AMENDED AND RESTATED EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT (this
“Agreement”) is made and entered into as of the 23rd day of July, 2008, by
and between Interface,
Inc., a corporation organized under the laws of the State of Georgia,
U.S.A. (the “Company”), and Xxx
X. Xxxxxxxx, a resident of Atlanta, Georgia (“Employee”).
W
I T N E S S E T H:
WHEREAS,
on April 1, 1997, desiring to set forth in writing the terms of Employee’s
employment with the Company, the parties entered into an Employment Agreement,
which was subsequently amended by the parties as of January 6, 1998, January 14,
1999, May 7, 1999, July 24, 2001 and July 26, 2006; and
WHEREAS,
to assure both itself and its key employees of continuity of management and
objective judgment in the event of a change in control of the Company, and to
induce its key employees to remain employed by the Company, the Company has
entered into change in control agreements with certain key employees, including
a Change in Control Agreement with Employee, dated April 1, 1997, detailing
Employee’s compensation and benefits upon a change in control of the Company,
which was subsequently amended by the parties as of January 6, 1998,
January 14, 1999, May 7, 1999, July 24, 2001 and July 26, 2006;
and
WHEREAS,
the parties desire to amend and restate such Employment Agreement and such
Change in Control Agreement (the “Prior Agreements”) and to combine the Prior
Agreements and bring the combined Prior Agreements into compliance with Section
409A of the Internal Revenue Code of 1986, as amended (“Code Section
409A”);
NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, 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, Employee shall be employed by the
Company as its Chairman of the Board, and shall perform such duties and
functions for the Company and its subsidiaries and affiliates as are set forth
in the Bylaws of the Company and as shall be specified from time to time by the
Board of Directors (the “Board”) of the Company. Employee accepts
such employment and agrees to perform such executive duties as may be assigned
to Employee. Employee may be relocated (prior to a Change in Control),
Employee’s titles and duties may be changed, and Employee may be promoted to a
higher position within the Company, but Employee will not be demoted or given
lesser titles.
2. Duties. Employee
shall devote his full business-related time and best efforts to accomplishing
such duties at such locations as may be requested by the Board.
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3. Avoidance of Conflict of
Interest. While employed by the Company, Employee shall not
engage in any other business enterprise without the prior written consent of the
Company. Without limiting the foregoing, Employee 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 Employee have any financial interest in any competitor of the Company;
provided, however, Employee 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. Subject
to the terms of Section 5 hereof, the duration of this Agreement (the “term”)
shall be for a rolling, two-year term commencing on the date first set forth
above, and shall be deemed automatically (without further action by either the
Company or Employee) to extend each day for an additional day such that the
remaining term of this Agreement shall continue to be two years; provided,
however, that on Employee’s 74th
birthday, this Agreement shall cease to extend automatically and, on such date,
the remaining term of this Agreement shall be two years.
5. Termination. Employee’s
employment with the Company may be terminated as provided in this Section
5:
(a) Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
shall have the meanings ascribed to them below.
(i) “Cause” shall mean,
for purposes of this Agreement (except with respect to a Section 409A Separation
from Service following a Change in Control, which is addressed in Section
7(a)(i) hereof): (A) Employee’s fraud, dishonesty, gross
negligence, or willful misconduct with respect to business affairs of the
Company (including its subsidiaries and affiliated companies),
(B) Employee’s refusal or repeated failure to follow the established lawful
policies of the Company applicable to persons occupying senior positions within
the Company, (C) Employee’s material breach of this Agreement, or
(D) Employee’s conviction of a felony or other crime involving moral
turpitude. A termination of Employee for Cause based on clause (A),
(B) or (C) of the preceding sentence shall take effect 30 days after Employee
receives from the Company written notice of intent to terminate and the
Company’s description of the alleged Cause, unless Employee shall, during such
30-day period, remedy the events or circumstances constituting Cause; provided,
however, such termination shall take effect immediately upon the giving of
written notice of termination for 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).
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(ii) "Section 409A Separation from Service"
shall mean a separation from service with the Company and affiliated entities,
as defined in Code Section 409A and guidance issued thereunder. As a
general overview, under Code Section 409A, an employee will separate from
service if the employee dies, retires, or otherwise has a termination of
employment determined in accordance with the following:
(A) Leaves of
Absence. The employment relationship is treated as continuing
intact while Employee is on military leave, sick leave, or other bona fide leave
of absence if the period of such leave does not exceed six months, or, if
longer, so long as Employee retains a right to reemployment with the Company
under an applicable statute or by contract. A leave of absence
constitutes a bona fide leave of absence only if there is a reasonable
expectation that Employee will return to perform services for the
Company. If the period of leave exceeds six months and Employee does
not retain a right to reemployment under an applicable statute or by contract,
the employment relationship is deemed to terminate on the first day immediately
following such six-month period.
(B) Status
Change. Generally, if Employee performs services both as an
employee and an independent contractor, Employee must separate from service both
as an employee and as an independent contractor, pursuant to standards set forth
in the applicable regulations promulgated by the Secretary of Treasury under
Code Section 409A (“Treasury Regulations”), to be treated as having a separation
from service. However, if Employee provides services to the Company
as an employee and as a member of the Board, the services provided as a director
are not taken into account in determining whether Employee has a separation from
service as an employee for purposes of this Agreement.
(C) Termination of
Employment. Whether a termination of employment has occurred
is determined based on whether the facts and circumstances indicate that the
Company and Employee reasonably anticipate that no further services would be
performed after a certain date or that the level of bona fide services Employee
would perform after such date (whether as an employee or as an independent
contractor) would permanently decrease to no more than 49 percent of the average
level of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding 36-month period (or the full period
of services to the Company if Employee has been providing services to the
Company less than 36 months). Facts and circumstances to be
considered in making this determination include, but are not limited to, whether
Employee continues to be treated as an employee for other purposes (such as
continuation of salary and participation in employee benefit programs), and
whether similarly situated service providers have been treated
consistently. For periods during which Employee is on a paid bona
fide leave of absence and has not otherwise terminated employment as described
in subsection (A) above, for purposes of this subsection (C), Employee is
treated as providing bona fide services at a level equal to the level of
services that Employee would have been required to perform to receive the
compensation paid with respect to such leave of absence. Periods
during which Employee is on an unpaid bona fide leave of absence and has not
otherwise terminated employment are disregarded for purposes of this clause (C)
(including for purposes of determining the applicable 36-month (or shorter)
period).
