EXHIBIT 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, made as of December 15, 2000 (the "Commencement
Date") by and between, U.S. Industries, Inc., a Delaware corporation, (the
"Company"), and Xxxxx Xxxxx ("Executive").
W I T N E S S E T H:
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WHEREAS, the Company and Executive desire to enter into this agreement
(the "Agreement") as to the terms of his employment by the Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. TERM OF EMPLOYMENT. Except for earlier termination as provided in
Section 7 hereof, Executive's employment under this Agreement shall be for a
two-year term (the "Employment Term") commencing on the Commencement Date and
ending two (2) years thereafter. Subject to Section 7 hereof, the Employment
Term shall be automatically extended for additional terms of successive one (1)
year periods unless the Company or Executive gives written notice to the other
at least ninety (90) days prior to the expiration of the then current Employment
Term of the termination of Executive's employment hereunder at the end of such
current Employment Term.
2. POSITIONS. (a) Executive shall serve as a senior executive of the
Company, initially, as Vice President and to be appointed to the additional
office of Corporate Controller of the Company effective upon the earlier of (i)
the spin-off of the Company's subsidiary, LCA
Group Inc. or (ii) January 31, 2001. If requested by the Board of Directors of
the Company (the "Board") or the Chief Executive Officer of the Company (the
"Chief Executive Officer"), Executive shall also serve on the Board, as an
executive officer and director of subsidiaries and a director of associated
companies of the Company without additional compensation and subject to any
policy of the Compensation Committee of the Company's Board (the "Compensation
Committee") with regard to retention or turnover of the director's fees.
(b) Executive shall have such duties and authority, consistent with his
then position as shall be assigned to him from time to time by the Board or the
Chief Financial Officer or his designee.
(c) During the Employment Term, Executive shall devote all of his business
time and efforts to the performance of his duties hereunder; provided, however,
that Executive shall be allowed, to the extent that such activities do not
materially interfere with the performance of his duties and responsibilities
hereunder, to manage his passive personal interests and to serve on civic or
charitable boards or committees, and subject to the next sentence, serve on
corporate boards of directors. Executive may serve on corporate boards of
directors only if approved in advance by the Board (which approval may be
withdrawn at any time) and shall not serve on any corporate board of directors
if such service would be inconsistent with his fiduciary responsibilities to the
Company.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of not less than $155,000. Base
salary shall be payable in accordance with the usual payroll practices of the
Company. Executive's Base Salary shall be subject to annual review by the Board
or the Compensation Committee during the Employment Term and may be increased,
but not decreased, from time to time by the Board or the
Compensation Committee, except that, prior to a Change in Control (as defined in
Exhibit A), it may be decreased proportionately in connection with an across the
board decrease generally applying to senior executives of the Company. The base
salary as determined as aforesaid from time to time shall constitute "Base
Salary" for purposes of this Agreement.
4. INCENTIVE COMPENSATION. (a) BONUS. For each fiscal year or portion
thereof during the Employment Term, Executive shall be eligible to participate
in an incentive bonus plan of the Company in accordance with, and subject to,
the terms of such plan, that provides an annualized cash target bonus
opportunity equal to at least 50% of Base Salary (the "Target Bonus").
(b) EQUITY. The Compensation Committee has awarded Executive nonqualified
stock options to purchase 50,000 shares of common stock of the Company, upon
such terms and conditions specified by the Compensation Committee and in
accordance with the terms of the applicable plan.
(c) OTHER COMPENSATION. The Company may, upon recommendation of the
Compensation Committee, award to Executive such other bonuses and compensation
as it deems appropriate and reasonable.
5. EMPLOYEE BENEFITS AND VACATION. (a) During the Employment Term,
Executive shall be entitled to participate in all pension, incentive
compensation, retirement, savings, welfare and other employee benefit plans and
arrangements and fringe benefits and perquisites generally maintained by the
Company from time to time for the benefit of senior executive officers of the
Company of a comparable level in each case in accordance with their respective
terms as in effect from time to time.
(b) During the Employment Term, Executive shall be entitled to vacation
each year in accordance with the Company's policies in effect from time to time,
but in no event less than four (4) weeks paid vacation per calendar year.
Executive shall also be entitled to such periods of sick leave as is customarily
provided by the Company to its senior executive employees.
6. BUSINESS EXPENSES. The Company shall reimburse Executive for the
travel, entertainment and other business expenses incurred by Executive in the
performance of his duties hereunder, in accordance with the Company's policies
as in effect from time to time.
