{"id":38685,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/consulting-agreement-mohawk-industries-inc-and-david-l-kolb.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"consulting-agreement-mohawk-industries-inc-and-david-l-kolb","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/consulting-agreement-mohawk-industries-inc-and-david-l-kolb.html","title":{"rendered":"Consulting Agreement &#8211; Mohawk Industries Inc. and David L. Kolb"},"content":{"rendered":"<pre>                               January 17, 2001\n\nBoard of Directors\nMohawk Industries, Inc.\nP.O. Box 12069\nCalhoun, Georgia 30703-7002\n\n     Re:  Consulting Services\n\nMembers of the Board of Directors:\n\n     This letter sets forth our amended and restated agreement and\nunderstanding, effective as of January 1, 2001, concerning the provision of\nconsulting services to Mohawk Industries, Inc. (the \"Company\") following the\neffective date of retirement and resignation of David L. Kolb as Chairman and\nChief Executive Officer of the Company, which is January 1, 2001. Consequently,\nthe terms of this letter agreement (the \"Agreement\") became effective on January\n1, 2001, replacing the letter agreement dated August 1, 2000, as of its\neffective date, and shall continue in effect, subject to paragraph 7, until\nDavid's current term as a member of the Board of Directors of the Company (the\n\"Board of Directors\") expires at the Annual Meeting of Stockholders in 2001.\nThereafter, this Agreement may be renewed by our mutual consent for a period\nending at any time before the expiration of his next term, if any, as a member\nof the Board of Directors of the Company. As a condition to the renewal of this\nAgreement, David understands that he will have to be nominated for reelection as\na member of the Board of Directors and be elected to that office. David agrees\nthat, if he is nominated for election to another term as a director of the\nCompany, he will consent to serve if re-elected.\n\n     David agrees to continue to serve as Chairman of the Board of Directors in\na non-executive officer, non-employee capacity during his current term as a\nmember of the Board of Directors, and thereafter during a next term, at the\npleasure of the Board of Directors. In such capacity, he will be available for\nconsultation with the Chief Executive Officer and the Board on a basis which is\nconsistent, as to frequency and time commitment, with the normal expectations of\na non-executive officer, non-employee Chairman.\n\n     Therefore, in light of the mutual undertakings contained in this letter\nagreement and other good and valuable consideration, we agree as follows:\n \n1.   Business Services. The Company hereby contracts for and, David L. Kolb (the\n     -----------------    \n\"Consultant\"), agree to provide from time-to-time such additional consulting\nservices on specific special projects to be mutually agreed upon by the\nConsultant and the Chief Executive Officer or the Board of Directors as to\nscope, timing and compensation (the \"Additional Services\"). The nature of the\nAdditional Services will not be inconsistent with the services the Consultant\nprovided to the Company as its Chairman and Chief Executive Officer. The\nConsultant shall be acting in the capacity as a director in providing services\nas Chairman and providing Additional Services. The Consultant shall be entitled\nto indemnification on the terms provided by the Certificate of Incorporation and\nBylaws of the Company when acting in the capacity of director and providing\nservices as Chairman or providing Additional Services. The Consultant may\n\n \nperform the Additional Services on the premises of the Company; however, he\nshall perform the Additional Services as an independent contractor exercising\nindependent judgment and without direct supervision by the Company.\n\n2.  Compensation. As compensation for his services as Chairman of the Board of\n    ------------                                                               \nDirectors, Consultant shall be paid an annual retainer of $150,000 in lieu of\nthe annual retainer and meeting fees paid to non-employee directors. This amount\nshall be paid monthly, and such payment shall cover his services as Chairman,\nand his consultation with the Chief Executive Officer and Board on a basis which\nis consistent, as to frequency and time commitment, with the normal expectations\nof a non-executive officer, non-employee Chairman; provided, however, that the\nCompany shall not withhold taxes from these payments. The Consultant shall not\nbe eligible to receive a bonus for 2001 as a participant in the Company's 2001\nExecutive Incentive Program or in any alternative bonus plan adopted by the\nBoard of Directors for 2001. Any benefits to which Consultant is entitled due to\nhis prior service as an employee of the Company shall be governed by the terms\nof the plans and agreements under which such benefits are provided, except as\nspecifically modified by this Agreement.\n\n     The compensation to be paid to the Consultant for the Additional Services\nshall be specifically agreed between the Consultant and the Chief Executive\nOfficer or the Board of Directors on a project-by-project basis.\n\n3.   