SEVERANCE AGREEMENT
Exhibit 10.99
THIS SEVERANCE AGREEMENT (the “Agreement”) is made and entered into as of the
31st day of March, 2010 by and between CHROMCRAFT REVINGTON, INC. (the “Company”), a
Delaware corporation, and E. XXXXXXX XXXXX (the “Executive”), who is currently a resident of the
State of Mississippi,
R E C I T A L S:
WHEREAS, the Executive is currently employed by the Company as an employee-at-will on
a full-time basis; and
WHEREAS, the Company desires to provide the Executive with certain compensation in
the event of a termination of his employment under the circumstances set forth in this Agreement to
enhance the loyalty of the Executive, as well as to have the Company receive and have the benefit
of certain covenants from the Executive relating to, among other matters, non-disclosure of
confidential information, non-competition and non-solicitation.
NOW, THEREFORE, in consideration of the foregoing recitals, the respective covenants,
agreements and obligations contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and the Executive hereby agree as
follows:
Section 1. Term of Agreement; Employment Status.
(a) Term. This Agreement shall be effective as of the date hereof and shall remain in
effect until either the Company or the Executive shall terminate this Agreement upon not less than
nine (9) months’ prior written notice to the other; provided, however, that this Agreement may be
terminated by the Company or the Executive upon not less than ten (10) days’ prior written notice
to the other after a six (6) month period immediately following a Change in Control (as hereinafter
defined) has elapsed; and provided further, however, that Sections 4, 5 (except for Section
5(c)(i)), 6, 7 and 8 shall survive any termination of this Agreement and shall remain binding upon
the Executive and in full force and effect as set forth in such Sections.
(b) Employment Status. This Agreement is not and shall not be construed to be an
employment agreement or a commitment of the Company for continued employment of the Executive. The
Executive is and shall at all times be an employee-at-will of the Company. Neither this Agreement
nor anything contained herein shall be construed as affecting or limiting the right of the Company
or the Executive to terminate the Executive’s employment with the Company at any time for any
reason or for no reason. The severance benefits provided in this Agreement are in lieu of any
severance benefits that would otherwise be payable to the Executive under any severance pay policy
or practice of the Company, and the Executive shall not be entitled to any payments or benefits
under any such severance pay policy or practice.
Section 2. Defined Terms. Unless otherwise defined elsewhere herein, all
capitalized terms used in this Agreement shall have the definitions set forth in this Section.
(a) Cause. For purposes of this Agreement, “Cause” means any of the following:
(i) any refusal by the Executive to follow the lawful directions of the Board of Directors or
the Chairman of the Company; or
(ii) any incompetence or gross negligence by the Executive in managing the function(s) over
which he has responsibility at the Company or in carrying out his duties and responsibilities as an
employee of the Company (as such function(s), duties and responsibilities may be assigned to the
Executive from time to time); or
(iii) any dishonesty, fraud, theft or embezzlement by the Executive upon or against the
Company any of the Company’s subsidiaries or affiliates or any their respective customers; or
(iv) any conviction of, or the entering of any plea of guilty or nolo
contendere by, the Executive for any felony; or
(v) any violation by the Executive of any law, statute, rule, regulation or governmental
requirement that has or may have an adverse effect on the Company or any of the Company’s
subsidiaries or affiliates; or
(vi) any material noncompliance by the Executive with any provision of any employee handbook,
code of business conduct and ethics or corporate governance guidelines, or any rule, policy or
procedure, of the Company or any of the Company’s subsidiaries or affiliates as are applicable to
the Executive (as currently in effect or as may hereafter be in effect from time to time); or
(vii) the occurrence of any of the events specified in the foregoing subsections that involves
an employee of the Company who reports to the Executive and with the knowledge of the Executive and
where the Executive allows or fails to prevent such event from occurring; or
(viii) any breach by the Executive of any provision of this Agreement; or
(ix) any refusal by the Executive to accept a transfer of his employment to a subsidiary or
affiliate of the Company or to accept a relocation of his principal place of employment from the
office or facility to which he may then be assigned to a different office or facility of the
Company or any subsidiary or affiliate of the Company; or
(x) any refusal by the Executive to work a full-time schedule while employed by the Company.
