Exhibit 10.93
RETIREMENT AND CONSULTING AGREEMENT
THIS RETIREMENT AND CONSULTING AGREEMENT (the "Agreement") is made and
entered into as of the 26th day of October, 2006 by and between COCHRANE
FURNITURE COMPANY, INC. (the "Company"), a North Carolina corporation, and
XXXXXXX X. XXXXX ("Xxxxx"), a resident of the State of North Carolina,
W I T N E S S E T H:
WHEREAS, Xxxxx is presently employed by the Company as an employee-at-will
and as the Company's president; and
WHEREAS, Xxxxx has advised the Company that he desires to retire from the
Company by December 31, 2006; and
WHEREAS, Xxxxx has agreed to remain as the Company's president until the
earlier of such time as the Company hires a new president or December 31, 2006;
and
WHEREAS, Xxxxx has offered to provide consulting services to Chromcraft
Revington, Inc. ("CRI"), the Company or other subsidiaries or affiliates of CRI
for a certain period of time following his retirement, and CRI, the Company or
other subsidiaries or affiliates of CRI desire to utilize Xxxxx'x services as a
consultant as set forth in this Agreement; and
WHEREAS, the Company and Xxxxx desire to set forth in this Agreement the
terms of Xxxxx'x retirement, his consulting services and certain other
restrictions, covenants and agreements of Xxxxx.
NOW, THEREFORE, in consideration of the foregoing premises, the respective
covenants, agreements and obligations contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Xxxxx hereby agree as follows:
Section 1. Retirement. The Company and Xxxxx hereby agree that Xxxxx shall
continue to serve as the president of the Company and shall retire, and his
employment by the Company shall terminate, upon the first to occur of (a) the
date on which the Company hires a new president, or (b) December 31, 2006 (the
"Retirement Date"). Accordingly, Xxxxx hereby also resigns from his position as
president of the Company and from all other positions that he holds with the
Company, CRI and all of CRI's subsidiaries and affiliates effective as of the
Retirement Date. Xxxxx shall continue to serve as an employee-at-will and as the
president of the Company and to receive his current salary and employee benefits
through and until the Retirement Date.
Section 2. Employee Benefits.
(a) Incentive Compensation. All outstanding and unexercised options to
purchase shares of CRI common stock that have been granted to Xxxxx and that
have vested on or before the Retirement Date shall be exercisable by him in
accordance with CRI's 1992 Stock Option Plan (as amended and restated) and the
applicable stock option award agreement. All outstanding options to purchase
shares of CRI common stock that have been granted to Xxxxx but that have not
vested on or before the Retirement Date shall lapse and not be exercisable on
and after the Retirement Date. All other outstanding incentive compensation
awards (whether vested or unvested, or earned or unearned) granted to Xxxxx
prior to the Retirement Date shall vest or be earned, exercisable, paid,
forfeited and otherwise treated in accordance with the applicable plan and award
agreement.
(b) Retirement Benefits. Only those amounts that are fully vested and
properly payable on or before the Retirement Date under the ESOP and any other
retirement plans sponsored or maintained by CRI shall be paid to Xxxxx. Such
amounts shall be paid in accordance with the provisions of such plans.
(c) Health Benefits. If Xxxxx participates in the Company's group health
plan as of the Retirement Date and he elects to continue such coverage for
himself and/or his spouse and legal dependents under the Consolidated Omnibus
Budget Reconciliation Act of 1986, as amended ("COBRA"), Xxxxx shall pay all
premiums associated with such continuation coverage and the Company shall
reimburse Xxxxx only for such premiums until the earlier of (i) the period of
time that Xxxxx has elected to receive continued coverage under CRI's group
health plan pursuant to COBRA (but, in any event, not to exceed eighteen (18)
months following the Retirement Date), or (ii) the date on which Xxxxx becomes
eligible to receive health insurance benefits from a new employer (but only so
long as such employment by a new employer is not in violation of Xxxxx'x
non-competition covenants set forth in Section 5 of this Agreement).
(d) Other Plans and Policies. All other amounts that are vested, earned or
properly payable to Xxxxx on or before the Retirement Date under any other
written plan or policy of the Company or CRI that have not been paid to him on
or before the Retirement Date shall be paid to him in accordance with the terms
of such plan or policy.