Payment of Taxes. Consultant acknowledges that he will have sole\n     ----------------\nresponsibility for the payment of all federal, state and local estimated,\nwithholding and employment taxes arising out of his relationship with the\nCompany and the performance of the Additional Services. Consultant acknowledges\nand agrees that the Company will not withhold on his behalf any sums for income\ntax, unemployment insurance, Social Security or any other withholding pursuant\nto any law or requirement of any governmental body. Each and every one of such\npayments and withholdings is the sole responsibility of Consultant. Consultant\nagrees to indemnify and hold the Company harmless from any and all loss or\nliability arising with respect to the failure of Company to withhold or make\nsuch payments and withholdings but not in excess of (i) the amounts included in\nany assessment by the applicable governmental agencies of the income tax that\nthe Company would have been required to withhold pursuant to Section 3402 of the\nInternal Revenue Code (the \"Code\") and of the FICA tax that the Company would\nhave been required to withhold pursuant to Section 3102 of the Code, and (ii)\nany interest accruing on such amounts. In the event the United States Internal\nRevenue Service (\"IRS\") should question or challenge the worker status of\nConsultant under this agreement, Consultant shall notify the Company of any such\ninquiry or challenge. Consultant and the Company agree that both parties shall\nhave the right to participate in any discussion or negotiation occurring with\nthe IRS, regardless of who initiates such discussions or negotiations, and each\nparty shall notify the other in advance of any planned meeting or discussion.\n\n4.   Reimbursement of Expenses. Consultant shall be entitled to be reimbursed in\n     -------------------------\naccordance with the policies of the Company, as adopted and amended from time to\ntime, for all reasonable and necessary travel and living expenses incurred by\nhim in connection with the performance of the duties of Chairman of the Board\nand the Additional Services; provided, however, Consultant shall, as a condition\nof such reimbursement, submit verification of the\n\n                                       2\n\n \nnature and amount of such expenses in excess of $2,500.00 in advance of\nincurring the expense and in accordance with the reimbursement policies adopted\nby the Company from time to time.\n\n5.   Calculation of SERP Benefits. On the effective date of this Agreement,\n     ----------------------------                                           \nConsultant will no longer be considered an active employee of the Company and\nshall have retired for purposes of the Mohawk Industries, Inc. Supplemental\nExecutive Retirement Plan (the \"SERP\"). In calculating Consultant's benefits\nunder the SERP, the Company agrees and acknowledges that (i) Consultant's entire\nbonus payment under the Mohawk Industries, Inc. 2000 Executive Incentive Program\n(\"2000 EIP\") will be included as compensation under the SERP for the 60 months\nending December 31, 2000, despite the fact that all or a portion of such bonus\npayment will not be paid to Consultant until after December 31, 2000, and that a\nportion of such bonus payment may not yet be vested and (ii) Consultant's entire\nbonus payment under the Mohawk Industries, Inc. 1995 Executive Incentive Plan\n(\"1995 EIP\") will be excluded as compensation under the SERP for the 60 months\nending December 31, 2000, despite the fact that all or a portion of such bonus\npayment was paid to the Consultant during the 60 months ending December 31,\n2000. In addition, the Consultant's SERP benefits as of the date of his\nretirement shall be secured by the Mohawk Industries, Inc. Benefit Security\nTrust (the \"Benefit Security Trust\") attached hereto as Exhibit A in the manner\nset forth in such Exhibit.\n\n6.   Calculation of Bonus under the EIP. For purposes of the 2000 EIP, the\n     ----------------------------------                                    \nCompany agrees that Consultant shall be entitled to receive the entire\ncalculated bonus amount for the plan year ending December 31, 2000,\nnotwithstanding Consultant's retirement from the Company and without any\ndownward adjustment by the Compensation Committee of the Board of Directors\nexcept that Consultant's calculated bonus amount under the 2000 EIP will be\nreduced by the same percentage or amount if the calculated bonus amounts for all\nCorporate participants are reduced by a fixed percentage or amount by the\nCompensation Committee. Further, the Company agrees that Consultant shall be\nentitled to retain any Company stock that he receives under the 2000 EIP or that\nhe has received under similar programs applicable to earlier fiscal years of the\nCompany notwithstanding his retirement from the Company. \n\n7.   Termination.\n     ----------- \n\n     (a)  This Agreement shall be terminated at the earliest of the following:\n\n          (1)  At any time by the Company upon fifteen (15) days prior written\n     notice of termination delivered to the Consultant in accordance with the\n     provisions of Section 9 hereof;\n\n          (2)  By Consultant upon a breach of this Agreement by the Company and\n     failure by the Company to remedy such breach within thirty (30) days after\n     receipt of notification thereof delivered in accordance with the provisions\n     of Section 9 hereof.\n\n     (b)  Upon termination all rights and obligations of the parties under this\nAgreement will immediately cease and terminate (except for the rights and\nobligations pursuant to Sections 5 and 6, which will survive such termination),\nand the Company will have no further \n\n                                       3\n\n \nobligation to Consultant with respect to this Agreement, except for compensation\nand reimbursable expenses accrued and unpaid at the date of termination.\n\n8.   Severability. This Agreement is intended to be performed in accordance\n     ------------                                                           \nwith, and only to the extent permitted by, all applicable laws, ordinances,\nrules and regulations. If any provision of this Agreement, or the application\nthereof to any person or particular circumstance, shall, for any reason and to\nany extent, be invalid or unenforceable, it is the intention of the parties to\nthis Agreement that the remainder of this Agreement and the application of such\nprovisions to other persons or particular circumstances shall not be affected\nthereby, but rather shall be enforced to the greatest extent permitted by law.\n\n9.   