EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of December 6, 1999 by and between WINSLOEW FURNITURE,
INC., a Florida corporation (the "Company"), and Xxxxxxx Xxxx
(the "Executive").
Recitals
A. The Executive is currently employed as Executive V.P.-
Seating of the Company.
B. The Executive possesses intimate knowledge of the
business and affairs of the Company, its policies, methods and
personnel.
C. The Company recognizes that the Executive has
contributed to its growth and success, and desires to assure the
Executive's employment by the Company following the Merger and
to compensate him therefor pursuant to this Agreement.
D. The Executive is willing to make his services
available to the Company on the terms and conditions hereinafter
set forth.
Agreement
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties agree as follows:
5. Employment.
5.1 General. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Company
on
the terms and conditions set forth herein.
5.2 Duties of Executive. During the term of this
Agreement, the Executive shall serve as Executive V.P. - Seating
of the Company, shall diligently perform all services as may be
assigned to him by the Company's President and Chief Executive
Officer and/or the Company's Board of Directors or any authorized
Committee of the Board of Directors (the full Board or such
Committee, as the case may be, is referred to herein as the
"Board"), and shall exercise such power and authority as may from
time to time be delegated to him by the Board. The Executive
shall devote his full 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.
6. Term.
6.1 Initial Term. The initial term of this Agreement,
and the employment of the Executive hereunder, shall be for the
five-year period commencing on the date hereof (the "Initial
Term"), unless sooner terminated in accordance with the terms and
conditions hereof.
6.2 Renewal Terms. The Initial Term of this Agreement,
and 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 ("Written
Supplement"). If this Agreement is not so renewed and extended
prior to the expiration of the Initial Term, this Agreement, and
the employment of the Executive hereunder, shall automatically
terminate upon the expiration of the Initial Term.
7. Compensation.
7.1 Base Salary. The Executive shall receive a base
salary at the annual rate of not less than $160,000 (the "Base
Salary") during the Initial Term of this Agreement, with such
Base
Salary payable in installments consistent with the Company's
normal payroll schedule, subject to applicable withholding and
other taxes. The Base Salary shall be adjusted annually to
reflect, at a minimum, any increase from the previous year in the
national Consumer Price Index. The Base Salary shall also be
reviewed, at least annually, for merit increases and may, by
action and in the discretion of the Board, be increased at any
time or from time to time. The Base Salary, if so increased,
shall not thereafter be decreased for any reason. If the term of
this Agreement shall be renewed and extended as provided in
Section 2.2 hereof, then during such renewal term of his
employment hereunder, the Executive shall be paid a base salary
as
set forth in the Written Supplement.
7.2 Incentive Compensation.
(a) In addition to the Base Salary, the
Executive shall be entitled to receive annual incentive
compensation ("Incentive Compensation"), in the amount
determined pursuant to this Section 3.2, for each fiscal year
ending during the term of this Agreement, commencing with fiscal
2000, for which the Company's Contract Seating Division has
Operating Earnings (as hereafter defined) of at least seventy-
five percent (75%) of the Target Earnings (as hereinafter
defined) of the Company's Casual Furniture Division for such
year. For purposes of this Section 3.2, "Operating Earnings"
shall mean the consolidated operating earnings of the Company's
Casual Furniture Division as determined in accordance with
generally accepted accounting principles ("GAAP"), consistently
applied with the Company's past practices, provided, however,
that such Operating Earnings shall not reflect (i.e., shall not
be reduced by) any amortization of goodwill. The determination
of Operating Earnings made by the Company shall be final and
binding on the parties to this Agreement. For purposes of this
Section 3.2, the "Target Earnings" of the Company's Contract
Seating Division shall be as determined by the Board of
Directors. The Board of Directors shall have the right to
modify, at any time and in its sole discretion, any previously
established "Target Earnings" for reasons such as, but not
limited to, any acquisition, disposition, merger,
reorganization, liquidation, dissolution or other transaction
involving the Company or any of its subsidiaries, or other
extraordinary or significant events or changes in circumstances
relating to the Company or any of its subsidiaries, businesses
or operations.
