EXHIBIT 10.178
CONSULTING AND NONCOMPETITION AGREEMENT
THIS CONSULTING AND NONCOMPETITION AGREEMENT (this "Agreement") is made
and entered into effective as of December 24, 1999, by and among CATALINA
LIGHTING, INC., a Florida corporation (the "Company") and XXXXXXX X. XXXXXXX
(the "Consultant").
R E C I T A T I O N S
A. The Company recognizes that the Consultant possesses extensive
knowledge and experience regarding the businesses in which the Company is
engaged and all aspects of the Company's operations. The Company believes that
the Consultant's business advice will be extremely beneficial to the Company and
wishes to obtain such advice and the benefit of the Consultant's knowledge and
experience.
B. The Company desires to retain the services of the Consultant and the
Consultant desires to provide services to the Company, subject to the terms and
conditions set forth in this Agreement.
O P E R A T I V E P R O V I S I O N S
In consideration of the foregoing recitations, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, the parties hereto, intending
legally to be bound, hereby covenant and agree as follows:
ARTICLE I
ENGAGEMENT OF SERVICES
1.1 ENGAGEMENT OF CONSULTANT. The Company hereby engages the Consultant
and the Consultant hereby agrees to provide consulting services as set forth in
Section 1.2 of this Agreement.
1.2 SERVICES TO BE PROVIDED.
(a) SERVICES. During the term of this Agreement, the Consultant
shall make himself available to consult with the Chief Executive Officer (the
"CEO"), upon reasonable notice from the Company, during the Company's normal
business hours. The Consultant shall report exclusively to the CEO and shall
perform such consulting services (consistent with the services the Consultant
previously provided to the Company while he was an employee) as shall be
requested by the CEO from time to time (collectively referred to herein as the
"Services")
(B) PERFORMANCE OF SERVICES. The Consultant is responsible for
reasonably determining the method, details and means of performing the Services
required under this Agreement. The Consultant shall maintain all permits,
licenses and authorizations necessary to Consultant's performance of Services
hereunder and shall at all times perform such Services and conduct Consultant's
business and affairs in accordance with all applicable federal, state and local
laws and regulations. Such consultation may be by telephone, in writing or by
other method of communication selected in the reasonable exercise of the
Consultant's discretion. Unless otherwise agreed to in writing by the
Consultant, the Consultant shall provide the Services required hereunder at
Miami, Florida or the location or locations which the Consultant and the Company
mutually agree.
(c) HOURS. During the Term of this Agreement, it is agreed that the
Consultant shall not be required to devote more than ten (10) hours (the "Agreed
Hours") in any calendar month in the performance of the Services set forth in
subsection 1.2(a) hereof.
1.3 TERM OF AGREEMENT. The term of this Agreement shall commence on
December 24, 1999 (the "Commencement Date") and shall continue for thirty-six
(36) months after the Commencement Date (the "Term").
1.4 NATURE OF CONSULTING RELATIONSHIP. It is agreed and understood by
the parties to this Agreement that, for all purposes, during the term of this
Agreement, the Consultant shall serve solely as an independent contractor of the
Company and shall not be an employee of the Company in any capacity. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and Company. As an
independent contractor, the Consultant shall accept any directions issued by the
Company pertaining to the goals to be attained and the results to be achieved by
him, but shall be solely responsible for the manner and hours in which he will
perform his services under this Agreement.
ARTICLE II
COMPENSATION
2.1 FEES. In consideration for the services to be provided by the
Consultant pursuant to Section 1.2 hereof, as well as the Consultant's agreement
to abide by the restrictive covenant provisions contained in Article IV of this
Agreement, the Company shall pay a fee to the Consultant equal to Seven Hundred
Fifty Thousand Dollars ($750,000) (the "Compensation") for the Term of this
Agreement, payable in six (6) consecutive semi-annual installments, with the
first installment of Two Hundred Thousand Dollars ($200,000) payable on January
2, 2000, the second installment of Fifty Thousand Dollars ($50,000) payable on
July 1, 2000, and the remaining installments, each in the amount of One Hundred
Twenty Five Thousand Dollars ($125,000), to be payable on the first day of each
January and July thereafter for the remainder of the Term. The first semi-annual
installment payment payable to Xxxxxxx hereunder shall be subject to those
certain offsets provided in Section 2.4 of this Agreement and Section 12 of that
certain General Release and Severance Agreement, dated December 6, 1999, by and
between the Company and the Consultant (the "Severance Agreement").
