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EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 12th day of April, 1999, between WM.
CAMERON & CO., a Georgia corporation dba Xxxxxxx Xxxxxx Building Products (the
"Company"), and XXXXXX X. XXXX, a resident of the State of Texas ("Employee").
BACKGROUND
The Company desires to employ Employee on the terms and conditions set
forth below. Employee desires to accept employment on the terms and conditions
set forth below.
AGREEMENT
In consideration of the employment and continued employment of Employee
by the Company, the premises, and the mutual agreements hereinafter set forth,
the parties agree:
1. Definitions. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business
of the wholesale distribution, sale and marketing of building materials,
building supplies and mill work.
(b) "Cause" means conduct amounting to fraud or dishonesty
against the Company; Employee's violation of Sections 2(a) or (b) hereof, or any
of the Company's work rules or policies, or absences from work without a
reasonable excuse, if the President and Chief Executive Officer notifies
Employee of such violation or absence in writing and Employee fails to cure such
violation or absenteeism within five (5) days after written notice has been
given, provided that written notice relating to such violation or absenteeism
shall only be given once as it relates to a particular manner of conduct;
intoxication with alcohol or drugs while on Company business during regular
business hours; a conviction or plea of guilty or nolo contendere to a felony or
a crime involving dishonesty against the Company; or Employee's failure to
observe the requirements of Sections 2(c), 5 and 6 hereof.
(c) "Disability" means (i) the inability of Employee to
perform the duties of Employee's employment due to physical or emotional
incapacity or illness, where such inability is expected to be of long-continued
and indefinite duration or (ii) Employee shall be entitled to (x) disability
retirement benefits under the federal Social Security Act or (y) recover
benefits under any long-term disability plan or policy maintained by the
Company. In the event of a dispute, the determination of Disability shall be
made reasonably by the Board of Directors of the Company and shall be supported
by advice of a physician competent in the area to which such Disability relates.
(d) "Effective Date" means the date hereof.
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2. Terms of Engagement; Duties.
(a) The Company hereby employs Employee, commencing on the
Effective Date, and Employee hereby accepts employment by the Company subject to
the terms and conditions hereof. Employee shall report to, shall have the title
assigned by, and shall perform the duties assigned by the Chairman and CEO of
the Company and Xxxxxxx Xxxxxx Building Products, Inc. (the "Parent") or other
senior executive of the Company from time to time in connection with the conduct
of the Business of the Company. Employee is engaged initially with the title and
functions of Executive Vice President and Chief Financial Officer (CFO) of the
Company and the Parent. Nothing herein shall preclude the Chairman and CEO of
the Company from changing the Employee's title and duties if the Chairman and
CEO of the Company has concluded in his reasonable judgment that such change is
in the Company's best interests. Employee shall not be required to reside
outside the Area (as defined in Section 6 hereof).
(b) Throughout the term of this Agreement, Employee shall:
(i) devote all of Employee's business effort, time,
energy and skill (reasonable vacations and reasonable absences due
to illness excepted) to the duties of Employee's employment
hereunder assigned by the senior officers of the Company;
(ii) faithfully, loyally, and industriously perform
such duties, subject to the control and supervision of the senior
officers of the Company; and
(iii) diligently follow and implement all lawful
management policies and decisions of the Company that are
communicated to Employee.
(c) During the term of this Agreement, Employee shall not be
engaged (whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this shall not be construed as preventing
Employee from (i) investing his personal assets in businesses which do not
compete with the Company in such form or manner as will not require any services
on the part of Employee in the operation or the affairs of the companies in
which such investments are made and in which his participation is solely that of
an investor, (ii) purchasing securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in his
collectively owning beneficially at any time five percent (5%) or more of the
equity securities of any corporation engaged in a business competitive to that
of the Company, or (iii) participating in conferences, preparing or publishing
papers or books or teaching so long as the Employee's supervisor approves of
such activities prior to Employee's engaging in them.
3. Compensation.
(a) In consideration of the services rendered by Employee
pursuant to this Agreement, the Company shall provide the following:
(i) A base salary of Two Hundred Twenty Five Thousand
Dollars ($225,000) per annum (the "Base Salary") which Base Salary
will be reviewed periodically and may be increased by the Company
from time to time. The Base Salary shall be paid in accordance with
the Company's standard payroll practices in effect from time to
time, and shall be subject to such deductions and withholdings as
are required by law or by policies
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of the Company.
