Exhibit 10.29
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of October 22,
1998 (the "Effective Date"), by and between MSI/EAGLE SUPPLY, INC., a Delaware
corporation (the "Employer,") and XXXX X. XXXXXX, an individual resident of
Texas (the "Executive").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Employer is acquiring, pursuant to that certain Asset Purchase Agreement by and
between, inter alia, the Employer, as buyer, Masonry Supply, Inc., a Texas
corporation (the "Seller") as seller, and the Executive, as shareholder of
Seller, dated October 22, 1998 (the "Asset Purchase Agreement"), substantially
all of the assets of the Seller, including the Seller's business operations at
four primary business locations in Texas (the "Acquired Business").
B. The Executive is the sole shareholder of the Seller and is currently the
Seller's president and chief executive officer. The Executive will benefit
substantially from the transaction set forth in the Asset Purchase Agreement.
C. The Employer wishes to obtain the Executive's continued experience and
expertise with the Acquired Business and wishes to employ the Executive as
president of the Employer.
D. The Executive wishes to accept such employment upon the terms and
conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Confidential Information"--any and all:
(a) trade secrets concerning the business and affairs of the Employer,
product specifications, data, know-how, designs, graphs, drawings,
inventions and ideas, past, current, and planned research and development,
current and planned distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, and any other information, however documented, that is a
trade secret under New York or Texas law; and
(b) information concerning the business and affairs of the Employer and
the Acquired Business (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in whole or
in part, on any information included in the foregoing.
"Employee Invention" --any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business then
being conducted or proposed to be conducted by the Employer, and any such item
created by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"person" --any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
2. EMPLOYMENT TERMS AND DUTIES
2.1 Employment
The Employer hereby employs the Executive, and the Executive hereby accepts
employment by the Employer, upon the terms and conditions set forth in this
Agreement.
2.2 Term
Subject to the provisions of Section 6, the term of the Executive's
employment under this Agreement (the "Employment Period") shall commence on the
Effective Date and continue through June 30, 2003.
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2.3 Duties
The Executive will serve as a senior executive officer of the Employer and
have such duties and title(s) as are assigned or delegated to the Executive by
the board of directors of the Employer (the "Board of Directors") and will
initially serve as president of the Employer. The Executive will devote his
entire time, attention, skill and energy during normal business hours
exclusively to the business of the Employer, will use his best efforts to
promote the success of the Employer's business, and will cooperate fully with
the Board of Directors in the advancement of the best interests of the Employer.
If the Executive is elected as a director of the Employer or as a director or
officer of any of its affiliates, the Executive agrees to serve as such and will
fulfill his duties as a director or officer without additional compensation.
3. COMPENSATION
3.1 Salary
The Executive will be paid an annual salary of $260,000.00, subject to
adjustment as provided below (the "Salary"), which will be payable in equal
periodic installments according to the Employer's customary payroll practices as
they may be revised from time to time at the Employer's discretion, but no less
frequently than monthly. The Salary will be reviewed by the Board of Directors
not less frequently than annually and may be adjusted upward or downward in the
sole discretion of the Board of Directors, but in no event will the Salary be
less than $260,000.00 per year.
3.2 Benefits
The Executive will, during the Employment Period, be permitted to
participate in such pension, profit sharing, bonus, life insurance,
hospitalization, major medical, and other employee benefit plans of the Employer
that may be in effect from time to time, to the extent the Executive is eligible
under the terms of those plans (collectively, the "Benefits").
3.3 Key Man Insurance
The Employer shall obtain and maintain at all times during the Employment
Period one or more life insurance policies on the life of the Executive ("Key
Man Insurance") for the benefit of, and payable to, the Employer for the
aggregate amount not less than the sum of (i) $2,000,000.00 plus (ii) the unpaid
principal balance from time to time of the Promissory Note, as defined in
Section 2.1(a) of the Asset Purchase Agreement (the "Note") as such principal
balance may be adjusted or reduced in accordance with the terms of the Asset
Purchase Agreement and the Note. In the event of the death of the Executive,
such portion of the proceeds of the Key Man Insurance equal to the then unpaid
principal balance of the Note, together with all accrued and unpaid
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interest thereon, shall be paid to the Seller as payment in full of the Note,
immediately upon the receipt of such proceeds by the Employer.