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The Company and Employee
reasonably anticipate, as of the date of this Agreement, that the level of
Employee’s post-employment services for the Company, if any, will be no more
than 49% of the historical level of services (as described hereinabove) that
Employee has provided (such that he will have a Section 409A Separation
from Service as of the date of his termination of
employment). Notwithstanding the foregoing, the parties acknowledge
that they should reassess the anticipated level of services as of the date of
Employee’s termination of employment to confirm that it is sufficiently limited
so that such termination date will be the date of Employee’s Section 409A
Separation from Service. While it is anticipated Employee’s Section
409A Separation from Service will occur on the date that his employment
terminates, this Agreement is drafted to take into account the chance that it
will not.
(D) Service with
Affiliates. For purposes of determining whether a separation
from service has occurred under the above provisions, the “Company” shall
include the Company and all entities that would be treated as a single employer
with the Company under Section 414(b) or (c) of the Internal Revenue Code of
1986, as amended (the “Code”), but substituting “at least 50 percent” instead of
“at least 80 percent” each place it appears in applying such rules.
(b) Termination by the Company
After Notice of Resignation. Employee may voluntarily
terminate his employment hereunder at any time, effective 90 days after delivery
to the Company of Employee’s signed, written resignation. The Company
may accept said resignation and, at its option, terminate Employee’s employment
before the end of such 90-day period; provided, if Employee has given such 90
days notice, then the Company shall pay Employee, in lieu of waiting for passage
of the notice period and in addition to the amounts payable to Employee pursuant
to Section 6 below, an amount equal to the salary that would have been paid to
Employee through the end of the notice period had his actual employment
continued. Any such amount payable by the Company (in lieu of waiting
for the passage of the notice period) for the period after Employee’s actual
termination of employment shall be paid in a single lump-sum cash payment within
30 days after the date of Employee’s actual termination of
employment.
(c) Termination by the
Company. Subject to the terms of Section 5(d) below, the
Company may terminate Employee’s employment hereunder, in its sole discretion,
whether with or without Cause, at any time upon written notice to
Employee.
(d) Termination Without
Cause. If, prior to the end of the term of this Agreement, the
Company terminates Employee’s employment with the Company without Cause,
Employee 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
clauses (i) through (v) below is referred to herein as the “Continuation
Period,” which means the time period remaining from the date of Employee’s
termination of employment to the end of the remaining term of this Agreement as
provided in Section 4 above. Employee shall have no duty to mitigate
any of the damages payable hereunder. The fact that Employee is eligible for
retirement, including early retirement, under applicable retirement plans or
agreements at the time of Employee’s termination shall not make Employee
ineligible to receive benefits under this Section 5(d).
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(i) Salary. Employee
will continue to receive an amount equal to his current salary (the “Continued
Salary Payments”), subject to the withholding of all applicable taxes, for the
Continuation Period. For purposes hereof, Employee’s “current salary”
shall be the highest rate in effect during the six-month period prior to
Employee’s termination of employment. Employee will receive the
Continued Salary Payments on a semi-monthly basis, payable on the fifteenth day
and last day of each calendar month, in substantially equal installments,
beginning on the earliest such payment date following the date of Employee’s
termination of employment. Notwithstanding the foregoing, the payment
of any portion of the Continued Salary Payments that (A) is not exempt from Code
Section 409A, and (B) is payable (based on the payment schedule hereinabove)
before, or within the six-month period immediately following, the date of
Employee’s Section 409A Separation from Service, will be delayed and will be
made in a single lump-sum cash payment upon the day after the six-month
anniversary of Employee’s Section 409A Separation from Service.
(ii) Bonuses and
Incentives. Employee shall receive cash bonus payments from
the Company for each calendar month during the Continuation Period in an amount
equal to one-twelfth of the average of the bonuses paid to Employee under the
executive bonus program(s) for the two calendar years immediately preceding the
year in which his termination of employment occurs (“Average
Bonus”). Employee will receive these payments (the “Average Bonus
Payments”) on a semi-monthly basis, payable on the fifteenth day and the last
day of each calendar month, in substantially equal installments, beginning on
the earliest such payment date following the date of Employee’s termination of
employment. Notwithstanding the foregoing, the payment of any portion
of the Average Bonus Payments that (A) is not exempt from Code Section 409A, and
(B) is payable (based on the payment schedule hereinabove) before, or within the
six-month period immediately following, the date of Employee’s Section 409A
Separation from Service, will be delayed and will be made in a single lump-sum
cash payment upon the day after the six-month anniversary of Employee’s Section
409A Separation from Service.
Employee also
shall receive a prorated bonus for the year in which Employee’s employment
terminates. Such bonus shall be equal to (A) the Average Bonus multiplied by the
number of days Employee worked in the year of his employment termination, (B)
divided by 365
days (“Prorated Bonus”). The Prorated Bonus shall be paid in a lump
sum in cash within 30 days after the date of Employee’s termination of
employment. Notwithstanding the foregoing, if the Prorated Bonus (or
any portion thereof) is not exempt from Code Section 409A, the Prorated Bonus
(or such portion) will be paid in a single lump-sum cash payment upon the day
after the six-month anniversary of Employee’s Section 409A Separation from
Service.
Any bonus
amounts that Employee 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.