(e) Acknowledgment by Xxxxx. Other than as set forth in this Section 2 and
the payment of Xxxxx'x salary in accordance with Section 1 hereof, Xxxxx
acknowledges and agrees that CRI or the Company has paid him all salary,
bonuses, incentive compensation, employee benefits and other compensation and
amounts to which he is entitled in connection with his employment by the Company
and that he is not entitled to any additional compensation or other amounts from
CRI, the Company or any other subsidiary or affiliate of CRI.
(f) Taxes. All taxes (other than the Company's portion of FICA taxes) on
the salary and other amounts payable to Xxxxx in connection with his services as
an employee of the Company shall be paid by Xxxxx. The Company shall be entitled
to withhold from Xxxxx'x salary and all other amounts payable to Xxxxx pursuant
to this Agreement or any plan (i) applicable income, employment, FICA and other
taxes, (ii) such amounts authorized by Xxxxx, and (iii) other appropriate and
customary amounts.
Section 3. Consulting Services.
(a) Term. From the Retirement Date until March 31, 2007 (the "Initial
Term"), Xxxxx shall provide the consulting services described in this Section to
CRI, the Company or any of CRI's other subsidiaries or affiliates. From April 1,
2007 until June 30, 2008 (the "Subsequent Term"), Xxxxx may, in his discretion,
accept consulting assignments from CRI, the Company or any of CRI's other
subsidiaries or affiliates. The Initial Term and the Subsequent Term may be
referred to in this Agreement individually or collectively as the "Consulting
Term."
(b) Services. From the Retirement Date until December 31, 2006, Xxxxx
shall provide financial, strategic and other general business consulting
services on an exclusive basis to CRI, the Company or any of CRI's other
subsidiaries or affiliates as may be requested by the Chairman of CRI or the
Chairman of the Company up to 160 hours per calendar month (pro-rated for any
partial months). From January 1, 2007 until the end of the Initial Term, Xxxxx
shall provide financial, strategic and other general business consulting
services on an exclusive basis to CRI, the Company or any of CRI's other
subsidiaries or affiliates as may be requested by the Chairman of CRI or the
Chairman of the Company and as may be mutually agreeable to the Chairman and
Xxxxx. During the Subsequent Term, Xxxxx may,
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in his discretion, provide financial, strategic and other general business
consulting services to CRI, the Company or any of CRI's other subsidiaries or
affiliates as may be requested by the Chairman of CRI or the Chairman of the
Company; provided that Xxxxx shall not be required to accept any consulting
assignments from CRI, the Company or any of CRI's other subsidiaries or
affiliates or provide the consulting services described in this Section during
the Subsequent Term, and neither CRI nor the Company, nor any of CRI's
subsidiaries or affiliates, shall be required to request any consulting services
from Xxxxx under this Agreement during the Subsequent Term.
During the Initial Term, Xxxxx shall provide consulting services under
this Agreement only to CRI, the Company or any of CRI's other subsidiaries or
affiliates on an exclusive basis. During the Subsequent Term, Xxxxx is permitted
to provide consulting, employment or other services to other Persons (as
hereinafter defined), so long as he does not breach or violate the covenants and
restrictions contained in Sections 4, 5 and 6 of this Agreement. Neither CRI nor
the Company, nor any of CRI's subsidiaries or affiliates, guarantees any minimum
level of consulting assignments to be given to Xxxxx during the Consulting Term.
(c) Consulting Fees. For his consulting services provided under this
Agreement, Xxxxx shall be paid a consulting fee (i) during the Initial Term, at
a rate of $18,916.67 per calendar month (pro-rated for any partial months), and
(ii) following the Initial Term, at a rate of $1,000 per day (but in no event to
exceed $15,000 for any period of 20 consecutive business days if CRI, the
Company or another subsidiary or affiliate of CRI has engaged Xxxxx to provide
consulting services under this Agreement during each of such days). A business
day shall mean any day (other than a Saturday or Sunday) that CRI is open for
business. The consulting fees payable to Xxxxx shall be paid (I) during the
Initial Term, every other Friday in arrears, and (II) during the Subsequent
Term, on a monthly basis within 30 days following the month in which his
consulting services were provided.