3.4 Disability Insurance
The Employer shall obtain and maintain at all times during the Employment
Period disability insurance on the Executive ("Disability Insurance") which
shall provide the Executive with disability income up to the amount of
$20,000.00 per month through June 30, 2003 in the event of the total disability
of the Executive (as defined under the Disability Insurance policy). The
Executive agrees to submit to any medical examination(s) and provide any
information and documents reasonably necessary for the Employer to obtain any
insurance required by this Agreement, including, without limitation, the Key Man
Insurance and the Disability Insurance. Notwithstanding the foregoing, the
Employer's obligation to obtain the Disability Insurance shall be contingent on
its ability to obtain the Disability Insurance on standard (or better) rates
generally prevailing in Texas for disability insurance with similar benefits on
persons of an age similar to the Executive's age. The Executive represents and
warrants that he is in good health and is insurable at such standard (or better)
rates.
4. FACILITIES AND EXPENSES
The Employer will furnish the Executive with office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will pay on behalf of the Executive (or reimburse
the Executive for) reasonable out-of-pocket expenses incurred by the Executive
at the request of, or on behalf of, the Employer in the performance of the
Executive's duties pursuant to this Agreement and in accordance with the
Employer's employment policies, including reasonable expenses incurred by the
Executive in attending conventions, seminars, and other business meetings, in
appropriate business entertainment activities, and for promotional expenses. The
Executive must file expense reports with respect to such expenses in accordance
with the Employer's expense reimbursement policies as they may be revised from
time to time at the Employer's discretion.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to paid vacation in accordance with the
vacation policies of the Employer in effect for its executive officers as may be
changed from time to time by the Employer. Vacation must be taken by the
Executive at a time mutually convenient to the Employer and the Executive. The
Executive will also be entitled to the paid holidays and other paid leave set
forth in the Employer's policies.
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6. TERMINATION
6.1 Events of Termination
The Employment Period, the Executive's Salary and Benefits, and any and all
other rights of the Executive under this Agreement or otherwise as an employee
of the Employer will terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive (other than the right to require the
prepayment of the Note in accordance with Section 3.3);
(b) upon the disability of the Executive (as defined in Section 6.2)
immediately upon notice from the Employer to the Executive;
(c) for cause (as defined in Section 6.3) at the option of the Employer,
immediately upon notice from the Employer to the Executive, or at such later
time as such notice may specify; or
(d) for good reason (as defined in Section 6.4) upon not less than thirty
days= prior notice from the Executive to the Employer.
6.2 Definition of "Disability"
For purposes of Section 6.1(b), the Executive will be deemed to have a
"disability" if, for physical or mental reasons, the Executive is unable to
perform the essential functions of the Executive's duties under this Agreement
for 120 consecutive days, or 180 days during any twelve month period, as
determined in accordance with this Section 6.2. The disability of the Executive
will be determined by a medical doctor selected by written agreement of the
Employer and the Executive upon the request of either party by notice to the
other. If the Employer and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Executive has a disability. The determination of the medical doctor selected
under this Section 6.2 will be binding on both parties. The Executive must
submit to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 6.2, and the Executive hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Executive is not legally competent, the
Executive's legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead, under this Section 6.2, for the purposes of submitting the
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 6.2.
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6.3 Definition of "For Cause"
For purposes of Section 6.1(c), the phrase "for cause" means: (a) the
Executive's material breach of this Agreement which breach continues for more
than thirty (30) days after notice thereof has been received by the Executive
from the Board of Directors; (b) the Executive's failure to adhere to any
written Employer policy if the Executive has been given a reasonable opportunity
to comply with such policy or cure his failure to comply (which reasonable
opportunity shall not exceed thirty (30) days); (c) the appropriation (or
attempted appropriation) of a material business opportunity of the Employer,
including attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of the Employer; (d) the
misappropriation (or attempted misappropriation) of any of the Employer's funds
or property; or (e) the conviction of, the indictment for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest with respect
to, a felony, the equivalent thereof, or any other crime with respect to which
imprisonment for more than six (6) months is a possible punishment.
If the Executive commits an act described in Sections 6.3 (a), (b), (c),
(d) or (e) and the Employer elects to terminate the Executive's employment,
Buyer shall be relieved of its obligation to make any of the contingent purchase
price payments required by Section 2.4(a) of the Asset Purchase Agreement
subsequent to the date of such termination.