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(iii) Health Insurance
Coverages. The health insurance benefit coverages, whether
self insured or commercially insured by the Company, provided to Employee at
Employee’s date of termination shall be continued for and during the
Continuation Period by the Company at the same level and in the same manner as
if Employee’s employment had not terminated (subject to the customary changes in
such coverages upon Employee’s retirement, reaching age 65 or similar
events). Any additional health benefit coverages Employee had at
termination, including spousal and/or dependent coverage, will also be continued
for and during the Continuation Period on the same terms, to the extent
permitted by the applicable policies or contracts. The expense of all
such health insurance benefit coverages shall be paid by the Company and/or
Employee in the same respective amounts as each would pay if Employee’s
employment had not terminated. Employee shall pay his portion of such
expenses by separate check payable to the Company each month in advance (or in
such other manner, such as withholding a portion of monthly payments otherwise
payable to Employee hereunder, as the Company may agree). If the
terms of any benefit plan referred to in this subsection do not permit continued
participation by Employee, then the Company will arrange for other coverage at
its expense providing substantially similar benefits. Unless Employee
has satisfied the eligibility requirements for retiree health coverage under the
Company’s retiree medical plan (if any) as of the date of his termination of
employment (and enrolled within 30 days after such termination date), the
coverages provided for in this subsection shall be applied against and reduce
the period for which COBRA benefits will be provided.
(iv) Life and Long-Term Care
Insurance Coverages. The life and long-term care insurance
benefit coverages provided to Employee at Employee’s date of termination shall
be continued for and during the Continuation Period by the Company at the same
level and in the same manner as if Employee’s employment had not terminated
(subject to the customary changes in such coverages upon Employee’s retirement,
reaching age 65 or similar events). Any additional life and long-term
care coverages Employee had at termination, including spousal and/or dependent
coverage, will also be continued for and during the Continuation Period on the
same terms, to the extent permitted by the applicable policies or
contracts. The expense of all such life and long-term care benefit
coverages shall be paid by the Company and/or Employee in the same respective
amounts as each would pay if Employee’s employment had not
terminated. Employee shall pay his portion of such expenses by
separate check payable to the Company each month in advance (or in such other
manner, such as withholding a portion of monthly payments otherwise payable to
Employee hereunder, as the Company may agree). If the terms of any
benefit plan referred to in this subsection do not permit continued
participation by Employee, then the Company will arrange for other coverage at
its expense providing substantially similar benefits. If Employee is
covered by a split-dollar or similar life insurance program as of the date of
termination, the terms of said insurance arrangement will be as provided in the
applicable agreement(s) pertaining to said arrangement.
(v) Employee Retirement
Plans. Upon the termination of Employee’s employment, Employee
shall no longer actively participate in the tax-qualified employee retirement
plans maintained by the Company. However, with respect to
any such plans, the Company shall pay to Employee the following
amounts:
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(A) Savings Plan Company
Match. The Company shall pay to Employee an amount equal to
the dollar amount of matching contributions, if any, that would have been made
to Employee’s account(s) under the Interface, Inc. Savings and Investment Plan
or any successor Code Section 401(k) plan (the “Savings Plan”) if Employee had
continued to actively participate in the Savings Plan and had made deferrals at
the maximum permissible level (in effect on the date of his termination of
employment) throughout the Continuation Period.
(B) Savings Plan
Vesting. To the extent that Employee is not fully vested under
the Savings Plan on the date of his termination of employment, the Company shall
pay to him an amount equal to (1) the value of his Savings Plan account on the
date of his termination of employment had he been fully vested on such date,
minus (2) the actual value of his vested Savings Plan account on such
date.
(C) Retirement
Plan. If, at the time of his employment termination, Employee
participates in a tax-qualified defined benefit pension plan (note that no such
plan exists as of the date of this Agreement), the Company shall pay to Employee
an amount equal to the present value on the date of termination of employment
(calculated as provided in such tax-qualified pension plan) of the excess of (1)
the benefit Employee would have been paid under such plan if Employee had
continued to be covered for the Continuation Period (less any amounts Employee
would have been required to contribute) and had been fully vested, over (2) the
benefit actually payable under such plan. Such amount shall be
calculated, for the period after Employee’s employment termination, on the basis
of the compensation payable to Employee under subsections (d)(i) and (ii)
above.
(D) Timing of
Payment. All amounts payable pursuant to this clause (v) shall
be paid to Employee, or, if applicable, Employee’s spouse, estate or other
beneficiary, in one lump-sum cash payment within 30 days after the date of
Employee’s termination of employment, with any portion of such amount that is
not exempt from Code Section 409A to be paid upon the day after the six-month
anniversary of Employee’s Section 409A Separation from Service.
(E) Salary Continuation
Agreement. For the avoidance of doubt, from and after
Employee’s date of termination, Employee shall continue to be covered by, and
entitled to the benefits under, Employee’s Salary Continuation Agreement dated
as of October 1, 2002 (as amended by the parties on September 29, 2006 and as
may hereafter be amended), payable in accordance with the terms of said
agreement.
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(vi) Stock
Awards.
(A) Stock
Options. As of Employee’s date of termination, all outstanding
stock options granted to Employee under the Interface, Inc. Omnibus Stock
Incentive Plan (Amended and Restated effective February 22, 2006), the
Interface, Inc. Omnibus Stock Incentive Plan (dated January 20, 1997), and the
Interface, Inc. Key Employee Stock Option Plan (1993), and any similar plan(s)
in effect at the time of Employee’s termination of employment (collectively, the
“Stock Plans”), shall become 100% vested and thus immediately
exercisable. To the extent inconsistent with this immediate vesting
requirement, the provisions of this clause (vi) shall constitute an amendment of
Employee’s stock option agreements under the Stock Plans.
(B) Restricted Stock,
etc. In addition, but only to the extent expressly provided in
any restricted stock or other award agreement associated with a Stock Plan,
restrictions on all shares of restricted stock (and other performance shares,
performance units or deferred shares) awarded to Employee under the Stock Plans
shall lapse, and the affected shares shall become 100% vested.
(vii) Cessation Upon
Death. The continuation benefits payable or to be provided
under clauses (i), (ii), (iii), (iv) and (v) of this Section 5(d) shall cease in
the event of Employee’s death. (The foregoing shall not operate or be
construed to negate the benefits payable to Employee and Employee’s estate under
the plans and policies referenced in clauses (iii), (iv) and (v) of this Section
5(d) or under any other plans and policies referenced in this
Agreement. Furthermore, in the event of Employee’s death following a
Change in Control, the provisions of Section 7(c)(iv) shall
govern.)