Notices. Except as otherwise specifically provided herein, any notice\n     -------                                                               \nrequired or permitted to be given by a party pursuant to this Agreement must be\ngiven in writing, and personally delivered or mailed to the other party by\ncertified or registered mail, return receipt requested, at the address set forth\nbelow or at such other address as such party may designate by written notice\ngiven in accordance with this Section 9. Any notice complying with this Section\n9 will be deemed received upon actual receipt by the addressee.\n\n       Consultant:\n\n             David L. Kolb\n             247 Mount Paran Road\n             Atlanta, GA  30327\n\n       Company:\n\n             Mohawk Industries, Inc.\n             160 South Industrial Boulevard\n             Calhoun, GA  30701\n\n\n10.  Assignment. This Agreement, and the rights and obligations of the parties\n     ----------                                                                \nunder this agreement may be assigned only upon the prior written approval of the\nparties. The rights and obligations of the parties will inure to the benefit of,\nwill be binding upon and will be enforceable by the parties and their lawful\nsuccessors and representatives.\n\n11.  Entire Agreement. Except as to the terms of the 2000 EIP, the 2001 EIP,\n     ----------------                                                        \nthe SERP and the Benefit Security Trust, which shall be governed by separate\nagreements, this Agreement, when executed, embodies the entire agreement of the\nparties on the subject matter hereof; provided, that to the extent that the\nterms of the 2000 EIP, the 2001 EIP, the SERP and the Benefit Security Trust\ndiffer from the terms of this Agreement, the terms of this Agreement shall\ngovern. No amendment or modification of this Agreement will be valid or binding\nupon the Company or Consultant unless made in writing and signed by the parties.\n\n12.  Modification and Waiver. Any term or condition of this Agreement may be\n     -----------------------                                                 \nwaived in writing at any time by the party hereto which is entitled to the\nbenefit of such term or condition. \n\n                                       4\n\n \nAny waiver on one occasion shall not be deemed to be a waiver of the same or of\nany other breach on any future occasion. This Agreement may be modified or\namended only by a writing signed by all of the parties hereto.\n\n13.  Counterparts and Headings. This Agreement may be executed simultaneously\n     -------------------------                                                \nin any number of counterparts, each of which shall be deemed an original, but\nall of which shall constitute one and the same instrument. The headings set out\nin this Agreement are for the convenience of reference only and shall not be\ndeemed to be a part of this Agreement.\n\n14.  Choice of Law. The validity and effect of this Agreement shall be governed\n     -------------                                                              \nby and construed and enforced in accordance with the internal laws of the State\nof Georgia, without giving effect to any rules regarding conflicts of law.\n\n15.  Venue. Any action, suit or proceeding arising out of or in connection with\n     -----                                                                      \nthis Agreement (collectively \"Proceeding\") shall be brought exclusively in the\nU.S. District court for the Northern District of Georgia or a state court of\ncompetent jurisdiction in Fulton County, Georgia. Each party hereto irrevocably\nwaives, to the fullest extent permitted by law, any objection which such party\nmay have to the laying of venue for any Proceeding in any such court.\n\n16.  Attorneys' Fees. If any action or other proceeding is brought for the\n     ---------------                                                       \nenforcement of this Agreement, or because of any alleged dispute, breach,\ndefault or misrepresentation in connection with any of the provisions of this\nAgreement, the successful or prevailing party shall be entitled to recover\nreasonable attorneys' fees and other costs incurred in that action or\nproceeding, in addition to any other relief to which the party may be entitled.\n\n     IN WITNESS WHEREOF, the Company, through its duly authorized officer, and\nthe Consultant have executed this Agreement, under seal, all as of the day and\nyear first above written.\n\nATTEST:                                MOHAWK INDUSTRIES, INC..\n\n\/s\/ Jerry L. Melton\n-----------------------------------\n\nTitle: Vice President and Corporate    By: \/s\/ John D. Swift\n       Secretary                           --------------------------------\n\n       [CORPORATE SEAL]                Title: Vice President of Finance\n\n\n                                       CONSULTANT:\n\n\n       \n                                       \/s\/ David L. Kolb             \n                                       ------------------------------[Seal]\n                                       DAVID L. KOLB\n\n                                       5\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8244],"corporate_contracts_industries":[9462],"corporate_contracts_types":[9539,9541],"class_list":["post-38685","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mohawk-industries-inc","corporate_contracts_industries-manufacturing__textiles","corporate_contracts_types-compensation","corporate_contracts_types-compensation__consulting"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38685","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38685"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38685"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38685"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38685"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}