Exhibit 10(d)
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into on April 29,
1997 (the "Effective Date") by and between Action Industries, Inc., a
Virginia corporation ("Action") and Xxxx X. Xxx ("Executive").
WHEREAS, Executive is now and has been employed by Action in
senior management executive positions and is broadly experienced in
all facets of Action's operations; and
WHEREAS, it is in the best interests of Action to assure
that it will have the continued dedication of Executive;
NOW THEREFORE, for good and valuable consideration and in
order to induce Executive to remain in the employ of Action, the
parties covenant and agree as follows:
1. Definitions. The following terms shall have the
following meanings for purposes of this Agreement.
a. "Cause" means (i) an act or acts of personal
dishonesty taken by Executive and intended to result in substantial
personal enrichment of Executive at the expense of Action, (ii)
violations by Executive of this Agreement or Executive's employment
obligations to Action which are demonstrably willful on Executive's
part and which are not remedied within a reasonable period of time
after receipt of written notice from Action, or (iii) the conviction
of Executive of a felony involving moral turpitude.
b. "Disability" means the incapacity to attend to and
perform effectively one's duties and responsibilities which continues
for at least 26 weeks after its commencement, as determined by a
physician selected by Action.
c. "Employment Period" that period beginning on the
Effective Date and ending upon Executive's retirement or earlier
termination of employment.
2. Employment. Action agrees to employ Executive, and
Executive agrees to serve Action in an executive, managerial and
supervisory capacity, subject to the direction and control of the
Board of Directors of Action, all upon the terms and conditions
hereinafter set forth. During the Employment Period:
a. Executive's position (including, without limitation,
status, offices, titles and reporting requirements), authority, duties
and responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 90-day period immediately preceding
the Effective Date,
b. Executive's services shall be performed at the
location where the Executive is employed on the Effective Date, or at
any office or location not more than thirty-five (35) miles from such
location,
c. Executive shall continue to receive an annual base
salary at least equal to the annual base salary payable to the
Executive by Action on the Effective Date ("Base Salary"),
d. Executive shall continue to have an annual cash bonus
potential, either pursuant to the Lane Profit Sharing Plan in effect
on the Effective Date or pursuant to a similar incentive compensation
plan of Action, at least equal to the level in existence on the
Effective Date ("Annual Bonus"), and
e. Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and
programs applicable to other key executive employees of Action
("Benefit Plans").
The failure of Action, without Executive's consent, to comply with the
terms and conditions of employment as set forth in this Section 2
shall constitute "Good Reason" for Executive's termination of his
employment with Action.
3. Best Efforts. Executive agrees during the Employment
Period to devote his best efforts and substantially all of his
business time and attention to the business of Action, it being agreed
that the Executive will have complied with this obligation if he
devotes to the business of Action his same best efforts and the same
time and attention to the business of Action that he has devoted to
the business of Action during the twelve months next preceding the
Effective Date. Executive agrees that he will perform such other
executive duties for Action and for Action's subsidiaries relating to
its business as the Board of Directors of Action may reasonably
direct.
4 Term. Subject to the provisions of Sections 4 and 5
of this Agreement, either party shall have the right to terminate the
Employment Period at any time. If Executive's employment with Action
is terminated by Action, other than for Cause or as a result of his
death or Disability, or if Executive terminates his employment with
Action for Good Reason, then Action will, for a period of one year
after the termination date (or, if shorter, until Executive reaches
"Normal Retirement Age" (as such concept is used in the primary
retirement plan in which Executive is a participant on the Effective
Date)), (i) pay to Executive as and when normally payable his Base
Salary as in effect on the date of termination and an amount equal to
the average Annual Bonus received by such Executive for the past three
years prior to termination (or a pro-rated portion of such average
Annual Bonus) and (ii) subject to program eligibility requirements and
continuation of programs by Action, continue his participation in the
Benefit Plans in which he was participating on the date of termination
of employment.
