Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of April 1, 1999, between Xxxxx X. Xxxx
("Employee") and XXXXXXX FURNITURE COMPANY, INC., a Delaware corporation (the
"Company").
WHEREAS, the Company desires to assure that it will have the benefit of
the continued service and experience of the Employee, who is a principal
executive officer of the Company and an integral part of its management, and the
Employee is willing to enter into an agreement to such end upon the terms and
conditions set forth in this Agreement. In consideration of the foregoing and
the mutual agreements herein contained, the parties agree as follows:
1. Employment. The Company hereby employs the Employee and the Employee
hereby accepts employment upon and agrees to the terms and conditions set forth
herein.
2. Term. The term of employment under this Agreement (the "Term") shall
commence January 1, 1999 and end on December 31, 1999 and shall continue for
each calendar year thereafter unless either party gives notice (a "Termination
Notice") on or before November 1 of any calendar year that employment under this
Agreement will not continue for an additional period of one year beginning on
the following January 1.
3. Compensation.
a. Salary. During the Employee's employment hereunder, the
Company shall pay the Employee for all services rendered by the Employee a base
salary at an annual rate of at least $160,000, with upward annual adjustments as
the Board of Directors of the Company shall deem appropriate. Such salary shall
be payable to the Employee in accordance with the Company's usual paying
practices, but not less frequently than monthly.
b. Bonus. In addition to base salary, the Employee shall be
entitled to receive a potential annual bonus of $120,000, subject to upward
adjustment. The amount of such bonus for any fiscal year shall be related to the
achievement of certain profit thresholds and objectives to be set at the
beginning of each fiscal year by the Board of Directors of the Company.
c. Other Benefits. The Employee shall also receive such other
customary employee "fringe" benefits as are afforded generally by the Company to
its senior personnel, including grants of stock options and participation in the
Company's deferred compensation program.
4. Duties. The Employee shall continue to perform the duties of Senior
Vice President - Product Development and Merchandising of the Company and shall,
under the direction of the President, faithfully and to the best of his ability
perform such duties and such other duties and responsibilities as may be
reasonably assigned by the President from time to time, including service as an
officer or director of any subsidiaries of the Company but not including service
as an officer or director of nonsubsidiary affiliates not in the same business
as the Company.
5. Extent of Services. During the Employee's employment hereunder, the
Employee shall devote his entire working time, attention and energy to the
business of the Company and shall not be engaged in any other active business of
any kind except as authorized by the President.
6. Restrictive Covenants.
a. Non-competition Restriction. Except with the prior consent
in writing of the Company or as provided in the last sentence of this Section
6(a), the Employee shall not (A) during his employment hereunder or (B) for a
period of two years after termination of his employment hereunder in the event
Employee receives severance payments pursuant to Section 7(b) or Section 7(e),
directly or indirectly manage, operate, control, be employed by, participate in,
invest in or be connected in any manner with the management, operation,
ownership or control of any business or venture which is in competition in the
United States with the business of the Company, provided that nothing herein
shall prohibit the Employee from owning securities of the Company or up to 5% of
the outstanding voting securities of any issuer which is listed on the New York
or American Stock Exchange or as to which trading is reported or quoted on the
NASDAQ System. The provisions of this Section 6(a) shall not be applicable in
the event the Employee terminates his employment under Section 7(d).
b. Non-solicitation Agreement. Except with the prior consent
in writing of the Company, the Employee shall not directly or indirectly hire or
employ in any capacity or solicit the employment of or offer employment to or
entice away or in any other manner persuade or attempt to persuade any person
employed by the Company or any of its subsidiaries to leave the employ of any of
them. This Agreement shall remain in full force and effect for a period of two
years after the Term.
c. Confidential Information. The Employee further agrees to
keep confidential and not use for his personal benefit or for any other person's
benefit any and all proprietary information received by the Employee relating to
inventions, products, production methods, financial matters, sources of supply,
markets, marketing methods and customers of the Company on the date hereof or
developed by or for it during the Term. This Agreement shall remain in full
force and effect after the Term without limit in point of time, but shall cease
to apply to information that legitimately comes into the public domain.
d. Specific Enforcement. It is agreed and understood by the
parties hereto that, in view of the nature of the business of the Company, the
restrictions in subsections a., b. and c. above are reasonable and necessary to
protect the legitimate interests of the Company, monetary damages alone are not
an adequate remedy for any breach of such provisions, and any violation thereof
would result in irreparable injuries to the Company. The Employee therefore
acknowledges that, in the event of his violation of any of such restrictions,
the Company shall be entitled to obtain from any court of competent jurisdiction
preliminary and permanent injunctive relief as well as damages and an equitable
accounting of all earnings, profits and other benefits arising from such
violation, which rights shall be cumulative and in addition to any other rights
or remedies to which the Company may be entitled.
e. Severability and Extension. If the period of time or the
area specified in subsection a. above is determined to be unreasonable in any
proceeding, such period shall be reduced by such number of months or the area
shall be reduced by the elimination of such portion thereof, or both, so that
such restrictions may be enforced for such time and in such area as is
determined to be reasonable. If the Employee violates any of the restrictions
contained in subsection a. above, the restrictive period shall not run in favor
of the Employee from the time of the commencement of any such violation until
such time as such violation shall cease.
