Exhibit 10.190
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT made the 4th day of April 2000, effective as of September
1, 1999, by and between KINRO TEXAS LIMITED PARTNERSHIP (the "Company") and
XXXXX X. XXXXXXX (the "Executive").
WITNESSETH:
WHEREAS, Kinro, Inc. ("Kinro"), the indirect parent of the Company,
and the Executive entered into an Employment Agreement, effective as of January
1, 1996 (the "1996 Agreement"), which was approved by the stockholders of Drew
Industries Incorporated ("Drew"), the ultimate parent of the Company, and
WHEREAS, pursuant to the 1996 Agreement, the Executive is and has
been President, Chief Executive Officer of the Company and, until his
resignation on August 31, 1999, the Executive was President, Chief Executive
Officer and a Director of Shoals Supply, Inc. ("Shoals"), an affiliate of the
Company, and
WHEREAS, it is in the best interests of the Company to assure the
continued relationship between the Executive and the Company, and
WHEREAS, the Company and the Executive desire to restate and amend
the 1996
Agreement with the Company as set forth herein,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, it is agreed as follows:
FIRST: The Company hereby agrees to continue to employ the
Executive, and the Executive hereby agrees to continue to serve the Company, as
President and Chief Executive Officer of the Company or in such other office or
capacity with the Company, or any subsidiary or affiliate of the Company, of
substantially equivalent responsibility, dignity and function as the Board of
Directors of the Company may direct, under the terms and conditions of this
Agreement. The Executive agrees to continue to devote substantially all of his
time, attention, skills and efforts to the performance of his duties on behalf
of the Company, and its subsidiaries and affiliates, at the principal executive
offices of the Company in the State of Texas; provided, however, that the
Executive shall at no time be required to change his residence without his
consent.
SECOND: Subject to the approval of the stockholders of Drew, the
term of this Agreement shall commence as of September 1, 1999 and shall
terminate on December 31, 2004.
THIRD: During the term of this Agreement, the Executive shall exert
his best efforts, and subject to the terms and provisions hereof, shall devote
substantially all of his business time and attention to the business and affairs
of the Company, and its subsidiaries and affiliates, and will use his best
efforts to promote the interests thereof. Consistent with the foregoing, the
Executive shall
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not be precluded from giving appropriate attention to his personal and financial
affairs. The Executive shall act in accordance with the policies of the Company
as determined from time to time by the Board of Directors of the Company, and
shall perform such services as the Board of Directors may from time to time
direct consistent with this Agreement.
FOURTH: The Company agrees to pay the Executive for his services to the
Company a salary at the rate of not less than four hundred thousand ($400,000)
dollars per annum, payable according to the customary payroll practice of the
Company.
FIFTH: In addition to the salary provided for in paragraph FOURTH hereof,
the Executive shall be entitled to receive:
(i) for the year ending December 31,1999, performance-based incentive
compensation (the "Bonus") in an amount equal to the sum of
(A) seven and three-tenths percent (7.3%) of the amount by which the
sum of (x) the consolidated Operating Profit (as herein defined) of Kinro, and
(y) the consolidated Operating Profit of Shoals, in each case for the eight (8)
months ended August 31, 1999, exceeds seven million two hundred thirty-seven
thousand ($7,237,000) dollars (representing eight-twelfths of $10,856,000); for
purposes of this Agreement "Operating Profit" means the consolidated earnings of
Kinro and Shoals, respectively, before interest and taxes (without deduction for
costs of parent-company administration or amortization of goodwill), plus
(B) seven and three-tenths percent (7.3%) of the amount by which the
consolidated Operating Profit of Kinro, for the four (4) months ended December
31, 1999, exceeds
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one million nine hundred forty-six thousand ($1,946,000) dollars (representing
four-twelfths of $5,837,000);
(ii) subject to the approval of the stockholders of Drew, for the year
ending December 31, 2000, a Bonus equal to seven and three-tenths percent (7.3%)
of the amount by which the annual consolidated Operating Profit of Kinro exceeds
five million eight hundred thirty-seven ($5,837,000) dollars; provided, however,
that if, after the date hereof, Kinro or the Company acquire additional business
operations, the performance goals pursuant to which the Bonus is paid may be
modified upon agreement between the Executive and the Company, subject to
approval of the stockholders of Drew, if required for purpose of deducting
certain incentive cooperation; and
(iii) subject to the approval of the stockholders of Drew, for each year
during the term hereof commencing with the year ending December 31, 2001, a
Bonus equal to five percent (5%) of the amount by which the annual consolidated
Operating Profit of Kinro exceeds five million eight hundred thirty-seven
($5,837,000) dollars; provided, however, that if, after the date hereof, Kinro
or the Company acquire additional business operations, the performance goals
pursuant to which the Bonus is paid may be modified upon agreement between the
Executive and the Company, subject to approval of the stockholders of Drew, if
required for purpose of deducting certain incentive cooperation.
