1
Exhibit 10.56
JPS Industries, Inc.
555 North Pleasantburg Drive, Suite 202
Greenville, South Carolina 29607
May 31, 2000
Mr. Charles R. Tutterow
18315 Invergorden Lane
Cornelius, NC 28031
Dear Mr. Tutterow:
We are writing with respect to your employment by JPS Industries, Inc.
(the "Company") as follows:
1. Employment. The Company agrees to employ you, and you agree to
be employed by the Company, commencing on June 1, 2000 (the "Effective Date")
and ending on May 31, 2002 (unless sooner terminated as hereinafter provided)
(the "Employment Period"), on the terms and subject to the conditions set forth
in this Agreement (the "Agreement").
2. Duties. (a) For the duration of the Employment Period, you
shall be employed as Executive Vice President and Chief Financial Officer of the
Company. In such capacities, you shall serve as one of the senior executive
officers of the Company and shall have the duties and responsibilities
prescribed for your position by the By-laws of the Company, and shall have such
other duties and responsibilities as may from time to time be prescribed by the
Chief Executive Officer and are customarily performed by someone in your
position, including, without limitation, general management and supervision of
your staff and general responsibility for the financial affairs of the Company.
In the performance of your duties, you shall be subject to the supervision and
direction of the Chief Executive Officer.
(b) Subject to the terms of your employment hereunder,
you shall devote your full business time to the performance of your duties and
responsibilities as Executive Vice President and Chief Financial Officer of the
Company (with reasonable allowance to be made for civic, charitable and industry
obligations and endeavors, including membership on no more than two (2) business
corporation boards of directors; provided, however, that any such civic,
charitable and industry obligations and endeavors shall not, individually or in
the aggregate, interfere with the proper performance of your duties to the
Company or otherwise violate the Agreement (including, without limitation,
paragraph 9 hereof)). You hereby represent and warrant to the Company that you
have no obligations under any existing employment or service agreement that
conflicts with any of your obligations to the Company under this Agreement.
3. Compensation.
(a) (i) Base Salary. During the Employment Period,
the Company shall pay you, and you shall accept from the Company for your
services, a salary at an initial rate of
2
Mr. Charles R. Tutterow
May 31, 2000
Page 2
$200,000 per annum, subject to increase at the discretion of the Chief Executive
Officer and the Compensation Committee (the "Base Salary"), payable in
accordance with the Company's policy with respect to the compensation of
executives. Your Base Salary will not be decreased during the Employment Period.
(ii) Bonus. In addition to your Base Salary,
unless you voluntarily terminate your employment for other than Good Reason (as
hereinafter defined), or are terminated by the Company for Cause in accordance
with the requirements of paragraph 7(c) hereof (as hereinafter defined), you
will be eligible to participate in the Company's 2000 Management Incentive Bonus
Plan (the "2000 Bonus Plan") and receive a bonus (the "Incentive Bonus") based
upon the attainment of the performance goals specified therein in an amount
calculated by the Board (or its designee) which shall be not less than 50% of
your Base Salary ($100,000) and shall not exceed 200% of your Base Salary
($400,000) (it being agreed that for the period commencing on the Effective Date
and ending on October 31, 2000, the minimum amount of Incentive Bonus which you
shall receive shall be $75,000). Said performance goals and measures of their
attainment shall be on the same basis as for the Chief Executive Officer of the
Company. The Board shall establish a performance-based annual bonus program for
senior executives of the Company including you for future fiscal years (a
"Future Bonus Plan") and award you an annual bonus opportunity thereunder which
is not less favorable than the opportunity provided pursuant to the 2000 Bonus
Plan (i.e., at least 50% of your Base Salary and not more than 200% of your Base
Salary) without restricting the discretion of the Board to set reasonable
targets and criteria for such incentive compensation. Any bonus plan payment
that is to be made for the 2001 fiscal year, shall be made to you on or before
January 31, 2002.
(iii) Stock Options. The Compensation Committee of
the Board has granted you stock options (the "Options") under the Company's 1997
Incentive and Capital Accumulation Plan, as amended (the "1997 Incentive Plan")
in accordance with the terms of such Options as set forth in a grant letter
entered into pursuant to the 1997 Incentive Plan.
(iv) Relocation Expenses. In addition to your
Base Salary, the Company will reimburse you for the normal expenses incurred by
you in the sale and purchase of your homes, as well as the cost of packing and
moving your household goods, to the extent that said expenses are incurred no
later than May 31, 2001, and will pay you the additional income required to
"gross up" those reimbursements for income tax purposes.