(viii) Additional
Consideration. To be entitled to receive the foregoing
compensation, Employee shall sign such additional release of claims,
confidentiality agreements and other documents the Company may reasonably
request of Employee at the time of payment; and, for so long as Employee is
entitled to the benefits of such compensation, Employee shall cooperate fully
with and devote Employee’s reasonable best efforts to providing assistance
requested by the Company. Such assistance shall not require Employee
to be active in the Company’s day-to-day activities or engage in any substantial
travel, and Employee shall be reimbursed for all reasonable and necessary
out-of-pocket business expenses incurred in providing such assistance. Any
reimbursements made pursuant to the preceding sentence shall be made as soon as
practicable, but not later than 30 days after Employee submits evidence of
such expenses to the Company.
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6. Effect of Other Termination
Events. If Employee is terminated for Cause prior to the end
of the term of this Agreement, then Employee shall be entitled to no payment or
compensation whatsoever from the Company under this Agreement, other than such
salary, reimbursable expenses and other amounts as may properly be
due Employee through Employee’s last day of employment. If Employee
voluntarily resigns from employment (other than a Separation from Service for
Good Reason, as defined in Section 7(a)(iv) below), then Employee shall be
entitled to an amount equal to: (a) Employee’s salary, reimbursable expenses and
other amounts as may be due Employee through the last day of Employee’s
employment, and (b) the annual bonus for the calendar year in which
Employee’s employment terminates, prorated through the last day of Employee’s
employment (the amount of such bonus to be determined by the Company based on
the audited year-end financial results of the Company). If Employee’s
employment is terminated due to Employee’s disability (as defined in the
Company’s long-term disability plan or insurance policy) or death, Employee
shall be entitled to the amounts described in the preceding sentence, as well as
any amounts that may be due under the Company’s short and long-term disability
plans or, in the case of death, the Company’s life insurance payment policy or
plan in effect for employees of Employee’s level or pursuant to the terms of any
separate agreement concerning split-dollar or similar life insurance; provided,
Employee or Employee’s estate, as the case may be, shall not by operation of
this provision forfeit any rights in which Employee is vested (or becomes
vested) at the time of Employee’s disability or death (including, without
limitation, the rights and benefits provided under the Stock Plans, Employee’s
Salary Continuation Agreement or other applicable retirement
plans).
Employee or, if appropriate, Employee’s
spouse, estate or other beneficiary (as applicable) shall receive the amounts
due under the first sentence of this Section 6 and clause (a) of the second
sentence of this Section 6 in a single lump-sum cash payment within 30 days
after the date of Employee’s termination of employment.
Employee or, if appropriate, Employee’s
spouse, estate or other beneficiary, shall receive the amounts due under clause
(b) of the second sentence of this Section 6 in a single lump-sum cash payment
between January 1 and March 15, inclusive, of the calendar year immediately
following the calendar year in which his employment terminates under this
Section 6.
7. Change in
Control.
(a) Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
shall have the meanings ascribed to them below.
(i) “Cause” shall mean,
with respect to any Section 409A Separation from Service following a Change in
Control: (A) an act that constitutes, on the part of Employee, fraud,
dishonesty, gross negligence or willful misconduct and which directly results in
injury to the Company, or (B) Employee’s conviction of a felony or other crime
involving moral turpitude. A termination of Employee for Cause based
on clause (A) of the preceding sentence shall take effect 30 days after the
Company gives written notice of such termination to Employee specifying the
conduct deemed to qualify as Cause, unless Employee shall, during such 30-day
period, remedy the events or circumstances constituting Cause to the reasonable
satisfaction of the Company. A termination for Cause based on clause
(B) above shall take effect immediately upon the Company’s delivery of the
termination notice.
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(ii) “Change in Control”
shall mean a change of ownership or effective control of the Company, or a
change in the ownership of a substantial portion of the assets of the Company,
all within the meaning of Code Section 409A and guidance issued
thereunder. As a general overview, Code Section 409A defines “change
in control” as any of the following:
(A) Change in the Ownership of
the Company. A change in ownership of the Company occurs on
the date that any one person, or more than one person acting as a group,
acquires ownership of stock of the Company that, together with stock then held
by such person or group constitutes more than 50 percent of the total fair
market value or total voting power of the stock of the
Company. However, if any one person, or more than one person acting
as a group, is considered to own more than 50 percent of the total fair market
value or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons is not considered to cause a
change in the ownership of the Company or to cause a change in the effective
control of the Company. An increase in the percentage of stock owned
by any one person, or persons acting as a group, as a result of a transaction in
which the Company acquires its stock in exchange for property will be treated as
an acquisition of stock for purposes of this clause (A). This clause
(A) applies only when there is a transfer of stock of the Company (or issuance
of stock of the Company) and stock in the Company remains outstanding
after the transaction.
(B) Change in the Effective
Control of the Company. A change in the effective control of
the Company will occur on either of the following dates:
(1) The date
any one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the Company
possessing 30 percent or more of the total voting power of the stock of the
Company; or
(2) The date
a majority of members of the Board is replaced during any 12-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Company’s Board before the date of the appointment or
election.
(C) Change in the Ownership of a
Substantial Portion of the Company’s Assets. A change in the
ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) assets from the Company that have a total
gross fair market value equal to or more than 40 percent of the total gross fair
market value of all of the assets of the Company immediately before such
acquisition or acquisitions.
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(iii) “Involuntary Separation from
Service” (and “Involuntarily Separated from Service” and other similar
terms) shall mean a Section 409A Separation from Service brought about as a
direct result of the independent exercise of the unilateral authority of the
Company to terminate Employee’s services (other than at Employee’s request) at a
time when Employee is willing and able to continue services, for any reason
other than for Cause.
