EXHIBIT 10.3
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT is made as of May 1, 1997, between American Builders &
Contractors Supply Co., Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxxxxx ("Executive").
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive hereby
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof and ending as
provided in paragraph 5 hereof (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the President
and Chief Executive Officer of the Company.
(b) Executive shall report to the Board, and Executive shall devote his
efforts to the business and affairs of the Company and its Subsidiaries.
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.
(c) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation of which the securities having a majority of the voting power in
electing directors are, at the time of determination, owned by the Company,
directly or through one of more Subsidiaries.
3. Base Salary and Benefits.
(a) During the Employment Period, Executive's base salary shall be
$1,000,000.00 per annum (the "Base Salary"), which salary shall be payable in
regular installments in accordance with the Company's general payroll practices
and shall be subject to customary withholding. The Base Salary shall be subject
to annual increases to be effective beginning January 1 of each year of no more
than 20.0% of Executive's salary in the immediately preceding calendar year upon
the approval of the majority of the Company's Disinterested Directors. In
addition, during the Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit programs for which senior
executive employees of the Company and its Subsidiaries are generally eligible.
For purposes of this Agreement, "Disinterested Directors" shall mean the members
of the Company's board of directors who are not (i) full-time employees of the
Company or any of its Subsidiaries or (ii) related by blood or marriage to Xx.
Xxxxxxxxx.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's requirements with respect to reporting and documentation of such
expenses.
4. Board Membership. With respect to all regular elections of directors
during the Employment Period, the Company shall nominate, and use its best
efforts to elect, Executive to serve as a member of the Board.
5. Term; Termination. The Employment Period shall continue until the
earlier of (i) the third anniversary of the date of this Agreement, (ii)
Executive's resignation, death or disability or other incapacity (as determined
by the Board in its good faith judgment) or (iii) a determination by the Board
in its good faith judgment that termination of Executive's employment is in the
best interests of the Company. The Employment Period shall be extended for a
subsequent one-year term on each anniversary of the date of this Agreement
beginning on the third anniversary unless notice to the contrary is delivered by
Executive or the Company at least thirty days prior to such anniversary.
6. Notices. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed by first class mail, return
receipt requested, to the recipient at the address below indicated:
Notices to Executive:
c/o American Builders & Contractors Supply Co., Inc.
Xxx XXX Xxxxxxx
Xxxxxx, Xxxxxxxxx 00000
Notices to the Company:
American Builders & Contractors Supply Co., Inc.
Xxx XXX Xxxxxxx
Xxxxxx, Xxxxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
7. Complete Agreement. This Agreement embodies the complete agreement and
understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
-2-
8. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
9. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his obligations hereunder without the prior written
consent of the Company.
10. Choice of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Wisconsin, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Wisconsin or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Wisconsin.
11. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of the Company and Executive, and
no course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
* * * * *
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC.
By
---------------------------
Its President and CEO
--------------------------
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
XXXXXXX X. XXXXXXXXX
-4-
