Exhibit 10
RETIREMENT AND CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement"), is made effective as of the 4 day of
April, 2000, (hereinafter, the "Effective Date"), by and between Xxxxxx
Industries, Inc. (the "Company") and Xxxxxxx X. Xxxxx (the "Executive").
WHEREAS, the Company desires to provide the Executive with certain
benefits upon the Executive's retirement as an employee of the Company and to
retain the Executive's services as a consultant, on the terms and subject to the
conditions more fully set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreement
set forth in this Agreement, the Company and the Executive agree as follows:
1. TERMINATION OF EMPLOYMENT. Effective as of the Effective Date, the
Executive's employment with the Company and any of its affiliates shall be
terminated. The Executive hereby resigns, effective as of the Effective Date,
from all positions that the Executive holds with the Company and any of its
affiliates, except that the Executive shall perform consulting services for the
Company on a mutually agreeable basis pursuant to the terms of Section 3 of this
Agreement.
2. SEVERANCE PAYMENTS AND OTHER BENEFITS
(a) SEVERANCE PAYMENT. In consideration for the Executive entering into
this Agreement, specifically including the General Release and other restrictive
covenants contained herein, the Company shall pay the Executive $3.9 million,
less all applicable withholding taxes (the net amount, the "Severance Payment"),
in a lump sum cash payment. The Severance Payment shall be paid to the Executive
within the three (3) business days following the expiration of the "Revocation
Period" (described in Section 7(d) below); provided that the Executive has not
exercised the Executive's right to revoke this Agreement as described in Section
7(d).
(b) WELFARE AND OTHER BENEFITS. (i) In addition to the Severance
Payment, the Company shall provide the Executive (A) the same medical and other
health benefits as the Company customarily provides to its chief executive
officers and/or other senior executive officers upon their retirement; (B)
accidental death and dismemberment and life insurance benefits until the earlier
of (x) the normal retirement age specified under the applicable plans and (y)
the date the Executive becomes subsequently employed by any employer other than
the Company or its affiliates; (C) payment of the Executive's country
club/social club dues and maintenance of the Executive's current automobile
arrangement with the Company (including, if applicable, any expenses related
thereto) through the earlier of (x) the third anniversary of the Effective Date
and (y) the date the Executive becomes subsequently employed by any employer
other than the Company or its affiliates (such period, the "Continuation
Period"); and (D) at the Executive's request, outplacement services consistent
with the Executive's position at the Company, for a reasonable period of time
following the Effective Date and at reasonable expense to the Company.
(ii) In addition to the foregoing, the Company shall make contributions
on behalf of the Executive to the Company's Supplemental Profit Sharing Plan, at
an annual rate of $100,000
for each of the three years following the Effective Date, in respect of the
contributions that the Company would have made on behalf of the Executive, if
the Executive had not retired from the Company pursuant to this Agreement, to
all qualified and nonqualified employee pension benefit plans of the Company for
each such year.
(iii) During the Continuation Period, the Company shall make available
to the Executive, (A) at the Company's Tampa, Florida headquarters building (or
in the event that it shall during such period no longer maintain such building,
then in a building of comparable quality and at a proximate location), executive
office space of suitable size and with appropriate furnishings, and accompanied
by secretarial service, office support, a computer, computer service provider
and WATS line access; and (B) use of a Company aircraft on a space available
basis and in a manner consistent with that provided from time to time to other
retired Company executives or with any new corporate policy that may be
established with respect to the use by retired Company executives of Company
aircrafts. Notwithstanding anything in the preceding sentence to the contrary,
in the event that the new Chairman and Chief Executive Officer of the Company
objects to the Executive's office location in the Company's headquarters
building, the Executive shall be provided with appropriate office space (as
described in (iii) (A) above).
(c) EFFECT OF RETIREMENT ON EQUITY ARRANGEMENTS. As of the Effective
Date, (i) the Company shall cause all unvested options held by the Executive as
of such date to become fully vested and exercisable and shall further cause all
vested options to remain exercisable until the expiration of the original term
of such options (notwithstanding any provisions contained in any option grant
agreements by and between the Company and the Executive to the contrary) and
(ii) notwithstanding any provisions contained in any plan or agreement to the
contrary, the Company shall cancel the Executive's 1999 performance share grant
without any payment therefor.
3. CONSULTING ARRANGEMENTS
(a) TERM OF CONSULTING SERVICES. Effective as of the Effective Date
through the Continuation Period, the Company hereby retains the Executive, and
the Executive hereby agrees to serve, as a consultant to the Company. Subject to
the terms and conditions of this Agreement, the Executive shall, from time to
time, provide such consulting services as the Company shall reasonably request.
(b) STATUS AS A CONSULTANT. The Executive shall not be an employee of
the Company and, except as otherwise provided in Section 2 of this Agreement,
shall not be entitled to participate in any employee benefit plans or other
benefits or conditions of employment available to the employees of the Company.