(iv) “Separation from Service for
Good Reason” (and “Separates from Service for Good Reason” and other
similar terms) shall mean a Section 409A Separation from Service that is
voluntary on the part of Employee and that occurs within two years after the
initial existence of one or more of the following conditions that occur without
Employee’s consent, to the extent that there is, or would be if not corrected, a
material negative change in Employee’s employment relationship with the
Company:
(A) A
material reduction of Employee’s responsibilities, title or status resulting
from a formal change in such title or status, or from the assignment to Employee
of any duties inconsistent with Employee’s title, duties or responsibilities in
effect within the year prior to the Change in Control;
(B) A
material reduction in Employee’s compensation or benefits (a reduction in value
of five percent or more will be deemed material, however, whether a reduction of
less than five percent is or is not material will be determined at the time of
such reduction based on all of the facts and circumstances at that time);
or
(C) A
Company-required, material, involuntary relocation of Employee’s place of
residence or a material increase in Employee’s travel requirements (such a
relocation outside of the city of Atlanta and the five core counties (Xxxxxx,
Dekalb, Gwinnett, Xxxx and Xxxxxxx) comprising the metropolitan Atlanta, Georgia
area will be deemed material, however, whether such a relocation within the
metropolitan Atlanta area (as described above) is or is not material will be
determined at the time of such relocation based on all of the facts and
circumstances at that time).
In
order to Separate from Service for Good Reason hereunder, Employee must provide
notice to the Company of the existence of one of the above conditions within 90
days of the initial existence of the condition, and such termination for Good
Reason shall not take effect unless the Company does not cure the condition
within 30 days of such notice.
(b) Vesting Upon Change in
Control. Upon the occurrence of a Change in Control during the
term of this Agreement, (i) all outstanding stock options (and stock
appreciation rights, if any) granted to Employee under the Stock Plans shall
become 100% vested and thus immediately exercisable, and (ii) all restrictions
on, and vesting requirements for, all shares of restricted stock (or other
performance shares, performance units or deferred shares) awarded to Employee
under the Stock Plans shall lapse, and such shares and awards shall become 100%
vested and immediately payable to Employee. To the extent
inconsistent with this immediate vesting requirement, the provisions of this
subsection (b) shall constitute an amendment of Employee’s stock option
agreements, restricted stock agreements and other award agreements issued under
the Stock Plans.
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(c) Certain Separations from
Service within 24 Months Following a Change in Control. If a
Change in Control occurs during the term of this Agreement and, within 24 months
following the date of such Change in Control, Employee is Involuntarily
Separated from Service or Separates from Service for Good Reason, Employee shall
be entitled to all of the benefits described in clauses (i) through (v) of
Section 5(d) of this Agreement, for a period of 24 months following Employee’s
termination of employment, with the following modifications:
(i) Salary. Instead
of the Continued Salary Payments described in Section 5(d)(i) of this Agreement,
Employee shall receive an amount equal to (A) the amount of such Continued
Salary Payments payable during each month (B) multiplied
by 24. Such amount shall be paid to Employee in a lump-sum
payment in cash (without discounting or any other adjustment for the time value
of money) within 30 days after the date of Employee’s Section 409A Separation
from Service.
(ii) Bonuses and
Incentives. Instead of the Average Bonus Payments described in
Section 5(d)(ii) of this Agreement, Employee shall receive an amount equal to
(A) the amount of such Average Bonus Payments payable each month (B) multiplied
by 24. Such amount shall be paid to Employee in a lump-sum payment in
cash (without discounting or any other adjustment for the time value of money)
within 30 days after the date of Employee’s Section 409A Separation from
Service. This Section 7(c)(ii) shall not affect any other provision
of Section 5(d)(ii), including, without limitation, the terms of such provision
relating to the Prorated Bonus.
(iii) Payments to Cover Excise
Taxes.
(A) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined (as hereafter provided) that any payment or distribution to or for
Employee, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or pursuant to or by reason of any other agreement,
policy, plan, program or arrangement (including, without limitation, any Stock
Plan or salary continuation agreement), or similar right (a “Payment” or
“Payment(s)”), would be subject to the excise tax imposed by Section 4999 of the
Code (or any successor provisions thereto), or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereafter collectively referred to as the “Excise Tax”), then
Employee shall be entitled to receive an additional payment or payments (a
“Gross-Up Payment”) from the Company. The total amount of the
Gross-Up Payment shall be an amount such that, after payment by (or on behalf
of) Employee of any Excise Tax and all federal, state and other taxes (including
any interest or penalties imposed with respect to such taxes) imposed upon the
Gross-Up Payment, the remaining amount of the Gross-Up Payment is equal to the
Excise Tax imposed upon the Payment(s). For purposes of clarity, the
amount of the Gross-Up Payment shall be that amount necessary to pay the Excise
Tax in full and all taxes assessed upon the Gross-Up Payment.
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(B) An
initial determination as to whether a Gross-Up Payment is required pursuant to
this subsection (c)(iii) and the amount of such Gross-Up Payment shall be made
by an accounting firm selected by the Company, and reasonably acceptable to
Employee, which is then designated as one of the four largest accounting firms
in the United States (the “Accounting Firm”). The Company shall cause
the Accounting Firm to provide its determination (the “Determination”), together
with detailed supporting calculations and documentation to the Company and
Employee, as promptly as practicable after such calculation is requested by the
Company or by Employee with respect to any Payment(s), and if the Accounting
Firm determines that no Excise Tax is payable by Employee with respect to such
Payment(s), the Company shall cause it to furnish Employee with an opinion
reasonably acceptable to Employee that no Excise Tax will be imposed with
respect to any such Payment(s). Within 15 days of the delivery of the
Determination to Employee, Employee shall have the right to dispute the
Determination (the “Dispute”). The Gross-Up Payment, if any, as
determined pursuant to this subsection (c)(iii) shall be paid by the Company to
Employee within 15 days of the receipt of the Accounting Firm’s
Determination. The
existence of the Dispute shall not in any way affect the right of Employee to
receive the Gross-Up Payment in accordance with the Determination. If
there is no Dispute, the Determination shall be binding, final and conclusive
upon the Company and Employee, subject to the application of
Section 7(c)(iii)(C).
