AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
“Agreement”) is made effective as of the 6th day of
August, 2009 (the “Effective Date”) by and between
BEAZER HOMES USA, INC., a Delaware corporation (the
“Company”), and MICHAEL H. FURLOW, an individual
resident of the State of Georgia
(“Executive”).
WHEREAS,
the Company and Executive have heretofore entered into an
Employment Agreement dated September 1, 2004, as amended (the
“Existing Agreement”); and
WHEREAS,
the Company and Executive desire to amend certain provisions of,
and to restate in its entirety the Existing Agreement as provided
herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the Company and
Executive hereby agree as follows:
1.
Employment and Duties .
(a) The
Company hereby agrees to employ Executive for the Term (as
hereinafter defined) as its Division President-Charleston/Myrtle
Beach/Savannah. The parties agree that effective on the date hereof
Executive shall resign his position as Executive Vice President and
Chief Operating Officer of the Company and any other positions he
has with the Company’s subsidiaries and affiliates. If
requested by the Board of Directors of the Company (the
“Board”), Executive shall also serve on the Board
without additional compensation, if requested. Executive shall also
serve, if requested by the Board, as an executive officer and/or
director of any subsidiaries and/or affiliated companies and shall
comply with the policy of the Compensation Committee of the Board
(the “Compensation Committee”) with regard to retention
or forfeiture of any director’s fees. As used in this
Agreement, the term “affiliated companies” shall
include any company controlled by, controlling or under common
control with the Company.
(b) The
Executive shall have such management and oversight responsibilities
and authority as are necessary to efficiently administer the
affairs of the Division and as are customary of an Division
President. All powers herein granted to the Executive are subject
to supervisory approval of the President and Chief Executive
Officer of the Company (the “CEO”), and the Executive
may be given such further reasonably related supervisory duties,
powers and prerogatives as may be delegated to him from time to
time by said CEO. The Executive shall report exclusively to the CEO
and further shall render such advice to the CEO as said CEO may
from time to time request.
(c) During
the Term, and excluding any periods of vacation and sick leave to
which the Executive is entitled, Executive shall devote
substantially all of his business time and efforts to the business
and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
use the Executive’s reasonable best efforts to perform
faithfully such responsibilities. In performing such duties
hereunder, Executive shall comply with the policies and procedures
as adopted from time to time by the Board, shall give the Company
the benefit of his special knowledge, skills, contacts and business
experience, shall perform his duties and carry out his
responsibilities hereunder in a diligent manner.
(d) During
the Employment Term, it shall not be a violation of this Agreement
for the Executive to (i) with the prior approval of the CEO in
each case, serve on corporate, civic or charitable boards or
committees, (ii) with the prior approval of the Board in each
case, deliver lectures, fulfill speaking engagements or teach at
educational institutions, and (iii) manage personal
investments, so long as such activities do not significantly
interfere or constitute a
conflict of
interest with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement.
(e) The
principal location for performance of Executive’s services
hereunder shall be at the offices of Beazer Homes USA, Inc. in
Charleston, South Carolina, subject to reasonable travel
requirements during the course of such performance. Executive shall
not be required, without his consent, to regularly report to any
office of the Company which is located more than thirty-five
(35) miles from the Division’s current office location
set forth above, provided Executive will be expected to travel to
the extent reasonably necessary to fulfill his
responsibilities.
2.
Employment Term. The term of Executive’s
employment hereunder (the “Term”) shall commence
effective as of the date hereof and shall end on the second
anniversary thereof (the “Expiration Date”), unless
sooner terminated as provided herein.
3.
Compensation and Benefits
(a)
Base Salary . During the first year of the Term, the
Executive shall receive an annual base salary (“Annual Base
Salary”) in the amount of $569,800.00 and in the second year
of the Term an Annual Base Salary in the amount of $800,000.00,
payable in accordance with the Company’s normal payroll
practices (but not less frequently than monthly). During the Term,
the Annual Base Salary shall be reviewed by the CEO (for purposes
of increase only) at least annually. Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be
reduced after any such increase and the term Annual Base Salary as
utilized in this Agreement shall refer to Annual Base Salary as so
increased. Notwithstanding anything contained herein to the
contrary, in the event that the Company shall implement a
Company-wide reduction in executive base compensation, then, solely
for such purpose and only during the continuation of such
Company-wide reduction, the Company shall have the right to reduce
the Annual Base Salary then payable hereunder in a manner that is
consistent with said Company-wide reduction.
(b)
Bonuses; Stock Incentive Plans . Executive will be
eligible to and shall participate in the Company’s bonus and
stock incentive plans at the discretion of the Compensation
Committee of the Board. The amount and terms of, and the targets,
conditions and restrictions applicable to each bonus or other
incentive award shall be subject to the provisions of any such plan
and of the applicable award letter duly executed and delivered by
the Company.
(c)
Incentive, Savings and Retirement Plans . During the
Term, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and
programs applicable generally to other Division Presidents of the
Company and its affiliated companies.