(b) Reimbursement of Expenses. During the Employment
Period, you will be entitled to receive prompt reimbursement for all reasonable
expenses incurred by you in performing your services hereunder in accordance
with the policies and procedures of the Company as in effect from time to time
for senior executives; provided, however that you properly account therefor in
accordance with Company policy. In addition, during the Employment Period, and,
in the case of clause (i) below, until such time as you have
3
Mr. Charles R. Tutterow
May 31, 2000
Page 3
permanently relocated your principal residence to the Greenville, South Carolina
area, you will be entitled to receive prompt reimbursement for (i) commutation
expenses between Cornelius, North Carolina and Greenville, South Carolina and
lodging and meals in Greenville for up to six (6) months and (ii) air travel on
behalf of the Company, which may be first class for flights with a scheduled
duration of three (3) hours or longer.
4. Vacations. During your employment, you shall be entitled to
reasonable vacations (of not less than four (4) weeks per year) from time to
time, consistent with the needs of the Company's business and in accordance with
the regular procedures of the Company governing senior executives. You shall
also be entitled to all paid holidays given by the Company to its senior
executives.
5. Participation in Health and Benefit Plans. You (and, with
respect to the Company's medical and dental plans, your spouse and dependents,
if any, at a future date) shall be entitled to participate in and to receive
benefits under all the Company's medical, dental and other employee benefit
plans and arrangements in effect on the date hereof, and you shall also be
entitled to participate in or receive benefits under any pension or retirement
plan, savings plan, or health-and-accident plan made available by the Company in
the future to its senior executives and other key management employees.
Participation in all of said benefits is subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements and provided that you meet the eligibility requirements thereof.
6. Other Offices. You hereby acknowledge and agree that a portion
of your business time will be devoted to the affairs of the subsidiaries and
affiliates of the Company and that, if requested by the Board, during the
Employment Period you will serve as an officer and/or a director of any such
subsidiary or affiliate, all without additional compensation from the Company.
7. Termination.
(a) Death. Your employment hereunder shall terminate upon
your death.
(b) Disability. In the event of your permanent disability
(as hereinafter defined) during the Employment Period, the Company shall have
the right, upon written notice to you, to terminate your employment hereunder,
effective upon the giving of such notice. For the purposes hereof, "permanent
disability" shall be defined as any physical or mental disability or incapacity
which renders you, even with reasonable accommodation, incapable of fully
performing the services required of you in accordance with your obligations
hereunder for a period of 150 consecutive days or for shorter periods
aggregating 150 days during any period of twelve (12) consecutive months.
4
Mr. Charles R. Tutterow
May 31, 2000
Page 4
(c) Cause. The Company may terminate your employment
hereunder for "Cause." For purposes hereof, termination for "Cause" shall mean
termination after one or more of the following occurrences (with the Chief
Executive Officer to first make a determination as to whether any such matter
has occurred):
(i) your willful breach of any of the provisions
of paragraph 9 hereof;
(ii) your commission of an intentional act of
fraud, embezzlement or theft or a material dishonest act against the Company or
its affiliates;
(iii) your conviction of (or pleading by you of
nolo contendere to) any crime which constitutes a felony or misdemeanor
involving moral turpitude or which might, in the reasonable opinion of the
Company, cause embarrassment to the Company; or
(iv) your gross neglect of (or willful failure by
you to perform) your duties and responsibilities in all material respects as set
forth in paragraph 2 hereof, if such breach of duty is not cured within 30 days
after written notice thereof to you by the Board.
For purposes of clause (iv), no act, or failure to act, on your part shall be
deemed "willful" unless done, or omitted to be done, by you in bad faith and
without reasonable belief that your action, or failure to act, was in the best
interest of the Company.
(d) Termination by You. You may terminate your employment
hereunder for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean (A) any material diminution of your duties or status from that provided for
in, or any material limitation of your powers in any respect not contemplated
by, paragraph 2 hereof; provided, however that you first deliver written notice
thereof to the Chief Executive Officer and the Company shall have failed to cure
such diminution or limitation within thirty (30) days after receipt of such
written notice; or (B) any material failure by the Company to comply with
paragraphs 3 through 5 hereof; provided, however that you first deliver written
notice thereof to the Chief Executive Officer and the Company shall have failed
to cure such failure within ten (10) days after receipt of such written notice;
or (C) your election to terminate your employment following a Change in Control
(as hereinafter defined); provided, however that you first deliver written
notice thereof to the Chief Executive Officer; or (D) reduction in your Base
Salary or target bonus participation level (50%); or (E) you are required to
perform your services hereunder on a regular basis at a location more than sixty
(60) miles from the Greenville, South Carolina, headquarters of the Company.
