EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 18th day of November
1998, by and between XXXXXX INDUSTRIES, INC., a Georgia corporation (the
"Company"), and XXXXXX X. XXXXXX ("Executive").
W I T N E S S E T H:
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WHEREAS, Executive has devoted over forty-five years of valuable service to
the Company and has during such time accumulated significant knowledge and
understanding of the Company's operations, markets, industries, suppliers and
employees, to which knowledge the Company desires to have long-term access;
WHEREAS, the parties hereto desire to enter into an agreement for the
employment of Executive by the Company on the terms and conditions hereinafter
stated;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Employment, Duties and Term. (a) Subject to the terms and
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conditions of this Agreement, the Company hereby employs Executive, and
Executive hereby accepts such employment. Executive shall serve initially as
Chairman of the Executive Committee, and shall perform such duties and functions
for the Company as are customarily incident to such position. Executive may
serve in other mutually agreeable positions with the Company during the Term (as
defined below). To facilitate the performance of such duties and functions, the
Company will provide Executive with reasonable office space and secretarial
assistance.
(b) Unless earlier terminated as provided herein, Executive's
employment under this Agreement shall be for a term commencing as of August 19,
1998 (the "Effective Date") and ending on August 19, 2008. The date on which
Executive's employment terminates as provided in this Agreement is herein called
the "Termination Date", and the period from the Effective Date through the
Termination Date is herein called the "Term".
(c) Executive shall not, without the prior written consent of the
Company, directly or indirectly, at any time during the Term, engage in any
venture or activity which is competitive with or adverse to the business of the
Company, whether alone, as a partner, or as an officer, director, employee,
consultant, shareholder of a non-publicly held company, or otherwise.
2. Compensation. In consideration of Executive' services hereunder,
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Company shall pay to Executive compensation as set forth below (which
compensation shall be paid, except as otherwise provided herein, in accordance
with the normal compensation practices of the Company and shall be subject to
such deductions and withholdings as are required by law or general policies of
the Company in effect from time to time):
(a) The Company shall pay to Executive an annual salary which shall be
paid on a weekly basis and shall initially be $231,525 per annum ("Base
Compensation"). On each anniversary of the Effective Date, Base Compensation
shall be increased by five percent (5%) over the Base Compensation for the year
preceding such anniversary.
(b) The Company shall pay those membership dues and subscriptions on
behalf of Executive as are currently provided to Executive by the Company, and
as are provided to executive officers of the Company from time to time.
(c) Executive shall be entitled to the medical and dental benefits
that are provided from time to time by the Company's medical insurance plan and
dental insurance plan. Such medical benefits may also be provided through
Medicare coverage available to Executive or supplemental medical insurance, or a
combination of both, so long as the benefits provided to Executive and the out
of pocket costs incurred by Executive are substantially the same as those that
would be provided and incurred by Executive under the Company's medical
insurance plan.
(d) Executive shall be entitled to participate in the Company's Profit
Sharing Plan on the same basis as other employees for so long as Executive
continues to work the annual minimum number of hours during each fiscal year
necessary to qualify as an eligible participant in the Company's Profit Sharing
Plan. If in any fiscal year Executive fails to work the annual minimum number of
hours necessary to qualify as an eligible participant in the Company's Profit
Sharing Plan, then thereafter the Company shall pay to Executive each fiscal
year an amount all in cash that is equal to the total cash and deferred
payments, if any, which would have been paid or credited to Executive for that
fiscal year had he been an eligible participant in the Company's Profit Sharing
Plan.
(e) Executive shall be entitled to participate in any other employee
benefit plans generally provided by the Company to its executive officers, but
only if and to the extent provided in such employee benefit plans and for so
long as the Company provides or offers such benefit plans. For purposes of
determining his eligibility to participate in such other employee benefit plans,
Executive shall be deemed a regular full-time salaried employee.
(f) The compensation and benefits set forth above in this Section 2
shall cease on the Termination Date, except amounts payable for any period prior
to the Termination Date and except as required by law or the express terms of
any employee benefit plan in which Executive participates pursuant hereto.