6.4 Definition of "For Good Reason"
For purposes of Section 6.1(d), the phrase "for good reason" means any of
the following: (a) the Employer's material breach of this Agreement which breach
continues for more than thirty (30) days after notice has been received by the
Employer; (b) the assignment of the Executive without his consent to a position,
responsibilities, or duties of a materially lesser status or degree of
responsibility than a senior executive officer of the Employer; or (c) the
Employer's material breach of the Asset Purchase Agreement which breach
continues for more than thirty (30) days after notice has been received by the
Employer.
6.5 Termination Pay
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Executive (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5 and in lieu of all other amounts and in settlement and complete
release of all claims the Executive may have against the Employer. For purposes
of this Section 6.5, the Executive's designated beneficiary will be such
individual beneficiary or trust, located at such address, as the Executive may
designate by notice to the Employer from time to time or, if the Executive fails
to give notice to the Employer of such a beneficiary, the Executive's estate.
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Notwithstanding the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Executive, to
determine whether any beneficiary designated by the Executive is alive or to
ascertain the address of any such beneficiary, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
(A) Termination by the Executive for Good Reason. If the Executive
terminates this Agreement for good reason, the Employer will pay the Executive
the Executive's Salary for the remainder, if any, of the calendar month in which
such termination is effective.
(B) Termination by the Employer for Cause. If the Employer terminates this
Agreement for cause, the Executive will be entitled to receive his Salary only
through the date such termination is effective.
(C) Termination upon Disability. If this Agreement is terminated by either
party as a result of the Executive's disability, as determined under Section
6.2, the Employer will pay the Executive his Salary through the remainder of the
calendar month during which such termination is effective.
(D) Termination upon Death. If this Agreement is terminated because of the
Executive's death, the Executive will be entitled to receive his Salary through
the end of the calendar month in which his death occurs.
(E) Benefits. The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of this Agreement and the Executive will be entitled to accrued Benefits
pursuant to such plans only as provided in such plans. Notwithstanding the
foregoing, unless termination is pursuant to Section 6.5(B) or (D) above, the
Employer shall continue, at its sole cost, the Executive's medical insurance for
(i) six (6) months after termination, or (ii) through June 30, 2003, whichever
is shorter.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 Acknowledgments by the Executive
The Executive acknowledges that (a) during the Employment Period and as a
part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial technical expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a
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substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Employee Invention; (d) the Employer has required that the Executive
make the covenants in this Section 7 as a condition to its purchase of the
Acquired Business; and (e) the provisions of this Section 7 are reasonable and
necessary to prevent the improper use or disclosure of Confidential Information
and to provide the Employer with exclusive ownership of all Employee Inventions.
7.2 Agreements of the Executive
In consideration of the compensation and benefits to be paid or provided to
the Executive by the Employer under this Agreement, the Executive covenants as
follows:
(A) Confidentiality.
(i) During and following the Employment Period, the Executive will hold
in confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of the Employer or
except as otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to all of the
protections and benefits under New York, Texas and any other applicable
law. If any information that the Employer deems to be a trade secret is
found by a court of competent jurisdiction not to be a trade secret for
purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer submit proof of
the economic value of any trade secret or post a bond or other security.
(iii) None of the obligations and restrictions set forth in Sections
7.2(A)(i) or 7.2(A)(ii) applies to any part of the Confidential Information
that the Executive demonstrates was or became generally available to the
public other than as a result of a disclosure by the Executive.
(iv) The Executive will not remove from the Employer's premises (except
to the extent such removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except as otherwise
specifically authorized by the Employer) any document, record, notebook,
plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary
Items"). The Executive recognizes that, as between the Employer and the
Executive, all of the Proprietary Items, whether or not developed by the
Executive, are the exclusive property of the Employer. Upon termination of
this Agreement by either party, or upon the request of the Employer during
the Employment Period, the Executive will return to the Employer all of the
Proprietary Items and other forms or media containing
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Confidential Information in the Executive's possession or subject to the
Executive's control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the Proprietary
Items.
(B) Employee Inventions. Each Employee Invention will belong exclusively to
the Employer. The Executive acknowledges that all of the Executive's writing,
works of authorship, specially commissioned works, and other Employee Inventions
are works made for hire and the property of the Employer, including any
copyrights, patents, or other intellectual property rights pertaining thereto.
If it is determined that any such works are not works made for hire, the
Executive hereby assigns to the Employer all of the Executive's right, title,
and interest, including all rights of copyright, patent, and other intellectual
property rights, to or in such Employee Inventions. The Executive covenants that
he will promptly:
(i) disclose to the Employer in writing any Employee Invention;
(ii) assign to the Employer or to a party designated by the Employer,
at the Employer's request and without additional compensation, all of the
Executive's right to the Employee Invention for the United States and all
foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order to
apply for and obtain patents or other registrations with respect to any
Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support of the
Employer's rights to any Employee Invention.