(ii) Reimbursement for all reasonable business
expenses (including a $600.00 per month car allowance) incurred by
Employee in connection with the Business of the Company subject to
compliance with the expense reimbursement policies established by the
Company and in sufficient detail to comply with Internal Revenue
Service Regulations.
(b) Employee shall be eligible to be considered for an annual
cash performance bonus, which may consist of an amount of up to sixty percent
(60%) of the Base Salary in the applicable year based on the attainment of
performance objectives established by the Board of Directors of the Company and
the Parent in good faith and Employee's contributions to the attainment of those
objectives, and shall be in such amount and payable in such manner and on such
terms as are determined by the Board of Directors of the Company and the Parent.
Nothing contained in this subsection (b) shall obligate the Company to pay a
bonus to Employee, unless the Board of Directors of the Company and the Parent
determines to award such a bonus to Employee.
(c) Employee shall have the right to participate in (i) any
insurance plans maintained by the Company from time to time to the extent that
Employee's position, tenure, salary, age, health and other qualifications make
him eligible to participate, and (ii) such other fringe benefit plans or
programs as are provided to the other senior management employees of the
Company, provided that the Company shall not be required to adopt or continue
any insurance plans or fringe benefit plans or programs.
(d) Employee shall receive options to purchase 100,000 shares
of Common Stock of the Parent pursuant to the terms of a Non-Qualified Stock
Option Agreement ("Option Agreement"). Such options will have a term of ten
years and will vest in one-fifth increments over five years from the date of
grant. The exercise prices of such options shall be $13.00 per share and the
date of grant shall be the Effective Date.
(e) The remuneration and benefits set forth in this Section 3
shall be the only compensation payable to Employee with respect to his
employment hereunder, and Employee shall not be entitled to receive any
compensation in addition to that set forth in this Section 3 for any
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services rendered by him in any capacity to the Company or any affiliated
corporation unless agreed to in writing by the Company or such affiliated
corporation.
4. Term and Termination of this Agreement. The term of employment of
Employee pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of three (3) years, or until sooner terminated as
provided herein.
(a) Employee's employment hereunder may be terminated:
(i) By the Company, upon the death or Disability of
Employee;
(ii) By the Company, immediately for Cause;
(iii) By Employee upon ninety (90) days prior written
notice to the Company;
(iv) By mutual agreement between Employee and the
Company; and
(v) By the Company, without Cause.
(b) In the event the Company terminates the employment of the
Employee without Cause, then, during the twelve (12) month period immediately
following the effective date of the termination of his employment, the Employee
shall continue to receive his base salary under this Agreement as in effect on
the date that his employment terminates subject to employee signing a Settlement
and Release Agreement agreeable to the Company. The payments described in this
Section 4(b) are hereinafter referred to as "Severance Pay," and shall be made
to the Employee without any obligation on his part to render services hereunder
after the effective date of the termination of Employee's employment, in full
settlement of all of the obligations of the Company hereunder. No Severance Pay
shall be paid to the estate or personal representative of the Employee in the
event of his death during the term of this Agreement.
(c) Except as set forth above, upon termination of Employee's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Employee or his personal representative with respect to
remuneration due under this Agreement, except for Base Salary earned but unpaid
at date of termination; provided however, Employee's covenants in Sections 5 and
6 of this Agreement shall survive the termination of Employee's employment
hereunder. If Employee fails to observe the requirements of Sections 5 or 6
hereof, then the Company shall have no obligation to pay any portion of the Base
Salary remaining unpaid to Employee and the Company shall have no obligation to
pay any portion of the Severance Pay. It is understood that Employee's coverage
under the Company's disability, accidental death or dismemberment and group life
insurance plans shall cease as of the date of termination.
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5. Ownership, Non-Disclosure, and Non-Use of Trade Secrets.
(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or
information that is a Trade Secret hereunder (1) that has been
voluntarily disclosed to the public by the Company or has become
generally known to the public (except where such public disclosure has
been made by or through the Employee or by a third person or entity
with the knowledge of the Employee without authorization by the
Company); (2) that has been independently developed and disclosed by
parties other than the Employee or the Company to the Employee or to
the public generally without a breach of any obligation of
confidentiality by any such person running directly or indirectly to
the Company; or (3) that otherwise enters the public domain through
lawful means.