7. TERMINATION. (a) The employment of Executive and the Employment Terms
shall terminate as provided in Section 1 hereof or, if earlier, upon the
earliest to occur of any of the following events:
(i) the death of Executive;
(ii) the termination of Executive's Employment Term by the Company
due to Executive's Disability (as defined in Exhibit A) pursuant to
Section 7(b) hereof;
(iii) the termination of Executive's employment by Executive for
Good Reason (as defined in Exhibit A) pursuant to Section 7(c) hereof;
(iv) the termination of Executive's employment by the Company
without Cause (as defined in Exhibit A) pursuant to Section 7(e) hereof;
(v) the termination of employment by Executive without Good Reason
upon sixty (60) days prior written notice pursuant to Section 7(e) hereof;
(vi) the termination of Executive's employment by the Company for
Cause pursuant to Section 7(d) hereof; or
(vii) the retirement of Executive by the Company at or after his
sixty-fifth birthday.
(b) DISABILITY. If Executive incurs a Disability, the Company may
terminate Executive's Employment Term for Disability upon thirty (30) days
written notice by a Notice of Disability Termination, at any time thereafter
during such twelve (12) month period while Executive is unable to carry out his
duties as a result of the same or related physical or mental illness or
incapacity. Such termination shall not be effective if Executive returns to the
full time performance of his material duties within such thirty (30) day period.
(c) TERMINATION FOR GOOD REASON. A Termination for Good Reason means a
termination by Executive by written notice given within ninety (90) days after
the occurrence of the Good Reason event, unless such circumstances are fully
corrected prior to the date of termination specified in the Notice of
Termination for Good Reason. A Notice of Termination for Good Reason shall mean
a notice that shall indicate the specific Good Reason event relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for Termination for Good Reason. The failure by Executive to set
forth in the Notice of Termination for Good Reason any facts or circumstances
which contribute to the showing of Good Reason shall not waive any right of
Executive hereunder or preclude Executive from asserting such fact or
circumstance in enforcing his rights hereunder. The Notice of Termination for
Good Reason shall provide for a date of termination not less than ten (10) nor
more than sixty (60) days after the date such Notice of Termination for Good
Reason is given, provided that in
the case of the events set forth in Section (d)(iii) of Exhibit A the date may
be two (2) days after the giving of such notice.
(d) CAUSE. Subject to the notification provisions of this Section 7(d),
Executive's employment hereunder may be terminated by the Company for Cause. A
Notice of Termination for Cause shall mean a notice that shall indicate the
specific termination provision in Section (a) of Exhibit A relied upon and shall
set forth in reasonable detail the facts and circumstances which provide for a
basis for Termination for Cause. The date of termination for a Termination for
Cause shall be the date indicated in the Notice of Termination. Any purported
Termination for Cause which is held by a court not to have been based on the
grounds set forth in this Agreement or not to have followed the procedures set
forth in this Agreement shall be deemed a termination by the Company without
Cause.
(e) OTHER TERMINATIONS. The Executive's employment by the Company shall be
at will. Accordingly, the Company may terminate the Executive at any time (with
or without notice), for reasons other than Cause or for no reason. The Executive
may terminate his employment with the Company at any time upon sixty (60) days
prior written notice.
8. CONSEQUENCES OF TERMINATION OF EMPLOYMENT. (a) DEATH, DISABILITY,
VOLUNTARY RESIGNATION WITHOUT GOOD REASON, RETIREMENT, FOR CAUSE, NONEXTENSION
OF THE EMPLOYMENT TERM BY EXECUTIVE. If Executive's employment and the
Employment Term are terminated by reason of (i) Executive's death or Disability,
(ii) by Executive without Good Reason or as a result of a notice of nonextension
of the Employment Term by Executive or (iii) by the Company for Cause or
pursuant to Section 7(a)(vi) hereof, the Employment Term under this Agreement
shall terminate without further obligations to Executive or Executive's legal
representatives under this Agreement except for: (i) any Base Salary earned but
unpaid, any
accrued but unused vacation pay payable pursuant to the Company's policies, and
any unreimbursed business expenses payable pursuant to Section 6 (collectively
"Accrued Amounts") (which, amounts shall, in the event of Executive's death, be
promptly paid in a lump sum to Executive's estate) and (ii) any other amounts or
benefits owing to Executive under the then applicable employee benefit plans,
long term incentive plans or equity plans and programs of the Company which
shall be paid in accordance with such plans and programs.
