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EXHIBIT 10.14
SUN COAST INDUSTRIES, INC.
Severance Agreement
This Severance Agreement ("Agreement") is made and effective as of the
11th day of October 1995, by and between Sun Coast Industries, Inc., a Delaware
corporation having its principal place of business in Dallas, Dallas County,
Texas (the "Company"), and Arno F. Pirkau, an individual currently residing in
Parrish, Florida ("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 the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below). The Board
believes it is imperative to diminish the inevitable distraction of the
Employee by virtue of the personal uncertainties and risks created by a pending
or threatened Change of Control, to encourage the Employee's full attention and
dedication to the Company currently and in the event of any threatened or
pending Change of Control, and to provide Employee with compensation and
benefit arrangements upon a Change of Control which insures that such
compensation and benefits are competitive with other corporations.
AGREEMENT
Now, therefore, in consideration of Employee's continued employment by
Sun Coast Closures, Inc. ("SCC"), a Florida corporation and wholly-owned
subsidiary of the Company, as well as the promises, covenants and obligations
contained herein, the Company and Employee agree as follows:
1. Payment of Severance Amount. Upon the occurrence of a
Termination Event (as defined in paragraph 2), the Company shall:
(a) pay Employee an amount equal to (i) Employee's Base Annual
Salary (as defined in paragraph 2) multiplied by the Employment Term
Factor (as defined in paragraph 2), (ii) less all principal of any loans
from the Company to Employee, as well as any interest then due thereon,
payable as a lump sum cash payment within 30 days after the date of the
termination constituting such Termination Event (the "Termination
Date"), provided, Employee may elect to have such amount paid in equal
monthly installments over a period not to exceed 13 months;
(b) provide Employee with life, disability and medical
insurance at the level provided at either the date of the Change of
Control (as defined in paragraph 2) or the Termination Date, as Employee
shall in his sole discretion elect by providing written notice thereof
to the Company, for a period of time equal to twelve (12) months
multiplied by the Employment Term Factor (as defined in paragraph 2)
following the Termination Date, or such shorter period until Employee
shall obtain substantially equivalent insurance coverage from a
subsequent employer , if any, in the
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same manner as if Employee's employment had not been terminated until
the end of such period. Employee shall immediately notify the Company
upon obtaining any insurance from a subsequent employer and shall
provide all information required by the Company regarding such insurance
to enable the Company to make a determination of whether such insurance
is substantially equivalent.
(c) for a period of twelve months from and after such
Termination Event, or until such earlier time as the Employee obtains
other employment, provide the Employee with outplacement services of a
firm of Employee's choice.
(d) pay all reasonable legal fees and expenses incurred by
Employee in seeking to obtain or enforce any right or benefit provided
by the Agreement.
2. Definitions.
(a) A "Termination Event" shall be deemed to have occurred if:
(i) SCC or any successor thereto shall terminate
Employee's employment for any reason other than for Cause; or
(ii) The Employee shall voluntarily terminate his
employment with SCC within one (1) year of a Change of Control
for "Good Reason." For purposes of this Agreement, "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 on which a Change
of Control occurs to duties that are, taken as a whole,
inconsistent with Employee's range and duration of
experience; provided, however, that Employee's title,
scope of responsibility and authority may be altered (by
reason of the creation of or filling of offices with the
Company senior to Employee's office or otherwise) without
constituting "Good Reason" so long as Employee's new
duties are not inconsistent with his prior experience;
(B) A reduction in Employee's base salary from
that provided to him immediately prior to the date the
Change of Control occurs;
(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; 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
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of business travel of Employee prior to the most recent
Change of Control).
(b) A "Change of Control" shall be deemed to have occurred if.
(i) individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least fifty-one percent (51%) of the Board,
provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board;
(ii) the stockholders of the Company shall approve a
reorganization, merger or consolidation, in each case, with
respect to which persons who were the stockholders of the Company
immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own more than fifty percent (50%)
of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities, or of a liquidation
or dissolution of the Company or of the sale of all or
substantially all of the assets of the Company;
(iii) the stockholders of the Company shall approve a
sale of all or substantially all of the assets of the Company;
(iv) a stock sale, reorganization, merger or
consolidation of SCC takes place and the Company and/or its
subsidiaries do not, immediately thereafter, own more than 50% of
the combined voting power entitled to vote generally in the
election of directors of the sold, reorganized, merged or
consolidated company's then outstanding voting securities; or
(v) all or substantially all of the assets of SCC are
sold.
(c) "Employment Term Factor" is equal to (i) the sum of (a)
twelve plus (b) the number of years' service Employee has with the
Company (ii) divided by twelve. In no event will the Employment Term
Factor exceed three (3.0).
(d) "Base Annual Salary" shall, as determined on the
Termination Date, be equal to the greater of (i) Employee's annual
salary on the date of the earliest Change of Control to occur during the
eighteen month period prior to the Termination Date plus any bonuses or
special incentive payments received in the twelve months prior to such
Change of Control or (ii) Employee's annual salary on the Termination
Date plus any bonuses or special incentive payments received in the
prior twelve months.
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(e) "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 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 you by the Chief Executive
Officer of the Company or the Board of Directors, which specifically
identifies the manner in which such officer or the Board of Directors
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 of Directors, after reasonable
notice to Employee and an opportunity for Employee, together with
Employee's counsel, to be heard before the Board of Directors, 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.
3. Parachute Payment Limitations. Any other provision of this
Agreement to the contrary notwithstanding, if the total amount of payments and
benefits to be paid or provided to Employee under this Agreement which are
considered to be "parachute payments" within the meaning of Section 28OG of the
Internal Revenue Code of 1986, as amended (the "Code"), when added to any other
such "parachute payments" received by Employee from the Company or from a
member of the Company's affiliated group (as provided in Code Section
28OG(d)(5)), whether or not under this Agreement, are in excess of the amount
Employee can receive without causing the Company to lose its deduction with
respect to all or any portion of such total amount on account of Code Section
280G, the amount of payments and benefits to be paid or provided to Employee
under this Agreement which are parachute payments shall be reduced to the
highest amount which will not cause the Company to lose its deduction with
respect to any such payments and benefits on account of Code Section 280G.
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
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If to Employee to: Arno F. Pirkau
2945 Wilderness Boulevard East
Parrish, Florida 34219
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 all purposes by, the laws of the State of Texas.
6. Severability. If a court of competent jurisdiction determines
that any provision of this 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.
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
foregoing, Employee's right to receive payments hereunder shall not be
assignable or transferable, whether by pledge, creation of a security
interest or otherwise, other than a transfer by his 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) assigns this
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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 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.
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/ ARNO F. PIRKAU
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Arno F. Pirkau
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