EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made on December 1, 2002,
between Frank's Nursery & Crafts, Inc., a Delaware corporation (the "Company"),
and Xx. Xxxx Xxxxxxxxx ("Employee").
RECITAL
A. The Company is engaged in the operation of retail stores that sell
lawn and garden products, Christmas trim-a-tree merchandise, artificial flowers
and arrangements, garden and floral crafts and home decorative products (the
"Business").
B. Employee has been, and the Company wishes to continue to employ
Employee as, the President and Chief Operating Officer of the Company, pursuant
to the terms of this Agreement. Employees desires to be employed by the Company
in that position.
Therefore, the parties agree as follows:
1. DUTIES AND NATURE OF EMPLOYMENT. During the Employment Term (as defined in
Section 2.1 below), Employee shall, in accordance with this Agreement, be
employed by the Company as its President and Chief Operating Officer and devote
his full working time, attention and best efforts to the business of the
Company. During the Employment Term, Employee shall comply with all of the
Company's corporate policies.
2. TERM.
2.1 Employment Term. The term of Employee's employment under this
Agreement (the "Employment Term") began on December 1, 2002 and shall continue
for two years or until earlier terminated in accordance with Section 2.2 of this
Agreement. Notwithstanding the termination of the Employment Term pursuant to
Section 2.2 below, Employee's obligations under Sections 6 and 7 shall,
according to their terms, survive any termination of Employee's employment and
Employee and the Company shall in all events be bound by and comply with the
provisions of such applicable Sections at all times after such termination.
2.2 Termination of Employment Term. The Employment Term shall terminate
prior to its expiration upon the earliest to occur of the following:
(a) the death of Employee, effective as of the date of death;
(b) the substantial disability of Employee, as determined by a
competent medical doctor selected by the Company, for a period of 90 days;
(c) without "Cause", as defined below, upon written notice to Employee
by the Company, effective as of the date of such notice;
(d) with "Cause" (defined as gross insubordination, intentional neglect
of principal duties, commission of a felony or breach of duty of loyalty in
connection with his activities relating to the Company), upon written notice to
Employee by the Company, effective as of the date of such notice; or
(e) upon 45 days prior written notice to the Company by Employee.
2.3 At Will Employment. While Employee shall have certain rights upon
the termination of his employment, Employee's employment hereunder shall be
terminable at will, with or without Cause, at any time, and Employee shall have
no right to continued employment hereunder.
3. COMPENSATION OF EMPLOYEE. As full compensation for the services to be
rendered by Employee pursuant to this Agreement, the Company shall pay Employee,
during the Employment Term, the following:
(a) An annual salary of $300,000, payable in arrears, semi-monthly or
otherwise in accordance with the Company's regular payroll procedures. Employee
will be eligible for an annual salary increase on or about April 1 of each year
based on individual performance and in accordance with the Company's typical
compensation practices for executives;
(b) Employee will be eligible to earn an annual bonus, based upon the
Company's financial performance and upon the Company's evaluation of Employee's
performance of operating objectives determined by the Company. The target bonus
amount shall be not less than 35% of base salary for each of fiscal year 2003
and 2004; and
(c) Employee will be eligible for annual stock option grants, based
upon the determination of the Board of Directors of the Company (or an
appropriate committee thereof) to award annual grants to executives and upon the
Company's evaluation of Employee's performance.
4. FRINGE BENEFITS. Employee shall be entitled, during the Employment Term, to
receive those benefits generally provided to other executive employees of the
Company from time to time. Employee shall also be entitled, during the
Employment Term, to receive a $3,000 per month housing allowance and to continue
to receive the automobile benefits provided to Employee on the date of this
Agreement.
5. PAYMENTS UPON CERTAIN TERMINATIONS.
5.1 Termination of Employment.
(a) If the Employment Term terminates for any reason whatsoever,
Employee (or, if applicable, his legal representative) shall be entitled to
receive (i) the pro rata portion of Employee's earned but unpaid salary under
Section 3(a) above through the date of termination
-2-
and (ii) any unpaid annual bonus earned with respect to any fiscal year
completed on or prior to the date of termination.
(b) If the Employment Term terminates pursuant to Section 2.2(c) above,
then Employee shall be entitled to receive his annual base salary, as and when
it would otherwise have been payable to him, for the longer of (i) one year from
the date of termination of the Employment Term or (ii) until November 30, 2004.
Nothing in this Section 5.1(b) shall limit the Company's right to terminate the
Employment Term under any other subsection of Section 2.2, and discontinue its
obligations under this Section 5.1(b), even after the Company's termination of
the Employment Term under Section 2.2(c), if the Company learns of facts or
circumstances that would make termination under a Section other than Section
2.2(c) appropriate. Employee shall be entitled to purchase health insurance
through the Company in accordance with, and for as long as provided by, COBRA.
During the shorter of (I) or the term which Employee receives his annual base
salary pursuant to the first sentence of this Section 5.1(b) and (II) the period
during which Employee is entitled to purchase health insurance through the
Company under COBRA, the Company shall pay Employee an amount equal to his cost
of such health insurance at the same time Employee's payments for such health
insurance are due to the Company; provided, that if Employee obtains employment
with a third party during the period in which Employee is entitled to be paid
the cost of his health insurance pursuant to this Section, and Employee is
eligible to obtain health insurance through such third party, then the Company
shall no longer be obligated to pay Employee the cost of his health insurance
pursuant to this Section.