SIXTH: Nothing in this Agreement, nor any fixing of compensation in the
form of salary, deferred compensation, securities or otherwise, shall prevent
the Compensation Committee of the Board of Directors of Drew from granting to
the Executive (i) payments pursuant to Drew's discretionary retirement bonus
program, and (ii) additional compensation in the form of cash, salary
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increases, deferred compensation, securities or otherwise.
SEVENTH: The Executive and his family shall continue to receive medical
coverage at least equivalent, in nature and extent, to the medical coverage
presently in effect, and such other reasonable benefits which he has received
from the Company prior to the date hereof.
The Executive agrees to have an annual comprehensive physical
examination at the expense of the Company.
The Executive shall be eligible to participate in any pension,
retirement or profit-sharing plan adopted by the Company for the benefit of its
executives. The Executive shall also be entitled to a vacation in each year
during the term hereof of not less than three weeks.
The Company agrees to maintain disability insurance providing for
periodic payments (not less frequently than monthly) to the Executive, in the
event the Executive shall fail or be unable to perform his obligations
hereunder, in the amount of not less than $120,000 per year, and up to $240,000
per year if available at reasonable cost to the Company. The Executive shall
have the right to elect payment of premiums for such insurance to be made either
by the Company on behalf of the Executive, or directly by the Executive. Such
disability payments shall commence ninety (90) days after the commencement of
disability and shall continue for the maximum available term after the
commencement of disability.
During the period of employment hereunder, the Company, at its
expense, will make available to the Executive an automobile, together with
gasoline credit cards, to be used in connection with the business of the
Company. The Company will pay for all maintenance and parking of such
automobile.
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EIGHTH: All travel and other expenses incident to the rendering of
services by the Executive hereunder will be paid by the Company. If any such
expenses are paid in the first instance by the Executive, the Company will
reimburse him therefor on presentation of expense vouchers.
NINTH: If, on account of physical or mental disability, the Executive
shall fail or be unable to fully perform this Agreement for a continuous period
of six (6) months, the Company may, at its option, at any time thereafter, upon
thirty (30) days written notice to the Executive, terminate this Agreement and
this Agreement shall come to an end at the end of said notice period as if such
date were the termination date of this Agreement. Notwithstanding termination of
employment as aforesaid, the Company shall (i) continue to make salary payments
to the Executive in an amount equal to the difference between the salary
provided for in Paragraph FOURTH of this Agreement and the disability payments
received by the Executive pursuant to paragraph SEVENTH of this Agreement for a
period of six (6) months from said date of termination; and (ii) pay the Bonus
to the Executive proportionately with respect to the period prior to the date of
termination.
In the event of the death of the Executive during the term hereof,
the term of this Agreement shall terminate on the date of death. In such case,
the Company shall continue to pay to the heir or designee of the Executive (i)
the salary payments provided for in Paragraph FOURTH hereof which the Executive
would have been entitled to receive for a period of six (6) months from the date
of death of the Executive, (ii) the Bonus, proportionately, with respect to the
period prior to the date of termination. The Company agrees to maintain, at no
cost to the Executive, a term life or whole life insurance policy or policies on
the life of the Executive during the period of employment hereunder providing
death benefits of at least $500,000, the proceeds of which
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insurance shall be payable to beneficiaries designated by the Executive.
The Company shall have the right to terminate this Agreement at any
time upon ten (10) days written notice to the Executive in the event that (i)
the Executive has committed a willful material breach of the terms of this
Agreement, or (ii) the Executive is convicted of any crime involving moral
turpitude. In such event, this Agreement shall come to an end as of the end of
such notice period as if such date were the termination date of this Agreement.