(b) Good Reason. For purposes of this Agreement, “Good Reason” means (i) a material
reduction by the Company in the Executive’s responsibilities over the sales function of the Company
(other than isolated and insubstantial actions that are promptly remedied by the Company) or in the
Executive’s annual base salary (other than as a result of deductions or withholdings authorized by
law or by the Executive or as a result of the Executive, at his request and upon the Company’s
concurrence, no longer serving as a full-time employee of the Company), or (ii) a material breach
of this Agreement by the Company.
The Executive must notify the Company in writing within thirty (30) days of the initial
existence of any fact or circumstance that the Executive believes constitutes Good Reason. The
Company shall then have thirty (30) days following receipt of such notice during which it may cure
such fact or circumstance and, if so cured, Good Reason shall no longer exist.
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(c) Disability. For purposes of this Agreement, “Disability” means an illness or a
physical or mental disability or incapacity of the Executive such that the Executive has not been
able to perform the essential functions of his duties and responsibilities for or on behalf of the
Company (as reasonably determined by the Company), with or without reasonable accommodation, for at
least ninety (90) days
(whether consecutive or non-consecutive days) during any one (1) year period. A Disability
may, but is not required to, be evidenced by a signed, written opinion of an independent, qualified
medical doctor selected by the Board of Directors (or a committee thereof) or the Chairman of the
Company and paid for by the Company. The Executive hereby agrees to make himself promptly
available for examination by such medical doctor upon reasonable request by the Board of Directors
or a committee thereof and consents to provide promptly the results of such examination and any
diagnosis to the Company. Nothing in this Section is intended to be in violation of the Americans
with Disabilities Act.
(d) Change in Control. For purposes of this Agreement, a “Change in Control” shall
mean a transaction or series of related transactions pursuant to which (i) at least fifty-one
percent (51%) of the outstanding shares of common stock of the Company (on a fully diluted basis)
shall subsequent to the date of this Agreement be acquired by any party unrelated to or
unaffiliated with the Company, or (ii) the Company merges into, consolidates with or effects any
plan of share exchange or other combination with any party that is unrelated to or unaffiliated
with the Company in a transaction where the holders of voting shares of the Company immediately
prior to the transaction do not hold a majority of the voting shares of the surviving entity
immediately following such transaction.
Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred with
respect to (A) a transaction or series of related transactions involving any subsidiary or
affiliate of the Company, (B) a transaction or series of related transactions involving the
Employee Stock Ownership Plan (the “ESOP”) or the Savings Plan (the “401(k) Plan) of the Company,
either of their related trusts or any other employee benefit plan or related trust currently or
hereafter maintained or sponsored by the Company, or (C) a transaction or a series of related
transactions pursuant to which the Company is taken private or no longer has shares of stock that
are listed for trading on any securities exchange or market. In addition, in determining whether a
Change in Control has occurred under subsection (d)(i) above, the outstanding shares of common
stock of the Company shall include all shares owned by the ESOP, whether allocated or unallocated
to the accounts of participants,
Section 3. Payment Upon Termination of Employment. Upon the termination of
the Executive’s employment with the Company (whether by the Company or by the Executive), the
Company shall pay to the Executive that portion of the Executive’s base salary earned through his
last day of employment with the Company, all amounts that are fully vested and properly payable on
or before his last day of employment under the ESOP and the 401(k) Plan as well as all other
retirement plans sponsored or maintained by the Company in accordance with the provisions of such
plans, and all other amounts that are properly payable to the Executive by the Company that have
not been paid to him on or before his last day of employment. All awards of cash bonuses, stock
options, restricted stock and other incentive compensation (whether cash or stock based) shall vest
and be paid or distributed to, or be exercisable by, as the case may be, the Executive in
accordance with the incentive compensation plan and the written award agreement applicable to such
award or, in the absence of an incentive compensation plan or an award agreement relating to a
particular award, as determined by the Board of Directors (or a committee thereof) or the Chairman
of the Company. In addition, the Company shall pay severance to the Executive in accordance with
the applicable subsection below, subject to termination or reduction in accordance with Section
3(f) and suspension in accordance with Section 3(g).
(a) Termination by the Company for Cause or by the Executive without Good Reason.