For purposes of this Agreement, a "Change in Control" means the occurrence of
any one of the following events following the Effective Date: (a) any person or
other entity (other than any of the Company's wholly owned subsidiaries),
including any person as defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), becoming the
5
Mr. Charles R. Tutterow
May 31, 2000
Page 5
beneficial owner, as defined in Rule 13d-3 of the Exchange Act, directly or
indirectly, of more than fifty percent (50%) of the total combined voting power
of all classes of capital stock of the Company ordinarily entitled to vote for
the election of directors of the Company, (b) the sale of all or substantially
all of the property or assets of the Company (other than a sale to any one or
more of the Company's wholly owned subsidiaries), (c) the consolidation or
merger of the Company with another corporation (other than with any of the
Company's wholly owned subsidiaries or in which the Company is the surviving
corporation), the consummation of which would result in the shareholders of the
Company immediately before the occurrence of the consolidation or merger owning,
in the aggregate, less than 50% of the voting stock of the surviving entity
immediately following the occurrence of such consolidation or merger, or (d) a
change in the Board occurring with the result that the members of the Board on
the Effective Date (the "Incumbent Directors") no longer constitute a majority
of such Board; provided, however that any person becoming a director whose
election or nomination for election was supported by a majority of the Incumbent
Directors (other than you if you are a Director) shall be considered an
Incumbent Director for purposes hereof; provided, further, however that the
sale, spinoff or similar separation from the Company by whatever means of the
Company's Apparel Division shall not constitute a Change in Control hereunder.
(e) Notice. Any termination by the Company pursuant to
paragraphs 7(b) or 7(c) above or by you pursuant to paragraph 7(d) above shall
be communicated by written Notice of Termination to the other party hereto. For
the purposes hereof, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provision so
indicated.
(f) Date of Termination. "Date of Termination" shall mean
(i) if your employment is terminated by your death, the date of your death, and
(ii) if your employment is terminated for any other reason, the date on which a
Notice of Termination is given.
8. Compensation Upon Termination of Employment or During
Disability. Subject to paragraph 8(e) below:
(a) Death. If your employment shall be terminated by
reason of your death, the Company shall pay, to such person as you shall
designate in a notice filed with the Company, or, if no such person shall be
designated, to your estate the sum of (i) an amount equal to any accrued but
unpaid Base Salary at the time of your death and (ii) an amount equal to any
accrued but unpaid bonus under the 2000 Bonus Plan or any bonus payable pursuant
to any Future Bonus Plans, to the extent earned but not paid with respect to any
year prior to the year in which your death occurs. In addition, provided that
the performance goals established under the applicable program are met, the
Company shall, at such time, pay to such payee a pro rata portion (based on the
number of days worked) of the bonus payable under the 2000 Bonus Plan or any
Future
6
Mr. Charles R. Tutterow
May 31, 2000
Page 6
Bonus Plan in effect for the year in which your death occurs. Furthermore, all
stock options that are vested in accordance with the terms of the 1997 Incentive
Plan and related grant letter(s) controlling such stock options (including,
without limitation, the options described in paragraph 3(a)(iii) above), shall
remain exercisable for one year from the date of your death and your
beneficiaries shall receive such additional benefits as may be provided by the
then existing plans, programs and/or arrangements of the Company. This amount
and these benefits shall be exclusive of and in addition to any payments your
widow, beneficiaries or estate may be entitled to receive pursuant to any
pension or employee benefit plan maintained by the Company. Your designated
beneficiary or the executor of your estate, as the case may be, shall accept the
payment provided for in this paragraph 8 in full discharge and release of the
Company of and from any further obligations under this Agreement.