5.2 Limitation of Termination Payments and Withholding of Taxes. Except
as set forth in this Agreement, the termination payments described in this
Section 5 shall be in lieu of any termination or severance payments required by
Company policy or applicable law (including unemployment compensation) and shall
constitute Employee's exclusive rights and remedies with respect to termination
of his employment with the Company, other than rights or remedies that Employee
or his estate may have under the Company's employee benefit plans. The Company
may withhold from any payments under this Section 5 all applicable federal,
state, city or other taxes required by applicable law to be so withheld.
6. CONFIDENTIALITY AND NON-COMPETITION.
6.1 Confidential Information.
(a) Employee shall not, except as required by his duties to the
Company, as authorized by the Board of Directors of the Company or as required
by law, at any time during or after the termination of his employment with the
Company, directly or indirectly use, publish, disseminate, distribute or
otherwise disclose any Confidential Information (as defined below). Employee
shall keep all Confidential Information in trust for the use and benefit of the
Company. Employee shall take all reasonable steps necessary or reasonably
requested by the Company to ensure that all Confidential Information is kept
confidential for the sole use and benefit of the Company.
(b) Upon termination of his employment by the Company or at any other
time the Company may so request, Employee shall promptly deliver to the Company
all materials
-3-
constituting Confidential Information (including all copies) that are in his
possession or under his control and Employee shall not make or retain any copy
of or extract from such materials.
(c) For purposes of this Section 6.1, "Confidential Information" means
any proprietary or confidential information of or relating to the Company that
is not generally known in any industry in which the Company is or may become
engaged and which is material to the Company. Employee acknowledges that the
Confidential Information of the Company is valuable, special and unique to the
business of the Company and on which such business depends, and is proprietary
to the Company, and that the Company wishes to protect such Confidential
Information by keeping it secret and confidential for the sole use and benefit
of the Company.
6.2 Non-Competition. During the longer of (i) the period through
November 30, 2004, and (ii) the period through the date one year after the
termination of the Employment Term, Employee shall not, either directly or
indirectly, through any person or entity:
(a) Hire any person who is then employed by, is a consultant to or is
an agent of the Company or who was employed by, a consultant to or an agent of
the Company at any time during the three months prior to such date, or
encourage, induce or attempt to induce, or aid, assist or abet any other party
or person in encouraging, inducing or attempting to induce, any such employee,
consultant or agent to alter or terminate his or her employment, consultation or
agency with the Company.
(b) Take any action intended to, or which otherwise does, interfere
with the Company's relationship with any supplier, vendor, lender, shareholder
or other party.
(c) Be engaged by, consult with, or invest in, any person or entity
doing business in any state in which the Company does business, the principal
business of which is the sale of lawn and garden and/or Christmas merchandise,
except that Employee may own stock in a corporation which may be engaged
principally in the sale of lawn and garden and/or Christmas merchandise, whose
shares are listed for trading on a national or regional stock exchange or trade
on the over-the-counter market, provided that Employee owns, in the aggregate,
fewer than 2% of the issued and outstanding shares of such corporation.
7. REMEDIES.
7.1 Injunctive Relief. The covenants and obligations contained in
Sections 6.1 and 6.2 above relate to matters which are of a special, unique and
extraordinary character and a violation of any of the terms of such Sections
shall cause irreparable injury to the Company, the amount of which shall be
difficult if not impossible to estimate or determine and which cannot be
adequately compensated. Therefore, the Company shall be entitled to an
injunction, restraining order or other equitable relief from any court of
competent jurisdiction, restraining any violation or threatened violation of any
of such terms by Employee and such other persons as the court orders.
-4-
7.2 Cumulative Rights and Remedies. Rights and remedies provided by
Section 7.1 above are cumulative and are in addition to any other rights and
remedies the Company may have at law or equity.
8. MISCELLANEOUS.
8.1 Headings. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
8.2 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by certified or registered mail,
postage prepaid, addressed to the Company at its principal executive offices,
with a copy to Xxxxxx X. Xxxx, Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, 2290 First
National Building, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or to Employee
at his address as shown in the Company's records. Any such notice or
communication shall be deemed to have been given as of the date so mailed.
8.3 Assignment. Employee may not assign, transfer or delegate his
rights or obligations under this Agreement and any attempt to do so shall be
void. Upon any assignment of this Agreement by the Company, the Company shall
obtain the written acknowledgement of the assignee or successor that such party
is bound by this Agreement. This Agreement is binding on and inures to the
benefit of the parties, their successors and assigns and the executors,
administrators and other legal representatives of Employee.
8.4 Counterparts. This Agreement may be signed in counterparts.
8.5 Governing Law. This Agreement and any dispute relating to or
arising out of the matters covered by this Agreement shall be governed by the
laws of the State of Michigan (regardless of the laws that might be applicable
under principles of conflicts of law) as to all matters (including validity,
construction, effect and performance). Each party hereto consents to, and shall
submit to, the jurisdiction of the courts of the State of Michigan and of any
Federal court whose district includes Troy, Michigan, which shall have exclusive
jurisdiction with respect to any action or proceeding, and process in any such
action or proceeding may be served in the manner provided by Michigan law for
service on foreign corporations or persons.
8.6 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
8.7 Entire Agreement. This Agreement constitutes the entire Agreement,
and supersedes all prior agreements and understandings, written or oral, among
the parties with respect to the subject matter of this Agreement. This Agreement
may not be amended or modified except by agreement in writing, signed by the
party against whom enforcement of any waiver, amendment, modification or
discharge is sought.
-5-
IN WITNESS WHEREOF, this Agreement has been signed on the date first
written above.
Frank's Nursery & Crafts, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: VP HR
---------------------------
/s/ Xxxx Xxxxxxxxx
-------------------------------
Xxxx Xxxxxxxxx
-6-