(b) TERMINATION BY EXECUTIVE FOR GOOD REASON, TERMINATION BY THE COMPANY
WITHOUT CAUSE, OR NONEXTENSION OF THE TERM BY THE COMPANY. If Executive's
employment and the Employment Term are terminated (i) by the Executive for Good
Reason, (ii) by the Company without Cause (and other than for Disability or
pursuant to Section 7(a)(vi)) or (iii) Executive's employment with the Company
terminates as a result of the Company giving notice of nonextension of the
Employment Term pursuant to Section 1 hereof, Executive shall be entitled to
receive the Accrued Amounts, and shall, subject to Sections 9(b), 9(c) and 10
hereof, be entitled to receive, (A) equal monthly payments of an amount equal to
his then monthly rate of Base Salary, but off the employee payroll, for a period
of twelve (12) months following the date of his termination; provided that if
such termination occurs within two (2) years after a Change in Control, in lieu
of the foregoing, Executive shall receive in a lump sum within five (5) days
after compliance with such Section 9(b), an amount equal to (i) Executive's Base
Salary and (ii) Target Bonus; (B) any other amounts or benefits owing to
Executive under the then applicable employee benefit, long term incentive or
equity plans and programs of the Company which shall be paid in accordance with
such plans and programs; provided that, if such termination occurs within two
(2) years after a Change in Control, Executive shall in any event receive any
accrued balance in any long term or equity compensation program and any earned
or declared annual bonus for any complete fiscal year which has not then been
paid; (C) if such termination is within
two (2) years after a Change in Control, one (1) year of additional service and
compensation credit (at the compensation level in the fiscal year ending
immediately prior to the Change in Control) for pension purposes under any
defined benefit type qualified or nonqualified pension plan or arrangement of
the Company, which payments shall be made through and in accordance with the
terms of the nonqualified defined benefit pension arrangement if any then
exists, or, if not, in an actuarially equivalent lump sum (using the actuarial
factors then applying in the Company's defined benefit plan covering Executive);
(D) if such termination is within two (2) years after a Change in Control, one
(1) year of the maximum Company contribution (assuming Executive deferred the
maximum amount and continued to earn his then current salary) under any type of
qualified or nonqualified 401(k) plan; (E) payment of Executive's and his
dependents' COBRA coverage premiums to the extent, and so long as, they remain
eligible for COBRA coverage for up to one (1) year; and (F) if such termination
is within two (2) years after a Change in Control, payment by the Company of the
premiums and costs for Executive for one (1) year under the Company's life and
welfare plans which cover the senior executives of the Company or materially
similar benefits.
9. (a) NO MITIGATION; NO SET-OFF. In the event of any termination of
employment under Section 8, Executive shall be under no obligation to seek other
employment and there shall be no offset against any amounts due Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain. Any amounts due under Section 8 are in the
nature of severance payments and are not in the nature of a penalty. Such
amounts are inclusive, and in lieu of any, amounts payable under any other
salary continuation or cash severance arrangement of the Company and to the
extent paid or provided under any other such arrangement shall be offset from
the amount due hereunder.
(b) Executive agrees that, as a condition to receiving the payments and
benefits provided under Section 8(b) hereunder he will execute, deliver and not
revoke (within the time period permitted by applicable law) a release of all
claims of any kind whatsoever against the Company, its affiliates, officers,
directors, employees, agents and shareholders in the then standard form being
used by the Company for senior executives (but without release of the right of
indemnification hereunder or under the Company's By-laws or rights under benefit
or equity plans that by their terms are intended to survive termination of his
employment).
(c) Upon any termination of employment, Executive hereby resigns as an
officer and director of the Company, any subsidiary and any affiliate and as a
fiduciary of any benefit plan of any of the foregoing. Executive shall promptly
execute any further documentation thereof as requested by the Company and, if
the Executive is to receive any payments from the Company, execution of such
further documentation shall be a condition thereof.
10. CONFIDENTIAL INFORMATION, NON-COMPETITION AND NON-SOLICITATION OF THE
COMPANY. (a) (i) Executive acknowledges that as a result of his employment by
the Company, Executive will obtain secret and confidential information as to the
Company and its affiliates and create relationships with customers, suppliers
and other persons dealing with the Company and its affiliates and the Company
and its affiliates will suffer substantial damage, which would be difficult to
ascertain, if Executive should use such confidential information or take
advantage of such relationship and that because of the nature of the information
that will be known to Executive and the relationships created it is necessary
for the Company and its affiliates to be protected by the prohibition against
Competition as set forth herein, as well as the Confidentiality restrictions set
forth herein.
(ii) Executive acknowledges that the retention of nonclerical employees
employed by the Company and its affiliates in which the Company and its
affiliates have invested training and depends on for the operation of their
businesses is important to the businesses of the Company and its affiliates,
that Executive will obtain unique information as to such employees as an
executive of the Company and will develop a unique relationship with such
persons as a result of being an executive of the Company and, therefore, it is
necessary for the Company and its affiliates to be protected from Executive's
Solicitation of such employees as set forth below.
(iii) Executive acknowledges that the provisions of this Agreement are
reasonable and necessary for the protection of the businesses of the Company and
its affiliates and that part of the compensation paid under this Agreement and
the agreement to pay severance in certain instances is in consideration for the
agreements in this Section 10.