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2.2 CONTRIBUTION TO TRUST. In the event of an Acquisition of Control of
the Company, within thirty (30) days of the date of such Acquisition of Control,
the Company shall contribute to the Catalina Lighting, Inc. Benefits Protection
Trust, to be entered into by and between the Company and SunTrust Bank, Central
Florida, N.A., as Trustee (the "Trust"), an amount equal to the unpaid
Compensation described in Section 2.1 hereof. As and when an installment payment
becomes due and payable to Xxxxxxx in accordance with Section 2.1 hereof, the
Trustee shall then make the distribution of such installment payment to Xxxxxxx
as soon as practicable thereafter. For purposes of this Section 2.2,
"Acquisition of Control" shall have the same meaning as described in subsection
5.1(h) of that certain Employment Agreement, dated October 1, 1989, as amended,
by and between the Company and the Consultant.
2.3 EXPENSE REIMBURSEMENT. During the Term of this Agreement, the
Company shall reimburse the Consultant for all reasonable business expenses
actually paid or incurred by the Consultant in the course of and pursuant to the
business of the Company, upon proper submission of supporting documentation by
the Consultant and in accordance with such policies and guidelines as from time
to time may be established by the Company.
2.4 SATISFACTION OF LOANS/ADVANCES. The Consultant hereby agrees that
the first semi-annual installment of the Compensation payable hereunder pursuant
to Section 2.1 hereof shall be reduced by Sixty Four Thousand Five Hundred Sixty
Six Dollars and Ninety Two Cents ($64,566.92), which represents the aggregate
amount owed by Consultant to the Company under (a) that certain loan, dated
January 5, 1999, by and between the Company and the Consultant, (b) that certain
Split Dollar Insurance Agreement, dated January 19, 1993, by and between the
Company and the Consultant, and (c) certain advances made by the Company to the
Consultant (collectively referred to as the "Loans"). The Company and the
Consultant each hereby acknowledge and agree that such reduction shall
constitute the full satisfaction of the Loans by the Consultant and, thus, the
Consultant shall no longer have any obligations or liabilities thereunder.
ARTICLE III
DEATH & DISABILITY
3.1 DEATH OR DISABILITY. Notwithstanding anything to the contrary
contained in this Agreement, in the event of the Consultant's death or
Disability during the Term of this Agreement, the Consultant, his beneficiary,
his estate or personal representative shall continue to receive the Compensation
provided for in Section 2.1 hereof, at such times and in such amounts as if the
Consultant had not died or suffered a Disability; provided that during the term
of any such Disability the Consultant continues to abide by the restrictive
covenant provisions in Article IV of this Agreement. For purposes of this
Agreement, "Disability" shall mean if the Consultant shall as a result of mental
or physical incapacity, illness or disability, become unable to perform his
obligations hereunder for a period of 180 days in any 12-month period.
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ARTICLE IV
RESTRICTIVE COVENANTS
4.1 NONSOLICITATION. At all times during the Term of this Agreement,
the Consultant shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity which
competes in any manner with the Company or any of its subsidiaries or affiliates
in the United States of America or its territories or possessions or any other
country in which the Company conducts its business on the Commencement Date or
within one year prior to the Commencement Date (collectively, the "Territory"),
attempt to employ, employ or enter into any contractual arrangement for
employment with any employee or former employee of the Company or any of its
subsidiaries or affiliates, unless such employee or former employee has not been
employed by the Company for a period of at least two (2) years.