Upon the termination of the Executive’s employment by the Company for Cause or by the Executive
without Good Reason, the Company shall pay no severance to the Executive; provided, however, that
in the event the Executive retires from the Company after reaching age 65, he shall receive a
severance payment, payable in a lump sum, equal to the Executive’s base salary then in effect
(calculated as a monthly amount) for three (3) months.
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(b) Termination by the Company Without Cause or by the Executive for Good Reason.
Upon the termination of the Executive’s employment by the Company without Cause or by the Executive
for Good Reason, the Company shall pay to the Executive, on a monthly basis, a severance payment
equal to his base salary then in effect (calculated as a monthly amount) for nine (9) months.
(c) Termination Upon Death or Disability of the Executive. Upon the termination of
the Executive’s employment upon the Executive’s death or by the Company upon the occurrence of a
Disability, the Company shall pay to the Executive or to his estate or personal representative, as
appropriate, a severance payment, payable in a lump sum, equal to his base salary then in effect
(calculated as a monthly amount) for three (3) months.
(d) Termination by the Executive following a Change in Control. Upon the occurrence
of any of the following events during the six (6) month period immediately following a Change in
Control, the Executive may terminate his employment and the Company shall pay to the Executive, in
a single lump sum, a severance payment equal to his annual base salary then in effect: (i) a
material reduction in the Executive’s duties or responsibilities from those in effect on the day
before the Change in Control, or (ii) a material reduction in the Executive’s base salary in effect
on the day before the Change in Control (other than as a result of deductions or withholdings
authorized by law or by the Executive or as a result of the Executive, at his request and upon the
Company’s concurrence, no longer serving as a full-time employee of the Company), or (iii) a
material breach of this Agreement by the Company.
(e) Payment of Severance and Other Amounts. The payment of monthly severance payments
under this Section shall begin on the last day of the month following the month in which the
Executive’s last day of employment with the Company occurs. Any lump sum severance payment and all
other amounts shall be paid to the Executive within sixty (60) days following his last day of
employment with the Company, unless provided otherwise by the ESOP, the 401(k) Plan or another
retirement plan of the Company. All severance payments under this Agreement shall be subject to
Section 409A of the Internal Revenue Code and all other applicable laws, statutes, rules,
regulations and government requirements.
(f) Certain Other Matters. Notwithstanding the foregoing provisions of this Section,
the following shall apply:
(i) As a condition and prior to the Executive receiving any severance payments under this
Agreement, the Executive must execute (and not subsequently rescind or revoke) a release
substantially similar to the release attached to this Agreement as Exhibit A. If the
Executive fails to execute such release (or subsequently rescinds or revokes the release), the
provisions of Sections 4, 5, 6, 7 and 8 hereof shall nevertheless continue in full force and effect
and be binding upon the Executive notwithstanding that the Company shall not pay any severance
payment to the Executive.
(ii) The Company’s obligation to make any severance payment to the Executive under this
Agreement shall terminate immediately without reinstatement of any obligation of the Company to
resume paying the Executive hereunder if the Executive breaches any of the provisions of this
Agreement (including, but not limited to, any of the provisions of Sections 4, 5 or 6).
Notwithstanding any such termination of the Company’s obligation to pay any severance hereunder,
the covenants of the Executive set forth in Sections 4, 5 and 6 hereof, as well as the provisions
of Sections 7 and 8 hereof, shall continue in full force and effect and be binding upon the
Executive. The existence of any claim or cause of action of the Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of the covenants contained in Sections 4, 5 or 6 of this Agreement.
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(iii) If the Company becomes obligated to make monthly severance payments to the Executive
pursuant to this Section (the “Monthly Severance Payments”) and the Executive obtains an employee,
consulting or other position with another party without breaching any of his covenants set forth in
this Agreement (including, but not limited to, his covenants set forth in Sections 4, 5 and 6
hereof), then the Monthly Severance Payments shall terminate or be reduced as set forth in this
paragraph. For purposes of this paragraph, the “New Monthly Compensation” shall mean the monthly
base salary, consulting fee or other compensation associated with the Executive’s new position with
another party. In the event that the Executive’s New Monthly Compensation is equal to or greater
than the Executive’s base salary (calculated as a monthly amount) on his last day of employment
with the Company, then the Company’s obligation to pay additional Monthly Severance Payments shall
immediately terminate. In the event that the Executive’s New Monthly Compensation is less than the
Executive’s monthly base salary on his last day of employment, then the Monthly Severance Payments
shall be reduced for the period that the Company is obligated to make any severance payments such
that the Monthly Severance Payments shall equal solely the amount by which the Executive’s monthly
base salary on his last day of employment exceeds the New Monthly Compensation.