(b) The amount of the Executive's Incentive
Compensation for each fiscal year shall be determined as
follows:
I. If the Operating Earnings for the year
do not exceed the Target Earnings for the year, the Incentive
Compensation shall be calculated by (A) multiplying (i)fifty
percent (50%) of the Executive's Base Salary for the year (the
"Maximum Bonus") by (ii) the remainder of (w) the fraction
obtained by dividing the Operating Earnings by the Target
Earnings, less (x) 0.75, and then (B) multiplying the resulting
product by three (3); or
II. If the Operating Earnings for the year
exceed the Target Earnings for the year, the Incentive
Compensation shall be calculated by (A) multiplying (i) the
Maximum Bonus by (ii) the remainder of (y) the fraction obtained
by dividing the Operating Earnings by the Target Earnings, less
(z) 1.0, and then (B) multiplying the resulting product by two
(2), and then adding 75% of the Maximum Bonus; provided,
however, that in no event shall the Incentive Compensation for
any year exceed the Maximum Bonus.
III. For example, (A) if Operating Earnings
are 75% of the applicable Target Earnings or less, the
Executive's Incentive Compensation for that year would be zero,
(B) if Operating Earnings are 90% of the applicable Target
Earnings, the Executive's Incentive Compensation for that year
would be 45% of the Maximum Bonus, (C) if Operating Earnings are
100% of the Target Earnings, the Executive's Incentive
Compensation for that year would be 75% of the Maximum Bonus,
(D) if the Operating Earnings are 110% of the Target Earnings,
the Executive's Incentive Compensation for that year would be
95% of the Maximum Bonus, and (E) if the Operating Earnings are
120% of the Target Earnings, the Executive's Incentive
Compensation for that year would be limited to 100% of the
Maximum Bonus.
(c) For purposes of this Agreement, the amount
of Incentive Compensation payable with respect to any fiscal
year (net of any tax or other amount properly withheld
therefrom) shall be paid by the Company to Executive within one
hundred twenty (120) days after the end of the fiscal year;
provided, however, that any amount paid shall be subject to
increase or decrease based upon the results of any audited
financial statements with respect to such year.
8. Expense Reimbursement and Other Benefits.
8.1 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 the Executive in the course of and pursuant
to
the business of the Company.
8.2 Other Benefits. The Executive shall be entitled to
participate in all medical and hospitalization, group life
insurance, and any and all other plans as are presently and
hereinafter provided by the Company to its executives. The
Executive shall be entitled to vacations in accordance with the
Company's prevailing policy for its executives; 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, adversely affect
the Company's business.
8.3 Working Facilities. 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
9. Termination.
9.1 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" (as
defined below in this paragraph 5.1). 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). For purposes of this Agreement, the term "Cause"
shall mean (i) the willful failure or refusal of the Executive to
perform the duties or render the services assigned to him from
time to time by the Board, (ii) gross negligence or misconduct by
the Executive in the performance of his duties to the Company,
(iii) the charging or indictment of the Executive in connection
with a felony, (iv) the association, directly or indirectly, of
the Executive, for his profit or financial benefit, with any
person, firm, partnership, association, entity or corporation
that
competes, in any material way, with the Company, (v) the
disclosing or using of any material trade secret or confidential
information of the Company at any time by the Executive, except
as
required in connection with his duties to the Company, (vi) the
breach by the Executive of his fiduciary duty or duty of trust to
the Company, or (vii) any breach or unsatisfactory performance by
the Executive of any of the terms or provisions of this Agreement
or any other agreement with the Company or any of its
subsidiaries
(whether written or oral), which is not cured within twenty (20)
business days after the Company gives written notice of such
breach or unsatisfactory performance to the Executive.
9.2 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,
become unable to perform his duties hereunder for in excess of
ninety (90) days in any 12-month period. Upon any termination
pursuant to this Section 5.2, the Company shall pay to the
Executive any unpaid amounts of his Base Salary and Incentive
Compensation accrued through the effective 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).
9.3 Death. In the event of the death of the Executive
during the term of his employment hereunder, the Company shall
pay
to the estate of the deceased Executive any unpaid amounts of his
Base Salary and Incentive Compensation accrued through 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 the Executive's death,
subject, however to the provisions of Section 4.1).