7.3 Disputes or Controversies
The Executive recognizes that should a dispute or controversy arising from
or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive, and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
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8. NON-COMPETITION AND NON-INTERFERENCE
8.1 Acknowledgments by the Executive
The Executive acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer's business and that of its affiliated
companies, including, without limitation, TDA Industries, Inc., Eagle Supply,
Inc. and JEH/Eagle Supply, Inc. (together with the Employer and any other
affiliate of the Employer, the "Eagle Companies") is currently regional in scope
but may become national in scope and its products are currently marketed in six
or more regions (with distribution facilities currently located in nine states)
but may in the future be marketed throughout the United States; (c) the Eagle
Companies compete with other businesses that are or could be located in any part
of the United States; (d) the Employer has required that the Executive make the
covenants set forth in this Section 8 as a condition to the Employer's purchase
of the Acquired Business and the employment of the Executive hereunder; and (e)
the provisions of this Section 8 are reasonable and necessary to protect the
Eagle Companies' business.
8.2 Covenants of the Executive
In consideration of the acknowledgments by the Executive, and in
consideration of the Salary, Benefits and other compensation to be paid or
provided to the Executive by the Employer, the Executive covenants that he will
not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period (as defined
below), engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control
of, be employed by, associated with, or in any manner connected with, lend
the Executive's name or any similar name to, lend Executive's credit to or
render services or advice to, any business which sells products or services
which are similar to the types of products or services sold by the Employer
in any state in which the Employer's products at that time (or anytime
thereafter during the Post-Employment Period) are sold, marketed or
distributed, whether directly, through the other Eagle Companies, or
through independent third parties; provided, however, that the Executive
may purchase or otherwise acquire up to (but not more than) one percent of
any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of 1934;
(b) whether for the Executive's own account or for the account of any
other person, at any time during the Employment Period and the
Post-Employment Period, solicit business of the same or similar type being
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carried on by the Employer or any of the other Eagle Companies, from any
person known by the Executive to be a customer prior to or during the
Employment Period of the Employer or any of the other Eagle Companies,
whether or not the Executive had personal contact with such person during
and by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of any other
person (i) at any time during the Employment Period or the Post-Employment
Period, solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is or was an employee of the
Employer or any of the other Eagle Companies at any time during the
Employment Period or in any manner induce or attempt to induce any employee
of the Employer or any of the other Eagle Companies to terminate his
employment with the Employer of any of the other Eagle Companies; or (ii)
at any time during the Employment Period or the Post Employment Period,
interfere with the relationship of the Employer or any of the other Eagle
Companies with any person, including any person who at any time during the
Employment Period was an employee, contractor, supplier, or customer of the
Employer or any of the other Eagle Companies; or
(d) at any time during or after the Employment Period, disparage the
Employer or any of the other Eagle Companies or any of their shareholders,
directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period" means the
two-year period beginning on the date of termination of the Executive's
employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable, arbitrary,
or against public policy, such covenant will be considered to be divisible with
respect to scope, time, and geographic or market area, and such lesser scope,
time, or geographic or market area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will be
extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenants under this Section 8.2 are in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. The Employer may notify
such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
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The Executive and the Employer acknowledge that the purchase price for the
Acquired Business, as set forth in the Asset Purchase Agreement, was based in
part on the Executive's and Seller's commitment not to compete with the Eagle
Companies as provided herein and in the Asset Purchase Agreement. Accordingly,
if the Executive or Seller violates the provisions of this Section 8.2 or the
provisions of Section 11 of the Asset Purchase Agreement, in addition to any of
Buyer's other rights and remedies provided herein or in the Asset Purchase
Agreement, Buyer shall be relieved of its obligation to make any of the
contingent purchase price payments required by Section 2.4(a) of the Asset
Purchase Agreement subsequent to the date of such violation.
9. GENERAL PROVISIONS
9.1 Injunctive Relief and Additional Remedies
The Executive acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement (including
any provision of Sections 7 and 8) would be irreparable and that an award of
monetary damages to the Employer for such a breach would be an inadequate
remedy. Consequently, the Employer will have the right, in addition to any other
rights it may have, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provision of this
Agreement, and the Employer will not be obligated to post bond or other security
in seeking such relief. Without limiting the Employer's rights under this
Section 9 or any other remedies of the Employer, if the Executive breaches any
of the provisions of Section 7 or 8, the Employer will have the right to cease
making any payments otherwise due to the Executive under this Agreement.
