Exhibit 10X
AGREEMENT
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MADE AND ENTERED INTO this 5th day of January, 1999 by and between
DECORATOR INDUSTRIES, INC., a Pennsylvania corporation, with offices at Suite
201, 00000 Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter called
"Decorator" or "Employer") and XXXXXXX X. XXXXXX, residing at 0000 Xxxxxxxx Xxxx
X.X., Xxxxxxxxxxx, Xxxxxxx 00000 (hereinafter called the "Employee").
W I T N E S S E T H:
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WHEREAS, Decorator desires to employ the Employee as Executive Vice
President of Decorator to assure itself of the benefit of the services of the
Employee on the terms and subject to the conditions set forth herein; and
WHEREAS, the Employee is willing to enter into an agreement to that end
with Decorator upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
warranties and agreements hereinafter set forth, the parties, intending to be
legally bound hereby, each for themselves and their respective heirs, successors
and assigns, covenant, warrant, promise and agree as follows:
1. Decorator hereby employs Employee and Employee accepts employment
from Decorator upon the terms and with the duties hereinafter stated commencing
on January 5, 1999.
2. A. Employee shall perform, to the best of his ability, all duties
assigned to him by the President and Board of Directors of
Decorator.
B. The Employee shall serve as Executive Vice President of Decorator
during election to such office.
C. The Employee shall devote his full working time and attention to
the performance of such duties. From time to time, Employee may
attend to personal nonbusiness items during the business day as
long as they do not disrupt the business of the Company.
D. The Employee shall devote his best efforts to the business of the
Company.
E. The Employee shall be subject to the direction and supervision of
the President and Board of Directors of Decorator.
F. The Employee agrees to relocate his family residence to the State
of Indiana not later than ninety (90) days after the commencement
of employment.
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However, the Employee's duties may require travel throughout the
United States and elsewhere.
3. The Employee shall receive remuneration for his services hereunder
salary of Three Thousand One Hundred Seventy-Five Dollars ($3,175) per week. The
Employee will be eligible for annual bonuses commensurate with his and the
Employer's performance during the preceding fiscal year, the payment and amount
of which shall be forty-five percent (45%) of the regular performance bonus
granted by the Employer's Board of Directors to its President.
4. A. The Employee shall be entitled to the following benefits:
(i) actual relocation, moving, and temporary living expenses
for not more than ninety (90) days, plus income taxes, if
any, when payable, and the amount of Thirteen Thousand
Seven Hundred Fifty-Eight Dollars ($13,758), payable within
thirty (30) days after relocation;
(ii) upon commencement of employment, a stock option for 15,000
shares of $.20 par value common stock of Decorator pursuant
to the terms of the 1995 Stock Option Plan, at the closing
price on the date of employment, or the last price at which
the stock traded, all in accordance with Section 2(d) of
the Plan, such option shall be exercisable 20% twelve (12)
months after issuance and then 20% of the initial amount
exercisable at the end of each twelve (12) month period
thereafter, the option to become exercisable in full five
years from the date of issuance (subject to Section 15 and
the other provisions of the Plan), and expire ten (10)
years from the date the option is granted.
(iii) two weeks annual vacation plus two (2) additional weeks of
paid "optional" vacation provided that the same can be
taken without material interference with Employee's duties;
(iv) the following additional fringe benefits:
a. medical/hospital insurance: premiums fully paid for
Employee and dependents; no waiting period;
b. life insurance: $75,000 term life insurance with
Employee to have the opportunity to purchase additional
insurance under the Company's I.R.C.ss.125 Plan;
c. long-term disability insurance: premiums fully paid for
the maximum annual benefit of $60,000 (55% of $90,000
limit) with a ninety (90) day waiting period;
d. the Company's 401(k) Plan when eligible;
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e. sick leave and such other fringe benefits as have
usually been granted to management employees of
Decorator as and when Employee is eligible therefor.
B. Decorator further agrees to reimburse the Employee for all
reasonable business expenses upon submission of vouchers,
invoices or proof of payment.
C. The Employee shall be reimbursed $500 per month for automobile
expenses. Employer shall insure such auto.