7. Termination of Employment and Severance Payments.
a. Termination for Cause. During the Term, the Company may
terminate the Employee's employment under this Agreement at any time for Cause
(as hereinafter defined) upon written notice specifying the cause and date of
termination. Payments under this Agreement shall cease as of the date of
termination for Cause. For this purpose, "Cause" means gross or willful neglect
of duty which is not corrected after 30 days' written notice thereof;
misconduct, malfeasance, fraud or dishonesty which materially and adversely
affects the Company or its reputation in the industry; or the commission of a
felony or a crime involving moral turpitude.
b. Termination without Cause. During the Term, the Company may
terminate the Employee's employment under this Agreement at any time for any
reason other than Cause upon written notice specifying the date of termination
and the Employee shall be entitled to the payments provided under this Section
7(b). In the event the Company terminates the Employee's employment for reasons
other than Cause (which includes termination by the Company for what the Company
believes to be Cause when it is ultimately determined that the Employee was
terminated without cause), then the Employee shall receive severance payments as
follows: (i) the Employee shall continue to receive his base salary on a monthly
basis for the remainder of the calendar year in which such termination occurred,
(ii) the Employee shall be paid an annual bonus for the calendar year in which
such termination occurred equal to the average of the bonuses paid to the
Employee for the three fiscal years preceding the year in which termination
occurred (which bonus shall be payable within ninety days after the close of the
fiscal year in which such termination occurs), and (iii) during the two calendar
years following the year in which such termination occurs, the Employee shall
receive annual severance pay equal to the base salary in effect at the
termination of employment plus an amount equal to the average of the bonuses
paid to the Employee for the three fiscal years preceding the year in which
employment is terminated, which annual severance pay shall be paid on a monthly
basis during the two years following the termination of employment. If there
shall take place a Change in Control (as defined in Section 7(d)) of the Company
on or before termination of Employment, the Employee shall be entitled to
receive the total severance pay provided for under this Section 7(b) in a single
payment on the date of such Employee's termination, or if a Change in Control
occurs after the date of such Employee's termination, the Employee shall be
entitled to receive the total severance pay remaining to be paid pursuant to
this Section 7(b) in a single payment on the date when a Change in Control
occurs. In the event the independent accountants acting as auditors for the
Company on the date of a Change in Control (or another accounting firm
designated by them) determine that such single payment, together with other
compensation received by the Employee that is a contingent on a Change in
Control, would constitute "excess parachute payments" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended and regulations
thereunder, the single payment to the Employee shall be reduced to the maximum
amount which may be paid without such payments being "excess parachute
payments".
c. Termination in Event of Death or Disability. If the
Employee dies or becomes disabled during the Term, his employment under this
Agreement shall terminate and payments of base salary hereunder shall cease as
of the end of the month in which such event shall occur. For purposes of this
Agreement, the Employee shall be deemed to be disabled if he is unable to
perform his duties hereunder for any period of four consecutive months or for
six months in any twelve-month period. If the Employee's employment is
terminated hereunder pursuant to this Section 7(c), the Employee or Employee's
estate shall be entitled to a bonus payment in an amount equal to the amount
determined by multiplying the bonus which would otherwise have been payable for
the full year by a fraction, the numerator of which is the number of days the
Employee was employed during such fiscal year and the denominator of which is
365. Such bonus shall be payable ninety days after the close of the fiscal year
in which Employee dies or becomes disabled.
d. Termination on Change of Control. By delivering 15 days'
written notice to the Company, Employee may terminate his employment for Good
Reason under this Agreement at any time within one year after a Change in
Control and the Employee shall be entitled to the payments provided under
Section 7(e). "Good Reason" means a change in circumstances described in
(i),(ii),(iii),(iv) or (v):
(i) The Employee's base salary is reduced,
(ii) The Employee is not in good faith considered for a bonus
as described in Section 3b., (iii) The Company fails to
provide customary employee fringe benefits as required by
Section
3c.,
(iv) The Employee's place of employment is relocated to a
location further than 100 miles from Employee's current place of
employment, which is 0000 Xxxxxxxxxx Xxxx Xxxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000, or
(v) The Employee's working conditions or management
responsibilities are substantially diminished (other than on account of
the Employee's disability, as defined in Section 7c).