(b) Disability. During any period that you fail to
perform your duties hereunder as a result of incapacity due to physical or
mental illness, you shall continue to receive your full Base Salary until your
employment is terminated pursuant to paragraph 7(b) hereof. If your employment
is terminated by the Company pursuant to paragraph 7(b), the Company shall pay
any accrued but unpaid bonus under the 2000 Bonus Plan or any bonus payable
pursuant to any Future Bonus Plans, to the extent earned but not paid with
respect to any year prior to the year in which your disability occurs. In
addition, provided that the performance goals established under the applicable
program are met, the Company shall, at such time, pay to you a pro rata portion
(based on the number of days worked) of the bonus payable under the 2000 Bonus
Plan or any Future Bonus Plan in effect for the year in which your disability
occurs. Furthermore, you shall retain all stock options that are vested in
accordance with the terms of the 1997 Incentive Plan and related grant letter(s)
controlling such stock options (including, without limitation, the options
described in paragraph 3(a)(iii) above), with such options remaining exercisable
for one year from the date of your disability and you shall receive such
additional benefits as may be provided by the then existing plans, programs
and/or arrangements of the Company. During any such period and thereafter you
shall continue to be subject to the obligations provided for in paragraph 9
below in accordance with the terms of such paragraph 9.
(c) Cause or Other Than Good Reason. If your employment
shall be terminated for Cause or you shall terminate your employment other than
for Good Reason, the Company shall be discharged and released of and from any
further obligations under this Agreement except for any accrued and unpaid Base
Salary through the Date of Termination. Thereafter you shall continue to have
the obligations provided for in paragraph 9 below. Nothing contained herein
shall be deemed to be a waiver by the Company of any rights that it may have
against you in respect of your actions which gave rise to the termination of
your employment for Cause or for any reason other than for Good Reason.
7
Mr. Charles R. Tutterow
May 31, 2000
Page 7
(d) Other Than for Cause or For Good Reason. If the
Company shall terminate your employment other than pursuant to paragraphs 7(b)
or 7(c) hereof or if you shall terminate your employment for Good Reason
pursuant to paragraph 7(d) hereof, then:
(i) The Company shall continue to pay you your
Base Salary without interest for one year from the Date of Termination, in
accordance with normal payroll practices; provided, however, that in the event
of your death prior to the expiration of payment hereunder, your estate or your
beneficiary shall have the right to elect to receive the remaining amount
hereunder in a lump sum payment; and provided, further, that if you shall
terminate your employment by reason of a Change in Control pursuant to clause
(C) of paragraph 7(d) hereof or if you terminate your employment for Good Reason
based on the Company's breach (and failure to cure such breach within the ten
(10) day cure period) of paragraphs 3 through 5 hereof, you shall have the
option to require the Company to pay you the full amount required by this
paragraph 8(d)(i) in one lump sum on the business day immediately following the
Date of Termination;
(ii) The Company shall continue to pay you, at
the same time payable to other participants in the 2000 Bonus Plan or any Future
Bonus Plan, an amount equal to the sum of (A) any bonus earned as of the Date of
Termination under the 2000 Bonus Plan or any Future Bonus Plan for a fiscal year
ending prior to the Date of Termination but not paid as of such date, (B) a pro
rata portion (based on the number of days worked) of the target bonus payable
under the 2000 Bonus Plan (which target shall be 50% of your Base Salary
($100,000)) or any Future Bonus Plan in effect for the fiscal year in which your
Date of Termination occurs (determined without regard to whether the performance
goals established under the applicable program are met) and (C) an amount equal
to your target bonus (which target shall be 50% of your Base Salary ($100,000))
under the 2000 Bonus Plan or any Future Bonus Plan in effect for the fiscal year
in which your Date of Termination occurs (determined without regard to whether
the performance goals established under the applicable program are met),
multiplied by the greater of (x) the number (not in excess of 2) of years and
fractions of years remaining in the Employment Period or (y) one; provided,
however, that if you shall terminate your employment by reason of a Change in
Control pursuant to clause (C) of paragraph 7(d) hereof or if you terminate your
employment for Good Reason based on the Company's breach (and failure to cure
such breach within the ten (10) day cure period) of paragraphs 3 through 5
hereof, you shall have the option to require the Company to pay you the full
amount required by this paragraph 8(d)(ii) in one lump sum on the business day
immediately following the Date of Termination;
(iii) You shall immediately become fully vested in
any stock options previously granted to you hereunder or otherwise, with such
options remaining exercisable for one year from the date of your termination of
employment; and
8
Mr. Charles R. Tutterow
May 31, 2000
Page 8
(iv) The Company shall maintain in full force and
effect, for your continued benefit through the later of (A) May 31, 2002 or (B)
one year from the Date of Termination, all employee benefit plans and programs
providing medical, dental and/or life insurance benefits in which you (and, in
the case of medical and dental insurance, your spouse and any future dependents)
were entitled to participate immediately prior to the Date of Termination;
provided, however that your continued participation is possible under the
general terms and provisions of such plans and programs. In the event that your
participation in any such plan or program is barred, the Company shall provide
you (and your spouse) with comparable benefits under a mirror benefit plan.