5. The Employee's employment shall terminate in the following manners:
A. upon the death of the Employee;
B. upon notice to the Employee by Decorator for physical or mental
disability if, because of such disability, the Employee cannot
ably perform the duties of the Employee under this Agreement as
evidenced by the written determination of a physician retained by
the Employer and if such disability lasts longer than a total of
thirteen (13) weeks;
C. by the Employee giving thirty (30) days prior written notice
thereof to Decorator and voluntarily resigning from Decorator. In
such event, this Agreement will terminate thirty (30) days after
the date such notice is given;
D. in the event Employee fails to relocate his family residence to
Indiana within one hundred eighty (180) days after commencement
of employment, unless additional time is granted by Employer in
writing;
E. or by Decorator for cause (as herein defined), upon notice to the
Employee and Employee shall not be entitled to any amount as
severance hereunder or otherwise from Decorator. For purposes of
this Agreement, the term "cause" shall mean (i) the willful
misconduct by the Employee in the performance of the duties of
the Employee to Decorator (including, without limitation, the
conviction by a court of competent jurisdiction of the Employee
of any offense, regardless of classification, related to the
Employee's duties and responsibilities to Decorator), (ii) the
grossly negligent performance by the Employee of the duties of
the Employee to Decorator if such grossly negligent performance
is determined by the Board to have had or to be reasonably likely
to have a material adverse effect on the business, assets,
prospects or financial condition of Decorator, (iii) the
conviction of the Employee by a court of competent jurisdiction
of a felony; or (iv) breach by the Employee of any part of
Section 6 hereof.
Upon any such termination, there shall be paid to Employee or his estate shall
be paid an amount equal to any base salary earned but not paid plus an amount
for accrued but unused vacation, if any,
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at the rate of pay in effect on the date of death, plus reimbursement of
business expenses incurred prior to the date of termination in accordance with
Section 4B.
F. The Employee's employment hereunder may be terminated without
cause by Decorator upon written notice to the Employee at any
time. In such event, Decorator will provide the Employee with the
following benefits, in lieu of (and not in addition to) payment
of any other amounts for severance benefits or otherwise from
Decorator:
(i) If such termination occurs pursuant to this Subsection F or
Subsection 5B during the first year of Employee's
employment, the base compensation and benefits for six (6)
months, or upon termination thereafter without cause or
pursuant to Subsection B, base compensation and benefits
for 12 months;
(ii) Decorator will pay the Employee for accrued but unused
vacation, if any.
(iii) Decorator shall pay Employee for unreimbursed business
expenses incurred prior to the date of termination.
6. Decorator has invested and will continue to invest considerable
resources in the acquisition and development of its business and in the
acquisition, development and design of its products, which investment has or
will result in the generation of proprietary, confidential and/or trade secret
data, information, techniques and materials, both tangible and intangible,
referred to as Confidential Information. It would be unlawful for the Employee
to appropriate, to attempt to appropriate, or to disclose to anyone during the
term of employment and for a period of two (2) years thereafter, the
Confidential Information.
The Employee covenants and agrees with Decorator that he personally,
or in association with others, will not establish or engage, directly or
indirectly, as owner, partner, shareholder, employee or as a lessor or lessee,
or as a creditor, in any business similar to the business of Decorator for the
term of this Agreement and for the period of two (2) years after any termination
of this Agreement in any state in which Decorator has manufacturing plants or
customers.
Employee further covenants and agrees that during the term of this
Agreement and for the period of two (2) years after the expiration of the term,
he will not, directly or indirectly, by himself or in association with others,
transfer or attempt to transfer, hire or solicit for hire, or knowingly cause
others to hire any existing or future employee or agents of Decorator, or
entice, induce or attempt to entice or induce any of such employees or agents to
leave such employ, or solicit the business of current customers or customers
currently being solicited.
In furtherance and not in limitation of the foregoing, should any
duration or geographical restriction on business activities covered under this
Agreement or any other provision of this Agreement be found by any court of
competent jurisdiction to be less than fully enforceable due to its breadth of
restrictiveness or otherwise, the Employee and Decorator intend that such court
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will enforce this Agreement to the full extent the court may find permissible by
construing such provisions to cover only that duration, extent or activity which
may be enforceable. The Employee and Decorator acknowledge the uncertainty of
the law in this respect and intend that this Agreement will be given the
construction that renders its provisions valid and enforceable to the maximum
extent permitted by law.
