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EXHIBIT 10.1
SUN COAST INDUSTRIES, INC.
Retention Bonus Agreement
This Retention Bonus Agreement ("Agreement") is made and effective as
of the 11th day of March, 1996, by and between Sun Coast Industries, Inc., a
Delaware corporation having its principal place and business in Dallas, Dallas
County, Texas (the "Company"), and Cynthia R. Morris, an individual currently
residing in Dallas, Texas ("Employee").
RECITALS
The Board of Directors of the Company (the "Board") has determined
that it is in the best interest of the Company to assure that the Company will
have the continued dedication of Employee, following the resignation of R.
Carter Pate as President and Chief Executive Officer and during the transition
to a new Chief Executive Officer. The Board believes it is imperative to
encourage the Employee's full attention and dedication to the Company
currently.
AGREEMENT
Now, therefore, in consideration of Employee's continued employment by
the Company, as well as the promises, covenants and obligations contained
herein, the Company and Employee, intending to be legally bound hereby, agree
as follows:
1. Payment of Retention Bonus Amount. The Company shall pay
Employee, as additional compensation, $225,000 (the "Retention Bonus") on the
earliest to occur of the following:
(a) September 30, 1996, if the Employee is then employed
by the Company;
(b) the date on which the Employee's employment is
terminated by the Company other than for Cause; or
(c) the date on which the Employee's employment is
terminated by the Employee for Good Reason.
If at the time a Retention Bonus is payable hereunder, the Employee has
received payment of the Severance Amount pursuant to the Severance Agreement
dated as of August 8, 1995, the amount of the Retention Bonus payable hereunder
shall be reduced, but not below zero, by the Severance Amount so paid.
2. Definitions. As used in this Agreement:
"Cause" as used herein with respect to termination of
Employee's employment shall mean termination upon (A) the willful and continued
failure by Employee to substantially perform
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Employee's duties with the Company (other than any such failure resulting from
Employee's incapacity due to physical or mental illness), after a demand for
substantial performance is delivered to the Employee by the Chief Executive
Officer of the Company or the Board, which specifically identifies the manner
in which such officer or the Board believes that Employee has not substantially
performed Employee's duties, or (B) the willful engaging by Employee in
misconduct which is materially injurious to the Company, monetarily or
otherwise. For purposes of this paragraph, no act, or failure to act, on
Employee's part shall be considered "willful" unless done, or omitted to be
done, by Employee not in good faith and without reasonable belief that
Employee's action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to
Employee a copy of a notice of termination from the Chief Executive Officer of
the Company or the Board, after reasonable notice to Employee and an
opportunity for Employee, together with Employee's counsel, to be heard before
the Board, finding that, in the good faith opinion of the Board, Employee was
guilty of conduct set forth above in clauses (A) or (B) of the first sentence
of this subparagraph and specifying the particulars thereof in detail.
"Good Reason" shall mean any of the following (without
Employee's express written consent):
(A) A significant and material change in the
nature or scope of the Employee's duties from those engaged in
immediately prior to the date of this Agreement to duties that
are, taken as a whole, inconsistent with Employee's range and
duration of experience;
(B) A reduction in Employee's base salary from
that provided to her immediately prior to the date of this
Agreement;
(C) A diminution in Employee's eligibility to
participate in bonus, stock option or other incentive
compensation plans or employee benefit plans (including
medical, dental, life insurance and long-term disability
plans) provided for executives with comparable duties,
provided the Retention Bonus shall be considered to be in lieu
of any bonus that would otherwise be considered with respect
to Employee for the Company's fiscal year 1996; and
(D) Any required relocation of Employee of more
than thirty miles from Employee's the current location
(including any required business travel in excess of the
greater of 90 days per year or the level of business travel of
Employee prior to the date of this Agreement).
3. Consultation and Cooperation. In consideration of the
Retention Bonus, and without further consideration but subject to reimbursement
of the Employee's reasonable expenses, Employee agrees that if Employee elects
to resign without Good Reason after the payment of the Retention Bonus, the
Company for the six-month period following such resignation may request that
Employee consult and cooperate with it, and Employee agrees to be
available at mutually agreeable
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times, personally or by telephone, as necessary, at reasonable times and
without unreasonable interference with Employee's new employment or personal
activities, to consult and provide such information as may from time to time be
reasonably requested by the Company in connection with various business matters
in which Employee was involved during Employee's active employment with the
Company, or about which Employee has knowledge.
4. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to:
Sun Coast Industries, Inc.
2700 South Westmoreland
Dallas, Texas 75233
Attention: Chairman of the Board
If to Employee to:
Cynthia R. Morris
11031 Hillcrest Road
Dallas, Texas 75230
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
5. Applicable Law. This contract is entered into under, and shall
be governed for al purposes by, the laws of the State of Texas.
6. Severability. If a court of competent jurisdiction determines
that any provision of Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the validity
or enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
8. Withholding of Taxes. Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
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9. No Employment Agreement. Nothing in this Agreement shall give
employee any rights (or impose any obligations) to continued employment by the
Company or any subsidiary thereof or successor thereto, nor shall it give the
Company any rights (or impose any obligations) with respect to continued
performance of duties by Employee for the Company or any subsidiary thereof or
successor thereto.
10. Assignment.
(a) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign or transfer
this Agreement or any rights or obligations hereunder, except as provided in
the remainder of this paragraph 10. Without limiting the Employee's right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, or other than a transfer
by her will or by the laws of descent or distribution, and in the event of any
attempted assignment or transfer contrary to this paragraph 10 the Company
shall have no liability to pay any amount so attempted to be assigned or
transferred. This Agreement shall inure to the benefit of and be enforceable
by Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(b) The Company may: (x) as long as it remains obligated
with respect to this Agreement, cause its obligations hereunder to be performed
by a subsidiary or subsidiaries for which Employee performs services, in whole
or in part; (y) assign this Agreement and its rights hereunder in whole, but
not in part, to any corporation with or into which it may hereafter merge or
consolidate or to which it may transfer all or substantially all of its
assets, if said corporation shall by operation of law or expressly in writing
assume all liabilities of the Company hereunder as fully as if it has been
originally named the Company herein (but such assignment shall not release the
Company from its obligations hereunder); but may not otherwise assign this
Agreement or its rights hereunder. Subject to the foregoing, this Agreement
shall inure to the benefit of and be enforceable by the Company's successors
and assigns.
11. Modifications. This Agreement shall not be varied, altered,
modified, canceled, changed or in any way amended except by mutual agreement of
the parties in a written instrument executed by the parties hereto or their
legal representatives.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first above written.
SUN COAST INDUSTRIES, INC.
By:/s/ STEPHEN P. SMILEY
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Stephen P. Smiley,
Chairman of the Board
EMPLOYEE
/s/ CYNTHIA R. MORRIS
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Cynthia R. Morris
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