EXHIBIT 10.22
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Agreement (as may be further amended, the
"Agreement") is effective as of December 31, 2002, by and between ATLANTIS
PLASTICS, INC., a Florida corporation (the "Company"), and XXXXXXX X. XXXX (the
"Executive").
Preliminary Statements:
A. In view of the Executive's substantial experience, knowledge
and reputation, the Board of Directors of the Company believes it to be in the
best interest of the Company to enter into this Agreement that amends and
restates that certain Employment Agreement, dated as of February 1, 1995, as
amended by (i) a First Amendment to Employment Agreement, dated as of February
1, 1995, (ii) a letter agreement, dated Xxxxx 0, 0000, (xxx) a letter agreement,
dated February 14, 1997, (iv) a Fourth Amendment to Employment Agreement, dated
as of August 2, 1999, (v) a Fifth Amendment to Employment Agreement, dated
January 31, 2001, and (vi) a Sixth Amendment to Employment Agreement, dated
December 31, 2001 (collectively, the "Old Employment Agreement").
B. In view of the Executive's substantial experience, knowledge
and reputation, the Board of Directors of the Company believes it to be in the
best interest of the Company to also enter into a Change in Control Letter
Agreement that amends and restates that certain letter agreement dated as of
August 2, 1999, (the "Old Change In Control Agreement"). A form of the new
Change in Control Letter Agreement is attached hereto as Attachment 1, and will
be entered into contemporaneously herewith.
C. The Executive desires to be employed by the Company, and the
Company desires to employ the Executive, on the terms and subject to the
conditions hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 General. The Company hereby employs the Executive as
the President and Chief Executive Officer of the Company, and the Executive
hereby agrees to provide services to the Company, on the terms and subject to
the conditions set forth herein. The Old Employment Agreement is hereby
terminated and cancelled in its entirety; provided, Executive is in no way
relieved of the obligations set forth in Article 6 of the Old Employment
Agreement.
1.2 Duties of Executive. During the term of this
Agreement, the Executive shall serve as the President and Chief Executive
Officer of the Company, shall diligently perform all services, consistent with
his title and position, as may be assigned to him by the Board of Directors of
the Company (the "Board") or the Chairman of the Board, and shall exercise such
power and authority as may from time to time be delegated to him by the Board or
the Chairman of the Board. The Executive shall devote his full business time and
attention to the business and affairs of the Company, render such services to
the best of his ability, and use his best efforts to promote the interests of
the Company
1.3 Place of Performance. In connection with the
employment of the Executive by the Company hereunder, the Executive shall
perform his duties and obligations hereunder primarily from the Company's
offices located in Atlanta, Georgia, except for required travel on the Company's
business.
2. Term.
2.1 Initial Term. The term of the employment of the
Executive hereunder shall be for a period of three years commencing on the
effective date hereof and expiring on December 31, 2005 (the "Initial Term"),
unless sooner terminated in accordance with the terms and conditions hereof.
2.2 Renewal Term. The employment of the Executive
hereunder may be renewed and extended for such period or periods as may be
mutually agreed to by the Company and the Executive in a written supplement to
this Agreement signed by the Executive and the Company (a "Written Supplement").
If this Agreement is not so renewed and extended prior to the expiration of the
Initial Term, the employment of the Executive hereunder shall automatically
terminate upon the expiration of the Initial Term.
3. Compensation.
3.1 Base Salary. As compensation for all services
rendered by the Executive to the Company hereunder, the Executive shall receive
a base salary at the rate of $353,781 per annum (the "Base Salary") during the
term of his employment hereunder, which shall be payable in installments
consistent with the Company's normal payroll schedule, subject to applicable
withholding and other taxes. Commencing on the first anniversary date of this
Agreement, the Base Salary shall be increased annually on each February 1 during
the term of the Executive's employment hereunder to reflect any increase from
the previous year in the Consumer Price Index (all urban wage earners) for the
Atlanta, Georgia metropolitan area. If the term of this Agreement shall be
renewed and extended as provided in Section 2.2 hereof, then during such renewal
term the Executive shall be paid a Base Salary as set forth in the Written
Supplement.
