{"id":38686,"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-kolb2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"consulting-agreement-mohawk-industries-inc-and-david-l-kolb2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/consulting-agreement-mohawk-industries-inc-and-david-l-kolb2.html","title":{"rendered":"Consulting Agreement &#8211; Mohawk Industries Inc. and David L. Kolb"},"content":{"rendered":"<pre>August 1, 2000\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 agreement and understanding concerning my\nprovision of consulting services to Mohawk Industries, Inc. (the \"Company\")\nfollowing the effective date of my retirement and resignation as Chairman and\nChief Executive Officer of the Company, which will be January 1, 2001.\nConsequently, this letter agreement (the \"Agreement\") shall become effective on\nJanuary 1, 2001 and shall continue in effect, subject to paragraph 7, until my\ncurrent term as a member of the Board of Directors of the Company (the \"Board of\nDirectors\") expires at the Annual Meeting of Stockholders in 2001.  Thereafter,\nthis Agreement may be renewed by our mutual consent for a period ending at any\ntime before the expiration of my next term, if any, as a member of the Board of\nDirectors of the Company.   As a condition to the renewal of this Agreement, I\nunderstand that I will have to be nominated for reelection as a member of the\nBoard of Directors and be elected to that office.\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 I, David L. Kolb\n     -----------------                                                        \n(the \"Consultant\"), agree to provide such services to the Company as are\nassigned by the Board of Directors and as are not inconsistent with the services\nthe Consultant provided to the Company as its Chairman and Chief Executive\nOfficer  (the \"Services\").  The Services will be provided to the Company by\nConsultant as a director and Consultant shall be entitled to indemnification on\nthe terms provided by the Certificate of Incorporation and Bylaws of the Company\nfor such Services.  During the term of this Agreement, the Consultant agrees to\nhold the non-executive officer, non-employee position of Chairman of the Board\nof Directors.  Consultant agrees to devote his best efforts to the business of\nthe Company and the performance of the Services, provided that the Consultant\nshall not be required to spend more than fifty percent (50%) of his available\nbusiness time in the performance of Services hereunder during any calendar month\nand failure to spend more than fifty percent (50%) percent of his business time\nin the performance of the Services shall not be considered to not be his best\nefforts in the performance of the Services. The Consultant may perform Services\non the premises of Company; however, he shall perform Services exercising\nindependent judgment and without direct supervision by Company.\n\n2.   Compensation.  As compensation for the Services, Consultant shall be paid\n     ------------        \nan amount equal to fifty percent (50%) of his now current base salary as\nChairman and Chief Executive Officer of the Company. Such amount shall be paid\nin the same manner and frequency as payments of his current base salary are\nmade, provided, however, that the Company shall not\n\n \nwithhold taxes from these payments. In addition, the Consultant shall be\neligible to receive a bonus for 2001 to be calculated in the same manner and\nbased on the same goals as apply to Corporate participants at Level B in the\nCompany's 2001 Executive Incentive Program (or at the comparable level in any\nalternative bonus plan adopted by the Board of Directors for 2001) (the \"2001\nEIP\"); provided however, that (a) such bonus payments shall not be subject to\ndownward adjustment by the Compensation Committee of the Board of Directors\nexcept that Consultant's calculated bonus amount under the 2001 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, (b) any Company stock issued to the Consultant as part\nof the bonus payment will be issued under the Mohawk Industries, Inc. 1997 Long-\nTerm Incentive Plan and will be registered on the Company's Form S-8\nregistration statement with the Securities and Exchange Commission, and (c) in\nthe event that the Consultant is not reelected as a member of the Board of\nDirectors or this Agreement is terminated by the Company or not renewed,\nConsultant shall be entitled to a payout of a pro rata portion of such bonus for\nthe portion of the 2001 plan year during which this Agreement was in effect and\nConsultant will be entitled to retain any Company stock paid to Consultant\npursuant to such plan. Such bonus amount shall be paid in the same manner and at\nthe same time as payments of bonus amounts are paid to other Corporate\nparticipants at Levels A or B in the 2001 EIP, provided, however, that the\nCompany shall not withhold taxes from these payments. All benefits to which\nConsultant shall be entitled for the Services under this Agreement are as\nprovided herein. Any benefits to which Consultant is entitled due to his prior\nservice as an employee of the Company shall be governed by the terms of the\nplans and agreements under which such benefits are provided, except as\nspecifically modified by this Agreement.\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 Services.  Consultant acknowledges and agrees\nthat the Company will not withhold on his behalf any sums for income tax,\nunemployment insurance, Social Security or any other withholding pursuant to any\nlaw 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 assesment by the applicable governmental agencies of the income tax that the\nCompany 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\n     -------------------------              \nin accordance with the policies of the Company, as adopted and amended from time\nto time, for all\n\n                                       2\n\n \nreasonable and necessary expenses incurred by him in connection with the\nperformance of the Services; provided, however, Consultant shall, as a condition\nof such reimbursement, submit verification of the nature and amount of such\nexpenses in advance of incurring the expense and in accordance with the\nreimbursement policies adopted by the Company from time to time. Additionally,\nthe Company will continue to provide Consultant during the term of this\nAgreement with a Company car on the same basis as was previously available to\nConsultant prior to the effective date of this Agreement.\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 that 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 me in accordance with the provisions of\n     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                                       3\n\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 obligation to Consultant with respect to\nthis Agreement, except for compensation and reimbursable expenses accrued and\nunpaid 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 the signature of such party on this Agreement or at such other address as\nsuch party may designate by written notice given in accordance with this Section\n9.  Any notice complying with this Section 9 will be deemed received upon actual\nreceipt by the addressee.\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\nof, will 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.  Any waiver on one occasion shall not be\ndeemed to be a waiver of the same or of any other breach on any future occasion.\nThis Agreement may be modified or amended only by a writing signed by all of the\nparties 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\n                                       4\n\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\/ John D. Swift\n----------------------------------\n          John D. Swift\nTitle:  Vice President of Finance       By: \/s\/ David L. Kolb\n      ----------------------------         -------------------------------- \n\n       [CORPORATE SEAL]                 Title: President &amp; COO\n                                              -----------------------------\n\n                                        CONSULTANT:\n\n                                        \/s\/ David L. Kolb\n                                        -----------------------------------\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-38686","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\/38686","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=38686"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38686"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38686"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38686"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}