Employment Agreement - Collins & Aikman Corp. and Andrew Major
AMENDMENT, dated as of May 19, 1994 to AGREEMENT dated as of February
1, 1992 (the "Agreement") between Collins & Aikman Corporation (the "Company")
and Andrew Major ("Employee").
WHEREAS, the Company and Employee desire to amend the Agreement as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto hereby agree as follows:
1. Section 1 of the Agreement is hereby amended to read in its entirety
as follows:
"1. Term of Employment. The Company hereby agrees to employ Employee
and Employee hereby accepts employment for a period commencing February 1,
1992 and ending June 1, 1994 (the "Retirement Date"), subject to the terms
and conditions of this Agreement. The termination of Employee's employment
with the Company on the Retirement Date shall constitute a voluntary
retirement by Employee."
2. The heading of Section 3 of the Agreement is hereby amended to read in
its entirety as follows:
"3. Salary and Bonus Plan".
3. Section 3.2 of the Agreement is hereby amended to replace the words
"fiscal years 1993 and 1994" in the second sentence thereof with the words
"fiscal year 1993" and to delete the words "and 1994" in the third sentence
thereof.
4. Section 3.3 of the Agreement is hereby deleted.
5. Sections 6.1 and 6.2 of the Agreement are hereby deleted, any
references to such Sections are hereby deleted, and Section 6 of the Agreement
is hereby amended to read in its entirety as follows:
"6. Severance Amount. If Employee's employment with the Company ends
on the Retirement Date, the Company shall pay Employee the amount of
$325,000 (the "Severance Amount") on a periodic basis during the year
following his Retirement Date in accordance with normal pay practice.
Payment of the Severance Amount shall be in lieu of any severance or bonus
policy of the Company or any of its affiliates and Employee shall be
entitled to no severance or bonus other than the Severance Amount."
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6. Section 7.2(b) of the Agreement is hereby amended to read in its
entirety as follows:
"(b) For good and valuable consideration, Employee agrees that until
September 1, 1994, he shall not engage, or enter into an agreement or
understanding to engage, directly or indirectly, in any business activity
that is competitive with any business of the Company or any of its
subsidiaries. Without limiting the generality of the foregoing, Employee
shall not while he is employed hereunder and until September 1, 1994
compete with the Company in any way whatsoever or directly or indirectly
(whether for compensation or otherwise), alone or as an agent, principal,
partner, officer, employee, trustee, director, shareholder or in any other
capacity, own, manage, operate, join, control or participate in the
ownership, management, operation or control of, or furnish any capital to,
or be connected in any manner with or provide any services as a consultant
for, any business which competes with the business of the Company or its
subsidiaries as it may be conducted from time to time. In addition, prior
to September 1, 1994, Employee shall not, directly or indirectly, publicly
announce or make known any intention to engage in any such activity in the
future."
7. Section 7 of the Agreement is hereby amended to add the following at
the end thereof:
"7.4 Cooperation. During his employment and at any time thereafter,
Employee shall promptly notify the Company of any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative ("Proceeding"), in which he may
be involved, whether as an actual or potential party or witness or
otherwise, or with respect to which he may receive requests for
information, by reason of his future, present or past association with the
Company or any affiliate of the Company. Employee shall cooperate fully
with the Company and any affiliate of the Company in connection with any
Proceeding at no expense to the Company or any affiliate of the Company
other than the reimbursement of Employee's reasonable out-of-pocket
expenses. Employee shall not disclose any confidential or privileged
information in connection with any Proceeding without the written consent
of the Company and shall give prompt notice to the Company of any request
therefor.
7.5 Hiring. For good and valuable consideration and in order to
protect the Company's legitimate business interests (including its
interests in not having its confidential information appropriated),
Employee agrees that until June 1, 1995, Employee shall not, directly or
indirectly (including, without limitation, in his capacity as an agent,
principal, partner, officer, employee, director or shareholder of another
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person or entity), hire, consult with, contract with or engage the services
of, or attempt to hire, consult with, contract with or engage the services
of, or influence or attempt to influence any other person or entity to
hire, consult with, contract with or engage the services of, or to attempt
to hire, consult with, contract with or engage the services of, (i) any
person who is or was employed by the Company or any of its subsidiaries at
any time during the term of this Agreement or (ii) any designer, sales
representative or consultant used by the Company's Decorative Fabrics group
at any time during the term of this Agreement. Employee represents to the
Company that he has no agreement or understanding, directly or indirectly,
to hire, consult with, contract with or engage the services of, or has not
influenced or attempted to influence any other person to hire, consult
with, contract with or engage the services of, the services of any of the
persons described in clauses (i) or (ii) of the previous sentence.