(b) Competition shall mean: participating, directly or indirectly, as an
individual proprietor, partners, stockholder, officer, employee, director, joint
venturer, investor, lender, consultant or in any capacity whatsoever (within the
United States of America, or in any country where the Company or its affiliates
do business) in a business in competition with any business conducted by the
Company, provided, however, that such participation shall not include (i) the
mere ownership of not more than one percent (1%) of the total outstanding stock
of a publicly held company; or (ii) any activity engaged in with the prior
written approval of the Board.
(c) Solicitation shall mean: recruiting, soliciting or inducing, of any
nonclerical employee or employees of the Company or its affiliates to terminate
their employment with, or otherwise cease their relationship with, the Company
or its affiliates or hiring or assisting another person or entity to hire any
nonclerical employee of the Company or
its affiliates or any person who within six (6) months before had been a
nonclerical employee of the Company or its affiliates and were recruited or
solicited for such employment or other retention while an employee of the
Company, provided, however, that solicitation shall not include any of the
foregoing activities engaged in with the prior written approval of the Chief
Executive Officer.
(d) If any restriction set forth with regard to Competition or
Solicitation is found by any court of competent jurisdiction, or an arbitrator,
to be unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend over the maximum period of time, range of activities or
geographic area as to which it may be enforceable. If any provision of this
Section 10 shall be declared to be invalid or unenforceable, in whole or in
part, as a result of the foregoing, as a result of public policy or for any
other reason, such invalidity shall not affect the remaining provisions of this
Section which shall remain in full force and effect.
(e) During and after the Employment Term, Executive shall hold in a
fiduciary capacity for the benefit of the Company and its affiliates all secret
or confidential information, knowledge or data relating to the Company and its
affiliates, and their respective businesses, including any confidential
information as to customers of the Company and its affiliates, (i) obtained by
Executive during his employment by the Company and its affiliates and (ii) not
otherwise public knowledge or known within the applicable industry. Executive
shall not, without prior written consent of the Company, unless compelled
pursuant to the order of a court or other governmental or legal body having
jurisdiction over such matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In the event Executive is compelled by order of a court or other governmental
or legal body to communicate or divulge any such information, knowledge or data
to anyone other than the foregoing, he shall promptly notify the Company of any
such order and he shall cooperate fully with the Company in protecting such
information to the extent possible under applicable law.
(f) Upon termination of his employment with the Company and its
affiliates, or at any time as the Company may request, Executive shall promptly
deliver to the Company, as requested, all documents (whether prepared by the
Company, an affiliate, Executive or a third party) relating to the Company, an
affiliate or any of their businesses or property which he may possess or have
under his direction or control other than documents provided to Executive in his
capacity as a participant in any employee benefit plan, policy or program of the
Company or any agreement by and between Executive and the Company with regard to
Executive's employment or severance.
(g) During the Employment Term and for two (2) years following a
termination of Executive's employment for any reason whatsoever, whether by the
Company or by Executive and whether or not for Cause, Good Reason or
non-extension of the Employment Term, Executive shall not engage in
Solicitation.
(h) During the Employment Term and for one (1) year following a
termination of Executive's employment for any reason whatsoever, whether by the
Company or by Executive and whether or not for Cause, Good Reason or
non-extension of the Employment Term, Executive shall not enter into Competition
with the Company or its affiliates.
(i) In the event of a breach or potential breach of this Section 10,
Executive acknowledges that the Company and its affiliates will be caused
irreparable injury and that
money damages may not be an adequate remedy and agree that the Company and its
affiliates shall be entitled to injunctive relief (in addition to its other
remedies at law) to have the provisions of this Section 10 enforced. It is
hereby acknowledged that the provisions of this Section 10 are for the benefit
of the Company and all of the affiliates of the Company and each such entity may
enforce the provisions of this Section 10 and only the applicable entity can
waive the rights hereunder with respect to its confidential information and
employees.
(j) Furthermore, in the event of breach of this Section 10 by Executive,
while he is receiving amounts under Section 8(b) hereof, Executive shall not be
entitled to receive any future amounts pursuant to Section 8(b) hereof.
11. INDEMNIFICATION. The Company shall indemnify and hold harmless
Executive to the extent provided in the Certificate of Incorporation and By-Laws
of the Company for any action or inaction of Executive while serving as an
officer and director of the Company or, at the Company's request, as an officer
or director of any other subsidiary or affiliate of the Company or as a
fiduciary of any benefit plan. The Company shall cover Executive under directors
and officers liability insurance both during and, while potential liability
exists, after the Employment Term in the same amount and to the same extent as
the Company covers its other officers and directors.