However, if the Employee consents in writing to a change in circumstance, "Good
Reason" as defined above, will not include the change in circumstance consented
to by the Employee. "Change of Control" means an event described in (i), (ii),
(iii), or (iv):
(i) The acquisition by a Group of Beneficial Ownership of 35%
or more of the Stock or the Voting Power of the Company, but excluding
for this purpose: (A) any acquisition by the Company (or a subsidiary),
or an employee benefit plan of the Company; (B) any acquisition of
Stock of the Company by management employees of the Company; or (C) the
ownership of Stock by a Group that owns 10% or more of the Stock or
Voting Power of the Company on the date of this Agreement; provided,
however, the acquisition of additional Stock by any such Group in an
amount greater than 5% of the then outstanding Stock shall not be
excluded and shall constitute a Change of Control. "Group" means any
individual, entity or group within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Act"), "Beneficial Ownership" has the meaning in Rule 13d-3
promulgated under the Act, "Stock" means the then outstanding shares of
common stock of the Company, and "Voting Power" means the combined
voting power of the outstanding voting securities entitled to vote
generally in the election of directors.
(ii) Individuals who constitute the board of directors of the
Company on the date of this Agreement (the "Incumbent Board") cease to
constitute at least a majority of the board of directors of the Company
(the "Board"), provided that any director whose nomination was approved
by a majority of the Incumbent Board shall be considered a member of
the Incumbent Board unless such individual's initial assumption of
office is in connection with an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Act).
(iii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, in which the
owners of more than 50% of the Stock or Voting Power of the Company do
not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than 50% of the Stock or
Voting Power of the corporation resulting from such reorganization,
merger or consolidation.
(iv) A complete liquidation or dissolution of the Company or
of its sale or other disposition of all or substantially all of the
assets of the Company.
x. Xxxxxxxxx Payments. The Employee shall be entitled to the
severance payment provided in this Section 7(e) in the event (i) the Employee
terminates employment on or after the occurrence of a Change in Control pursuant
to Section 7(d), (ii) the Employee's employment terminates as a result of the
Company's delivery of a Termination Notice, or (iii) the Employee voluntarily
terminates his employment and the Company elects to make severance payments in
order to have the non-competition covenant in Section 6(a) effective. In the
event the Employee is entitled to severance payment pursuant to the foregoing
sentence, the Employee shall receive an annual severance pay equal to the base
salary in effect at the termination of employment plus an amount equal to the
average of the bonuses paid to the Employee for the three fiscal years preceding
the year in which employment is terminated, which annual severance pay shall be
paid on a monthly basis during the two years following the termination of
employment. If there shall take place a Change in Control of the Company on or
before termination of Employment, the Employee shall be entitled to receive the
total severance pay provided for under this Section 7(e) in a single payment on
the date of such Employee's termination, or if a Change in Control occurs after
the date of such Employee's termination, the Employee shall be entitled to
receive the total severance pay remaining to be paid pursuant to this Section
7(e) in a single payment on the date when a Change in Control occurs. In the
event the independent accountants acting as auditors for the Company on the date
of a Change in Control (or another accounting firm designated by them) determine
that such single payment, together with other compensation received by the
Employee that is a contingent on a Change in Control, would constitute "excess
parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended and regulations thereunder, the single payment to the
Employee shall be reduced to the maximum amount which may be paid without such
payments being "excess parachute payments".
8. Vacation. During the Term, the Employee shall be entitled to a
vacation in each calendar year in accordance with the Company's policy during
which vacation his compensation shall be paid in full.
9. Insurance. During the Term, the Company will continue to include the
Employee and his eligible dependents as insureds under its existing insurance
policies on the same terms and conditions and with the same benefits as those in
effect on the date hereof; provided, however, that the forgoing shall not
prohibit the Company from adopting alternative benefit packages and programs so
long as the benefits thereunder, considered in the aggregate, are comparable to
the benefits provided to similarly situated employees of the Company.
10. Notice. All notices, requests, demands and other communications
hereunder shall be in writing and shall be effective upon the mailing thereof by
registered or certified mail, postage prepaid, and addressed as set forth below:
a. If to the Company:
Xxxxxxx Furniture Company, Inc.
Xxxxx 00, X.X. Xxx 00
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: President
b. If to the Employee:
Xxxxx X. Xxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Any party may change the address to which notices are to be addressed
by giving the other party written notice in the manner herein set forth.
11. Waiver of Breach. Waiver by either party of a breach of any
provision of this Agreement by the other shall not operate as a waiver of any
subsequent breach by such other party.
12. Entire Agreement. This Agreement contains the entire agreement of
the parties in this matter and supersedes any other agreement, oral or written,
concerning the employment or compensation of the Employee by the Company. It may
be changed only by an agreement in writing signed by both parties hereto.
13. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia.
14. Benefit. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by and against the Company, its successors
and assigns, and the Employee, his heirs, beneficiaries and legal
representatives.
IN WITNESS WHEREOF, the Employee and the Company have executed this
Agreement as of the day and year above written.
XXXXXXX FURNITURE COMPANY, INC.
By:
Xxxxxx X. Xxxxxxxxx
President
Xxxxx X. Xxxx