3.2 Incentive Compensation. In addition to the Base
Salary, during the fiscal year 2003, the Executive shall be entitled to receive
incentive compensation in
accordance with the provisions set forth on Attachment 2 hereto (the "Incentive
Compensation"). During fiscal year(s) 2004 and 2005 and if the term of this
Agreement shall be renewed and extended as provided in Section 2.2 hereof, then
during such periods, the Executive shall be paid Incentive Compensation as
determined by the Board.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursable Expenses. During the term of the
Executive's employment hereunder, the Company, upon the submission of proper
substantiation by the Executive, shall reimburse the Executive for all
reasonable expenses actually and necessarily paid or incurred by him in the
course of and pursuant to the business of the Company.
4.2 Other Benefits. During the term of the Executive's
employment hereunder, the Executive shall be entitled to participate in all
medical and hospitalization, group life insurance, and any and all other fringe
benefit plans as are presently and hereinafter provided by the Company to its
executives. The Executive shall be entitled to four weeks of vacation annually;
provided, however, that in no event may a vacation be taken at a time when to do
so could, in the reasonable judgment of the Board or the Chairman of the Board,
materially adversely affect the business of the Company.
4.3 Working Facilities. During the term
of the Executive's employment hereunder, the Company shall furnish the Executive
with an office, secretarial help and such other facilities and services suitable
to his position and adequate for the performance of his duties hereunder.
4.4 Automobile. Subject to the
Executives continued employment hereunder, on or about February 1, 2004, the
Company shall, upon request of the Executive, make a lump-sum compensatory
payment to the Executive, in the amount of $50,000, in connection with the
Executive's purchase of an automobile to be used by him in connection with the
business of the Company and the performance of his duties hereunder. Subject to
the Executives continued employment hereunder and assuming this Agreement has
been renewed pursuant to Section 2.2, on or about February 1, 2007, the Company
shall, upon the request of the Executive, make a lump-sum compensatory payment
to the Executive, in the amount of $50,000, in connection with the Executive's
purchase of an automobile to be used by him in connection with the business of
the Company and the performance of his duties hereunder. The Executive shall be
responsible for the payment of all repair, maintenance, insurance, fuel, oil and
other operating expenses in connection with the use of such automobile. Upon
submission of appropriate substantiation, the Executive shall be entitled to
reimbursement from the Company, at the standard mileage rate in effect from time
to time under the Internal Revenue Code of 1986, as amended, for use of the
automobile in accordance with the rules relating to the reimbursement for travel
use set forth in the Internal Revenue Code of 1986, as amended.
5. Termination.
5.1 Termination for Cause. The Company
shall at all times have the right, upon written notice to the Executive, to
terminate the Executive's employment hereunder, for cause. For purposes of this
Agreement, the term "cause" shall mean (a) a willful breach by the Executive of
any of the material terms or provisions of this Agreement which is not cured
within 10 days after notice from the Company to the Executive (which notice
shall specify in reasonable detail the alleged breach), (b) the Executive's
conviction of a felony involving moral turpitude, (c) commission by the
Executive of an act or acts involving fraud, embezzlement, misappropriation,
theft or dishonesty against the property or personnel of the Company, (d) a
willful breach by the Executive of his fiduciary duty to the Company which
either results in material damage to the Company or is not cured within 10 days
after notice from the Company to the Executive (which notice shall specify in
reasonable detail the alleged breach), or (e) willful or reckless conduct by the
Executive which the Board in good faith determines is likely to have a material
adverse effect on the business, assets, properties, results of operations,
financial condition or prospects of the Company. Upon any termination pursuant
to this Section 5.1, the Executive shall be entitled to be paid his Base Salary
to the date of termination and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however to the provisions of
Section 4.1). Any termination pursuant to this Section 5.1 shall be deemed to
constitute a termination of the Executive's employment for "cause" for the
purposes of any stock options granted to him under any stock option plans
maintained by the Company.
5.2 Disability. The Company shall at
all times have the right, upon written notice to the Executive, to terminate the
Executive's employment hereunder, if the Executive shall, as the result of
mental or physical incapacity, illness or disability, fail to perform his duties
and responsibilities provided for herein for a period of more than 90
consecutive days in any 365-day period. In the event of any termination pursuant
to this Section 5.2, the Executive shall be entitled to be paid his Base Salary
to the date of termination and the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however to the provisions of
Section 4.1).