5. Split Dollar Insurance Policy. If Executive's
employment with Action is terminated by Action other than for Cause or
as a result of his death or Disability, or if during such period
Executive terminates his employment with Action for Good Reason, then
Action will continue to make premium payments for so long as Action is
making payments to Executive under Section 4 hereof under any and all
split dollar life insurance programs in effect on the life of the
Executive as of the Effective Date, after which the Executive will be
entitled to ownership of the policy and Action will be entitled to
premium retrieval, all in accordance with the terms of the program,
but only to the extent of the cash value of the policy, and without
recourse to the Executive for the balance of any such premium
retrieval.
6. Non-Competition. During the period commencing on the
Effective Date and while employed by Action, and for a period of one
year after termination of employment, Executive shall not, without the
prior written consent of Action, directly or indirectly, own, control,
finance, manage, operate, join or participate in the ownership,
control, financing, management or operation of, or be connected as an
employee, consultant or in any other capacity with, any business
engaged in the manufacture or distribution of residential furniture in
the United States. Nothing in this Section 6 shall, however, restrict
Executive from making investments in other ventures which are not
competitive with Action, or restrict Executive from owning less than
one percent (1%) of the outstanding securities of companies listed on
a national stock exchange or actively traded in the "over-the-counter"
market. In addition, if the Employment Period is terminated by Action
(other than for Cause) and the Executive elects to forego the payments
called for in Sections 4 and 5 hereof, the provisions of this Section
6 shall not apply. Should any of the terms of this Section 6 be found
to be unenforceable because they are over-broad in any respects then
they shall be deemed amended to the extent, and only to the extent,
necessary to render them enforceable. Both parties stipulate that
money damages would be inadequate to compensate for any breaches of
the terms of this Section 6, and that such terms shall be enforceable
through appropriate equitable relief, without the necessity of proving
actual damages and to an equitable accounting of all earnings,
profits, and other benefits arising from such violation, which rights
shall be cumulative and in addition to any other rights and remedies
to which Action may be entitled.
7. Confidentiality. During the Employment Period and at
all times thereafter, Executive shall maintain the confidentiality of,
and shall not disclose to any person (except as his duties as an
employee of Action may require) any non-public information concerning
Action or its business.
8. Miscellaneous. This Employment Agreement shall be
binding upon and shall inure to the benefit of Executive's heirs,
executors, administrators and legal representatives, and shall be
binding upon and inure to the benefit of Action and its successors and
assigns. This Agreement shall supersede and stand in place of any and
all other agreements between Executive and Action regarding severance
pay and/or any and all severance pay benefits pursuant to any plan or
practice of Action. This Employment Agreement shall take effect as of
the day and year first above set forth, and its validity,
interpretation, construction and performance shall be governed by the
laws of the State of Mississippi.
9. Indemnification. In the event that either party
hereto is required to pursue litigation against the other party to
enforce his or its rights hereunder, the prevailing party in any such
litigation shall be entitled to reimbursement of the costs and
expenses of such litigation, including attorney's fees.
10. Waivers. In consideration of the undertakings of
Action set forth in this Agreement, Executive hereby irrevocably
waives and forever releases any and all claims and causes of action of
any nature whatsoever that Executive has or may have against Action or
any of its officers, directors, employees or agents arising out of the
negotiation, execution, delivery or terms of this Agreement,
including, without limitation, any claims arising under the Age
Discrimination in Employment Act, 29 U.S.C. Subsection 21 et seq., and
any state or local law relating to age discrimination.
11. Entire Agreement. This Agreement contains the
entire agreement of the parties with respect to its subject matter,
and no waiver, modification or change of any of its provisions shall
be valid unless in writing and signed by the party against whom such
claimed waiver, modification or change is sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have each executed
this Agreement the date set forth below.
ACTION INDUSTRIES, INC.
By: Xxxx Xxxxxxxxxxxx
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Vice-President
Agreed to and Approved:
FURNITURE BRANDS XXXX X. XXX
INTERNATIONAL, INC.
By: X.X. Xxxxxxxx By: Xxxx X. Xxx
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President