9.4 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 (i) pay to the Executive any unpaid Base
Salary and Incentive Compensation accrued through the effective
date of termination specified in such notice, and (ii) pay
Executive's Base Salary in the manner set forth in Section 3.1
hereof until the date which is six months following such
effective
date (the "Severance Date"). 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).
9.5 Voluntary Resignation. At any time, the Executive
shall have the right to terminate his employment hereunder by
written or oral notice to the Company of his voluntary
resignation. Upon any termination pursuant to this Section 5.5,
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).
10. Restrictive Covenants.
10.1 Non-competition. While employed by the Company and
for a period of one year (except that such period shall be six
months if Executive's employment is terminated pursuant to
Section
5.4 hereof) following the later of the date his employment is
terminated hereunder or, if applicable, the Severance Date, 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 engages in
competition with the Company in any state, country, commonwealth,
territory or other place in which the Company sells its products
(it being agreed that for all purposes of this Section 6, "the
Company" shall include all of its subsidiaries).
10.2 Nondisclosure. 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
trade secrets or confidential information pertaining to the
business of the Company. Any confidential information, trade
secrets or data now known or hereafter acquired by the Executive
with respect to the business of the Company (which shall include,
but not be limited to, information concerning the Company's
financial condition, prospects, customers, sources of leads,
methods of doing business, and the manner of design, manufacture,
financing, marketing and distribution of the Company's 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 Executive shall remain a fiduciary to the Company
with respect to all of such information.
10.3 Nonsolicitation of Employees and Customers. While
employed by the Company and for a period of three years (except
that the period with respect to the prohibitions in clause (ii)
hereof shall be six months if Executive's employment is
terminated
pursuant to Section 5.4 hereof) following the later of the date
his employment is terminated hereunder or, if applicable, the
Severance Date, the Executive shall not, directly or indirectly,
for himself or for any other person, firm, corporation,
partnership, association or other entity, (i) attempt to employ
or
enter into any contractual arrangement with any employee or
former
employee of the Company, unless such employee or former employee
has not been employed by the Company for a period in excess of
six
months, and/or (ii) call on or solicit any of the actual or
targeted prospective customers or clients of the Company, nor
shall the Executive make known the names and addresses of such
customers or any information relating in any manner to the
Company's trade or business relationships with such customers.
10.4 Books and Records. All books, records, and
accounts relating in any manner to the customers or clients of
the
Company, whether prepared by the Executive or otherwise coming
into the Executive's possession, 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.
11. 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, 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.
12. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Florida.
13. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the
subject matter hereof and, upon the commencement of the Initial
Term of this Agreement, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between
the Executive and the Company (or any of its respective
affiliates) with respect to such subject matter. All such 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 automatically terminate upon the
commencement of the Initial Term of this Agreement, and each
party shall thereupon and thereby, without any further action,
release and forever discharge the other (and the other's
affiliates) from any and all liabilities and obligations of any
nature arising out of or in connection with any and all such
prior agreements, understandings or arrangements. This
Agreement may not be modified in any way unless by a written
instrument signed by both the Company and the Executive.
14. Notices. Any notice required or permitted to be given
hereunder shall be deemed given when delivered by hand or when
deposited in the United States mail, by registered or certified
mail, return receipt requested, postage prepaid, (i) if to the
Company, to the address of the Company's principal offices in
Birmingham, Alabama (with a copy to Trivest, Inc., 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Managing Director and General Counsel), and (ii)
if to the Executive, to his address as reflected on the payroll
records of the Company, or to such other address as either party
hereto may from time to time give notice of to the other.
15. Benefits; Binding Effect. This Agreement shall be for
the benefit of and binding upon the parties hereto and their
respective heirs, personal representative, 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; provided, however that the Executive shall not
delegate his employment obligations hereunder, or any portion
thereof, to any other person.
16. 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.
17. 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.
18. Damages. Nothing contained herein shall be construed
to prevent the Company or the Executive 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 party found
to be at fault shall pay all reasonable court costs and
attorneys' fees of the other.
19. 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.
20. 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 Company, 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.
WINSLOEW FURNITURE, INC.
By: /s/Xxxxx Xxxxxx
Xxxxx Xxxxxx
President and Chief Executive
Officer
EXECUTIVE
/s/Xxxxxxx Xxxx
Xxxxxxx Xxxx