5.3 Death. In the event of the death of
the Executive during the term of his employment hereunder, the Company shall pay
the estate of the Executive any unpaid amounts of his Base Salary to the date of
his death and the Company shall have no further liability hereunder (other than
for reimbursement for reasonable business expenses incurred prior to the date of
termination).
5.4 Termination Without Cause. At any
time the Company shall have the right to terminate the Executive's employment
hereunder by written notice to the Executive; provided, however, that, the
Company shall pay the Executive any unpaid Base Salary accrued through the
effective date of termination
specified in such notice and shall pay the Executive severance payments and
provide him with severance benefits as follows:
(a) The Company shall pay the Executive
his Base Salary, in twelve equal installments, with the first such
installment commencing on such effective date; provided, however, that
in no event shall the Company be obligated to continue such payments
beyond the Initial Term.
(b) For a two (2) year period after the
effective date of termination, the Company shall arrange to provide the
Executive with benefits substantially similar to the benefits that the
Executive was then currently receiving or entitled to receive under the
Company's life, disability, accident and group health insurance plans
or any similar plans in which the Executive was participating
immediately prior to such effective date of termination ("Welfare
Benefits") at a cost to the Executive which shall be no greater than
the cost to the Executive in effect at such effective date of
termination; provided, however, that to the extent any such coverage is
prohibited by any judicial or legislative authority, the Company shall
make alternative arrangements to provide the Executive with Welfare
Benefit Plans, including, but not limited to, providing the Executive
with a payment in an amount equal to the Executive's cost of purchasing
said Welfare Benefits. Benefits otherwise receivable by the Executive
pursuant to the immediately preceding sentence shall be reduced to the
extent comparable benefits are actually received on the Executive's
behalf during the two (2) year period following the Executive's
termination, and such benefits actually received by the Executive shall
be reported to the Company. Notwithstanding anything set forth in this
Section 5.4(b), in no event will the Company be obligated to pay a
greater annual amount for the Welfare Benefits during such two (2) year
period than it paid for such Welfare Benefits in the last year of the
Executives employment hereunder.
The Company shall have no further liability to the Executive hereunder
(other than for reimbursement for reasonable business expenses incurred prior to
the date of termination, subject, however, to the provisions of Section 4.1).
6. Restrictive Covenants.
6.1 Non-competition. While employed by
the Company and during the Non-competition Period (as hereinafter defined), the
Executive shall not, directly or indirectly, engage in or have any interest in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
is engaged in the business of the Company or its subsidiaries in the contiguous
48 states of the United States; provided, however, that (i) nothing herein shall
be deemed to prevent the Executive from owning an interest in the equity or debt
securities of the Company, and (ii) nothing herein shall be deemed to prevent
the Executive from acquiring through market purchases and owning, solely as an
investment, less than two percent of the equity securities of any class of any
issuer whose shares are registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, and are listed or admitted for
trading on any United States national securities exchange or are quoted on the
National Association of Securities Dealers Automated Quotations System, or any
similar system of automated dissemination of quotations of securities prices in
common use, so long as neither of them is a member of any "control group"
(within the meaning of the rules and regulations of the United States Securities
and Exchange Commission) of any such issuer. For purposes of this Section 6.1,
the term "Non-competition Period" shall mean (a) in the event the Executive's
employment is terminated pursuant to Section 5.4, the period beginning on the
effective date of such termination and ending on date on which all severance
payments payable pursuant to paragraphs (a) and (b) thereof have been paid in
full, and (b) in the event the Executive's employment hereunder is terminated
for any other reason, a period of one year following the date his employment is
terminated.