Nothing herein shall affect Executive's right to COBRA benefits, Short-Term
Disability Plan benefits and Long-Term Disability Plan benefits, nor affect the
rights of beneficiaries under any life insurance policies insuring Executive's
life.
3. Confidential Information. (a) During the Term, Executive agrees
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that he shall not disclose to any person, or otherwise use, except in connection
with and as necessary for his duties performed for the Company, any Company
Confidential Information; provided, however, that Executive may
make disclosures required by a valid order or subpoena issued by a court or
administrative agency of competent jurisdiction, in which event Executive will
promptly notify the Company of such order or subpoena to provide the Company an
opportunity to protect its interests.
(b) "Company Confidential Information," as used in this Agreement,
means information relating to the business of the Company which derives value,
actual or potential, from not being generally known to other persons. Company
Confidential Information does not include information which becomes generally
known to the public without breach of this Agreement.
4. Termination. Executive's employment under this Agreement may be
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terminated only in accordance with the following provisions:
(a) Executive's employment hereunder shall be deemed to be terminated
as of the date of Executive's death. In the event of Executive's total
disability, the Executive's employment hereunder shall be deemed to be
terminated on the second August 19th following the date of total disability,
except that in no event shall this contract extend beyond August 19, 2008.
(b) The Company may terminate Executive's employment hereunder for
"Cause," which shall mean (i) Executive's gross negligence or willful misconduct
in the performance of his duties hereunder which results in material harm to the
Company, or (ii) Executive's conviction of a felony or crime involving moral
turpitude. A termination of Executive with Cause based on clause (i) of the
preceding sentence shall take effect 90 days after the Company gives written
notice of such termination to Executive unless Executive shall, during such
90-day period, remedy the events or circumstances constituting Cause.
5. Interpretation; Severability of Invalid Provisions. All rights
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and restrictions contained in this Agreement may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary so that
they will not render this Agreement illegal, invalid or unenforceable. If any
term of this Agreement shall be held to be illegal, invalid or unenforceable by
a court of competent jurisdiction, the remaining terms shall remain in full
force and effect.
6. Notice. All notices, demands and requests, where permitted to be
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given under this Agreement, shall be deemed sufficient if delivered in person or
mailed by registered or certified mail, postage prepaid, addressed as follows,
or to such other address as a party may have furnished to the other party in
accordance herewith:
To the Company: To Executive:
Xxxxxx Industries, Inc. Xx. Xxxxxx X. Xxxxxx
Attention: Chief Executive Officer 0000 Xxxxx Xxxxx Xx. XX
Xxxxx 000 Xxxxxxx, Xxxxxxx 00000
0000 Xxx Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000
The parties agree to promptly notify the other of any changes in their
addresses.
7. Agreement Binding; Assignment. This Agreement shall inure to the
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benefit of and be binding upon the Company, Executive, and their respective
permitted successors, or legal representatives. The parties hereto shall not,
without the consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder, except that the Company may assign its rights
or obligations under this Agreement without such consent to any successor to the
business of the Company by merger, consolidation, transfer of substantially all
the assets of the Company or otherwise.
8. Nonwaiver. The failure of either party to insist upon strict
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performance of the terms of this Agreement or to exercise any right herein,
shall not be construed as a waiver or a relinquishment for the future of such
term or right, but the same shall continue in full force and effect.
9. Entire Agreement. This Agreement contains the entire agreement
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between the parties and no statement, promises or inducements made by any party
hereto, or agent of either party, which is not contained in this Agreement,
shall be valid or binding. This Agreement may not be enlarged, modified or
altered except in writing signed by the parties.
10. Governing Law. This Agreement has been executed and delivered in
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and is to be performed in the State of Georgia and it and the rights and
obligations of the parties hereunder shall be construed under and governed by
the laws of the State of Georgia without giving effect to principles of
conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and Executive has executed this Agreement, as of
the date first written above.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxx
XXXXXX X. XXXXX XXXXXX X. XXXXXX