The Executive shall have no authority to act as an agent of the Company, except
on authority specifically so delegated, and he shall not represent to the
contrary to any person. He shall not undertake to commit the Company to any
course of action in relation to third persons. The Executive shall only consult,
render advice and perform such tasks as the Executive determines are necessary
to provide the services required by the Company in accordance with the terms of
this Section 3. Although the Company may specify the tasks to be performed by
the Executive and may control and direct him in that regard, the Company shall
not control or direct the Executive as to the details or means by which such
tasks are accomplished.
(c) RETAINER. The Company shall pay the Executive a fee for his
consulting services (the "Fee"), at an annual rate of $100,000 payable monthly
in arrears commencing as of the last
day of the calendar month within which the Effective Date occurs and,
thereafter, for so long as the Executive continues to provide consulting
services to the Company pursuant to Section 3(a) and does not breach the
covenants set forth in Section 5 of this Agreement.
(d) EXPENSES. The Company shall reimburse the Executive for all
reasonable expenses incurred by the Executive while performing the services for
which he is retained under this Section 3, upon presentation by the Executive to
the Company from time to time of appropriately itemized and approved (consistent
with the Company's policy) accounts of such expenditures.
(e) TAXES. It is intended that the Fee paid hereunder shall constitute
income to the Executive. To the extent consistent with applicable law, the
Company shall not withhold any amounts therefrom as federal income tax
withholding from wages or as employee contributions under the Federal Insurance
Contributions Act or any other state or federal laws. The Executive shall be
solely responsible for the payment of any federal, state or local income or
payroll taxes and shall hold the Company, its officers, directors and employees
harmless from any liability arising from the Executive's failure to do so.
4. FULL SATISFACTION. The Executive hereby acknowledges and agrees that,
except for the Severance Payment that will become payable to the Executive and
the other payments and benefits described in Sections 2 and 3 of this Agreement
to which the Executive shall become entitled, so long as the Executive does not
revoke this Agreement as described in Section 7(d) hereof, the Executive shall
not be entitled to any other compensation or benefits from the Company or its
affiliates, including, without limitation, any other severance or termination
benefits; provided that it is agreed that nothing in this Agreement shall
constitute a waiver of the Executive's rights to vested benefits, it any, under
the Company's group health or qualified employee pension benefit plans in
respect of the Executive's services to the Company prior to the Effective Date.
5. CONFIDENTIALITY OF THIS AGREEMENT AND NONDISPARAGEMENT;
CONFIDENTIALITY AND COVENANT NOT TO COMPETE.
(a) In consideration of the Company entering into this Agreement with
the Executive, the Executive hereby agrees, effective as of the Effective Date,
without the Company's prior written consent, the Executive shall not, directly
or indirectly, (i) at any time during or after the Executive's employment with
the Company, disclose any Confidential Information (as hereinafter defined)
pertaining to the business of the Company or any of its subsidiaries, except
when required by law; or (ii) at any time during the Executive's provision of
consulting services to the Company pursuant to Section 3 of this Agreement and
for one year thereafter, directly or indirectly (A) be engaged in or have
financial interest (other than an ownership position of less than 5% in any
company whose shares are publicly traded or any non-voting non-convertible debt
securities in any company) in any business in Competition (as hereinafter
defined) (B) solicit, recruit or otherwise offer employment to any person who
has been employed by the Company or any of its subsidiaries at any time during
the 12 months immediately preceding such solicitation or (C) solicit the
business of any person or entity that has been a client or customer of the
Company or any of its subsidiaries at any time during the 12 months immediately
preceding such solicitation. In addition, if the Executive is bound by any other
agreement with the Company regarding the use or disclosure of Confidential
Information, the provision of this
Agreement shall be read in such a way as to further restrict and not to permit
any more extensive use or disclosure of Confidential Information.
(b) The Executive also shall not issue or make any public or private
comment, statement or remark which would reasonably be construed or intended
to disparage, criticize or denigrate the Company, its subsidiaries,
affiliates or any of their employees, officers or directors. The Company
shall not issue any press release or make any public statement that would
reasonably be construed or intended to disparage, criticize or denigrate the
Executive. No press release shall be issued by either party about the other
party without consent of such other party (which consent shall not be
unreasonably withheld).
(c) As used in this Agreement, the term "Confidential Information"
means all non-public information concerning the financial data, strategic
business plans, and other non-public, proprietary, and confidential information
of the Company, its subsidiaries, Kohlberg Kravis Xxxxxxx & Co., L.P., and any
of their respective affiliates (collectively, the "Restricted Group") as in
existence during the Executive's employment with the Company and as of the
Effective Date. Further, as used in this Agreement, a business shall be in
"Competition" if it is principally engaged in any business in which the Company
and/or any of its subsidiaries is primarily engaged within the United States or
any state thereof as of the Effective Date.