(C) As a
result of the uncertainty in the application of Sections 4999 and 280G of the
Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid
which should not have been paid (an “Excess Payment”) or a Gross-Up Payment (or
a portion thereof) which should have been paid will not have been paid (an
“Underpayment”). An Underpayment shall be deemed to have occurred
upon the earliest to occur of the following events: (1) upon notice
(formal or informal) to Employee from any governmental taxing authority that the
tax liability of Employee (whether in respect of the then current taxable year
of Employee or in respect of any prior taxable year of Employee) may be
increased by reason of the imposition of the Excise Tax on any Payment(s) with
respect to which the Company has failed to make a sufficient Gross-Up Payment,
(2) upon a determination by a court, (3) by reason of a determination by the
Company (which shall include the position taken by the Company, or its
consolidated group, on its federal income tax return), or (4) upon the
resolution to the satisfaction of Employee of his Dispute. If any
Underpayment occurs, Employee shall promptly notify the Company, and the Company
shall pay to Employee within 15 days of the date the Underpayment is deemed to
have occurred under clauses (1), (2), (3) or (4) above, but in no event less
than five days prior to the date on which the applicable government taxing
authority has requested payment, an additional Gross-Up Payment equal to the
amount of the Underpayment plus any interest and penalties imposed on the
Underpayment.
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An Excess Payment shall be deemed to have occurred upon a
“Final Determination” (as hereinafter defined) that the Excise Tax
shall not be imposed upon any Payment(s) (or portion of a Payment) with respect
to which Employee had previously received a Gross-Up Payment. A
Final Determination shall be deemed to have occurred when Employee
has received from the applicable governmental taxing authority a refund of taxes
or other reduction in his tax liability by reason of the Excess Payment and upon
either (1) the date a determination is made by, or an agreement is entered into
with, the applicable governmental taxing authority which finally and
conclusively binds Employee and such taxing authority, or in the event that a
claim is brought before a court of competent jurisdiction, the date upon which a
final determination has been made by such court and either all appeals have been
taken and finally resolved or the time for all appeals has expired, or (2) the
statute of limitations with respect to Employee’s applicable tax return has
expired. If an Excess Payment is determined to have been made, the
amount of the Excess Payment shall be treated as a loan by the Company to
Employee, and Employee shall pay to the Company within 15 days following demand
(but not less than 30 days after the determination of such Excess Payment) the
amount of the Excess Payment plus interest at an annual rate equal to the rate
provided for in Section 1274(b)(2)(B) of the Code from the date the Gross-Up
Payment (to which the Excess Payment relates) was paid to Employee until the
date of repayment to the Company.
(D) Notwithstanding
anything contained in this Agreement to the contrary, in the event that,
according to the Determination, an Excise Tax will be imposed on any Payment(s),
the Company shall pay to the applicable government taxing authorities, as Excise
Tax withholding, the amount of any Excise Tax that the Company has actually
withheld from the Payment(s); provided, that the Company’s payment of withheld
Excise Tax shall not alter the Company’s obligation to pay the Gross-Up Payment
required under this subsection (c)(iii).
(E) Employee
and the Company shall each provide the Accounting Firm access to and copies of
any books, records and documents in the possession of the Company or Employee,
as the case may be, reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the preparation and
issuance of the Determination contemplated by subsection (c)(iii)(B)
hereof.
(F) The fees
and expenses of the Accounting Firm for its services in connection with the
Determination and calculations contemplated by subsection (c)(iii)(B) hereof
shall be paid by the Company. Any payments made pursuant to the
preceding sentence shall be made as soon as practicable, but not later than 30
days after Employee submits evidence of such expenses to the
Company.
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(iv) Employee’s
Death. In the event Employee shall die within 24 months
following a Change in Control, all amounts and benefits which would have been
payable or due to Employee if Employee had continued to live (including, in the
event Employee dies after being Involuntarily Separated from Service or after
having Separated from Service for Good Reason, the amounts and benefits
described in Section 7 hereof) shall be paid and provided in accordance with the
terms of this Agreement to the executors, administrators, heirs or personal
representatives of Employee’s estate.
8. Compensation and
Benefits. During the term of Employee’s employment with the
Company hereunder:
(a) Continuity.
Employee’s salary, current perquisites (including, but not limited to, company
car or car allowance) and bonus opportunity (currently expressed as a percentage
of Employee’s base salary) may be increased from time to time as determined by
the Board (or Committee of the Board), but shall not be reduced or eliminated
during the term hereof.
(b) Other
Benefits. Employee shall be entitled to vacation with pay,
life insurance, health insurance, long-term care insurance, and such other
employee benefits as Employee may be eligible to receive in accordance with the
established plans and policies of the Company, as in effect from time to
time.
(c) Short-Term Disability
Benefits. For purposes of this subsection (c), “Disability”
and “Disabled” shall mean Employee’s inability, as a result of physical or
mental incapacity, to substantially perform Employee’s duties for the Company on
a full-time basis for a continuous period of six months. Upon the
Company being made aware of Employee’s Disability, Employee shall be entitled to
receive, for a period of six months (the “Short-Term Disability Period”), the
following:
(i) Salary
Continuation. An amount equal to his current salary (subject
to withholding of all applicable taxes) for the shorter of (A) his Short-Term
Disability Period, or (B) the period he remains Disabled. For
purposes hereof, Employee’s “current salary” shall be the rate in effect on the
day immediately prior to the date upon which the Company is made aware of
Employee’s Disability. Employee will receive such salary payments in
accordance with the Company’s normal executive payroll processes.
(ii) Bonus and
Incentives. Employee shall continue to participate in each
applicable bonus and incentive plan of the Company during the Short-Term
Disability Period. Employee will receive bonus and incentive
payments, if any, in accordance with the normal processes and timing for payment
of such amounts to executives who are actively at work.
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(d) Tax
Equalization. In the event of Employee’s relocation, the
Company and Employee will cooperate in good faith to agree on such adjustments
to Employee’s compensation and benefits package as are appropriate to provide
consistent after-tax income to Employee equivalent to that of a person receiving
Employee’s pay and benefits taxable under the terms of the Code, while also
acting in the best interests of the Company.
9. Restrictive
Covenants.
(a) Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
shall have the meanings ascribed to them as set forth below.
(i) “Company” shall mean,
for the purposes of, and as used in, this Section 9, Interface, Inc. and its
direct and indirect subsidiaries and affiliated entities throughout the
world.