9.2 Covenants of Sections 7 and 8 are Essential and
Independent Covenants
The covenants by the Executive in Sections 7 and 8 are essential elements
of this Agreement and the Asset Purchase Agreement, and without the Executive's
agreement to comply with such covenants, the Buyer would not have purchased the
Acquired Business under the Asset Purchase Agreement and the Employer would not
have entered into this Agreement or employed the Executive. The Employer and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted, and
intended to be conducted, by the Employer and the other Eagle Companies.
The Executive's covenants in Sections 7 and 8 are independent covenants and
the existence of any claim by the Executive against the Employer under this
Agreement or otherwise will not excuse the Executive's breach of any covenant in
Section 7 or 8.
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If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 7 and 8.
9.3 Representations and Warranties by the Executive
The Executive represents and warrants to the Employer that the execution
and delivery by the Executive of this Agreement do not, and the performance by
the Executive of the Executive's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Executive is or may
be bound.
9.4 Obligations Contingent on Performance
The obligations of the Employer hereunder, including its obligation to pay
the compensation provided for herein, are contingent upon the Executive's
substantial performance of the Executive's obligations hereunder.
9.5 Waiver
The rights and remedies of the parties to this Agreement are cumulative and
not alternative. Neither the failure nor any delay by either party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law: (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.6 Binding Effect; Delegation of Duties Prohibited
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
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9.7 Notices
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
certified mail, return receipt requested, or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as a party may
designate by notice to the other parties):
If to Employer: MSI/Eagle Supply, Inc.
c/o TDA Industries, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx,
Chief Executive Officer
With a copy to: Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
(if by mail)
or
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(if by hand delivery)
Attention: Xxxxxxxxx X. Xxxxxxx,
Attorney at Law
If to the Executive: 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
14
With a copy to: Xxxxxxx Xxxxx, Esq.
Attorney at Law
0000 X. Xxxxxx Xxxxx Xxxxx
Xxxxx X
Xxxxxxxxx, Xxxxx 00000
9.8 Entire Agreement; Amendments
This Agreement, the Asset Purchase Agreement, and the documents executed in
connection with the Asset Purchase Agreement, contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral or written, between the parties hereto
with respect to the subject matter hereof. This Agreement may not be amended
orally, but only by an agreement in writing signed by the parties hereto.
9.9 Governing Law
This Agreement shall be governed by the law of the State of New York
without regard to its conflicts of laws principles except to the extent an
action may be brought to enforce any of the protective covenants set forth in
Section 8 of this Agreement. In order to simplify any such legal proceedings,
which likely would require review of the law of the forum jurisdiction to ensure
that enforcement is appropriate as a matter of public policy, it is agreed that
notwithstanding principles of conflicts of law otherwise requiring a different
result, the law of the state in which the enforcement action is filed shall
govern construction and enforcement of such protective covenants.
9.10 Jurisdiction; Waiver of Jury Trial
Any action or proceeding seeking to enforce any provision of, or based on
any right arising out of, this Agreement may be brought against either of the
parties in the courts of the State of New York in New York County, New York, or,
if it has or can acquire jurisdiction, in the United States District Court for
the Southern District of New York, or the Middle District of Florida, and each
of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. The parties agree to accept service of process
by certified mail, or such other means as permitted for the giving of notices
hereunder. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world. THE PARTIES HERETO
ACKNOWLEDGE THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME
AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
15
AGREEMENT.
9.11 Section Headings; Construction
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
9.12 Severability
If any provision of this Agreement is held invalid or unenforceable in any
jurisdiction by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect in such jurisdiction. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
unenforceable.
9.13 Counterparts
This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
WITNESSES: EXECUTIVE:
[illegible]
------------------------
[illegible] /s/ Xxxx X. Xxxxxx
------------------------ ----------------------
XXXX X. XXXXXX
16
EMPLOYER:
MSI/EAGLE SUPPLY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, CEO
-----------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
ACKNOWLEDGED AND AGREED TO, this 22nd day of October, 1998.
MASONRY SUPPLY, INC.,
a Texas corporation
By: /s/ Xxxx X. Xxxxxx, Pres.
--------------------------------
Xxxx X. Xxxxxx
President