12. SPECIAL TAX PROVISION. (a) Anything in this Agreement to the contrary
notwithstanding, in the event that any amount or benefit paid, payable, or to be
paid, or distributed, distributable, or to be distributed to or with respect to
Executive by the Company (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any person whose actions
result in a change of ownership covered by Section 280G(b)(2) of the Internal
Revenue Code of 1986, as amended (the "Code") or any person
affiliated with the Company or such person) as a result of a change in ownership
of the Company or a direct or indirect parent thereof after the Spinoff covered
by Code Section 280G(b)(2) (collectively, the "Covered Payments") is or becomes
subject to the excise tax imposed by or under Section 4999 of the Code (or any
similar tax that may hereafter be imposed), and/or any interest or penalties
with respect to such excise tax (such excise tax, together with such interest
and penalties, is hereinafter collectively referred to as the "Excise Tax"), the
Company shall pay to Executive an additional amount (the "Tax Reimbursement
Payment") such that after payment by Executive of all taxes (including, without
limitation, any interest or penalties and any Excise Tax imposed on or
attributable to the Tax Reimbursement Payment itself), Executive retains an
amount of the Tax Reimbursement Payment equal to the sum of (i) the amount of
the Excise Tax imposed upon the Covered Payments, and (ii) without duplication,
an amount equal to the product of (A) any deductions disallowed for federal,
state or local income or payroll tax purposes because of the inclusion of the
Tax Reimbursement Payment in Executive's adjusted gross income, and (B) the
highest applicable marginal rate of federal, state or local income taxation,
respectively, for the calendar year in which the Tax Reimbursement Payment is
made or is to be made. The intent of this Section 12 is that (a) the Executive,
after paying his Federal, state and local income tax and any payroll taxes on
Executive, will be in the same position as if he was not subject to the Excise
Tax under Section 4999 of the Code and did not receive the extra payments
pursuant to this Section 12 and (b) that Executive should never be
"out-of-pocket" with respect to any tax or other amount subject to this Section
12, whether payable to any taxing authority or repayable to the Company, and
this Section 12 shall be interpreted accordingly.
(b) Except as otherwise provided in Section 12(a), for purposes of
determining whether any of the Covered Payments will be subject to the Excise
Tax and the amount of such Excise Tax,
(i) such Covered Payments will be treated as "parachute payments"
(within the meaning of Section 280G(b)(2) of the Code) and such payments in
excess of the Code Section 280G(b)(3) "base amount" shall be treated as subject
to the Excise Tax, unless, and except to the extent that, the Company's
independent certified public accountants appointed prior to the change in
ownership covered by Code Section 280G(b)(2) or legal counsel (reasonably
acceptable to Executive) appointed by such public accountants (or, if the public
accountants decline such appointment and decline appointing such legal counsel,
such independent certified public accountants as promptly mutually agreed on in
good faith by the Company and the Executive) (the "Accountant"), deliver a
written opinion to Executive, reasonably satisfactory to Executive's legal
counsel, that Executive has a reasonable basis to claim that the Covered
Payments (in whole or in part) (A) do not constitute "parachute payments", (B)
represent reasonable compensation for services actually rendered (within the
meaning of Section 280G(b)(4) of the Code) in excess of the "base amount"
allocable to such reasonable compensation, or (C) such "parachute payments" are
otherwise not subject to such Excise Tax (with appropriate legal authority,
detailed analysis and explanation provided therein by the Accountants); and
(ii) the value of any Covered Payments which are non-cash benefits
or deferred payments or benefits shall be determined by the Accountant in
accordance with the principles of Section 280G of the Code.
(c) For purposes of determining the amount of the Tax Reimbursement
Payment, Executive shall be deemed:
(i) to pay federal, state, local income and/or payroll taxes at the
highest applicable marginal rate of income taxation for the calendar year in
which the Tax Reimbursement Payment is made or is to be made, and
(ii) to have otherwise allowable deductions for federal, state and
local income and payroll tax purposes at least equal to those disallowed due to
the inclusion of the Tax Reimbursement Payment in Executive's adjusted gross
income.
(d)(i)(A) In the event that prior to the time Executive has filed any of
his tax returns for the calendar year in which the change in ownership event
covered by Code Section 280G(b)(2) occurred, the Accountant determines, for any
reason whatever, the correct amount of the Tax Reimbursement Payment to be less
than the amount determined at the time the Tax Reimbursement Payment was made,
the Executive shall repay to the Company, at the time that the amount of such
reduction in Tax Reimbursement Payment is determined by the Accountant, the
portion of the prior Tax Reimbursement Payment attributable to such reduction
(including the portion of the Tax Reimbursement Payment attributable to the
Excise Tax and federal, state and local income and payroll tax imposed on the
portion of the Tax Reimbursement Payment being repaid by Executive, using the
assumptions and methodology utilized to calculate the Tax Reimbursement Payment
(unless manifestly erroneous)), plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code.