(d) Expenses. The Company shall promptly reimburse Xxxxx for all
reasonable and necessary direct business and travel expenses actually incurred
by him in rendering his consulting services under this Agreement, provided that
such expenses are approved in advance by the Chairman of CRI or the Chairman of
the Company. Xxxxx shall provide the Company with sufficient documentation of
his expenses to satisfy the Company's customary expense reimbursement policy and
any requirements of the Internal Revenue Code.
(e) Relationship. Xxxxx understands and agrees that all consulting
services provided by Xxxxx under this Agreement shall be performed by Xxxxx as
an independent contractor, and not as an employee, agent, representative,
partner or joint venture of CRI, the Company or any of CRI's other subsidiaries
or affiliates. Xxxxx shall have sole discretion and responsibility for the
selection of the procedures, processes, materials, working hours and other
incidents of performance of his consulting services under this Agreement,
provided that CRI or the Company may require Xxxxx to travel to one or more of
their facilities or other locations for the performance of his consulting
services. In addition, Xxxxx understands and agrees that, following the
Retirement Date, he shall not be eligible to participate in any employee
benefit, retirement, incentive compensation or other plans or programs of CRI,
the Company or any of CRI's subsidiaries or affiliates even though he may be
providing consulting services under this Agreement. While Xxxxx is providing
consulting services under this Agreement, Xxxxx shall not have, nor will he hold
himself out as having, any right, power or authority to bind (or to create any
contract, commitment or obligation for, in the name of or on behalf of) CRI, the
Company or any of CRI's subsidiaries or affiliates.
(f) Compliance with Laws. Xxxxx agrees, and will ensure, that his
performance of consulting services under this Agreement shall be in compliance
with all laws, rules, regulations and other
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legal requirements. In addition, Xxxxx acknowledges and understands that, in the
course of his performance of consulting services under this Agreement, he may be
provided or have access to Confidential Information (as hereinafter defined).
Xxxxx shall not use such information as a basis to purchase, sell, hold or
otherwise deal in any securities of CRI or to otherwise violate any federal or
state securities laws, rules or regulations.
(g) Taxes. Xxxxx understands and agrees that (i) he shall be solely and
completely responsible for any and all taxes due and owing on any consulting
fees paid to him relating to any consulting services provided under this
Agreement, including, but not limited to, income, FICA and self-employment
taxes, and (ii) the Company shall issue Forms 1099 to Xxxxx, and shall not
withhold any taxes for any consulting fees paid to him, relating to consulting
services provided under this Agreement.
Section 4. Non-Disclosure; Return of Confidential Information and Other
Property.
(a) Confidential Information; Non-Disclosure. At all times while Xxxxx is
employed by the Company, CRI or any of CRI's subsidiaries or affiliates and at
all times thereafter, Xxxxx shall not (i) directly or indirectly disclose,
provide or discuss any Confidential Information with or to any Person other than
those directors, officers, employees, representatives and agents of the Company,
CRI and any of CRI's subsidiaries or affiliates who need to know such
Confidential Information for a proper corporate purpose, and (ii) directly or
indirectly use any Confidential Information (A) to compete against the Company,
CRI or any of CRI's subsidiaries or affiliates, (B) to the detriment of the
Company, CRI or any of CRI's subsidiaries or affiliates, or (C) for Xxxxx'x own
benefit or for the benefit of any Person other than the Company, CRI or any of
CRI's subsidiaries or affiliates. Xxxxx agrees that all Confidential Information
is and at all times shall remain the property of the Company, CRI or any of
CRI's subsidiaries or affiliates, as applicable.
For purposes of this Agreement, the term "Confidential Information" means
any and all of the following, whether provided or disclosed to Xxxxx, prepared
by Xxxxx or to which Xxxxx has been provided access, regardless of whether on,
before or after the date of this Agreement:
(i) any and all materials, records, data, documents, lists and
information (whether in writing, printed, verbal, electronic, computerized, on
disk, CD, DVD or otherwise) (A) relating or referring in any manner to the
business, operations, affairs, financial condition, results of operation,
assets, liabilities, sales, revenues, income, estimates, projections, budgets,
policies, strategies, techniques, methods, products, developments, suppliers,
vendors, relationships and/or customers of the Company, CRI or any of CRI's
subsidiaries or affiliates that are confidential, proprietary or not otherwise
publicly available (other than through a breach of this Agreement by the
Employee or any other impermissible disclosure), or (B) that the Company or CRI
or any of its subsidiaries or affiliates has deemed confidential, proprietary or
nonpublic; and
(ii) without limiting the foregoing, any and all material nonpublic
information of the Company within the meaning and intent of the federal
securities laws; and
(iii) without limiting the foregoing, any and all trade secrets of
the Company, CRI or any of CRI's subsidiaries or affiliates; and
(iv) any and all copies, summaries, analyses, extracts, documents or
information (whether prepared by the Company, the Employee or otherwise) which
relate or refer to or reflect any of the items set forth in (i), (ii) or (iii)
above.