(ii) "Trade Secrets" means information which derives
economic value, actual or potential, from not being generally known and
not being readily ascertainable to other persons who can obtain
economic value from its disclosure or use and which is the subject of
efforts that are reasonable under the circumstances to maintain its
secrecy or confidentiality. Trade Secrets may include either technical
or non-technical data, including without limitation, (1) any useful
process, machine, chemical formula, composition of matter, or other
device which (A) is new or which Employee has a reasonable basis to
believe may be new, (B) is being used or studied by the Company and is
not described in a printed patent or in any literature already
published and distributed externally by the Company, and (C) is not
readily ascertainable from inspection of a product of the Company; (2)
any engineering, technical, or product specifications including those
of features used in any current product of the Company or to be used,
or the use of which is contemplated, in a future product of the
Company; (3) any application, operating system, communication system,
or other computer software (whether in source or object code) and all
flow charts, algorithms, coding sheets, routines, subroutines,
compilers, assemblers, design concepts, test data, documentation, or
manuals related thereto, whether or not copyrighted, patented or
patentable, related to or used in the Business of the Company; or (4)
information concerning the customers, suppliers, products, pricing
strategies of the Company, personnel assignments and policies of the
Company, or matters concerning the financial affairs and management of
the Company or any parent, subsidiary, or affiliate of the Company;
provided however, that Trade Secrets shall not include any Excluded
Information.
(b) Employee acknowledges and agrees that all Trade Secrets,
and all physical embodiments thereof, are confidential to and shall be and
remain the sole and exclusive property of the Company and that any Trade Secrets
produced by the Employee during the period of Employee's employment by the
Company shall be considered "work for hire" as such term is defined in 17 U.S.C.
Section 101, the ownership and copyright of which shall be vested solely in the
Company. Employee agrees (i) immediately to disclose to the Company all Trade
Secrets developed in whole or part by Employee during the term of Employee's
employment by the Company, and (ii) at the request and expense of the Company,
to do all things and sign all documents or instruments reasonably necessary in
the opinion of the Company to eliminate any ambiguity as to the rights of the
Company in such Trade Secrets including, without limitation, providing to the
Company Employee's full cooperation in any litigation or other proceeding to
establish, protect, or obtain such rights. Upon request by the Company, and in
any event upon termination of Employee's employment by the Company for any
reason, Employee shall promptly deliver to the Company all property belonging to
the Company including, without limitation, all
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Trade Secrets (and all embodiments thereof) then in Employee's custody, control,
or possession.
(c) Employee agrees that all Trade Secrets of the Company
received or developed by Employee as a result of Employee's employment with the
Company will be held in trust and strictest confidence, that Employee will
protect such Trade Secrets from disclosure, and that Employee will make no use
of such Trade Secrets, except in connection with Employee's employment
hereunder, without the Company's prior written consent. The obligations of
confidentiality contained in this Agreement shall apply during Employee's
employment by the Company and (i) with respect to all Trade Secrets consisting
of scientific or technical data, at any and all times after expiration or
termination (for whatever reason) of such employment; and (ii) with respect to
all other Trade Secrets, for a period of two (2) years after such expiration or
termination, unless a longer period of protection is provided by law.
6. Noncompete; Nonsolicitation Covenants.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
(i) "Affiliate" means any person or entity directly
or indirectly controlling, controlled by, or under common control with
Employee. As used herein, the word "control" means the power to direct
the management and affairs of a person.
(ii) "Area" means the United States of America and
Canada.
(iii) "Competing Enterprise" means any person or any
business organization of whatever form, engaged directly within the
Area in the Business of the Company.
(b) Employee covenants that Employee shall, during the term of
this Agreement, and for a period of nine (9) months following termination for
any reason of Employee's employment by the Company, observe the following
separate and independent covenants:
(i) Neither Employee nor any Affiliate will, without
the prior written consent of the Company, within the Area, either
directly or indirectly, (A) become financially interested in a
Competing Enterprise (other than as a holder of less than five percent
of the outstanding voting securities of any entity whose voting
securities are listed on a national securities exchange or quoted by
the National Association of Securities Dealers, Inc. automated
quotation system), or, (B) engage in or be employed by any
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Competing Enterprise as a consultant, officer, director, or Employee or
managerial employee.