(ii) “Confidential
Information” shall mean information relating to the 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
patterns), customer purchasing practices and preferences, compilations
(including compilations of customer information), programs (including computer
programs and models), devices (including carpet 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 termination of Employee’s
employment.
(iii) “Customers” shall mean
customers of the Company that Employee, during the two-year period before
termination of Employee’s employment, (A) solicited or serviced or (B)
about whom Employee had Confidential Information. The parties
acknowledge that a two-year period for defining Customers (as well as
“Suppliers,” below) is reasonable based on the Company’s typical sales cycle,
budgetary requirements and procurement procedures.
(iv) “Products” shall mean
carpet tile, modular carpet, broadloom carpet (whether 12-foot, six-foot or
other competitive widths) and resilient textile flooring for contract,
commercial, institutional (including, but not limited to, government and
education), and residential markets and customers.
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(v) “Services” shall mean
the services Employee shall provide as a Company employee, and that Employee
shall be prohibited from providing (whether as an owner, partner, employee,
consultant or in any other capacity) in competition with the Company, in
accordance with the terms of this Agreement, which are to (A) provide
consultation and advice with respect to the conduct of the business of
designing, developing, manufacturing, purchasing for resale, marketing, selling,
distributing, installing, maintaining and reclaiming Products, including
(1) development of overall business strategy, (2) planning for
expansion of the business, including expansion through mergers, acquisitions,
joint ventures and other combinations, alliances and affiliations, and
(3) developing and maintaining relationships with principal Customers and
Suppliers; and (B) serving as a representative and a spokesman for the Company
with its various constituents, including employees, customers, suppliers,
shareholders and the investment community, in regard to the Company’s
environmental and sustainable business initiatives. Employee
acknowledges that he has been informed of and had an opportunity to discuss with
the Company the specific activities Employee will perform as Services and that
Employee understands the scope of the activities constituting Services.
(vi) “Supplier” shall mean
a supplier of the Company that Employee, during the two-year period before
termination of Employee’s employment, (A) had contact with on behalf of the
Company, or (B) about whom Employee had Confidential Information.
(vii) “Territory” shall mean
North America, which is the principal geographic area where Employee performs
Services for the Company and in which the Company continues to conduct business.
Employee has been informed of and had an opportunity to discuss with the Company
the specific territory in which Employee will perform
Services. Employee acknowledges that the market for the Company
Products is worldwide, and that the Territory is the area in which Employee’s
provision of Services in violation of this Agreement would cause harm to the
Company.
(b) Non-disclosure and
Restricted Use. Employee shall use best efforts to protect
Confidential Information. Furthermore, Employee will not use, except
in connection with work for the Company, and will not disclose during or after
Employee’s employment, the Company’s Confidential Information.
(c) Return of
Materials. Upon the expiration of this Agreement or
termination for any reason of Employee’s employment, or at any time upon the
Company’s request, Employee will deliver promptly to the Company all materials,
documents, plans, records, notes or other papers and any copies in Employee’s
possession or control relating in any way to the Company’s business, which at
all times shall be the property of the Company.
(d) Non-solicitation of
Customers. During employment with the Company and for two
years after the termination for any reason of Employee’s employment, Employee
will not solicit Customers for the purpose of providing or selling any Products
(other than the Company’s Products).
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(e) Non-solicitation of
Suppliers. During employment with the Company and for two
years after the termination for any reason of Employee’s employment, Employee
will not solicit any Supplier for the purpose of obtaining goods or services
that the Company obtained from that Supplier and that are used in or relate to
any Products.
(f) Non-solicitation of Company
Employees. During employment with the Company and for two
years after the termination for any reason of Employee’s employment, Employee
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 Employee’s
employment, a Company employee.
(g) Limitations on
Post-Termination Competition. During employment with the
Company and for two years after the termination for any reason of Employee’s
employment, Employee will not provide any Services within the Territory to any
person or entity developing, manufacturing, marketing, selling, distributing or
installing any Products.
(h) Disparagement. Employee
shall not at any time make false or misleading statements about the 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 Employee’s employment, Employee 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 the Company with such employer’s name and a description of the
services Employee will provide to such employer.
(j) Work For Hire
Acknowledgment; Assignment. Employee acknowledges that
Employee’s work on and contributions to documents, programs, and other
expressions in any tangible medium (collectively, “Works”) are within the scope
of Employee’s employment and part of Employee’s duties and
responsibilities. Employee’s work on and contributions to the Works
will be rendered and made by Employee for, at the instigation of, and under the
overall direction of, the 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,
Employee assigns, grants, and delivers exclusively to the Company all rights,
titles, and interests in and to any such Works, and all copies and versions,
including all copyrights and renewals. Employee will execute and
deliver to the Company, its successors and assigns, any assignments and
documents the 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 Employee constitutes and
appoints the Company as Employee’s agent to execute and deliver any assignments
or related documents Employee fails or refuses promptly to execute and deliver,
this power and agency being coupled with an interest and being
irrevocable.
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(k) Inventions, Ideas and
Patents. Employee shall disclose promptly to the Company
(which shall receive it in confidence), and only to the Company, any invention
or idea of Employee (developed alone or with others) conceived or made during
Employee’s employment by the Company or within six months of the date of
expiration of this Agreement or termination of employment. Employee
assigns to the Company any such invention or idea in any way connected with
Employee’s employment with the Company or related to the Company’s business,
research or development, or demonstrably anticipated research or development,
and will cooperate with the Company and sign all documents deemed necessary by
the Company to enable it to obtain, maintain, protect and defend patents
covering such inventions and ideas and to confirm the Company’s exclusive
ownership of all rights in such inventions, ideas and patents. Employee
irrevocably appoints the Company as Employee’s agent to execute and deliver any
assignments or related documents Employee fails or refuses to execute and
deliver promptly, this power and agency being coupled with an interest and being
irrevocable. This constitutes the Company’s written notification that this
assignment does not apply to an invention for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on Employee’s own time, unless (i) the invention relates (A)
directly to the business of the Company or (B) to the Company’s actual or
demonstrably anticipated research or development, or (ii) the invention results
from any work performed by Employee for the Company.