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(b) Return of Confidential Information and Other Property. Xxxxx covenants
and agrees to return promptly to the Company all Confidential Information that
is still in Xxxxx'x possession or control or the location of which the Employee
knows (i) at the Retirement Date, and (ii) following the Retirement Date, at the
end of the Subsequent Term unless the return thereof is requested earlier by CRI
or the Company (including, but not limited to, any Confidential Information
contained on Xxxxx'x personal or home computer). Xxxxx further covenants and
agrees to return promptly to the Company, at the Company's headquarters, all
vehicles, equipment, computers, credit cards, keys, access cards, passwords and
other property of CRI, the Company or any subsidiary or affiliate of CRI that
are still in Xxxxx'x possession or control or the location of which the Employee
knows (i) at the Retirement Date, and (ii) following the Retirement Date, at the
end of the Subsequent Term unless the return thereof is requested earlier by CRI
or the Company, and to cease using any of the foregoing thereafter.
Section 5. Non-Competition.
(a) Xxxxx hereby understands, acknowledges and agrees that, by virtue of
his position as the president of the Company and thereafter as a consultant for
the Company, he has or will have advantageous familiarity and personal contacts
with the suppliers, vendors, employees and customers (wherever located) of the
Company, CRI and CRI's subsidiaries or affiliates and has and will have
advantageous familiarity with the Confidential Information and the business,
operations, affairs and strategies of the Company, CRI and CRI's subsidiaries or
affiliates. Accordingly, at all times while Xxxxx is employed by the Company,
and for a period of one (1) year following the completion of the final
consulting project assigned to Xxxxx by the Company, CRI or a subsidiary or
affiliate of CRI hereunder, Xxxxx shall not, in any location within the United
States of America, directly or indirectly, or individually or together with any
other Person, as owner, shareholder, investor, member, partner, proprietor,
principal, director, officer, employee, manager, agent, representative,
independent contractor, consultant or otherwise:
(i) engage in, or assist another Person in engaging in, any
business, operation or activity which competes with any business, operation or
activity conducted or proposed to be conducted by the Company, CRI or any of
CRI's subsidiaries or affiliates (or which is in the same or a similar line of
business as the Company, CRI or any of CRI's subsidiaries or affiliates) on
Xxxxx'x last day of employment with the Company or at any time during the
Consulting Term; or
(ii) finance, operate or control any business, operation or activity
which competes with any business, operation or activity conducted or proposed to
be conducted by the Company, CRI or any of CRI's subsidiaries or affiliates (or
which is in the same or a similar line of business as the Company, CRI or any of
CRI's subsidiaries or affiliates) on Xxxxx'x last day of employment with the
Company or at any time during the Consulting Term; or
(iii) offer or provide employment, hire or engage (whether on a
full-time, part-time or consulting basis or otherwise) any individual who is an
employee of the Company, CRI or any of CRI's subsidiaries or affiliates on the
last day of Xxxxx'x employment with the Company or at any time during the
Consulting Term.
(b) Xxxxx acknowledges the nationwide scope of the business of the
Company, CRI and CRI's subsidiaries or affiliates. Nevertheless, in the event
that any provision of this Section 5 is found by a court of competent
jurisdiction to exceed the geographic or other restrictions permitted by
applicable law, then the court shall have the power to reduce, limit or reform
(but not to increase or make greater) such provision to make it enforceable to
the maximum extent permitted by law, and such provision shall then be
enforceable against Xxxxx in its reduced, limited or reformed manner; provided,
however, that a
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provision shall be enforceable in its reduced, limited or reformed manner only
in the particular jurisdiction in which a court of competent jurisdiction makes
such determination. By way of example and not in limitation of the foregoing,
the covenants of Xxxxx set forth in this Section may be limited to the
geographic areas consisting of one hundred (100) miles from each city, town,
village, municipality or other location in the United States of America in which
the Company, CRI or any of CRI's subsidiaries or affiliates maintains an office,
manufacturing facility, warehouse or showroom on Xxxxx'x last day of employment
with the Company.
