EXHIBIT 10.6
AGREEMENT
AGREEMENT made and entered into as of the 1st day of May, 1997 by and
between SOUND ADVICE, INC., a Florida corporation (the "Employer"), and
___________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee serves in a management capacity with the Employer and
makes and is expected to continue to make significant and material contributions
to the growth, development and expansion of the business of the Employer; and
WHEREAS, the Employee has acquired and developed experience and knowledge
concerning the business and operations of the Employer, which experience and
knowledge the Employer desires to continue to have available to it; and
WHEREAS, to help ensure that continued availability, the Employer desires
to provide the Employee with a severance payment in the event that a Change in
Control (as hereinafter defined) results in the Employee's loss of the
Employee's position with the Employer.
NOW, THEREFORE, for and in consideration of the foregoing preambles and the
covenants and conditions hereinafter set forth, the parties hereto mutually
agree as follows:
1. TERM. The term of this Agreement shall be for a period of one year
commencing on the date hereof and ending on April 30, 1998, unless hereafter
extended by a written instrument executed by the Employer and the Employee (the
"Term").
2. SEVERANCE PAYMENT. In the event that prior to the expiration of the Term
(a) a Change in Control (as hereinafter defined) occurs and (b) the Employee
remains and continues as an employee of the Employer until the Change in Control
Date (as hereinafter defined) unless the
Employee is terminated by the Employer prior to the Change in Control Date other
than for Cause (as hereinafter defined), the Employee shall be entitled to be
paid the Severance Payment (as hereinafter defined), in addition to any other
compensation then owed to the Employee, in one lump sum payment payable in full
on the Change in Control Date unless (i) the Employee is offered on or prior to
the Change in Control Date by the Employer or any successor to the Employer as a
result of the Change in Control (the "Successor Employer") to continue as an
employee of the Employer or the Successor Employer (as the case may be) in
substantially the same position as the Employee was holding prior to the Change
in Control AND (ii) the Employee receives prior to the Change in Control Date a
written agreement from the Employer or the Successor Employer in form reasonably
acceptable to the Employee to the effect that, in the event that Employee's
employment is terminated without Cause by the Employer or the Successor Employer
within one year after the Change in Control Date, the Employee shall be paid by
the Employer or the Successor Employer the Severance Payment in one lump sum
payment on the date of termination.
3. DEFINITIONS. For purposes of this Agreement the following terms will
have the meanings set forth below:
(a) "Cause" shall include any of the following with respect to the
Employee: a fraud, gross dishonesty or gross misconduct or breach of duty
perpetrated on the Employer or the Successor Employer, a criminal conviction for
a felony, fraud or theft, the imposition of any material sanction against the
Employee or the Employer or the Successor Employer solely by reason of the
actions of the Employee by any regulatory or governmental agency governing the
Employer or Successor Employer or the habitual use of alcohol or illegal drugs
by the Employee.
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(b) A "Change in Control" shall be deemed to have occurred upon any of
the following events: (i) the acquisition in one or more transactions by any
"person" (as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")) of "beneficial
ownership" (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of
fifteen percent (15%) or more of the combined voting power of the Employer's
then outstanding voting securities (the "Voting Securities"), provided, however,
that for purposes hereof the Voting Securities acquired (by sale, merger,
consolidation or in any other manner) from the Employer by any person shall be
excluded from the determination of such person's beneficial ownership of Voting
Securities (but such Voting Securities shall be included in the calculation of
the total number of Voting Securities then outstanding); or (ii) the individuals
who, as of the date hereof, are members of the Board of Directors of the
Employer (the "Incumbent Board") cease for any reason to constitute more than
one-half of the Board; provided, however, that, if the election, or nomination
for election by the Employer's shareholders, of any new director was approved by
a vote of more than one-half of the Incumbent Board, such new director shall,
for purposes hereof, be considered as a member of the Incumbent Board; or (iii)
approval by shareholders of the Employer of (A) a merger or consolidation
involving the Employer if the shareholders of the Employer immediately before
such merger or consolidation do not own, directly or indirectly immediately
following such merger or consolidation, more than one-half of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger or
consolidation (unless, however, the event described in subparagraph (ii) above
does not occur in connection therewith) or (B) a complete liquidation or
dissolution of the Employer or
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an agreement for the sale or other disposition of all or substantially all of
the assets of the Employer; provided, however, that, notwithstanding the
foregoing, (x) a change in control shall not be deemed to occur solely because
fifteen percent (15%) or more of the then outstanding Voting Securities is
acquired by (1) a trustee or other fiduciary holding securities under one or
more employee benefit plans maintained by the Employer or any of its
subsidiaries, (2) any corporation which, immediately prior to such acquisition,
is owned directly or indirectly by the shareholders of the Employer in the same
proportion as their ownership of stock in the Employer immediately prior to such
acquisition or (3) Xxxxx Xxxxxxxx and/or Xxxxxxx Xxxxxxxx or any person directly
or indirectly controlled, under common control with or controlled by either or
both of them, and (y) a change in control shall not be deemed to occur solely
because any person (the "Subject Person") acquired beneficial ownership of more
than the permitted amount of the outstanding Voting Securities as a result of
the acquisition of Voting Securities by the Employer which, by reducing the
number of Voting Securities outstanding, increases the proportional number of
shares beneficially owned by the Subject Person, provided that if a change in
control would occur (but for the operation of this sentence) as a result of the
acquisition of Voting Securities by the Employer and, after such share
acquisition by the Employer, the Subject Person becomes the beneficial owner of
any additional Voting Securities which increases the percentage of the then
outstanding Voting Securities beneficially owned by the Subject Person, then a
change in control shall occur.