(B) In the event that the determination set forth in (A) above is made by
the Accountant after the filing by Executive of any of his tax returns for the
calendar year in which
the change in ownership event covered by Code Section 280G(b)(2) occurred but
prior to one (1) year after the occurrence of such change in ownership,
Executive shall file at the request of the Company an amended tax return in
accordance with the Accountant's determination, but no portion of the Tax
Reimbursement Payment shall be required to be refunded to the Company until
actual refund or credit of such portion has been made to Executive, and interest
payable to the Company shall not exceed the interest received or credited to
Executive by such tax authority for the period it held such portion (less any
tax Executive must pay on such interest and which he is unable to deduct as a
result of payment of the refund).
(C) In the event Executive receives a refund pursuant to (B) above and
repays such amount to the Company, Executive shall thereafter file for refunds
or credits by reason of the repayments to the Company.
(D) Executive and the Company shall mutually agree upon the course of
action, if any, to be pursued (which shall be at the expense of the Company) if
Executive's claim for refund or credit is denied.
(ii) In the event that the Excise Tax is later determined by the
Accountants or the Internal Revenue Service to exceed the amount taken into
account hereunder at the time the Tax Reimbursement Payment is made (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Tax Reimbursement Payment), the Company shall make an
additional Tax Reimbursement Payment in respect of such excess (plus any
interest or penalties payable with respect to such excess) once the amount of
such excess is finally determined.
(iii) In the event of any controversy with the Internal Revenue
Service (or other taxing authority) under this Section 12, subject to subpart
(i)(D) above, Executive shall permit the Company to control issues related to
this Section 12 (at its expense), provided that such issues do not potentially
materially adversely affect Executive, but Executive shall control any other
issues. In the event the issues are interrelated, Executive and the Company
shall in good faith cooperate so as not to jeopardize resolution of either
issue, but if the parties cannot agree Executive shall make the final
determination with regard to the issues. In the event of any conference with any
taxing authority as to the Excise Tax or associated income taxes, Executive
shall permit the representative of the Company to accompany him and Executive
and his representative shall cooperate with the Company and its representative.
(iv) With regard to any initial filing for a refund or any other
action required pursuant to this Section 12 (other than by mutual agreement) or,
if not required, agreed to by the Company and Executive, the Executive shall
cooperate fully with the Company, provided that the foregoing shall not apply to
actions that are provided herein to be at the sole discretion of Executive.
(e) The Tax Reimbursement Payment, or any portion thereof, payable by the
Company shall be paid not later than the fifth (5th) day following the
determination by the Accountant and any payment made after such fifth (5th) day
shall bear interest at the rate provided in Code Section 1274(b)(2)(B). The
Company shall use its best efforts to cause the Accountant, to promptly deliver
the initial determination required hereunder and, if not delivered, within
ninety (90) days after the change in ownership event covered by Section
280G(b)(2) of the Code, the Company shall pay Executive the Tax Reimbursement
Payment set forth in an opinion from counsel recognized as knowledgeable in the
relevant areas selected by Executive, and
reasonably acceptable to the Company, within five (5) days after delivery of
such opinion. The amount of such payment shall be subject to later adjustment in
accordance with the determination of the Accountant as provided herein.
(f) The Company shall be responsible for all charges of the Accountant and
if (e) is applicable the reasonable charges for the opinion given by Executive's
counsel.
(g) The Company and Executive shall mutually agree on and promulgate
further guidelines in accordance with this Section 12 to the extent, if any,
necessary to effect the reversal of excessive or shortfall Tax Reimbursement
Payments. The foregoing shall not in any way be inconsistent with Section
12(d)(i)(D) hereof.
13 LEGAL AND OTHER FEES AND EXPENSES. In the event that a claim for
payment or benefits under this Agreement is disputed, the Company shall pay all
reasonable attorney, accountant and other professional fees and reasonable
expenses incurred by Executive in pursuing such claim, provided Executive is
successful with regard to a material portion of his claim.
14 MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without reference to principles
of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement and the instruments
contemplated herein, contain the entire understanding of the parties with
respect to the employment of Executive by the Company from and after the
Commencement Date and supersedes any prior agreements between the Company and
Executive with respect thereto. There
are no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
(c) NO WAIVER. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. Any such
waiver must be in writing and signed by Executive or an authorized officer of
the Company, as the case may be.
(d) ASSIGNMENT. This Agreement shall not be assignable by Executive. This
Agreement shall be assignable by the Company only to an entity which is owned,
directly or indirectly, in whole or in part by the Company or by any successor
to the Company or an acquirer of all or substantial all of the assets of the
Company or all or substantially all of the assets of a group of subsidiaries and
divisions of the Company, provided such entity or acquirer promptly assumes all
of the obligations hereunder of the Company in a writing delivered to Executive
and otherwise complies with the provisions hereof with regard to such
assumption. Upon such assignment and assumption, all references to the Company
herein shall be to the assignee entity or acquirer, as the case may be.
(e) SUCCESSORS; BINDING AGREEMENT; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees legatees and permitted assignees of the parties hereto.
In the event of the Executive's death while receiving amounts
payable pursuant to Section 8(b) hereof, any remaining amounts shall be paid to
Executive's estate.