If the Company’s obligation to pay Monthly Severance Payments has been terminated or reduced
as provided in the foregoing paragraph, such obligation shall not thereafter be reinstated or
increased, in whole or in part, and shall not affect the Executive’s covenants under Sections 4, 5
or 6 of this Agreement. The Executive shall promptly provide written notice to the Company of his
new position with another party, which shall include an adequate confirmation of his New Monthly
Compensation. If the Executive’s employment with the Company is terminated for any reason (whether
by the Company or the Executive), he shall use his best efforts to obtain a new position (but
without breaching his non-competition covenants set forth in Section 5 hereof) with another party.
In addition, the Executive shall not do any act or thing relating to any new position or his New
Monthly Compensation to circumvent the operation of the foregoing paragraph.
(g) Delay of Payment under Certain Circumstances. Notwithstanding the foregoing
provisions of this Section, all amounts under this Agreement that (i) are payable to the Executive
due to the Executive’s Separation from Service, as described in Treasury Regulation §1.409A-1(h),
for a reason other than the Executive’s death, (ii) are payable at a time when the Executive is a
“Specified Employee” as defined in Treasury Regulation §1.409A-1(i), and (iii) provide for a
“deferral of compensation” as defined in Treasury Regulation §1.409A-1(b) under Sections 6(b) and
6(e), shall be suspended for six (6) months following such Separation from Service. The Executive
shall receive a lump sum payment of the amounts so suspended on the first day following the
six-month suspension period, with such lump sum payment being subject to termination or reduction
(i) as set forth in Section 3(f), and (ii) for purposes of Section 3(f)(iii), by comparing the
aggregate of all Monthly Severance Payments to the aggregate of all New Monthly Compensation during
such six (6) month period.
Section 4. Non-Disclosure; Return of Confidential Information and Other
Property.
(a) Confidential Information; Non-Disclosure. At all times while the Executive is
employed by the Company and at all times thereafter, the Executive shall not (i) directly or
indirectly disclose, provide or discuss any Confidential Information with or to any party other
than those directors, officers, employees, representatives and agents of the Company or any of the
Company’s subsidiaries or affiliates who need to know such Confidential Information for a proper
corporate purpose, and/or (ii) directly or indirectly use any Confidential Information (A) to
compete against the Company or any of the Company’s subsidiaries or affiliates, (B) to the
detriment of the Company or any of the Company’s subsidiaries or affiliates, or (C) for the
Executive’s own benefit or for the benefit of any party other than the Company or any of the
Company’s subsidiaries or affiliates. The Executive agrees that all
Confidential Information is and at all times shall remain the property of the Company or the
Company’s subsidiaries or affiliates, as applicable.
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For purposes of this Agreement, the term “Confidential Information” means any and all of the
following, whether disclosed to or known by the Executive 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 or any of the Company’s subsidiaries or affiliates that are confidential,
proprietary or not otherwise publicly available (other than by or through the Executive or any
other impermissible disclosure), or (B) that the Company or any of the Company’s subsidiaries or
affiliates has deemed confidential, proprietary or nonpublic;
(ii) without limiting the foregoing, any and all trade secrets of the Company or any of the
Company’s subsidiaries or affiliates;
(iii) without limiting the foregoing, any and all material nonpublic information of the
Company or any of the Company’s subsidiaries or affiliates within the meaning and intent of the
federal securities laws; and
(iv) any and all notes, copies, summaries, analyses, extracts, documents or information
(whether prepared by the Company or a subsidiary or affiliate of the Company, the Executive or
otherwise) which relate or refer to or reflect any of the items set forth in (i), (ii) or (iii)
above.