(ii) Neither Employee nor any Affiliate will,
without the prior written consent of the Company, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of
others, solicit, divert, or appropriate, or attempt to solicit, divert,
or appropriate, to any Competing Enterprise within the Area, any person
or entity whose account with the Company was serviced by or under
Employee's direction or supervision during the term of this Agreement.
(iii) Neither Employee nor any Affiliate will,
without the Company's prior written consent, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of
others, solicit, divert, or hire away, or attempt to solicit, divert,
or hire away, to any Competing Enterprise, any person employed by the
Company, whether or not such employee is a full-time or a temporary
employee of the Company and whether or not such employment is pursuant
to written agreement and whether or not such employment is at will.
7. Remedies. Employee acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that by
virtue of the training, duties, and responsibilities attendant with Employee's
employment by the Company and the special knowledge of the business and
operations of the Company that Employee will have as a consequence of Employee's
employment by the Company, great loss and irreparable damage would be suffered
by the Company if the Employee should breach or violate any of the terms or
provisions of the covenants and agreements set forth herein. Employee further
acknowledges and agrees that each such covenant and agreement is reasonably
necessary to protect and preserve the interest of the Company. Therefore, in
addition to all the remedies provided at law or in equity, Employee agrees and
consents that the Company shall be entitled to a temporary restraining order and
a permanent injunction to prevent a breach of any of the covenants or agreements
of Employee contained herein and to collect from Employee reasonable attorney's
fees incurred by the Company in the enforcement hereof. The existence of any
claim, demand, action or cause of action of Employee against the Company shall
not constitute a defense to the enforcement by the Company of any of the
covenants or agreements herein whether predicated upon this Agreement or
otherwise, and shall not constitute a defense to the enforcement by the Company
of any of its rights hereunder.
8. General Provisions.
(a) In the event that any one or more of the provisions, or
parts of any provisions, contained in the Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed and
shall be construed as a separate and independent covenant and should any part or
provision of any of such covenants be held or declared invalid by any court of
competent
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jurisdiction, such invalidity shall in no way render invalid or unenforceable
any other part or provision thereof or any other covenant of the parties not
held or declared invalid.
(b) This Agreement and the rights and obligations of the
Company hereunder may be assigned by the Company to any subsidiary of or
successor to the Company, and shall inure to the benefit of, shall be binding
upon, and shall be enforceable by any such assignee, provided that any such
assignee shall agree to assume and be bound by this Agreement. This Agreement
and the rights and obligations of Employee hereunder may not be assigned by
Employee.
(c) The waiver by the Company of any breach of this Agreement
by Employee shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Texas.
(e) This Agreement embodies the entire agreement of the
parties relating to the employment of Employee by the Company. No amendment,
modification extension or renewal of this Agreement shall be valid or binding
upon the Company or Employee unless made in writing and signed by the parties.
All prior understandings and agreements relating to the employment of Employee
by the Company are hereby expressly terminated.
(f) Any notice, request, demand, or other communication
required to be given hereunder shall be made in writing and shall be deemed to
have been fully given if personally delivered or if mailed by overnight delivery
(the date on which such notice, request, demand, or other communication is
received shall be the date of delivery) to the parties at the following
addresses (or at such other addresses as shall be given in writing by any party
to the other party hereto):
If to Employee:
Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
If to Company:
Wm. Cameron & Co. dba Xxxxxxx Xxxxxx Building
Products
00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx, Chairman and Chief
Executive Officer
Telecopy: (000) 000-0000
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and it shall not
be necessary for the same counterpart of this agreement to be signed by all of
the undersigned in order for the agreements set forth herein
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to be binding upon all of the undersigned in accordance with the terms hereof.
IN WITNESS WHEREOF, the Company and Employee have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
WM. CAMERON & CO. dba Xxxxxxx Xxxxxx
Building Products
By:
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Xxxxxx X. Xxxx
Chairman and CEO
EMPLOYEE:
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Xxxxxx X. Xxxx