(f) COMMUNICATIONS. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when faxed or delivered, or (ii) two
(2) business days after being mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the initial page of this Agreement, provided that all
notices to the Company shall be directed to the attention of the General Counsel
and Secretary of the Company, or to such other address as any party may have
furnished to the other in writing in accordance herewith. Notice of change of
address shall be effective only upon receipt.
(g) WITHHOLDING TAXES. The Company may withhold from any and all amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
(h) SURVIVORSHIP. The respective rights and obligations of the parties
hereunder, including without limitation Section 11 hereof, shall survive any
termination of Executive's employment to the extent necessary to the agreed
preservation of such rights and obligations.
(i) COUNTERPARTS. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(j) HEADINGS. The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
(k) EXECUTIVE'S REPRESENTATION. Executive represents and warrants to the
Company that there is no legal impediment to him entering into, or performing
his obligations under this Agreement and neither entering into this Agreement
nor performing his contemplated service hereunder will violate any agreement to
which he is a party or any other legal restriction. Executive further represents
and warrants that in performing his duties hereunder he will not use or disclose
any confidential information of any prior employer or other person or entity.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
U.S. INDUSTRIES, INC.
By:
------------------------------ -------------------
Xxxxxxx X. Xxxxxx Date
Senior Vice President
By:
------------------------------ -------------------
Xxxxx Xxxxx Date
EXHIBIT A
(a) CAUSE. For purposes of this Agreement, the term "Cause" shall be
limited to: (i) Executive's refusal or willful failure to perform his duties;
(ii) Executive's willful misconduct or gross negligence with regard to the
Company or its affiliates or their business, assets or employees (including,
without limitation, Executive's fraud, embezzlement or other act of dishonesty
with regard to the Company or its affiliates); (iii) Executive's willful
misconduct which has a material adverse impact on the Company or its affiliates,
whether economic, or reputation wise or otherwise, as determined by the Board;
(iv) Executive's conviction of, or pleading nolo contendere to, a felony or any
crime involving fraud, dishonesty or moral turpitude; (v) Executive's refusal or
willful failure to follow the lawful written direction of the Board, the Chief
Executive Officer or his designee; (vi) Executive's breach of a fiduciary duty
owed to the Company or its affiliates, including but not limited to Section 10
hereof; (vii) the representations or warranties in Section 14(k) hereof prove
false; or (vii) any other breach by Executive of this Agreement that remains
uncured for ten (10) days after written notice thereof is given to Executive.
(b) CHANGE IN CONTROL. For purposes of this Agreement, the term "Change in
Control" shall mean the occurrence of any of the following (i) any "person" as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 ("Act") (other than the Company, any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, or any company owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of Common Stock of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing twenty-five
percent (25%) or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two (2) consecutive years,
individuals who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has entered into
an agreement with the Company to effect a transaction described in clause (i),
(iii), or (iv) of this paragraph) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the two-year period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the Board; (iii) a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty percent (50%) of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation;
provided, however, that a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires more than twenty-five percent (25%) of the combined voting power of the
Company's then outstanding securities shall not constitute a Change in Control
of the Company; or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or the consummation of the sale or
disposition by the Company of all or substantially all of the Company's assets
other than (x) the sale or
disposition of all or substantially all of the assets of the Company to a person
or persons who beneficially own, directly or indirectly, at least fifty percent
(50%) or more of the combined voting power of the outstanding voting securities
of the Company at the time of the sale or (y) pursuant to a spinoff type
transaction, directly or indirectly, of such assets to the stockholders of the
Company.
(c) DISABILITY. For purposes of this Agreement, "Disability" shall mean by
reason of the same or related physical or mental illness or incapacity,
Executive is unable to carry out his material duties pursuant to this Agreement
for more than six (6) months in any twelve (12) month period.
(d) GOOD REASON. For purposes of this Agreement, "Good Reason" shall mean
the occurrence, without Executive's express written consent in the case of (i),
(ii) or (iii) of any of the following circumstances: (i) a demotion of Executive
to a position other than Vice President (except in connection with the
termination of Executive's employment for Cause or due to Disability or as a
result of Executive's death, or temporarily as a result of Executive's illness
or other absence); (ii) a failure by the Company to pay Executive's Base Salary
in accordance with Section 3 hereof; (iii) within two (2) years after a Change
in Control and if Executive is then based at the Company's West Palm Beach
offices ("WPB"), a relocation of the Company's WPB to a location more than both
thirty-five (35) miles from Executive's residence at the time of the relocation
and the Company's then principal executive office or relocation of Executive
from the principal executive office; or (iv) with regard to a Relocation (as
defined below) not covered by (iii) above, a failure of the Company to provide
Executive with a relocation program that is at least as favorable in aggregate
as the Relocation Program set forth in Exhibit B hereof. For purposes of the
foregoing, Relocation shall mean a relocation of Executive's office by the
Company, at any time during the Employment Term, to a location more than
thirty-five (35) miles further than Executive's then current principal residence
is from Executive's then office.
