Exhibit 99.3
SECOND MODIFICATION AGREEMENT
XXXXXXXXX X. XXXXXXXX
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This Modification Agreement (this "Agreement") is made as of
April 1, 2004 by and between JEH/EAGLE SUPPLY, INC. (formerly
JEH/ACQUISITION CORP.), a Delaware Corporation having a place of
business at 0000 X.X. 000, Xxxxxxxxx, Xxxxx ("JEH"), EAGLE
SUPPLY, INC., a Florida corporation having a place of business at
0000 Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx ("Eagle Supply"), EAGLE
SUPPLY GROUP, INC., a Delaware corporation having an office
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. ("ESG"), with
JEH, Eagle Supply and ESG referred to collectively hereinafter as
the "Employer," and XXXXXXXXX X. XXXXXXXX, an individual residing
at 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. (the "Executive").
WHEREAS, JEH previously entered into a written employment
agreement with the Executive dated as of the 1st day of July,
1997 (the "JEH Agreement"); and
WHEREAS, the JEH Agreement was amended pursuant to a First
Amendment effective as of the 30th day of April, 1998, and
pursuant to a Second Amendment effective as of the first day of
November, 1999; and
WHEREAS, the Executive previously entered into a written
employment agreement with Eagle Supply and ESG dated as of the
17th day of March 1999 (the "Eagle Supply/ESG Agreement"); and
WHEREAS, the Eagle Supply/ESG Agreement was amended
pursuant to a First Amendment effective as of the 1st day of
November, 1999; and
WHEREAS, the parties executed an Amended, Restated and
Consolidated Employment Agreement made as of November 1, 2001
(the "Restated Agreement"); and
WHEREAS, the parties executed a Modification Agreement made
as of January 1, 2003 (the "First Modification Agreement"); and
WHEREAS, the parties hereto, consisting of all of the
parties to the aforesaid employment agreements, now desire to
amend the terms and conditions of the Restated Agreement and, as
applicable, the First Modification Agreement under which the
Executive will continue to be employed by ESG, Eagle Supply, and
JEH in the capacities of Executive Vice President, Treasurer,
Secretary, and Chief Financial Officer, and to render services to
them as may be required, consistent with his employment as
hereinafter set forth; and
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WHEREAS, Employer acknowledges that Executive is a party to
an employment agreement with TDA Industries, Inc. which has been
assumed by Pemberton Services Corp.; and
WHEREAS, the parties acknowledge the accuracy of the
foregoing recitals and incorporate all of the same into this
Agreement as terms and conditions hereof;
NOW, THEREFORE, in consideration of the promises and mutual
representations, covenants, and agreements set forth herein, and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. The provisions of paragraph 2 of the Restated Agreement are
hereby modified so that the term of that agreement is hereby
extended for a period of six months to end on December 31, 2006.
2. The provisions of paragraph 4(D) of the Restated Agreement
and paragraph 2 of the First Modification Agreement are hereby
modified so that the annual Basic Bonus (as defined in the
Restated Agreement) is hereby waived by the Executive for the
current fiscal year which is due to end on June 30, 2004 and the
amount payable on such annual Basic Bonus for the next fiscal
year, due to end on June 30, 2005, is limited to One Hundred
Thousand ($100,000) Dollars.
3. The provisions of paragraph 4(E) of the Restated Agreement
are hereby modified so that the annual Performance Bonus (as
defined in that agreement) is hereby waived by the Executive for
the current fiscal year which is due to end on June 30, 2004.
4. The provisions of paragraphs 4(D) and 4(E) of the
Restated Agreement are hereby modified with respect to fiscal
years ending June 30, 2004 and June 30, 2005 to increase the
minimum level of defined EBIT (as defined in paragraph 4(D) of
the Restated Agreement) to $7.5 million in determining any Basic
Bonus or Performance Bonus, both as defined in paragraphs 4(D)
and 4(E), respectively, of the Restated Agreement.
5. Except as expressly modified herein, all terms and
conditions of the Restated Agreement and the First Modification
Agreement remain unchanged and the same are hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
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JEH/EAGLE SUPPLY, INC.
By:/S/ Xxxxxxx X. Xxxxxx
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EAGLE SUPPLY, INC.
By:/S/ Xxxxxxx X. Xxxxxx
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EAGLE SUPPLY GROUP, INC.
By:/S/ Xxxxxxx X. Xxxxxx
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/S/ Xxxxxxxxx X. Xxxxxxxx
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XXXXXXXXX X. XXXXXXXX
Date: 6/30/04
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APPROVED AND CONSENTED TO: PEMBERTON SERVICES CORP.
By:/S/ Xxxxxxx X. Xxxxxx
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APPROVED AND CONSENTED TO: TDA INDUSTRIES, INC.
By:/S/ Xxxxxxx X. Xxxxxx
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