In addition, the Company and Xxxxx agree that the provisions of this
Section 5 shall be severable in accordance with Section 10(e) hereof.
Section 6. Non-Solicitation.
(a) Xxxxx hereby understands, acknowledges and agrees that, by virtue of
his position as the president of the Company and thereafter as a consultant for
the Company, he has and will have advantageous familiarity and personal contacts
with the suppliers, vendors, employees and customers (wherever located) of the
Company, CRI and CRI's subsidiaries or affiliates and has and will have
advantageous familiarity with the Confidential Information and the business,
operations, affairs and strategies of the Company, CRI and CRI's subsidiaries or
affiliates. Accordingly, at all times while Xxxxx is employed by the Company,
and for a period of eighteen (18) months following the completion of the final
consulting project assigned to Xxxxx by the Company, CRI or a subsidiary or
affiliate of CRI hereunder, Xxxxx shall not, directly or indirectly, or
individually or together with any other Person, as owner, shareholder, investor,
member, partner, proprietor, principal, director, officer, employee, manager,
agent, representative, independent contractor, consultant or otherwise:
(i) solicit in any manner, seek to obtain, service or accept any
business of any Person who is a customer of the Company, CRI or any of CRI's
subsidiaries or affiliates on Xxxxx'x last day of employment with the Company or
at any time during the Consulting Term; or
(ii) request or advise any Person who is a customer, supplier or
vendor of or who otherwise is doing business with the Company, CRI or any of
CRI's subsidiaries or affiliates on Xxxxx'x last day of employment with the
Company or at any time during the Consulting Term to terminate, reduce, limit or
change their business or relationship with the Company, CRI or any of CRI's
subsidiaries or affiliates; or
(iii) induce, request or attempt to influence any Person who is
employed by the Company, CRI or any of CRI's subsidiaries or affiliates on
Xxxxx'x last day of employment with the Company or at any time during the
Consulting Term to terminate the employee's employment with the Company, CRI or
any of CRI's subsidiaries or affiliates.
(b) Xxxxx acknowledges the nationwide scope of the business of the
Company, CRI and CRI's subsidiaries or affiliates. Nevertheless, in the event
that any provision of this Section 6 is found by a court of competent
jurisdiction to exceed the time, geographic or other restrictions permitted by
applicable law, then the court shall have the power to reduce, limit or reform
(but not to increase or make greater) such provision to make it enforceable to
the maximum extent permitted by law, and such provision shall then be
enforceable against Xxxxx in its reduced, limited or reformed manner; provided,
however, that a provision shall be enforceable in its reduced, limited or
reformed manner only in the particular jurisdiction in which a court of
competent jurisdiction makes such determination.
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In addition, the Company and Xxxxx agree that the provisions of this
Section 6 shall be severable in accordance with Section 10(e) hereof.
Section 7. Intellectual Property. Xxxxx understands, acknowledges and
agrees that each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method, technique or product (whether patentable
or copyrightable or not) made, created, developed, perfected, devised,
conceived, worked on or first reduced to practice by Xxxxx, either solely or in
collaboration with others, during the period of Xxxxx'x employment with the
Company (whether or not during regular working hours) or during the Consulting
Term relating, directly or indirectly, to the business, operations, affairs,
products, practices, techniques or methods of the Company, CRI or any of CRI's
subsidiaries or affiliates (the "Developments") is and shall be the exclusive
property of the Company, CRI or CRI's subsidiaries or affiliates, as applicable.
Xxxxx hereby assigns and agrees to assign to the Company, CRI or CRI's
subsidiaries or affiliates, as applicable, any and all of Xxxxx'x right, title
and interest in and to any and all Developments and hereby forever and
unconditionally releases and relinquishes any and all rights that he may have
with respect to any and all of the Developments.