EXHIBIT B
RELOCATION PROGRAM
This document describes the Executive relocation/reimbursement program
(the "Relocation Program") available to the Executive.
I. The Executive will be reimbursed by the Company for the actual
costs associated with the sale of Executive's principal home ("Former
Home"), as follows:
A. Generally:
Packing, shipping, moving, unpacking and insuring
household goods and common personal possessions (carrier
is typically prohibited from delivering perishables,
frozen foods, plants or shrubbery, combustible items and
paint, or articles of extraordinary value such as
jewelry, precious stones, stamp collections, xxxxx,
stocks, etc.).
Reasonable (at least three round trips with Executive
and one dependent) pre-move travel, meals, etc. for
house hunting.
Selling expenses on Executive's Former Home as follows:
- Reasonable attorney's fees
- Transfer tax
- Real estate commission, up to a
maximum total of 6% of the gross
sales price.
Disconnecting and connecting normal appliances at
origin and destination (not including installation or
overhauling of equipment).
B. The Company will pay for moving the following:
(1) Automobiles (maximum two), registered in Executive's
(or spouse's) name.
(2) One boat or trailer, registered in Executive's (or
spouse's) name.
C. The Company will not pay for moving firewood, building
materials, exclusive use of van, household cleaning and maid
service, assembly or disassembly of portable swimming pools or items
of a similar nature.
D. The Company will reimburse Executive for the following
incidental expenses reasonably incurred in connection with
Executive's relocation:
(1) Travel expenses, including meals and lodging
incurred by Executive and dependents while traveling from
Former Home to Executive's new location via personal car or
common carrier, economy class.
(2) Meals and lodging expenses temporarily incurred by
Executive and dependents, if any, until Executive obtains
permanent living quarters. Such reimbursement shall not exceed
such costs for two weeks or until two days following delivery
of Executive's personal or household goods, whichever first
occurs. Extensions may be granted at the Company's discretion
as a result of extenuating circumstances.
E. The Company will reimburse Executive for the following
expenses in connection with purchasing a principal house/home within
a reasonable proximity to the new Company's headquarters' location
within twelve (12) months of the relocation of Executive:
(1) Reasonable attorney's fees;
(2) Title search and any other filing fees;
(3) Building and termite inspection;
(4) Mortgage application, placement fee and points (up
to a maximum payment of the lesser of 1 1/2 points or $6,000
for points).
F. The Company will make a payment to Executive equal to one
month's Base Salary to cover other incidental expenses relating to
moving. Executive is not required to submit a claim for this
payment. This payment will be made within thirty (30) days of
Executive's actual physical permanent relocation, upon notice from
Executive confirming the move.
II. Tax Issues
Federal Income Tax law generally requires the Company to file
forms with the Internal Revenue Service ("IRS") indicating the
amount of moving and relocation expenses paid to Executive or
to others on behalf of Executive. Such amounts may include,
for example, the cost of moving household goods and real
estate commissions which are paid directly by the Company to
outside companies. The total of the amounts will generally be
reported to the IRS on Form W-2, a copy of which will be sent
to Executive.
The Company shall advise Executive of the details of the
moving expenses and reimbursements and will provide the
information
B-3
to Executive in accordance with applicable IRS Forms or
Notices or, if no IRS Form or Notice is required, in a format
selected by the Company.
Executive generally will be required to include in taxable
income the amounts shown on Form W-2 and will be permitted to
claim certain moving expense deductions for amounts paid
directly by the Executive and not reimbursed by the Company by
filing Form 3903 - Moving Expense Adjustment, or other
applicable IRS forms. The Company will reimburse Executive for
additional federal taxes incurred as a result of reporting
income in excess of allowable deductions resulting from the
relocation other than that resulting from a termination by the
Executive without Good Reason or by the Company for Cause (the
"Excess Amount"). However, the income provided pursuant to
Section I.F. will be subtracted from the Excess Amount prior
to calculating the additional federal tax "gross-up". The
Company will also reimburse Executive for additional state and
other payroll taxes, if any, incurred as a result of paying
for expenses referred to above, subject to the same
limitations.
The Company is also required to withhold federal income taxes
from that portion of Executive's reimbursement which are
included in income and non-deductible. The amount of such
taxes withheld will be reimbursed to Executive.
Because the tax reimbursement(s) will also be taxable income
to Executive in the year received, the reimbursement(s) will
be "grossed-up" so that the amount received will substantially
equal the balance of the tax, as well as the tax on the
reimbursement, at Executive's marginal rate of federal tax
and, if applicable, any state tax and payroll taxes.