The covenants made in, and the rights conveyed by, this Agreement
are of a unique and special nature. Any violation of this Agreement by the
Employee will result in immediate and irreparable harm to Decorator. In such
event, Decorator shall be entitled to an injunction or a decree of specific
performance from a court of equity in addition to other rights or remedies which
Decorator may have at law or in equity. The Employee hereby waives the right to
assert the defense that any such breach or violation can be adequately
compensated in damages in an action at law.
7. The covenants, provisions and sections of this Agreement are
severable, and in the event that any portion of this Agreement is held to be
unlawful or unenforceable, the same will not affect any other portion of this
Agreement, and the remaining terms and conditions or portions thereof will
remain in full force and effect. This Agreement will be construed in such case
as if such unlawful or unenforceable portion had never been contained in this
Agreement, in order to effectuate the intentions of Decorator and the Employee
in executing this Agreement.
8. The failure of either Decorator or the Employee to object to any
conduct or violation of any of the covenants made by the other under this
Agreement will not be deemed a waiver of any rights or remedies. No waiver of
any right or remedy arising under this Agreement will be valid unless set forth
in an appropriate writing signed by both Decorator and the Employee. This
Agreement shall not give the Employee any right to be employed for any specific
time or to limit Decorator's right to terminate the Employee's employment at any
time, with or without cause, in accordance with Section 5 hereof.
9. This Agreement is binding upon Decorator and the Employee and their
respective heirs, personal representatives, successors and assigns. The
obligations of this Agreement will survive the termination of employment. The
services to be rendered by the Employee to Decorator under this Agreement are
personal in nature and, therefore, the Employee may not assign or delegate the
Employee's rights, duties or obligations under this Agreement without the prior
written consent of Decorator. Decorator may assign its rights under this
Agreement or delegate its duties and obligations under this Agreement to any
corporation acquiring all or substantially all of the assets of Decorator or to
any other corporation into which Decorator may be liquidated, merged or
consolidated.
10. This Agreement will governed by and construed in accordance with
the internal laws of the State of Florida without giving effect to the choice of
laws principles thereof. The Employee acknowledges the jurisdiction of the State
and Federal Courts located in Fort Lauderdale/Florida.
11. Any claim or controversy between the parties to this Agreement
(other than Employee's failure to keep and perform Section 6 of this Agreement)
that cannot be amicably settled shall be determined by arbitration as follows:
On twenty (20) days written notice by either party to the other, such claim
shall be submitted to binding and final arbitration in Fort Lauderdale, Florida
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in accordance with the commercial rules of the American Arbitration Association
before a panel of three (3) arbitrators, with one arbitrator to be selected by
each of the opposing parties and said arbitrators to select a third arbitrator.
All costs and expenses of the arbitration including all actual attorneys' fees
and out-of-pocket expenses, shall be the sole liability of the non-prevailing
party or, if the arbitrators find in part for more than one party, all costs and
expenses shall be allocated in accordance with the arbitrators' decision. Such
arbitrators in their sole discretion shall determine the appropriate remedies,
including without limitation, damages and equitable remedies which determination
shall be final and binding and may be enforced in any court having jurisdiction.
12. No alterations, amendments, changes or additions to this Agreement
will be binding upon either Decorator or the Employee unless reduced to writing
and signed by both Decorator and the Employee.
13. This Agreement constitutes the entire understanding between
Decorator and the Employee and supersedes all prior oral or written
communications, proposals, representations, warranties, covenants,
understandings or agreements between Decorator and the Employee relating to the
subject matter of this Agreement.
14. All notices under this Agreement shall be sent and duly given when
posted in the United States first class mail, postage prepaid, as follows:
To Decorator:
Xxxxxxx Xxxxxxx, President
Decorator Industries, Inc.
Suite 201
00000 Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxx, Secretary
00xx Xxxxx, Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
to Employee:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx X.X.,
Xxxxxxxxxxx, Xxxxxxx 00000
These addresses may be changed from time to time by written notice to the
appropriate parties.
This Agreement constitutes the entire understanding between Decorator
and the Employee and supersedes all prior oral or written communications,
proposals, representations, warranties,
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covenants, understandings or agreements between Decorator and the Employee
relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DECORATOR INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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President
/s/ Xxxxxxx X. Xxxxxx (SEAL)
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Xxxxxxx X. Xxxxxx
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