(b) Return of Confidential Information and Other Property. The Executive covenants
and agrees (i) to return promptly to the Company, at the Company’s headquarters, on his last day of
employment all Confidential Information that is still in the Executive’s possession or control on
his last day of employment with the Company or the location of which the Executive knows
(including, but not limited to, any Confidential Information contained on the Executive’s personal
or home computer), and (ii) to return promptly to the Company, at the Company’s headquarters, on
his last day of employment all vehicles, equipment, computers, personal digital assistants,
BlackBerrys, mobile telephones, credit cards, keys, access cards, passwords and other property of
the Company or any of the Company’s subsidiaries or affiliates that are still in the Executive’s
possession or control on his last day of employment or the location of which the Executive knows,
and to cease using any of the foregoing on and after his last day of employment.
Section 5. Non-Competition and Non-Solicitation.
(a) The Executive hereby understands, acknowledges and agrees that, by virtue of his position
at the Company, he has or will have advantageous familiarity and personal contacts with the
suppliers, vendors, employees and customers (wherever located) of the Company and the Company’s
subsidiaries or affiliates and has and will have advantageous familiarity with the Confidential
Information. As such, and in view of the competitive nature of the business in which the Company
and the Company’s subsidiaries and affiliates are or may be engaged, the Executive agrees that the
covenants set forth in Sections 4, 5 and 6 are reasonable and necessary for the protection of the
Company’s business and the Confidential Information.
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(b) At all times while the Executive is employed by the Company, he shall not engage in or
compete with, or assist another party in engaging in or competing with (or finance, operate or
control) any business, operation or activity which is conducted or proposed to be conducted by the
Company or any of the Company’s subsidiaries or affiliates (or which is in the same or a similar
line of business as or competes with the Company or any of the Company’s subsidiaries or
affiliates), nor shall he shall solicit in any manner, seek to obtain, service or accept any
business for or on behalf of a party other than the Company or any of Company’s subsidiaries or
affiliates relating to products or services offered or sold by any of them.
(c) For a period of nine (9) months following his last day of employment with the Company
(whether the Executive’s employment is terminated by the Company or the Executive and whether such
termination is with or without Cause, with or without Good Reason or otherwise), the Executive
shall not, in any location within the United States of America, directly or indirectly, or
individually or together with any other party, as owner, shareholder, investor, member, partner,
proprietor, principal, director, officer, employee, manager, agent, representative, independent
contractor, consultant or otherwise:
(i) engage in or compete with or assist another party in engaging in or competing with (or
finance, operate or control) any business, operation or activity which competes with any business,
operation or activity that is conducted or actively being developed or pursued by the Company or
any of the Company’s subsidiaries or affiliates (or which is in the same or a similar line of
business as the Company or any of its subsidiaries or affiliates) on the Executive’s last day of
employment, or which was conducted or actively being developed or pursued by the Company or any of
the Company’s subsidiaries or affiliates at any time during the one (1) year period preceding his
last day of employment; or
(ii) solicit in any manner, seek to obtain, service or accept any business of any party who is
a customer of the Company or any of the Company’s subsidiaries or affiliates relating to products
or services offered or sold by any of them on the Executive’s last day of employment or who was an
existing or prospective customer of the Company or any of the Company’s subsidiaries or affiliates
at any time during the one (1) year period preceding the Executive’s last day of employment; 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 or any of the
Company’s subsidiaries or affiliates on the last day of the Executive’s employment or who was such
an employee at any time during the one (1) year period preceding the Executive’s last day of
employment, nor shall the Executive request or attempt to influence any person who is employed by
the Company or any of the Company’s subsidiaries or affiliates on the Executive’s last day of
employment to terminate such employee’s employment with the Company or any of the Company’s
subsidiaries or affiliates; or
(iv) request, encourage or advise any party who is a customer, supplier, vendor or otherwise
doing business with the Company or any of the Company’s subsidiaries or affiliates on the
Executive’s last day of employment to terminate, reduce, limit or change their business or
relationship with the Company or any of the Company’s subsidiaries or affiliates.
Notwithstanding the foregoing, in the event the Executive’s employment is terminated following
a Change in Control in accordance with Section 3(d) hereof, then the covenants of the Executive set
forth above in this Section 5(c) shall be in effect for twelve (12) months instead of nine (9)
months.