Notwithstanding the above, if you are employed by a new employer and you (and
your spouse) are eligible to and have elected to receive comparable coverage
from such employer (including the waiver of any pre-existing condition
limitation) at a comparable cost to you, you shall no longer be eligible to
receive coverage under this paragraph.
(e) Parachute Payment. Notwithstanding anything herein to
the contrary, if any of the payments or benefits received or to be received by
you in connection with a Change in Control or your termination of employment
(whether such payments or benefits are provided 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 in Control or any person affiliated with
the Company or such person) (such payments or benefits being hereinafter
referred to as the "Total Payments") would be subject to the excise tax (the
"Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code"), then the payments under this paragraph 8 hereof shall
be reduced (by the minimal amount necessary) so that no portion of the Total
Payments is subject to the Excise Tax.
For purposes of determining whether any of the Total Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments
shall be treated as "parachute payments" (within the meaning of Section
280G(b)(2) of the Code) unless, in the opinion of tax counsel (the "Tax
Counsel") selected by the Company and reasonably acceptable by you, such
payments or benefits (in whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the "base amount" (as defined in Section
280G(b)(3) of the Code) allocable to such payment, or are otherwise not subject
to the Excise Tax, and (iii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by Tax Counsel in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
9
Mr. Charles R. Tutterow
May 31, 2000
Page 9
9. Restrictive Covenants and Confidentiality; Injunctive Relief.
(a) You agree, as a condition to the performance by the
Company of its obligations hereunder, particularly its obligations under
paragraphs 3 through 5 hereof, that from the Effective Date through May 31, 2002
and during the additional period, if any, extending until the due date of the
final payment owed to you by the Company following any termination of your
employment by the Company other than pursuant to paragraphs 7(b) or 7(c) hereof
or by you for Good Reason pursuant to paragraph 7(d) hereof (but without regard
to any election by you to take any such payment in a lump sum), and, with
respect to clauses (i) and (ii) below but not clause (iii) below, during the
further period of six (6) months following May 31, 2002 or the end of any such
additional period, you shall not, without the prior written approval of the
Board, directly or indirectly through any other person, firm or corporation:
(i) Solicit, raid, entice or induce any person,
firm or corporation that presently is or at any time during the term of your
employment hereunder shall be a customer of the Company, or any wholly owned
subsidiaries, to become a customer of any other person, firm or corporation, and
you shall not approach any such person, firm or corporation for such purpose or
authorize or knowingly approve the taking of such actions by any other person;
(ii) Solicit, raid, entice or induce any person
that presently is or at any time during the term of your employment hereunder
shall be an employee of the Company, or any wholly owned subsidiaries, to become
employed by any person, firm or corporation, and you shall not approach any such
employee for such purpose or authorize or knowingly approve the taking of such
actions by any other person; or
(iii) Engage, participate, make any financial
investment in, or become employed by any person, firm, corporation or other
business enterprise in the United States which is engaged, directly or
indirectly, during the Employment Period or at the time of the termination of
your employment, as the case may be, which (x) engages in the sale of products
substantially the same as the products of the Company and/or any of its
subsidiary companies or (y) has substantially the same customer base for the
same products as the Company and/or any of its subsidiary companies. The
foregoing covenant shall not be construed to preclude you from making any
investments in the securities of any company, whether or not engaged in
competition with the Company and/or any of its subsidiary companies, to the
extent that such securities are actively traded on a national securities
exchange or in the over-the-counter market in the United States or any foreign
securities exchange and, after giving effect to such investment, you do not
beneficially own securities representing more than 5% of the combined voting
power of the voting securities of such company; provided, however that nothing
contained in this clause (iii) shall preclude you from continuing to own any
securities that you own as of the date hereof.