4.2 NON-COMPETITION. At all times during the Term of this Agreement,
the Consultant shall not, directly or indirectly, (a) acquire or own in any
manner any interest in, or loan any amount to, any person, firm, partnership,
corporation, association or other entity which engages in a Competing Business
in the Territory; (b) be employed by or serve as an employee, agent, officer,
director of, or as a consultant or independent contractor to any person, firm,
partnership, corporation, association or other entity, other than the Company
and its subsidiaries and affiliates, which engages in a Competing Business in
the Territory, or (c) engage in a Competing Business in the Territory. For
purposes of this Section 4.2, the term "Competing Business" shall mean the
manufacture and/or sale of lighting products for use in the residential,
commercial, manufactured home and home building markets. The foregoing
provisions of this Section 4.2 shall not prevent the Consultant from acquiring
or owning not more than five percent (5%) of the equity securities of any entity
whose securities are listed for trading on a national securities exchange or are
regularly traded in the over-the-counter securities market. The Consultant
agrees that the restrictions imposed upon him by the provisions of this section
are fair and reasonable considering the nature of the Company's business, and
are reasonably required for the protection of the Company. The Consultant
further agrees that the provisions of this section relating to areas of
restriction, business limitations, or time periods of restriction were
specifically discussed in good faith and are acceptable to the Consultant.
4.3 NONDISCLOSURE. The Consultant shall not at any time disclose,
directly or indirectly, to any person, firm, corporation, partnership,
association or other entity, any confidential information relating to the
Company or any of its subsidiaries or affiliates, or any information concerning
the financial condition, assets, personnel, procedures, techniques, customers,
sources of leads and methods of obtaining new businesses or the methods
generally of doing and operating the respective businesses of the Company and
its subsidiaries and affiliates, except to the extent that such information is a
matter of public knowledge or is required to be disclosed by law or judicial or
administrative process.
4.4 REFORMATION BY COURT. In the event that a court of competent
jurisdiction shall
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determine that any provision of this Article IV is invalid or more restrictive
than permitted under the governing law of such jurisdiction, then only as to
enforcement of this Article IV within the jurisdiction of such court, such
provision shall be interpreted and enforced as if it provided for the maximum
restriction permitted under such governing law. If any part of this Article IV
is held to be invalid or unenforceable, the remaining parts shall nevertheless
continue to be valid and enforceable as though the unenforceable provisions were
absent.
4.5 SURVIVAL. The provisions of this Article IV shall survive the
termination of this Agreement, as applicable.
4.6 INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Consultant of any of the covenants contained in
Article IV of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Consultant recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Article IV of this Agreement by the Consultant or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
4.7 REASONABLENESS AND FAIRNESS OF RESTRICTIONS. In addition to Section
4.2 above, the Consultant acknowledges and agrees that the terms, conditions,
covenants, restrictions and other provisions of this Article IV are fair and
reasonable considering the nature of the Company's business, and are reasonably
required for the protection of the Company. The Consultant further acknowledges
and agrees that the terms, conditions, covenants, restrictions and other
provisions of this Article IV relating to areas of restriction, business
limitations, and/or time periods of restriction were specifically discussed in
good faith and are acceptable to the Consultant. Finally, the Consultant
acknowledges and agrees that he had the opportunity to seek advice, and has
sought advice as he deemed appropriate, from his personal advisors and counsel
regarding the fairness, reasonableness and effect of the terms, conditions,
covenants, restrictions and other provisions of this Agreement prior to the
execution of this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, among the parties hereto. This Agreement may
not be amended or modified in any way except by a written instrument executed by
the Company and the Consultant.
5.2 NOTICE. All notices under this Agreement shall be in writing and
shall be given by personal delivery, or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address set forth below:
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If to the Consultant: Xxxxxxx X. Xxxxxxx
00000 X. Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
with copy to: Xxxxxxxxx Traurig P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Company: CATALINA LIGHTING, INC.
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
or to such other person or persons or to such other address or addresses as the
Consultant and the Company or their respective successors or assigns may
hereafter furnish to the other by notice similarly given. Notices, if personally
delivered, shall be deemed to have been received on the date of delivery, and if
given by registered or certified mail, shall be deemed to have been received on
the fifth business day after mailing.
5.3 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida, without
giving effect to the conflict of laws principles of each State. With respect to
any disputes concerning federal law, such disputes shall be determined in
accordance with the law as it would be interpreted and applied by the United
States Court of Appeals for the Eleventh Circuit. The parties hereby irrevocably
waive their right to a jury trial.