7.6 Return of Documents. On June 1, 1994, or the earlier request of
the Company, Employee shall return any documents, records, data, books or
materials of the Company or its subsidiaries or affiliates in his
possession or control and any of his workpapers containing confidential
information (including, without limitation, customer lists, pricing data
and trade secrets) of the Company or its subsidiaries or affiliates, and
shall not retain any copies thereof.
7.7 Cancellation of Options. In consideration of the payments to be
made hereunder, Employee agrees that he shall not be granted any options
under the Collins & Aikman Holdings Corporation 1993 Employee Stock Option
Plan (the "1993 Option Plan"), the Collins & Aikman Holdings Corporation
1994 Employee Stock Option Plan (the "1994 Option Plan") or any other
option plan of the Company of any of its affiliates, and any options
granted or deemed granted prior to the date hereof shall be unvested and
null and void.
7.8 Specific Enforcement. Employee acknowledges that
his failure to comply with the provisions of Sections 7.1, 7.2, 7.3, 7.4,
7.5 and 7.6 of this Agreement will result in irreparable and continuing
damage for which there will be no adequate remedy at law and that, in the
event of a failure of Employee so to comply, the Company shall be entitled,
without the necessity of giving notice, proving actual damages or securing
or posting any bond, to injunctive relief in addition to all other remedies
which may otherwise be available to the Company and to such other and
further relief as may be proper and necessary to ensure compliance with the
provisions of said Sections."
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8. Section 8 of the Agreement is hereby amended to read in its entirety
as follows:
"8. Release. For good and valuable consideration, Employee on behalf
of himself and his heirs unconditionally releases the Company and its
subsidiaries and affiliates and the directors, officers, employees,
stockholders, represen- tatives and agents of the Company and its
subsidiaries and affiliates, and each of their respective successors,
assigns and heirs, and any and all other related entities and individuals,
and each of them in any and all capacities, from any and all claims,
liabilities, demands and obligations of any nature, whether known or
unknown, arising out of his future, present or past association with the
Company or any of its subsidiaries or affiliates, or the termination of any
such association (other than those related to post-retirement benefits
under pension, profit-sharing, savings or retirement plans of the Company
and other than those explicitly provided for by this Agreement) including,
without limitation, any claims, liabilities, demands and obligations
arising out of or related to (i) the 1993 Option Plan or the 1994 Option
Plan, (ii) the Collins & Aikman Group, Inc. (formerly, Wickes Companies,
Inc.) Equity Share Plan (or any other shadow equity plan), (iii) any
severance or bonus plan of the Company, (iv) any alleged legal restrictions
on the Company's rights to terminate its employees, such as any implied
contract of employment or termination contrary to public policy (including,
without limitation, the Age Discrimination in Employment Act) and (v)
contract, tort or property rights (including, without limitation, breach of
contract, breach of the implied covenant of good faith and fair dealing,
tortious interference with contract or current or prospective economic
advantage, fraud, deceit, misrepresentation, defamation, wrongful
termination, infliction of emotional distress, breach of fiduciary duty and
any other common law claim of any kind whatsoever). Employee hereby waives
any and all rights arising under any Federal or state statute, rule or
principle of common law or equity to prosecute or assert in any manner, and
agrees not to prosecute or assert in any manner, any claim, liability,
demand or obligation which is the subject of the foregoing release. From
time to time, upon the request of the Company, Employee shall execute and
deliver all such documents as the Company may deem necessary or desirable
to effectuate the foregoing release, waiver and agreement."
9. All references in the Agreement to this "Agreement" shall mean the
Agreement, as amended hereby. Except as expressly amended hereby, the Agreement
shall continue in full force and effect in accordance with the provisions
thereof.
10. In executing this Amendment, Employee has not relied upon any
statement, representation or promise, whether written or oral,
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of the Company or any of its subsidiaries or affiliates, or of any
representative or attorney for the Company or any of its subsidiaries or
affiliates, except for statements expressly set forth in this Amendment.
11. Employee acknowledges that he was advised that he had a period of
twenty-one (21) calendar days in which to consider and execute this Amendment.
Employee further acknowledges and understands that he has seven calendar days
from the date on which he executes this Amendment to revoke it. Accordingly,
this Amendment shall not become effective or enforceable until the revocation
period has expired. To the extent that it has not otherwise done so, the
Company hereby advises Employee to consult with an attorney prior to executing
this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
/s/ Andrew Major
ANDREW MAJOR
COLLINS & AIKMAN CORPORATION
by /s/ Ronald T. Lindsay
Name: RONALD T. LINDSAY
Title: Vice President
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