EXHIBIT 10.22
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made effective February 1, 1999,
between THE ROTTLUND COMPANY, INC., a Minnesota corporation ("Company"), and
XXXXXXXX X. XXXXXXX ("Executive").
W I T N E S S E T H
WHEREAS, the Executive is currently employed by the Company; and
WHEREAS, the Company desires to retain the unique experience,
ability and services of the Executive; and
WHEREAS, the terms, conditions and undertakings of this Agreement
have been duly approved and authorized by the Board of Directors of the Company;
NOW, THEREFORE, it is mutually agreed as follows:
1. EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company for the period stated in
paragraphs 4.1 or 4.2, as applicable, and upon the other terms and conditions
set forth in this Agreement.
2. SERVICE AND DUTIES. During the term of his employment under this
Agreement, the Executive agrees to perform the duties of his position or office
and such other duties of a similar nature as the Company or its Board of
Directors may from time to time assign to him. The Executive agrees to serve the
Company faithfully and to the best of his ability, and to devote his working
time, attention and efforts to the business and affairs of the Company. The
Executive's services will be rendered primarily at the Company's principal
executive offices in Minneapolis, Minnesota. The Executive may be required to
travel to other locations where the
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Company may have offices or conduct its business, as necessary to the proper
conduct of his duties.
3. COMPENSATION.
3.1. SALARY/BONUSES. For all services to be rendered by the
Executive under this Agreement, the Company agrees to pay, or cause to be paid,
to the Executive during the term of his employment under this Agreement a base
salary in an amount equal to the base salary the Executive was receiving
immediately prior to the effective date of this Agreement. In addition, the
Executive shall be entitled to receive a bonus in an amount per fiscal year not
less than the amount established according to the Company's bonus programs and
practices that are in effect immediately prior to the effective date of this
Agreement.
3.2. EMPLOYEE BENEFIT PLANS/VACATION. In addition to the salary and
bonus provided in paragraph 3.1, the Executive shall be entitled during the term
of his employment under this Agreement to participate in the employee benefit
plans or programs of the Company to the extent that his position, title, tenure,
salary, age, health and other qualifications make him eligible to participate,
including, without limitation, in any retirement, pension, profit-sharing, stock
option, incentive compensation, bonus or similar plans or programs, and in any
insurance, hospital or other employee benefit plans which may now be in effect
or which may hereafter be adopted. The Executive shall be entitled to vacation
pursuant to the Company's vacation policy in effect immediately prior to the
effective date of this Agreement. The Company does not guarantee the adoption or
continuance of any particular employee benefit plans or programs, and the
Executive's participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
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4. TERM AND TERMINATION.
4.1 BASE TERM. Unless this paragraph is superseded by paragraph
4.2, the term of the Executive's employment under this Agreement shall be for
twelve (12) months commencing on February 1, 1999 and ending on January 31,
2000, except if his employment is terminated on or prior to January 31, 2000 for
Good Cause. If the Executive's employment is terminated under this section for
Good Cause, the Company will pay his salary under Section 3.1 pro rated through
the date of termination, plus any benefits due under Section 3.2 as of the date
of termination; the Executive, however, shall not receive any bonus under
Section 3.1 if he is terminated for Good Cause. If the Executive's employment is
terminated under this section without Good Cause, or as a result of a
Constructive Discharge by the Company, the Company will pay the Executive: (a)
the full salary he otherwise would have received under Section 3.1 had he
remained employed by the Company through January 31, 2000; (b) any benefits due
the Executive under Section 3.2 as of the date of termination; and (c) a pro
rata portion of the bonus due the Executive under Section 3.1 for the
then-current fiscal year, calculated as of the date of the Executive's
termination, but not finally determined or payable until the 90th day following
the end of the then-current fiscal year.
4.2 TERM UPON A CHANGE IN CONTROL. If a Change in Control occurs
prior to January 31, 2000, and ultimately becomes effective through a closing of
the Change in Control transaction, the provisions of paragraph 4.1 shall be
superseded by this paragraph 4.2. If this section becomes effective, the
Executive's employment under the Agreement shall continue from the date the
Change in Control occurs until the first anniversary of the date the transaction
contemplated by the Change in Control is closed, unless the Executive's
employment is
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terminated for Good Cause on or prior to that anniversary date. If the
Executive's employment is terminated under this section for Good Cause, the
Company will pay him his salary under Section 3.1 pro rated through the date of
termination, plus any benefits due under Section 3.2 as of the date of
termination; the Executive, however, shall not receive any bonus under Section
3.1 if he is terminated for Good Cause. If the Executive's employment is
terminated under this section without Good Cause, or as a result of a
Constructive Discharge by the Company, the Company will pay him: (a) severance
of $110,000 within 30 days of such termination; (b) any benefits due the
Executive under Section 3.2 as of the date of termination; and (c) a pro rata
portion of the bonus due the Executive under Section 3.1 for the then-current
fiscal year, calculated as of the date of the Executive's termination, but not
finally determined or payable until June 30 of the then-current fiscal year.
4.3 TERMINATION UPON DEATH OR DISABILITY. If the Executive dies or
becomes Disabled during the term of this Agreement, his employment with the
Company shall terminate immediately upon his death or Disability, and the
Executive (or his personal representative) shall be entitled to receive his
salary through the date of his death or the first day of his Disability, plus
any benefits due the Executive under Section 3.2 as of the date of termination,
but shall be entitled to receive a bonus under Section 3.1 only if he meets the
requirements of the Company's bonus programs and practices as of the date of
death or Disability.