Section 8. Periods of Noncompliance and Reasonableness of Periods. The
restrictions and covenants contained in Sections 5 and 6 of this Agreement shall
be deemed not to run during all periods of noncompliance, the intention of the
parties hereto being to have such restrictions and covenants apply during the
full periods specified in Sections 5 and 6 of this Agreement. The Company and
Xxxxx understand, acknowledge and agree that the restrictions and covenants
contained in Section 5 and Section 6 of this Agreement are reasonable in view of
Xxxxx'x position as president and thereafter a consultant of the Company, the
competitive and confidential nature of the information of which Xxxxx has or
will have knowledge and the competitive nature of the business in which the
Company, CRI and CRI's subsidiaries and affiliates are or may be engaged.
Section 9. Remedies. Xxxxx agrees that the Company will suffer irreparable
damage and injury and will not have an adequate remedy at law in the event of
any actual, threatened or attempted breach by Xxxxx of any provision of Sections
4, 5, 6 or 7. Accordingly, in the event of a breach or a threatened or attempted
breach by Xxxxx of any provision of Sections 4, 5, 6 or 7, in addition to all
other remedies to which the Company is entitled at law, in equity or otherwise,
the Company shall be entitled to a temporary restraining order, a permanent
injunction and/or a decree of specific performance of any provision of Sections
4, 5, 6 or 7. In addition, in the event of any breach by Xxxxx of any provision
of Sections 4, 5, 6 or 7, Xxxxx shall immediately repay to the Company all
consulting fees paid to him under this Agreement. The parties agree that a bond
posted by the Company in the amount of One Thousand Dollars ($1,000) shall be
adequate and appropriate in connection with such restraining order or injunction
and that actual damages need not be proved by the Company prior to it being
entitled to obtain such restraining order, injunction or specific performance.
The foregoing remedies shall not be deemed to be the exclusive rights or
remedies of the Company for any breach of or noncompliance with this Agreement
by Xxxxx but shall be in addition to all other rights and remedies available to
the Company at law, in equity or otherwise.
Section 10. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company and Xxxxx and their respective heirs,
executors, representatives, successors and assigns; provided, however, that
neither party may assign this Agreement without the prior written consent of the
other party hereto except that the Company may, without the consent of Xxxxx,
assign this Agreement in connection with any merger, consolidation, share
exchange, combination, sale of stock or assets, dissolution, shut down of the
Company or similar transaction involving the Company. In the event
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of any such permitted assignment of this Agreement, all references to the
"Company" shall thereafter mean and refer to the assignee of the Company.
(b) Waiver. Either party hereto may, by a writing signed by the waiving
party, waive the performance by the other party of any of the covenants or
agreements to be performed by such other party under this Agreement. The waiver
by either party hereto of a breach of or noncompliance with any provision of
this Agreement shall not operate or be construed as a continuing waiver or a
waiver of any other or subsequent breach or noncompliance hereunder. The failure
or delay of either party at any time to insist upon the strict performance of
any provision of this Agreement or to enforce its rights or remedies under this
Agreement shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of such provision, or to pursue any of its rights
or remedies for any breach hereof, at a future time.
(c) Amendment. This Agreement may be amended, modified or supplemented
only by a written agreement executed by all of the parties hereto.
(d) Headings. The headings in this Agreement have been inserted solely for
ease of reference and shall not be considered in the interpretation or
construction of this Agreement.
(e) Severability. In case any one or more of the provisions (or any
portion thereof) contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions (or portion thereof) had never been contained herein;
provided, however, if any provision of Section 5 or 6 of this Agreement shall be
determined by a court of competent jurisdiction to be unenforceable because of
the provision's scope, duration, geographic restriction or other factor, then
such provision shall be considered divisible and the court making such
determination shall have the power to reduce or limit (but not increase or make
greater) such scope, duration, geographic restriction or other factor or to
reform (but not increase or make greater) such provision to make it enforceable
to the maximum extent permitted by law, and such provision shall then be
enforceable against the appropriate party hereto in its reformed, reduced or
limited form.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same agreement.
(g) Construction. This Agreement shall be deemed to have been drafted by
both parties hereto. This Agreement shall be construed in accordance with the
fair meaning of its provisions and its language shall not be strictly construed
against, nor shall ambiguities be resolved against, any party.