(c) The "Change in Control Date" shall be the later to occur of the
closing date or the effective date (as the case may be) of the transaction or
event resulting in the Change in Control; provided, however, that,
notwithstanding the foregoing, the Change in Control Date
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solely for the event set forth in item (i) of subsection (b) of this Section 3
shall be the date fifteen (15) business days after the occurrence of such event.
(d) The "Severance Payment" shall mean and equal the product of (i)
____ multiplied by (ii) the total amount of the gross wages paid by the Employer
to the Employee during the twelve full months immediately preceding the month in
which the Change in Control Date occurs.
4. RIGHT TO TERMINATE EMPLOYMENT. Nothing in this Agreement shall confer
upon the Employee the right to continue in the employment of the Employer for
any specific period of time or affect the right of the Employer to terminate the
Employee at any time, subject, however, to the provisions of this Agreement or
any employment agreement which may hereafter be entered into between the
Employer and the Employee.
5. NOTICES. Whenever any notice or other communication is required to be
given or delivered pursuant to this Agreement, such notice shall be given in
writing, and shall be delivered in person or by certified mail, return receipt
requested, and shall be sufficiently given if received, delivered personally or
if mailed, addressed as follows: If to the Employer, to Sound Advice, Inc., 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, Attention: President; and, if to
Employee, to his or her residence with a copy to his or her office at the
Employer, or such other address as either party hereto may by written notice
designate to the other party in accordance with this Section. Notices delivered
personally or by courier shall be deemed given as of actual receipt. Mailed
notices shall be deemed given as of four (4) days after mailing.
6. GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of Florida.
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7. ATTORNEYS' FEES AND COSTS. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' and paralegals' fees, costs and
necessary disbursements in addition to any other relief to which it, he or she
may be entitled, before and at trial, whether or not trial on the merits occurs,
and at all tribunal levels.
8. SEVERABILITY. If any provision of this Agreement shall be held void,
voidable, invalid, or unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect. If any provision is held void,
voidable, invalid or unenforceable with respect to particular circumstances, it
shall nevertheless remain in full force and effect with respect to all other
circumstances.
9. HEADINGS. Titles or headings of paragraphs or sections contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or prescribe the scope of this Agreement or the
intent of any provision.
10. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written understandings and
agreements between the parties. The provisions of this Agreement may not be
waived, modified or amended except by a writing signed by the party sought to be
bound. Waiver by either of the parties of a breach by the other of the parties
of any of the terms of this Agreement shall not be deemed a waiver of future
non-compliance herewith. An attempted modification that fails to comply with
this Section shall not operate as a waiver.
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11. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, and which together shall
constitute one and the same instrument.
12. SUCCESSORS AND PERMITTED ASSIGNS. This Agreement shall bind and inure
to the benefit of and be enforceable by the Company and its successors and
assigns and the Employee and his or her heirs and legal representatives;
provided, however, that the Employee may not assign this Agreement or his or her
rights hereunder.
IN WITNESS WHEREOF, the Employer and Employee have duly executed this
Agreement effective as of the day and year first above written.
EMPLOYER:
SOUND ADVICE, INC., a Florida corporation
By:____________________________________
Xxxxx Xxxxxxxx, President
EMPLOYEE:
_______________________________________
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