10
Mr. Charles R. Tutterow
May 31, 2000
Page 10
(b) Recognizing that the knowledge, information and
relationship with customers, suppliers, and agents, and the knowledge of the
Company's and its subsidiary companies' business methods, systems, plans and
policies which you shall hereafter establish, receive or obtain as an employee
of the Company or its subsidiary companies, are valuable and unique assets of
the respective businesses of the Company and its subsidiary companies, you agree
that, during and after the term of your employment hereunder, you shall not
(otherwise than pursuant to your duties hereunder) disclose or use, without the
prior written approval of the Board, any such knowledge or information
pertaining to the Company or any of its subsidiary companies, their business,
personnel or policies, to any person, firm, corporation or other entity, for any
reason or purpose whatsoever. The provisions of this paragraph 9 shall not apply
to information which is or shall become generally known to the public or the
trade (except by reason of your breach of your obligations hereunder),
information which is or shall become available in trade or other publications,
information known to you prior to entering the employ of the Company, and
information which you are required to disclose by law or an order of a court of
competent jurisdiction (provided that prior to your disclosure of any such
information you shall provide the Company with reasonable notice and a
reasonable opportunity to seek a protective order to prevent such disclosure).
(c) The provisions of paragraphs 9(a) and 9(b) above
shall survive the termination of your employment hereunder, to the extent
provided therein.
(d) You acknowledge that the services to be rendered by
you are of a special, unique and extraordinary character and, in connection with
such services, you will have access to confidential information vital to the
Company's and its subsidiary companies' businesses. By reason of this, you
consent and agree that if you violate any of the provisions of this Agreement
with respect to diversion of the Company's or its subsidiary companies'
customers or employees, non-competition or confidentiality, the Company and its
subsidiary companies would sustain irreparable harm and, therefore, in addition
to any other remedies which the Company may have under this Agreement or
otherwise, the Company shall be entitled to an injunction restraining you from
committing or continuing any such violation of this Agreement.
10. Deductions and Withholdings. The Company shall be entitled to
withhold any amounts payable under this Agreement on account of payroll taxes
and similar matters as are required by applicable law, rule or regulation of
appropriate governmental authorities.
11. Successors; Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to you, to expressly assume and agree
to perform this Agreement in the same manner and to the same
11
Mr. Charles R. Tutterow
May 31, 2000
Page 11
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle you to compensation from the Company in the same amount and on the
same terms as you would be entitled to hereunder if you terminated your
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall
include any successor to the Company's business and/or assets as aforesaid which
executes and delivers the agreement provided for in this paragraph 11 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all your rights hereunder shall
inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If you should die while any amounts would still be
payable to you hereunder if you had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to your devisee, legatee, or other designee or, if there be no such
designee, to your estate. Your obligations hereunder may not be delegated, and
except as otherwise provided herein relating to the designation of a devisee,
legatee or other designee, you may not assign, transfer, pledge, encumber,
hypothecate or otherwise dispose of this Agreement or any of your rights
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect.
12. Notice. For purposes of this Agreement, notices and all other
communications provided for shall be in writing and shall be deemed to have been
duly given when delivered or mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to you:
Charles R. Tutterow
18315 Invergorden LN
Cornelius, NC 28031
If to the Company:
JPS Industries, Inc.
555 North Pleasantburg Drive, Suite 202
Greenville, South Carolina 29607
Attention: Board of Directors
12
Mr. Charles R. Tutterow
May 31, 2000
Page 12
with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
ATTN: James H. Landon
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by you and by the Company. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement constitutes the
complete understanding between the parties with respect to your employment and
supersedes any other prior oral or written agreements, arrangements or
understandings between you and the Company. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. This Agreement may not be changed or terminated orally but only by an
agreement in writing signed by the parties hereto. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of South Carolina.
14. Arbitration. All differences, claims or matters in dispute
arising out of this Agreement, the breach hereof or otherwise arising between
the Company or any of its affiliates and you shall, at the election of either
party, by notice to the other, be submitted to arbitration by the American
Arbitration Association or its successor, in Greenville, South Carolina. Such
arbitration shall be governed by the then existing rules of the American
Arbitration Association and the laws of the State of South Carolina as then in
effect. The expenses, including your reasonable attorneys' fees, in connection
with such arbitration shall be borne by the Company.
15. Validity; Effectiveness. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
16. 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 instrument.
13
Mr. Charles R. Tutterow
May 31, 2000
Page 13
If the foregoing is satisfactory, please so indicate by signing and
returning to the Company the enclosed copy of this letter whereupon this will
constitute our agreement on the subject.
JPS INDUSTRIES, INC.
By: /s/
----------------------------------
President
ACCEPTED AND AGREED TO:
/s/ Charles R. Tutterow
- ---------------------------
Charles R. Tutterow