4.4 STOCK OPTIONS.
(a) If a Change in Control occurs, any stock options held by the
Executive (with the exception of Vision 2000 stock options) shall fully vest 30
days prior to the proposed closing date of the transaction contemplated by the
Change in Control.
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(b) With respect to any Vision 2000 stock options held by the
Executive:
(i) If the Executive's employment is terminated without
Good Cause or as the result of a Constructive Discharge prior to a
Change in Control, the Executive shall receive a pro rata portion
of the Vision 2000 stock options due to him in the fiscal year in
which the termination occurs; the number of Vision 2000 options to
which the Executive is entitled under this section shall be
determined, fully vested and exercisable 90 days following the end
of the fiscal year in which the termination occurs;
(ii) If a Change in Control occurs, the Executive shall
receive from the acquiror replacement options for the Vision 2000
stock options due him in the year the Change in Control occurs or,
if the acquiror's common stock is not publicly traded, the right to
earn the cash equivalent of those options. The replacement options
or the cash equivalent shall be provided to the Executive within 90
days of the end of the fiscal year in which the Change in Control
occurs.
4.5. SURRENDER OF RECORDS AND PROPERTY. Upon termination of his
employment under this Agreement for any reason, the Executive agrees to deliver
promptly to the Company (or have his representative deliver promptly to the
Company) all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, calculations or other
documents, or copies thereof, which are the property of the Company or which
relate in any way to the business, products, practices or techniques of the
Company, and all other property, trade secrets and confidential information of
the Company, including, but not limited to, all documents which in whole or in
part contain any trade secrets or confidential information of the Company,
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which in any of these cases are in his possession or under his control. The
Executive shall be permitted to retain personal correspondence, documents and
items which contain no trade secrets or confidential information.
5. DEFINITIONS.
5.1. CHANGE IN CONTROL. A "Change in Control" will occur under this
Agreement if 50% or more of the stock or assets of the Company is acquired by a
third party on or before January 31, 2000, or if the families of Xxxxxxx Xxxxxx
and Xxxxx Xxxxxx (including all common stock held by Xxxxxxx Xxx Xxxxxx) do not
collectively own (either directly or beneficially) in excess of 50% of the
voting capital stock of the Company during this same time period. For purposes
of this Agreement, a Change in Control will be deemed to have occurred on the
date a contemplated transaction is executed by all parties to the transaction.
5.2. GOOD CAUSE. The Company may terminate the Executive's
employment for "Good Cause" in the event the Executive:
(a) is convicted, by a court of competent jurisdiction,
of a felony committed during the term of this Agreement
which adversely affects the Company; or
(b) confesses in writing to the commission of felony
during the term of this Agreement which adversely
affects the Company; or
(c) is convicted of, or confesses in writing to, the
embezzlement or misappropriation of funds of the
Company, which embezzlement or misappropriation was
committed during the term of this Agreement.
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5.3. CONSTRUCTIVE DISCHARGE. A "Constructive Discharge" will be
deemed to have occurred if, after a Change in Control: (1) the Company assigns
you a position, duties, responsibilities or status that are inconsistent with
your position, duties, responsibilities and/or status immediately prior to the
Change in Control; (2) there is a change in the titles or offices you held
immediately prior to the Change in Control; (3) the Company relocates you to a
location that is more than fifty (50) miles from the Company's current
headquarters in Roseville, Minnesota; (4) the Company reduces your base salary
or fails to pay you any compensation or benefits to which you are entitled
within ten (10) days of the date due; or (5) the Company breaches any of its
obligations under this Employment Agreement.
5.4. DISABILITY. The Executive shall be deemed to have become
Disabled, for purposes of this Agreement, in the event that he cannot, because
of illness, injury, or incapacity, render any services of the character
contemplated by this Agreement over a continuous period of 120 days.
5.5. SUCCESSORS AND ASSIGNS. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity acquiring all
or substantially all the stock, assets, and/or business of the Company
(including this Agreement) whether by agreement, operation of law, or otherwise.
6. MISCELLANEOUS.
6.1. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Minnesota
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be
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brought and maintained in a court of competent jurisdiction in Hennepin County
in the State of Minnesota.
6.2. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings, and arrangements, oral or written, between the parties hereto
with respect to the subject matter covered by this Agreement.
6.3. SUCCESSORS/ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Company, its Successors and Assigns, and the
Company shall require any Successors and Assigns to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. Neither this Agreement nor any right or interest thereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
6.4. WITHHOLDING TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as may be
required pursuant to any law, governmental regulation or ruling, or which the
Company in good faith believes are required to be held pursuant to any law,
governmental regulation or ruling.
6.5. NO WAIVER. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is agreed
to in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto or compliance
with, any condition or provision of this Agreement to be
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performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
6.6. NOTICES. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, to the recipient at
the address indicated below:
(a) If to the Company, to
The Rottlund Company, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: ___________________
(b) If to the Executive, to
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or such other address or to the attention of such other persons as the recipient
party shall have specified by prior written notice to the sending party.
6.7. SEVERABILITY. To the extent any provision of this Agreement
shall be found to be invalid or unenforceable, it shall be considered deleted
from this Agreement and the remainder of such provision and of this Agreement
shall be unaffected and shall continue in full force and effect. The Executive
acknowledges the uncertainty of the law in this respect and expressly stipulates
that this Agreement be given the construction which renders its provisions valid
and enforceable to the maximum extent (not exceeding its express terms) possible
under applicable law.
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THE ROTTLUND COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Vice President
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/s/ Xxxxxxxx X. Xxxxxxx
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EXECUTIVE
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