AGREEMENT
Exhibit 10.2
AGREEMENT made as of May___, 2001, by and between Xxxxxx and Sons, Inc., a Maryland
corporation having its principal office at 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 (the
“Employer”), and Xxxxxxx X. Xxxxxx, having an address at 0000 Xxxxxxxxx 00(xx) Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (the “Employee”).
WITNESSETH:
WHEREAS, the Employer is desirous of the services of the Employee as herein provided, and
WHEREAS,
the Employee is willing to perform such services hereunder;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, it is mutually covenanted
and agreed as follows:
1. Employment. The Employer hereby employs the Employee and the Employee hereby
accepts employment, and agrees to devote his best efforts and substantially all of his business
time and attention, except during vacation periods (which shall not be less than 20 days in each
calendar year) and period of illness or other disability, to the business of the Employer.
2. Term. The term of this Agreement shall commence as of January 1, 2002 and shall
continue to and including December 31, 2005 except as otherwise herein provided. From and after
December 31, 2005, the term shall automatically be extended from year to year for one year unless
either party provides notice not to so extend this Agreement, which notice, if given, must first be
given at least six months prior to December 31, 2005 and thereafter must be given at least six
months prior to the end of the term as same may have been extended hereby.
3. Compensation. The Employer agrees to pay the Employee and the Employee agrees to
accept the following compensation and benefits during his term of employment:
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| (a) | Base salary shall be paid at the annual rate of $400,000. Such salary shall be payable in accordance with the normal payroll practices of the Employer. | ||
| (b) | It is the objective that the Employer is to achieve on an annual basis, at least a fifteen percent (15%) after tax return on equity for each fiscal year of the Employer (“Objective Return”). After the annual certified audit of the Employer has been prepared by the Employer’s independent certified accountants and it is determined that the Employer has obtained the Objective Return in such fiscal year, then an incentive compensation shall be paid to Employee within thirty (30) days of such determination in an amount to be determined by mutual written agreement of Employee and the Chairman of the Board of the Employer (“Incentive Compensation”). |
In the event that the controlling interest in the Employer is sold to
a third party not affiliated with Xxxxxx Corporation, then the parties hereby
agree that for purposes of the Incentive Compensation payable from and
after the date of such sale, the parties shall utilize the methodology for
computing the Incentive Compensation during the last fiscal year
immediately prior to such sale in order to determine the methodology for
computing Incentive Compensation from and after the sale.
| (c) | Nothing contained herein shall be deemed to impact that certain Xxxxxx Corporation Deferred Compensation Plan and Split Dollar Agreement for Xxxxxxx Xxxxxx dated December 23, 1993 (“Deferred Compensation |
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In addition, the Employee shall be entitled to such group life insurance, retirement,
medical insurance, hospitalization, vacation, disability, and similar employee benefit plans as
may exist for the benefit of Employer’s executive officers generally (“perquisites”).
4. Expenses. The Employee shall be reimbursed for reasonable out-of-pocket
expenses incurred by him attributable to and in furtherance of the Employer’s business, upon
submission of reasonable itemized vouchers therefor.
5. Duties and Covenants. The employee is engaged as President, and Chief Executive
Officer of the Employer and is to perform such duties and services as may be assigned to him from
time to time by the Board of Directors or principal executive officers of the Employer and shall
observe the by-laws and policies of the Employer from time to time promulgated by the Board of
Directors and principal executive officers thereof. Notwithstanding the foregoing, in no event
shall the Employee be required to perform services not commensurate with his office. The Employee
agrees that he will devote his entire business time, attention and best efforts and will not
engage in any conduct detrimental in any material respect to the business and affairs of the
Employer and its affiliates, and will not engage or be interested in any capacity,
directly or indirectly, in any other business activity during the term of the Agreement;
provided, however, that the Employee may continue to maintain his investment in the partnership
developing Cascade Lakes. Nothing contained in this paragraph 5 shall prevent the Employee from
investing in passive equity interests in real estate provided such investments are not
inconsistent with Employee’s responsibilities hereunder, or holding stock (less than 3% of the
outstanding) in any public corporation. In no event (including removal from office under
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paragraph 6 below) shall the Employer directly or indirectly require the Employee to
relocate his principal residence outside of South Florida. Employee understands that the
corporate plan for succession of the corporate officers is of significant importance to the
Employer in order to provide for the continued success of the business of the Employer and as
such the Employee accepts this responsibility and shall make his best efforts to accomplish this
objective.
The Employee agrees that during the term of this Agreement and at all times thereafter, he
will not, without the Employer’s prior written consent, divulge, furnish or make accessible to
any third party (other than in the regular course of business of the Employer or its subsidiaries
or as required by law or valid legal process) any non-public, confidential information of or
concerning the Employer or its affiliates.
Inasmuch as the Employee’s breach or attempted breach of any provision of this paragraph 5
would cause grave damage to the Employer or its affiliates not measurable in money damages, the
Employer shall, in addition to all other remedies, be entitled to a temporary and permanent
injunction and/or a decree for specific performance of the terms of this paragraph 5, without
being required to furnish any bond or other security or to show any actual damages. If any
provision of this paragraph 5 shall be held to be invalid or unenforceable, such provision shall
be construed so as to be narrowed to the least extent necessary to make such provision valid and
enforceable.
6. Termination. (a) This Agreement shall be terminable by the Employer only upon the
Employee’s death, in the event of such physical or mental disability or illness of the Employee
as prevents his performance of the duties incident to this employment for a period of no less
than three (3) consecutive months or an aggregate of 120 days in any period of twelve
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(12) months (“disability”), for cause (as hereafter defined) or as provided below. For
purposes of this Agreement “cause” shall mean:
(i) gross or willful misconduct, gross negligence or material failure to
perform Employee’s duties under this Agreement (which gross negligence or
material failure shall have an adverse effect on the Employer’s business and
shall either not be curable or, if curable, shall continue uncured for more
than 15 days after the Employee’s receipt of written notice setting forth
with particularity such misconduct); or
(ii) conviction of a felony or act of fraud or dishonesty.
In connection with any termination hereunder, all amounts owing and accrued to the Employee on the
date of termination shall be paid promptly to the Employee upon
termination,
(b) Upon the
death of the Employee during the Term, the Employee’s beneficiary(ies) shall receive any Incentive
Compensation determined to be due in accordance with Paragraph 3(b) for the fiscal year in which
such death occurs.
7. Notices. Any notice in connection with this Agreement shall be in writing and
personally delivered, sent by overnight delivery service or sent by registered or certified mail to
the addressee at its or his address set forth above, or to such other address(es) as either party
may designate by like written notice to each other.
8. Binding Effect. This Agreement shall be binding upon the parties hereto, their
respective heirs, administrators, successors and assigns, and shall inure to benefit of and be
binding upon the Employer, its affiliates, and their successors and assigns.
9. Entire Agreement. This Agreement contains the entire agreement of the parties and
supersedes any prior employment agreements or understandings between them. It may not be changed,
waived, extended or terminated orally, but only by a writing signed by the party against
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whom enforcement of any change, waive, extension or termination is sought. The headings
herein have been inserted for convenience only, and are not to be part of this Agreement.
10. Governing Law, Venue. This Agreement shall be governed by the laws of the State
of Florida. Any and all suits, legal actions or proceedings missing out of this Agreement shall
be brought in the court of competent jurisdiction in Palm Beach, Florida, and the parties
irrevocably waive any objection to such choice of venue.
| XXXXXX AND SONS, INC. | ||||
| By: | /s/ Xxxx X. Xxxx, | |||
| Xxxx X. Xxxx, Chairman of the Board | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
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