(d) The Executive acknowledges the nationwide scope of the business of the Company and the
Company’s subsidiaries or affiliates. Nevertheless, in the event that any provision of Section
5(c) 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 the Executive in its reduced, limited or reformed
manner.
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(e) The Company and the Executive agree that the provisions of this Section 5 shall be
severable in accordance with Section 8(e) hereof.
(f) The restrictions and covenants contained in this Section 5 shall be deemed not to run
during all periods of noncompliance, with the intention of the parties being to have such
restrictions and covenants apply during the full periods specified in this Section.
Section 6. Intellectual Property. The Executive understands, acknowledges and
agrees that each and every invention, idea, concept, discovery, improvement, device, design,
drawing, specification, prototype, sample, engineering, apparatus, practice, process, method,
technique or product (whether or not patentable or copyrightable) made, created, developed,
perfected, devised, conceived, worked on or first reduced to practice by the Executive, either
solely or in collaboration with others, during the period of the Executive’s employment with the
Company (whether or not during regular working hours) relating, directly or indirectly, to the
business, operations, affairs, products, practices, techniques or methods of the Company or any of
the Company’s subsidiaries or affiliates (the “Intellectual Property”) is and shall be the
exclusive property of the Company or a subsidiary or affiliate of the Company, as applicable. The
Executive hereby forever, unconditionally and irrevocably releases and relinquishes any and all
right, title and interest that he may have in and to the Intellectual Property worldwide and hereby
forever, unconditionally and irrevocably assigns to the Company or any of the Company’s
subsidiaries or affiliates any and all of the Executive’s right, title and interest in and to the
Intellectual Property worldwide. At the request and expense of the Company or a subsidiary or
affiliate of the Company, the Executive shall (a) execute any and all assignments, documents and
other writings that the Company or a subsidiary or affiliate of the Company determines are
necessary to evidence ownership of the Intellectual Property in the Company or a subsidiary or
affiliate of the Company, (b) execute any and all applications and registrations of the Company or
a subsidiary or affiliate of the Company for patents, trademarks and/or copyrights relating to the
Intellectual Property, and (c) assist the Company or a subsidiary or affiliate of the Company in
obtaining any and all patents, trademarks and copyrights that it desires relating to the
Intellectual Property.
Section 7. Certain Remedies. The Executive understands and 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 the Executive of any provision of
Section 4, 5 or 6. Accordingly, in the event of a breach or a threatened or attempted breach by
the Executive of any provision of Section 4, 5 or 6, 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 or temporary injunction and/or a decree of specific performance of
any provision of Section 4, 5 or 6. In addition, in the event of any breach by the Executive of
any provision of Sections 4, 5 or 6, the Executive shall immediately repay to the Company all
severance payments paid to him under Section 3 hereof. 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 the Executive but shall be in
addition to all other rights and remedies available to the Company at law, in equity or otherwise.
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Section 8. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the Company and the Executive and their respective heirs, executors, representatives,
successors and assigns; provided, however that the Executive may not assign this Agreement without
the prior written consent of the Company. The Company may, without the consent of the Executive,
assign this Agreement to (i) any subsidiary or affiliate of the Company, or (ii) any successor of
the Company or any other third party in connection with any reorganization, merger, consolidation,
share exchange, combination, sale of stock or assets, dissolution or similar transaction involving
the Company. In the event 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 or modified only by a written agreement
executed by both 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 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) Voluntary Execution; Construction. The Executive agrees that he has executed this
Agreement voluntarily and not as a condition to continued employment with the Company. 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.
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(h) Entire Agreement. This Agreement constitutes the entire understanding and
agreement between the parties hereto (and supersedes all other prior understandings, commitments,
representations, negotiations, contracts, agreements and term sheets) relating to the subject
matter hereof. The Severance Agreement executed by the Company and the Executive in 2008 is hereby
terminated and is superseded and replaced with this Agreement.
(i) Governing Law; Venue; Waiver of Jury Trial. Because 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 claim, demand or action relating to this Agreement shall be brought only in a
federal or state court of competent jurisdiction in the State of Indiana. In connection with the
foregoing, the parties hereto irrevocably consent to the jurisdiction and venue of such court and
expressly waive any claims or defenses of lack of jurisdiction of or proper venue by such court.