6.2 Nondisclosure. Except as expressly
permitted by the Company or in connection with the performance of his duties
hereunder, the Executive shall not divulge, communicate, use to the detriment of
the Company or for the benefit of any other person or persons, or misuse in any
way, any confidential information pertaining to the business of the Company or
its subsidiaries. Any confidential information or data heretofore or hereafter
acquired by the Executive with respect to the business of the Company and its
subsidiaries (which shall include, but not be limited to, information concerning
their respective financial condition, prospects, customers, sources of leads,
methods of doing business, and the manner of design, manufacture, importation,
marketing and distribution of their respective products) shall be deemed a
valuable, special and unique asset of the Company that is received by the
Executive in confidence and as a fiduciary, and the Executive shall remain a
fiduciary to the Company and its subsidiaries with respect to all of such
information. Notwithstanding any provision hereof which may be to the contrary,
confidential information shall not include (a) information that is or becomes
generally available to the public other than as a result of a disclosure by the
Executive, or (b) information lawfully acquired by the Executive from sources
other than the Company or its affiliates who are not bound by any agreement of
confidentiality.
6.3 Nonsolicitation of Employees and
Customers. While employed by the Company and for a period of two years following
the date his employment is terminated hereunder, the Executive shall not,
directly or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity, (a) attempt to employ or enter into
any contractual arrangement with any employee or former employee of the Company
or its subsidiaries, unless such employee or former employee has not been
employed by the Company or a subsidiary of the Company for a period in excess of
six months, or (b) call on or solicit any of the actual or targeted prospective
customers or clients of the Company or its subsidiaries, nor shall the Executive
make known the names and addresses of such customers or any information relating
in any manner to the trade or business relationships of the Company or its
subsidiaries with such customers.
6.4 Books and Records. All books,
records, and accounts relating in any manner to the customers or clients of the
Company and its subsidiaries, whether prepared by the Executive or otherwise
coming into the Executive's possession, together with any Company credit or
charge cards, door or file keys, access cards to Company properties, computer
access codes, files, notes, manuals, memoranda, prints, drawings, formulations,
records, software and any other Company property related to the operation of the
business of the Company and its subsidiaries, shall be the exclusive property of
the Company and shall be returned immediately to the Company on termination of
the Executive's employment hereunder or on the Company's request at any time.
The Executive shall not retain copies, extracts or compilations of any such
books, records, accounts or other items.
7. Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Section 6 of this Agreement will cause irreparable harm and damage to the
Company and its subsidiaries, the monetary amount of which may be virtually
impossible to ascertain. As a result, the Executive 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 Section 6 of this Agreement by the Executive 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.
8. Assignment. Any or all of the rights and interests of the
Company hereunder (i) may be assigned to any purchaser of substantially all of
the assets of the Company, and (ii) may be assigned as a matter of law to the
surviving entity in any merger of the Company; provided, however, that in any or
all such events the Company shall not be released or discharged from its
obligations hereunder. The Executive shall not delegate his employment
obligations hereunder, or any portion thereof, to any other person.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings and arrangements, both oral
and written, between the parties hereto with respect to such subject matter. The
parties hereto hereby agree that any and all prior agreements, understandings
and arrangements for the provision of services by the Executive to the Company
and the compensation of the Executive in any form shall be deemed terminated and
of no further force or effect. This Agreement may not be modified in any way
unless by a written instrument signed by each of the parties hereto.
11. Notices. Any notice required or permitted to be given
hereunder shall be in writing and shall be given by personal delivery, facsimile
transmission, Federal Express (or other equivalent courier service) or by
registered or certified mail, postage prepaid, return receipt requested (a) if
to the Company, c/o Trivest Partners, L.P. at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq., and (b) if to the
Executive, to his address as reflected on the payroll records of the Company, or
to such other addresses as either party hereto may from time to time give notice
of to the other. Notice by registered or certified mail will be effective three
days after deposit in the United States mail. Notice by any other permitted
means will be effective upon receipt.
12. Benefits; Binding Effect. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and, where
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
13. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections 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 or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
14. Waivers. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
15. Damages. Nothing contained herein shall be construed to
prevent any party hereto from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or for the injunction of
any action constituting, a breach of any of the terms or provisions of this
Agreement, then the prevailing party shall pay all reasonable costs, fees
(including reasonable attorneys' fees) and expenses of the non-prevailing party.
16. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. No Third Party Beneficiary. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective heirs, personal
representatives, legal
representatives, successors and assigns, any rights or remedies under or by
reason of this Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
ATLANTIS PLASTICS, INC.
By: ___________________________
Xxxx X. Xxxxxx
Chairman of the Board
_______________________________
XXXXXXX X. XXXX
