Exhibit 10
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into as of March 29, 2003 (the "Agreement"),
by and between Xxxxxxxxx World Industries, Inc., a Pennsylvania corporation
("Xxxxxxxxx") and Xxxxxx X. Xxxxx ("Consultant").
WHEREAS, Consultant is employed as President, Xxxxxxxxx DLW Europe (ADE) and has
elected to retire from Armstrong effective July 1, 2003; and
WHEREAS, Consultant has developed experience and expertise in his prior role,
and Xxxxxxxxx desires to retain Consultant in a consulting capacity to serve as
the Chairman of the Management Board of ADE from July 1, 2003 to December 31,
2004;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained
herein, Xxxxxxxxx and Consultant do hereby agree as follows:
Section 1. Retirement from Employment
Effective on July 1, 2003, Consultant will retire from full-time employment
with Xxxxxxxxx and resign from all positions held with Xxxxxxxxx, XXX and
any other affiliates of Xxxxxxxxx Holdings, Inc. ("Holdings").
Section 2. Consulting Arrangement
Effective July 1, 2003, and extending to December 31, 2004, Consultant will
agree to provide consulting services to Xxxxxxxxx and ADE in the role of
Chairman of the Management Board of ADE.
Section 3. Compensation
Consultant shall receive cash compensation payments payable monthly by
Xxxxxxxxx as follows:
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Time Period Monthly Payment Total Payments
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July 2003 - December 2004 16,666.67 $ 300,000
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In addition to the foregoing payments, Consultant shall receive two lump
sum cash payments in the amount of $150,000 per payment payable October 1,
2003 and April 1, 2004.
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Section 4. Services
Consultant shall provide appropriate services and time, and make himself
available to fulfill the specific requirements of the role described above.
The specific requirements for the position will be more fully described and
agreed upon between Consultant and the President and CEO, Xxxxxxxxx Floor
Products.
Except in the event of termination of this Agreement by Consultant under
terms approved by Xxxxxxxxx or by Xxxxxxxxx by reason of Cause (as defined
below), Consultant or Consultant's beneficiary shall be entitled to receive
the compensation payments specified under Section 3 and the Management
Achievement Plan and 2002/2003 Long-Term Cash Incentive Award payments as
specified under Section 5. Cause for termination of this Agreement shall
mean (i) the deliberate and continued failure by Consultant, after written
notice from Xxxxxxxxx, to devote the required time to provide the services
agreed to; or (ii) the engaging by Consultant in gross misconduct which is
demonstrably and materially injurious to Xxxxxxxxx, monetarily or
otherwise, including but not limited to Consultant's failure to meet the
obligations of Section 9 of this Agreement and acts of fraud, willful
negligence or embezzlement by Consultant.
Section 5. Incentive Compensation / Cash Retention Payment
Management Achievement Plan - Consultant will cease participation in the
Management Achievement Plan effective March 31, 2003 and will be eligible
for pro-rated participation for 2003 subject to the terms of the plan,
based upon his retirement date.
2002/2003 Long-Term Cash Incentive Award - Consultant will be eligible for
pro-rated participation at a rate of 62.5% of the normal payment amount.
2003 Cash Retention Payment - Consultant will forfeit the Cash Retention
Payment scheduled to be paid December 31, 2003.
Section 6. Severance Pay / Individual Change in Control Agreement
Following the execution of this Agreement, Consultant shall (i) be
ineligible for severance benefits and the Consultant's Individual Change in
Control Agreement shall be deemed terminated; and (ii) waive all claims
past, present or future to any severance or Change in Control payments.
Section 7. Employee Benefit Continuation
Consultant shall be eligible to participate in employee benefit plans in
accordance with his eligibility as a retiree and shall also be eligible for
a company-paid annual physical exam. All other benefits shall cease,
including but not limited to long-term disability insurance and personal
financial planning services.
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Section 8. International Assignment Benefits
During the period of the Consultant's participation in this Agreement,
Xxxxxxxxx shall continue to provide benefits equivalent to the
International Assignment benefits to which Consultant would have been
eligible had he continued employment with Xxxxxxxxx. Tax equalization
payments shall be determined on the basis of Consultant's actual
compensation received, which shall also be included in the hypothetical tax
calculation. Consultant shall be eligible for five home leave trips during
the period of this agreement.
Section 9. Non-Competition & Confidentiality
Except as permitted with the prior written consent of the Holdings' Board
of Directors, Consultant shall not, during the eighteen-month period
beginning July 1, 2003, directly or indirectly, own, enter into the employ
of or render any services (whether as a consultant or otherwise) to any
person, firm or corporation, within the United States or any foreign
country in which any affiliate of Holdings is doing or is contemplating
doing business on July 1, 2003, which is a competitor of any affiliate of
Holdings with respect to products the affiliates of Holdings are then
producing or services which affiliates of Holdings are then providing.
Consultant recognizes he has a duty and obligation to the Company to
continue to protect its confidential and proprietary information and any
trade secrets belonging to the Company ("Confidential Information") which
includes but is not limited to information pertaining to pricing, customer
lists, research or development, distribution, technology, product design,
potential acquisitions, claims against the Company, litigation and
litigation strategy, production processes and know-how, and marketing and
therefore agrees that:
a. Any and all Company Confidential Information produced or received by
Consultant during her employment and hereafter is the property of the
Company.
b. Consultant shall not use, disclose, divulge or convey to any third
person, anywhere in the world, any Confidential Information belonging to
the Company or its affiliates until such time as such information or
secrets become publicly known by legitimate means, such as public
disclosure by the Company or otherwise through no wrongful act by
Consultant.
Section 10. Entire Agreement
This document represents the entire agreement between the parties with
regard to the subject matter contained herein. This Agreement supersedes
any prior agreements, whether oral or written, explicit or implicit.
Section 11. Modification and Waiver
No supplement, modification or amendment to this Agreement shall be binding
unless executed in writing by each of the parties hereto.
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Section 12. Successors
The Consultant's obligations hereunder will inure to the benefit of any and
all successors of Xxxxxxxxx and Holdings whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise. Employee will
perform his obligations under this Agreement in the same manner if no such
succession had taken place.
Section 13. Confidentiality
With the exception of immediate family and personal financial advisors,
Consultant shall not disclose the terms of this Agreement, including
Consultant's engagement in a consulting capacity, to any other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
XXXXXXXXX WORLD INDUSTRIES, INC.
By: /s/ Chan X. Xxxxxxx
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Chan X. Xxxxxxx
President & CEO,
Armstrong Floor Products
CONSULTANT: WITNESS:
/s/ Xxxxxx X. Xxxxx /s/ Monika X.X. Xxxxx
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Xxxxxx X. Xxxxx Printed Name: Monika X.X. Xxxxx
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Date: March 29, 2003
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