THE COMPANY AND THE EXECUTIVE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TO THE MAXIMUM EXTENT
PERMITTED BY LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DEMAND, CLAIM, ACTION, SUIT,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT.
(j) Notices. All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given (i) upon delivery by hand (in the Company’s
case, to its Chairman or Secretary); (ii) two (2) business days after deposit in regular United
States Mail, first class postage pre-paid (not certified or registered mail); (iii) on the next
business day after deposit with an overnight delivery service; or (iv) on the date indicated on the
fax confirmation page or the electronic mail of the sender (except no e-mail notices or
communications may be given to the Company). All notices and other communications shall be
addressed as follows: if to the Company, c/o the Chairman or the Secretary of the Company at the
Company’s corporate headquarters; and if to the Executive, to his address at the Company or his
last known address or fax number as reflected on the personnel records of the Company; or to such
other address as either party hereto may have furnished to the other in writing in accordance
herewith.
(k) Recitals. The recitals or “Whereas” clauses contained on page 1 of this Agreement
are expressly incorporated into and made a part of this Agreement.
(l) Taxes. All taxes (other than the Company’s portion of any FICA or other
employment taxes, if applicable) on the severance payments and other amounts payable to the
Executive under this Agreement shall be the responsibility of and paid by the Executive. The
Company shall be entitled to withhold from any severance payments and all other amounts payable to
him under this Agreement (i) applicable income, FICA, employment and other taxes, and (ii) other
appropriate and customary amounts.
(m) Non-disparagement. Following any termination of the Executive’s employment with
the Company, the Executive shall not publicly disparage or make or publish any negative statements
or comments about the Company, any of the Company’s subsidiaries or affiliates or any of their
respective products, directors or employees. Following any termination of the Executive’s
employment with the Company, and subject to applicable law, no executive officer of the Company or
member of the Company’s Board of Directors shall publicly disparage or make or publish any negative
statements or comments about the Executive.
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(n) Cooperation. For a period of two (2) years following any termination of the
Executive’s employment with the Company and upon the request of the Company or any of the Company’s
subsidiaries or affiliates, the Executive shall reasonably cooperate, assist and make himself
available (for testimony or otherwise) at appropriate times and places as reasonably determined by
the Company or any of the Company’s subsidiaries or affiliates in connection with any claim,
demand, action, suit, proceeding, examination, investigation, litigation or deposition by, against
or affecting the Company or any of the Company’s subsidiaries or affiliates. In connection with
the foregoing, the Company shall pay the Executive a fee of $500 for each day that the Company or
any subsidiary or affiliate of the Company requests the Executive to cooperate, assist or make
himself available; provided, however, that if the Company is paying or will pay any severance to
the Executive for the period of time such cooperation or assistance is provided, then the Executive
shall not be entitled to receive such daily fee. In addition, the Company shall also reimburse the
Executive for his reasonable out-of-pocket travel expenses that are approved in advance by the
Chairman of the Company. The Company shall not pay such daily fee or reimburse for such expenses
in connection with any claim, demand, action, suit or proceeding relating to this Agreement.
(o) Severance Pay Policy of the Company. The Executive shall not be entitled to any
payments or benefits under any severance pay policy or practice of the Company if he receives any
severance or other payment under this Agreement or if he would have been entitled to receive any
such payment but for the fact that he failed to execute (or subsequently rescinded or revoked) a
release substantially similar to the release attached to this Agreement. If this Agreement is no
longer in effect and the Executive’s employment is subsequently terminated by the Company, then the
Executive shall be entitled to receive payment in accordance with the Company’s severance pay
policy or practice then in effect; provided, however, that the Executive’s employment by any
subsidiary of the Company between 1989 and 2007 shall be included when calculating the Executive’s
number of years of employment. This subsection (o) shall survive any termination of this Agreement
and shall remain binding upon the Company.
IN WITNESS WHEREOF, the Company and the Executive have made, entered into, executed
and delivered this Agreement as of the day and year first above written.
| /s/ E. Xxxxxxx Xxxxx | ||||
| E. Xxxxxxx Xxxxx | ||||
| CHROMCRAFT REVINGTON, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Chairman and Chief | ||||
| Executive Officer | ||||
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