5.4 ASSIGNMENT: SUCCESSORS AND ASSIGNS. Neither the Consultant nor the
Company may make an assignment of this Agreement or any interest herein, by
operation of laws or otherwise, without the prior written consent of the other
party; provided that the Company shall assign its rights and obligations under
this Agreement to any corporation, partnership, organization or other entity in
the event that the Company shall effect a reorganization, consolidate with or
merge into such other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to such other
corporation, partnership, organization or other entity. This Agreement shall
inure to the benefit of and be binding upon the Company and the Consultant,
their respective heirs, personal representatives, executors, legal
representatives, successors and assigns.
5.5 WAIVER. The waiver by any party hereto of the other party's prompt
and complete
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performance or breach or violation of any provision of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach or violation, and
the waiver by any party hereto to exercise any right or remedy which he or it
may possess shall not operate nor be construed as the waiver of such right or
remedy by such party or as a bar to the exercise of such right or remedy by such
party upon the occurrence of any subsequent breach or violation.
5.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall be
declared invalid by a court of competent jurisdiction, then this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
5.7 ATTORNEYS FEES. In the event that any litigation shall arise
between the Company and the Consultant based, in whole or in part, upon this
Agreement or any provisions contained herein, the prevailing party in any
litigation shall be entitled to recover from the non-prevailing party, and shall
be awarded by a court of competent jurisdiction, any and all reasonable fees and
disbursements of trial and appellate counsel paid, incurred or suffered by such
prevailing party as the result of, arising from, or in connection with, any such
litigation.
5.8 COMPLIANCE WITH LEGAL REQUIREMENTS. The Company shall not be
required, by reason of this Agreement, to provide workers' compensation,
disability insurance, Social Security or unemployment compensation coverage nor
any other statutory benefit to the Consultant. The Consultant shall comply at
his expense with all applicable provisions of workers' compensation laws,
unemployment compensation laws, federal Social Security law, the Fair Labor
Standards Act, federal, state and local income tax laws, and all other
applicable federal, state and local laws, regulations and codes relating to
terms and conditions of employment required to be fulfilled by employers or
independent contractors.
5.9 GENDER AND NUMBER. Wherever the context shall so require, all words
herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
5.10 SECTION HEADINGS. The section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of any or all of the provisions of this Agreement.
5.11 NO THIRD PARTY BENEFICIARY OTHER THAN COMPANY. Nothing expressed
or implied in this Agreement is intended, or shall be construed, to confer upon
or give any person, firm, corporation, partnership, association or other entity,
other than the parties hereto and each of their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
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5.12 NO AUTHORITY TO BIND COMPANY. The Consultant does not and shall
not have any authority to enter into any contract or agreement for, on behalf of
or in the name of the Company, or to legally bind the Company to any commitment
or obligation.
5.13 INDEMNIFICATION. To the maximum extent permitted by law, the
Company shall indemnify, hold harmless, protect and defend (with counsel
reasonably acceptable to Consultant) Consultant and all others who could be
liable for the obligations of any of them from and against any and all claims,
demands, actions, fines, penalties, liabilities, losses, damages, injuries and
expenses (including without limitation, actual attorneys', consultant's and
expert witness' fees and costs at the pre trial, trial and appellate levels and
in bankruptcy proceedings) related to, arising out of or resulting from the
performance by the Consultant of his obligations and duties hereunder in
accordance with the terms hereof, provided, however, that the Company does not
hereby agree, and shall not be obligated to, so indemnify the Consultant from
any such loss, cost, damage, liability or expense (i) arising out of any act or
omission of the Consultant or any of his agents, officers, employees,
independent contractors or representatives, which act or omission constitutes
gross negligence, willful misconduct or fraud or is in material breach of this
Agreement, and (ii) relating to any obligation of the Consultant to comply with
the provisions of Section 5.8 above including, but not limited to, the
Consultant's obligation to pay tax under any federal, state or local tax law.
Notwithstanding any other provisions of this Agreement to the contrary, the
Company's obligations under this Section 5.13 shall survive the expiration,
termination or cancellation of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE COMPANY:
CATALINA LIGHTING, INC., a Florida
corporation
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, Chief
Financial Officer
THE CONSULTANT:
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
XXXXXXX X. XXXXXXX
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