TENTH: For the term of this Agreement and for a period of eighteen (18)
months after the termination hereof, the Executive shall not (i) directly or
indirectly, undertake or perform any services in or for any other enterprises
that may or would interfere with the due performance of his duties hereunder,
nor (ii) divulge to any person, firm, company or other entity any information
with respect to the business of the Company or its affiliates or subsidiaries
that he may acquire in connection with the performance of his duties hereunder
or may have acquired prior hereto, including, but not limited to, production
methods, manufacturing methods, arrangements or processes, sales methods or
arrangements, customer's lists, technical data, know-how and other information,
whether or not commonly regarded as proprietary information or trade secrets.
For the purposes hereof, a business shall be deemed competitive if it is
conducted in any geographic market area in which the Company or its affiliates
or subsidiaries is engaged in business and involves the sale or distribution of
any products or services sold or offered by the Company or its affiliates or
subsidiaries or any products or services similar to, or derived from, the
products or services sold or offered by the Company or its affiliates or
subsidiaries.
The Executive agrees that for the duration of this Agreement and for
a period
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of eighteen (18) months after termination hereof, he shall not directly or
indirectly engage in any business which is competitive with the business of the
Company or its affiliates or subsidiaries. For the purposes hereof, a business
shall be deemed competitive if it is conducted in any geographic market area in
which the Company or its affiliates or subsidiaries is engaged in business and
involves the sale or distribution of any products or service sold or offered by
the Company or its affiliates or subsidiaries, or any products or services
similar to, or derived from, the products or services sold or offered by the
Company or its affiliates or subsidiaries on the date of such termination; and
the Executive shall be deemed directly or indirectly to engage in such business
if he participates in such business, or in any entity engaged in or which owns
such business, as an officer, director, employee, consultant, partner,
individual proprietor, manager or as an investor who has made any loans,
contributed to capital stock or purchased any stock. The foregoing, however,
shall not be deemed to prevent the Executive from investing in securities if
such class of securities in which the investment is so made is listed on a
national securities exchange or is of a company registered under Section 12(g)
of the Securities Exchange Act of 1934, and does not represent in excess of one
(1%) per cent of the outstanding securities of said class.
ELEVENTH: All notices, demands and other communications provided for by
this Agreement shall be in writing and shall be deemed to have been given at the
time when mailed at any general or branch United States Post Office, enclosed in
a registered or certified postpaid envelope addressed to the address of the
respective parties stated below, or to such changed address as such parties may
have fixed by notice:
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To the Company: Kinro Texas Limited Partnership
c/o Drew Industries Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
- with copy to -
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To the Executive: Xxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
TWELFTH: This Agreement constitutes the whole Agreement between the
parties, and there are no terms other than those contained herein. No variation
hereof shall be deemed valid unless in writing and signed by the parties hereto,
and no discharge of the terms hereof shall be deemed valid unless by full
performance by the parties hereto, or by a writing signed by the parties hereto.
This Agreement shall supersede all other Employment Agreements between the
Executive and the Company.
THIRTEENTH: This Agreement shall inure to the benefit of and be binding
upon the Company, its successors and assigns, and the Executive, his heirs,
executors, administrators and legal representatives.
FOURTEENTH: This Agreement shall not be terminated, voluntarily or
involuntarily, by the liquidation or dissolution of the Company or by the merger
or consolidation of the Company with or into another Company.
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IN WITNESS WHEREOF, the Company has caused these presents to be signed by
its duly authorized officer, and its corporate seal to be hereunto affixed, and
the Executive has hereunto set his hand the day and year first above written.
ATTEST: KINRO TEXAS LIMITED PARTNERSHIP
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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WITNESS:
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Guarantee
Each of the undersigned entities hereby jointly and severally guarantees
the full and prompt payment and performance by Kinro Texas Limited Partnership
of the foregoing Amended and Restated Employment Agreement.
Dated: April 4, 2000
Kinro, Inc.
Kinro Manufacturing, Inc.
Kinro Tennessee Limited Partnership
By: /s/ [ILLEGIBLE]
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