence), and only to
Company, any invention or idea of Executive (developed alone or with others)
conceived or made during Executive's employment by Company or within six months
of the date of expiration of this Agreement or termination of employment.
Executive assigns to Company any such invention or idea in any way connected
with Executive's employment with Company or related to Company's business,
research or development, or demonstrably anticipated research or development,
and will cooperate with Company and sign all documents deemed necessary by
Company to enable it to obtain, maintain, protect and defend patents covering
such inventions and ideas and to confirm Company's exclusive ownership of all
rights in such inventions, ideas and patents. Executive irrevocably appoints
Company as Executive's agent to execute and deliver any assignments or
documents Executive fails or refuses to execute and deliver promptly, this
power and agency being coupled with an interest and being irrevocable. This
constitutes Company's written notification that this assignment does not apply
to an invention for which no equipment, supplies, facility or trade secret
information of Company was used and which was developed entirely on Executive's
own time, unless (i) the invention relates (A) directly to the business of
Company, or (B) to Company's actual or demonstrably anticipated research or
development, or (ii) the invention results from any work performed by Executive
for Company.
8. Injunctive Relief. Executive acknowledges that any breach of
the terms of Section 7 hereof would result in material damage to the Company,
although it might be difficult to establish the monetary value of the damage.
Executive therefore agrees that the Company, in addition to any other rights
and remedies available to it, shall be entitled to obtain an immediate
injunction (whether temporary or permanent) from any court of appropriate
jurisdiction in the event of any such breach thereof by Executive, or
threatened breach which the Company in good faith believes will or is likely to
result in irreparable harm to the Company.
9. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Georgia and
the federal laws of the United States of
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America, without regard to rules relating to the conflict of laws. Executive
hereby consents to the exclusive jurisdiction of the Superior Court of Xxxx
County, Georgia and the U.S. District Court in Atlanta, Georgia and hereby
waives any objection Executive might otherwise have to jurisdiction and venue
in such courts in the event either court is requested to resolve a dispute
between the parties.
10. Notices. All notices, consents and other communications
required or authorized to be given by either party to the other under this
Agreement shall be in writing and shall be deemed to have been given or
submitted (i) upon actual receipt if delivered in person or by facsimile
transmission, (ii) upon the earlier of actual receipt or the expiration of two
business days after sending by express courier (such as UPS or Federal
Express), and (iii) upon the earlier of actual receipt or the expiration of
seven days after mailing if sent by registered or certified express mail,
postage prepaid, to the parties at the following addresses:
To the Company: Interface, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
Attn: Chief Executive Officer
With a copy to: Interface, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
Attn: General Counsel
To Executive: Xxxxx X. XxXxxxx
at the last address and fax number
shown on the records of the Company
Executive shall be responsible for providing the Company with a current
address. Either party may change its address (and facsimile number) for
purposes of notices under this Agreement by providing notice to the other party
in the manner set forth above.
11. Failure to Enforce. The failure of either party hereto at any
time, or for any period of time, to enforce any of the provisions of this
Agreement shall not be construed as a waiver of such provision(s) or of the
right of such party thereafter to enforce each and every such provision.
12. Binding Effect. This Agreement shall inure to the benefit of,
and be binding upon, the Company and its successors and assigns, and Executive
and his heirs and personal representatives. Any business entity or person
succeeding to all or substantially all of the business of the Company by stock
purchase, merger, consolidation, purchase of assets, or otherwise shall be
bound by and shall adopt and assume this Agreement, and the Company shall
obtain the assumption of this Agreement by such successor.
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13. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties and constitutes the sole and
entire agreement between the Company and Executive with respect to the subject
matter hereof. This Agreement shall not be modified or amended except pursuant
to a written document signed by the parties hereto, which makes specific
reference to this Agreement.
14. Severability. The Company's various rights and remedies
referenced in this Agreement are cumulative and nonexclusive of one another,
and Executive's covenants and agreements contained herein are severable and
independent of one another. The existence of any claim by Executive against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to enforcement by the Company of any or all of such
covenants or agreements of Executive hereunder. If any provision of this
Agreement shall be held to be illegal, invalid or unenforceable by a court of
competent jurisdiction, it is the intention of the parties that the remaining
provisions shall constitute their agreement with respect to the subject matter
hereof, and all such remaining provisions shall continue in full force and
effect.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officers, and Executive has
hereunder set his hand, as of the date first above written.
INTERFACE, INC.
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------
Xxx X. Xxxxxxxx, Chairman and
Chief Executive Officer
Attest:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
EXECUTIVE:
/s/ Xxxxx X. XxXxxxx
------------------------------------------
Xxxxx X. XxXxxxx
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