(d)
Welfare Benefit Plans . During the Term, the
Executive and/or the Executive’s family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to other Division Presidents of the Company and its
affiliated companies.
(e)
Expenses . The Company will pay or reimburse
Executive for all reasonable and necessary out-of-pocket expenses
incurred by him in the performance of his duties under this
Agreement. Executive shall keep detailed and accurate records of
expenses incurred in connection with the performance of his duties
hereunder and reimbursement therefore shall be in accordance with
policies and procedures to be established from time to time by the
Board.
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(f)
Office and Support Staff . During the Term, the
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and
other assistance, consistent with the Executive’s position
and title.
(g)
Vacation . During the Term, Executive shall be
entitled to twenty (20) working days of compensated vacation
in each fiscal year, to be taken at times which do not unreasonably
interfere with the performance of Executive’s duties
hereunder. Any unused vacation time from any fiscal year shall be
subject to accumulation or forfeiture in accordance with Company
policy as in effect from time to time.
(h)
Company Automobile . Executive currently has use of a
Company leased automobile. He may continue use of such car until
the Expiration Date, provided however, if during the Term he so
elects, he shall be provided with a Company leased automobile
generally of the same type and cost as other Division
Presidents.
4.
Termination of Employment .
(a)
Death or Disability . The Executive’s
employment shall terminate automatically upon the Executive’s
death during the Term. If the Disability of the Executive occurs
during the Term (pursuant to the definition of Disability set forth
below), the Company may give to the Executive written notice in
accordance with Section 9(c) of this Agreement of its intention to
terminate the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “Disability Effective Date”), provided
that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the
Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the absence of the Executive
from the Executive’s duties with the Company on a full-time
basis for 120 consecutive business days as a result of incapacity
due to mental or physical illness which is determined to be total
and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s
legal representative.
(b)
Cause . The Company may terminate the
Executive’s employment for Cause. For purposes of this
Agreement, “Cause” shall mean:
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(i)
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any
act or failure to act by Executive done with the intent to harm in
any material respect the financial interests or reputation of the
Company or any affiliated companies;
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(ii)
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Executive being convicted of (or
entering a plea of guilty or nolo contendere to) a felony
(other than a felony involving a motor vehicle);
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(iii)
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Executive’s dishonesty,
misappropriation or fraud with regard to the Company or any
affiliated companies (other than good faith expense account
disputes);
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(iv)
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a
grossly negligent act or failure to act by Executive which has a
material adverse affect on the Company or any affiliated
companies;
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(v)
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the
material breach by Executive of his agreements or obligations under
this Agreement which has a material adverse effect on the Company,
which breach, if curable, is not cured by Executive within fifteen
(15) days after written notice from the Company which
specifically identifies the material breach which the Company
believes that Executive has committed; or
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(vi)
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the
continued refusal to follow the directives of the CEO or the Board
or their designees which are consistent with Executive’s
duties and responsibilities identified in Section 1 hereof;
provided that the foregoing refusal shall not be
“cause” if Executive in good faith believes that such
direction is illegal, unethical or immoral and promptly so notifies
the CEO or Board, as the case may be, in writing.
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(c)
Notice of Termination . Any termination by the
Company for Cause shall be communicated by Notice of Termination to
the Executive given in accordance with Section 9(c) of this
Agreement. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days
after the giving of such notice). The failure by the Company to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Cause shall not waive any right of the
Company hereunder or preclude the Company from asserting such fact
or circumstance in enforcing the Company’s rights
hereunder.
(d)
Date of Termination . “Date of
Termination” means (i) if the Executive’s
employment is terminated by the Company for Cause, the date of
receipt of the Notice of Termination or, subject to applicable cure
periods, any later date specified therein, as the case may be,
(ii) if the Executive’s employment is terminated by the
Company other than for Cause or Disability, the Date of Termination
shall be the date on which the Company notifies the Executive of
such termination and (iii) if the Executive’s employment
is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be.
5.
Obligations of the Company upon Termination
.
(a)
Other Than for Cause . If, during the Term, the
Company shall terminate the Executive’s employment other than
for Cause:
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(i)
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the
Company shall pay to the Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the
following amounts: (1) the Executive’s Annual Base
Salary through the Date of Termination to the extent not
theretofore paid, (2) any accrued but unpaid annual bonus
(“Annual Bonus”) respecting any completed fiscal year
ending prior to the Date of Termination, (3) the product of
(x) the Average Annual Bonus (hereinafter defined) and
(y) a fraction, the numerator of which is the number of days
in the current fiscal year through the Date of Termination, and the
denominator of which is 365 and (4) any compensation
previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), (3) and (4) shall be
hereinafter referred to as the “Accrued
Obligations”).
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The
term “Average Annual Bonus” shall mean the arithmetic
average of the Executive’s bonuses (whether paid or deferred)
under the Company’s annual incentive plans during the last
three full fiscal years prior to the Date of Termination or for
such lesser period as the Executive has been employed by the
Company (annualized in the event that the Executive was not
employed by the Company for the whole of any such fiscal year).
Without limiting the generality of the foregoing definition,
the
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