(d) Notwithstanding clause (a) above, if at any time a court holds that
the restrictions stated in such clause (a) are unreasonable or otherwise
unenforceable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographic area determined to be reasonable under
such circumstances by such court will be substituted for the stated period,
scope or area. Because the Executive has held a unique position at the Company
and has had access to Confidential Information, the parties hereto agree that
money damages will be an inadequate remedy for any breach of this Agreement. In
the event of a breach or threatened breach of this Agreement, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce, or prevent any
violations of, the provisions hereof (without the posting of a bond or other
security).
6. RETURN OF PROPERTY TO THE COMPANY. All memoranda, notes, lists, records
and other documents or papers (and all copies thereof), including items stored
in computer memories, on microfilm or by other means, or compiled by the
Executive, or made available to the Executive relating to the Company or its
affiliates or its business, are and shall remain the property of the Company and
shall be delivered to the Company promptly upon the execution of this Agreement.
7. GENERAL RELEASE.
(a) For and in consideration of the Severance Payment, the Executive
hereby agrees on behalf of the Executive, the Executive's agents, assignees,
attorneys, successors, assigns, heirs and executors, to, and the Executive does
hereby, fully and completely forever release the Company and its affiliates,
predecessors and successors and all of their respective past and/or present
officers, directors, partners, members, managing members, managers, employees,
agents, representatives, administrators, attorneys, insurers and fiduciaries in
their individual and/or representative capacities (hereinafter collectively
referred to as the "Releasees"), from any and all causes of action, suits,
agreements, promises, damages, disputes, controversies, contentions,
differences, judgments, claims, debts, dues, sums of money, accounts,
reckonings, bonds, bills,
specialties, covenants, contracts, variances, trespasses, extents, executions
and demands of any kind whatsoever, which the Executive or the Executive's
heirs, executors, administrators, successors and assigns ever had, now have or
may have against the Releasees or any of them, in law, admiralty or equity,
whether known or unknown to the Executive, for, upon, or by reason of, any
matter, action, omission, course or thing whatsoever occurring up to the date
this Agreement is signed by the Executive, including, without limitation, in
connection with or in relationship to the Executive's employment or other
service relationship with the Company or its affiliates, the termination of any
such employment or service relationship and any applicable employment,
compensatory or equity arrangement with the Company or its respective
affiliates; provided that such released claims shall not include any claims to
enforce the Executive's rights under, or with respect to, this Agreement (such
released claims are collectively referred to herein as the "Released Claims").
(b) Notwithstanding the generality of clause (a) above, the Released
Claims include, without limitation, (i) any and all claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the Civil Rights Act of 1971, the Civil Rights Act of 1991, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and
any and all other federal, state or local laws, statutes, rules and regulations
pertaining to employment or otherwise, and (ii) any claims for wrongful
discharge, breach of contract, fraud, misrepresentation or any compensation
claims, or any other claims under any statute, rule or regulation or under the
common law, including compensatory damages, punitive damages, attorney's fees,
costs, expenses and all claims for any other type of damage or relief.
(c) THIS MEANS THAT, BY SIGNING THIS AGREEMENT, THE EXECUTIVE WILL HAVE
WAIVED ANY RIGHT HE MAY HAVE HAD TO BRING A LAWSUIT OR MAKE ANY CLAIM AGAINST
THE RELEASEES BASED ON ANY ACTS OR OMISSIONS OF THE RELEASEES UP TO THE DATE OF
THE SIGNING OF THIS AGREEMENT.
(d) The Executive represents that the Executive has read carefully
and fully understands the terms of this Agreement, and that the Executive has
been advised to consult with an attorney and has had the opportunity to
consult with an attorney prior to signing this Agreement. The Executive
acknowledges that the Executive is executing this Agreement voluntarily and
knowingly and that the Executive has not relied on any representations,
promises or agreements of any kind made to the Executive in connection with
the Executive's decision to accept the terms of this Agreement, other than
those set forth in this Agreement. The Executive acknowledges that the
Executive has been given at least twenty-one (21) days to consider whether
the Executive wants to sign this Agreement and that the Age Discrimination in
Employment Act gives the Executive the right to revoke this Agreement within
seven (7) days after it is signed, and the Executive understands that the
Executive shall not receive any payments due the Executive under this
Agreement until such seven (7) day revocation period (the "Revocation
Period") has passed and then, only if the Executive has not revoked this
Agreement within such period. To the extent the Executive has executed this
Agreement within less than twenty-one (21) days after its delivery to the
Executive, the Executive hereby acknowledges that the Executive's decision to
execute this Agreement prior to the expiration of such twenty-one (21) day
period was entirely voluntary.
8. GOVERNING LAW. This Agreement shall be governed, construed and
interpreted under the laws of the State of Florida.
9. ENTIRE AGREEMENT: COUNTERPARTS. This constitutes the entire agreement
between the parties. It may not be modified or changed except by written
instrument executed by all parties. This agreement may be executed in
counterparts, each of which shall constitute an original and which together
shall constitute a single instrument.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman, Compensation Committee
Board of Directors
ACCEPTED AND AGREED this 4 day of April, 2000.
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