(h) Entire Agreement. This Agreement, and the plans, programs, policies,
procedures, rules and agreements referenced herein, constitute the entire
understanding and agreement between the parties hereto relating to the subject
matter hereof and thereof, and supersede all other prior understandings,
commitments, representations, negotiations, contracts and agreements, whether
oral or written, between the parties hereto relating to the matters contemplated
hereby and thereby.
(i) Certain References. Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. All references to the masculine, feminine or neuter genders herein
shall include any other gender, as the context requires. Unless expressly
provided otherwise, all references in this Agreement to days shall mean
calendar, not business, days.
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(j) Governing Law. Because CRI, as the parent company of the Company,
maintains its principal place of business in the State of Indiana, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Indiana, without reference to any choice of law provisions, principles
or rules thereof (whether of the State of Indiana or any other jurisdiction)
that would cause the application of any laws of any jurisdiction other than the
State of Indiana. Any action to enforce this Agreement shall be brought only in
a court of competent jurisdiction in the State of Indiana.
(k) Notices. All notices, requests and other communications hereunder
shall be in writing (which shall include facsimile communication) and shall be
deemed to have been duly given if (i) delivered by hand; (ii) sent by certified
United States Mail, return receipt requested, first class postage pre-paid;
(iii) sent by overnight delivery service; or (iv) sent by facsimile transmission
if such fax is confirmed immediately thereafter by also mailing a copy of such
notice, request or other communication by regular (not certified or registered)
United States Mail, first class postage pre-paid, as follows:
If to the Company: c/o Chromcraft Revington, Inc.
Attention: Chairman
0000 Xxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx: Xxxxxxx X. Xxxxx
___________________________
___________________________
Telephone: (___) _________
Facsimile: (___) __________
or to such other address or facsimile number as either party hereto may have
furnished to the other in writing in accordance herewith. Xxxxx shall promptly
provide any changes to his address, telephone number and facsimile number to the
Company.
All such notices, requests and other communications shall be effective (i)
if delivered by hand, when delivered; (ii) if sent by mail in the manner
provided herein, two (2) business days after deposit with the United States
Postal Service; (iii) if sent by overnight delivery service, on the next
business day after deposit with such service; or (iv) if sent by facsimile
transmission, on the date indicated on the fax confirmation page of the sender
if such fax also is confirmed by mail in the manner provided herein.
(l) Attorneys' Fees. The prevailing party in any claim or action (or any
settlement thereof) under this Agreement shall, in addition to such other relief
that a court may award, be entitled to recover its or his, as the case may be,
reasonable attorneys' fees, costs and expenses from the non-prevailing party.
(m) Recitals. The recitals, premises and "Whereas" clauses contained on
page 1 of this Agreement are expressly incorporated into and made a part of this
Agreement.
(n) Definition of Person. For purposes of this Agreement, the term
"Person" shall mean any natural person, proprietorship, partnership,
corporation, limited liability company, organization, firm, business, joint
venture, association, trust or other entity.
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(o) Non-disparagement. Following the Retirement Date, Xxxxx shall not
publicly disparage or make or publish negative statements or comments about the
Company, its products or any of its directors or employees.
(p) Cooperation. Following the Retirement Date and upon the request of
CRI, the Company or any of CRI's subsidiaries or affiliates, Xxxxx shall
cooperate, assist and make himself available (for testimony or otherwise) at
appropriate times and places as determined by CRI, the Company or any of CRI's
subsidiaries or affiliates in connection with any claim, demand, action, suit,
proceeding, examination, investigation or litigation by, against or affecting
CRI, the Company or any of CRI's subsidiaries or affiliates. In connection with
the foregoing, the Company shall pay Xxxxx $500 for each day that CRI, the
Company or any subsidiary or affiliate of CRI requests Xxxxx to cooperate,
assist or make himself available and shall also reimburse Xxxxx for his
reasonable out-of-pocket travel expenses incurred that are approved in advance
by the Chairman of CRI or the Company.
* * *
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IN WITNESS WHEREOF, the Company and Xxxxx have made, entered into,
executed and delivered this Agreement as of the day and year first above
written.
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
COCHRANE FURNITURE COMPANY, INC.
By: /s/Xxxxxxxx X. Xxxxxxxx-Xxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx-Xxx, Chairman
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