(l) Survival of
Provisions. Upon termination of Employee’s employment for any
reason whatsoever (whether voluntary on the part of Employee, for Cause, or
other reasons), the obligations of Employee pursuant to this Section 9 shall
survive and remain in effect.
(m) Injunctive
Relief. Employee acknowledges that any breach of the terms of
this Section 9 would result in material damage to the Company, although it
might be difficult to establish the monetary value of the
damage. Employee 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 Employee, or
threatened breach which the Company in good faith believes will or is likely to
result in irreparable harm to the Company.
10. 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 America, without regard to rules relating to the
conflict of laws. Employee 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 Employee might
otherwise have to jurisdiction and venue in such courts in the event either
court is requested to resolve a dispute between the parties.
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11. Dispute Resolution;
Expenses. All claims by Employee for any unpaid compensation
and benefits under this Agreement shall be directed to the Board and shall be in
writing. Any denial by the Board of a claim for compensation or benefits under
this Agreement shall be delivered to Employee in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable opportunity to
Employee for a review of a decision denying a claim and shall further allow
Employee to appeal to the Board a decision of the Board within 60 days after
notification by the Board that Employee’s claim has been denied. In
the event Employee incurs legal fees and other expenses in seeking to obtain or
to enforce any rights or benefits provided by this Agreement and is successful,
in whole or in part, in obtaining or enforcing any such rights or benefits
through litigation, settlement, arbitration, mediation or otherwise, the Company
shall pay or reimburse Employee’s reasonable legal fees and expenses incurred in
enforcing this Agreement. Except to the extent provided in the
preceding sentence, each party shall pay his or its own legal fees and other
expenses associated with any dispute. Any of Employee’s legal fees or expenses
to be paid by the Company shall be paid as soon as practicable, but not later
than 30 days after Employee submits evidence of such expenses to the
Company.
12. Code Section
409A. This Agreement is intended to comply with the
requirements of Code Section 409A and shall be construed
accordingly. Any payments or distributions to be made to Employee
under this Agreement upon a separation from service of amounts classified as
“nonqualified deferred compensation” for purposes of Code Section 409A, and not
exempt from Code Section 409A, shall in no event be made or commence until six
months after Employee’s Section 409A Separation from Service. Any
reference to a payment being exempt (or not exempt) from Code Section 409A
refers to any applicable exemption available under Section 409A, including,
without limitation, the short-term deferral rule and severance pay exemptions as
provided in Code Section 409A and the Treasury Regulations. Each
payment under this Agreement (whether of cash, property or benefits) shall be
treated as a separate payment for purposes of Code Section
409A. Where this Agreement provides that a payment will be made upon
a specified date or during a specified period, such date or period, as required
by Code Section 409(A), but in no way to detract from or excuse the payment
deadlines set forth in the operative provisions above in this Agreement, will be
the Code Section 409A “payment date” or “payment period”, and actual payment
will be made no later than the latest date permitted under Code Section 409A and
the regulations thereunder (generally, by the later of the end of the calendar
year in which the payment date falls, or the fifteenth day of the third calendar
month after the payment date occurs). To the extent that any payments
made pursuant to this Agreement are reimbursements exempt from Code Section
409A, the amount of such payments during any calendar year shall not affect the
benefits provided in any other calendar year, and the right to any such payments
shall not be subject to liquidation or exchange for another benefit or
payment. As required by Code Section 409A, but in no way to detract
from or excuse the payment deadlines set forth in the operative provisions above
in this Agreement, the payment date for any reimbursements shall in no event be
later than the last day of the calendar year immediately following the calendar
year in which the reimbursed expense was incurred or, for purposes of Sections
7(c)(iii)(B) and (C) above, the calendar year in which the Excise Tax must be
remitted to the applicable governmental taxing authority.
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13. 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 (a) upon actual receipt if delivered in
person or by facsimile transmission with receipt confirmation, (b) 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 (c) 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
Employee: Xxx
X. Xxxxxxxx
at the last address and fax
number
shown on the records of the
Company
|
Employee
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.
14. 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.
15. Binding Effect;
Assignment. This Agreement shall inure to the benefit of, and
be binding upon, the Company and its successors and assigns, and Employee and
his heirs and personal representatives, but, except as hereinafter provided,
neither this Agreement nor any right hereunder may be assigned or transferred by
either party hereto (or by any beneficiary or any other person), nor shall this
Agreement or any right hereunder be subject to alienation, anticipation, sale,
pledge, encumbrance, execution, levy or other legal process of any kind against
Employee, Employee’s beneficiary or any other person. Notwithstanding
the foregoing, any person or business entity 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 express assumption of this
Agreement by such successor and provide evidence of same to
Employee.
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16. Nature of
Obligation. The agreement of the Company (or its successor) to
make payments to Employee hereunder shall represent the unsecured obligation of
the Company (and its successor), except to the extent (a) the terms of any other
agreement, plan or arrangement pertaining to the parties provide for funding, or
(b) the Company (or its successor), in its sole discretion, elects in whole or
in part to fund the Company’s obligations under this Agreement pursuant to a
trust arrangement or otherwise.
17. Entire
Agreement. This Agreement supersedes all prior discussions and
agreements between the parties (including, without limitation, the Prior
Agreements) and constitutes the sole and entire agreement between the Company
and Employee 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
and the fact that it is modifying or amending this Agreement.
18. Preservation of
Benefits. Nothing in this Agreement shall limit or replace the
compensation or benefits payable to Employee, or otherwise affect Employee’s
rights, under any other benefit plan, program or agreement in which Employee
participates or to which Employee is a party.
19. Severability. 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.
20. 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.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by its duly authorized officers, and Employee has hereunder set his hand,
as of the date first above written.
|
INTERFACE,
INC.
|
|
|
By:
/s/ Xxxxxx X.
Xxxxxxx
|
|
| Xxxxxx X. Xxxxxxx | |
|
President and
CEO
|
|
|
Attest: /s/ Xxxxxxx X.
Xxxxxxx
|
|
| Xxxxxxx X. Xxxxxxx | |
|
Secretary
|
|
|
EMPLOYEE:
|
|
|
/s/ Xxx X.
Xxxxxxxx
|
|
| Xxx X. Xxxxxxxx |
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