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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is made and entered into
as of December 31, 1994, by MMI Products, Inc., a Delaware corporation (the
"COMPANY"), and Xxxxxx X. Xxxxx, a resident of Texas (the "EMPLOYEE").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee, and the Employee
desires to accept such employment, on the terms ad conditions set forth in this
Agreement;
THEREFORE, in consideration of the premises and the covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee, and the
Employee hereby accepts such employment, upon the terms and conditions set
forth in this Agreement.
2. Duties of the Employee. During the term of this Agreement,
the Employee shall, under the direction of the Board of Directors of the
Company, perform such executive, management, consulting, client development and
other duties that the Board of Directors of the Company may from time to time
assign. The Employee shall devote all of his business time, attention and
energy to the Company and shall not, during the term of his employment, be
actively engaged in any managerial or employment capacity in any other business
activity for gain, profit, or other pecuniary advantage; provided that the
foregoing does not prohibit the Employee from making investments that do not
unreasonably interfere with the performance of his duties with the Company.
3. Compensation.
(a) The Employee shall receive as compensation for his
services hereunder an annual salary of $200,000, which sum shall be payable in
equal semi-monthly installments (the "BASE COMPENSATION") . The Employee's Base
Compensation shall be reviewed at least annually by the Board of Directors, and
the Employee shall be entitled to such increases in his Base Compensation as
the Board of Directors may determine.
(b) The Employee will also be entitled to participate in
the senior management incentive plan to be established by the Company that will
afford the Employee the opportunity to earn incentive compensation of up to
100% of the Employee's Base Compensation. The amount payable to the Employee
under such incentive plan will be based on the Company's earnings and return on
investment, according to objectives determined by the Board of Directors.
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4. Other Benefits. The Employee shall be entitled to participate
in any health insurance, life insurance or other benefits that are generally
extended, from time to time, to the employees of the Company (or to executives
of the Company, if different from those provided to employees generally). The
Employee shall be entitled to reasonable vacations, consistent with the
Company's policies. Upon the submission of properly documented expense account
reports, the Company shall reimburse the Employee for all reasonable travel and
entertainment expenses incurred by the Employee in the course of his
employment. The Company will also provide the Employee a car allowance in
accordance with Company policy.
5. Term. The term of employment hereunder shall commence upon
the date hereof and continue for a period of five years thereafter, unless
sooner terminated in accordance with the provisions hereof.
6. Termination.
6.1 Death or Disability. The employment of the Employee
shall terminate automatically upon the death or total disability of the
Employee. For the purpose of this Agreement, "total disability" shall be
deemed to have occurred if in the sole judgment of the Board of Directors the
Employee shall have been unable to perform the duties of his employment due to
his mental or physical condition for a period of 180 days.
6.2 Cause. The Company may terminate the employment of
the Employee under this Agreement for Cause. For purposes of this Agreement,
"Cause" means conduct by the Employee constituting gross mismanagement, willful
misconduct or fraud during the term of this Agreement, as determined by the
Board of Directors of the Company in its sole judgment.
6.3 Notice. The Board of Directors of the Company may
terminate the employment of the Employee upon notice, written or oral, given or
delivered to the Employee.
7. Compensation Upon Termination.
7.1 If the employment of the Employee is terminated
pursuant to the provisions of Section 6.1, all rights and obligations under
this Agreement shall terminate, and no further compensation shall be payable to
the Employee except as specifically provided herein; provided, however, that
the Employee or the Employee's estate, heirs and beneficiaries, as applicable,
shall be entitled to receive in a lump sum cash payment promptly after
termination of the Employee's employment (a) Base Compensation accrued through
the date of termination, as well as any reimbursable expenses incurred pursuant
to Section 4 of this Agreement; (b) incentive compensation payable to the
Employee pursuant to Section 3(b), prorated to the date of termination based
upon the incentive compensation paid or payable to the Employee pursuant to
Section 3(b) in respect of the Company's preceding fiscal year; and (c) any
other benefits specifically provided to the Employee under any benefit plan.
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7.2 If the employment of the Employee is terminated
pursuant to the provisions of Section 6.2 herein, all rights and obligations
under this Agreement shall terminate, and no further compensation shall be paid
to the Employee, other than Base Compensation accrued through the date of
termination.
7.3 If the employment of the Employee under this
Agreement is terminated pursuant to the provisions of Section 6.3 (other than
as described in Section 7.4 below), all rights and obligations under this
Agreement shall terminate, and no further compensation shall be payable to the
Employee except as specifically provided herein; provided, however, that the
Employee shall be entitled to receive in a lump sum cash payment the amount
determined under Section 7. 1, plus monthly severance payments equal to his
monthly Base Compensation for the lesser of (a) the number of months remaining
under the term of this Agreement, or (b) twelve months.
7.4 If the employment of the Employee under this
Agreement is terminated pursuant to the provisions of Section 6.3 within one
year of a "change in control," all rights and obligations under this Agreement
shall terminate and no further compensation shall be payable to the Employee
except as specifically provided herein; provided, however, the Employee shall
be entitled to receive in a lump sum cash payment the amount determined under
Section 7.1 plus monthly severance payments in accordance with Section 7.3 plus
incentive compensation pursuant to Section 3(b) pro rated for the period from
the date of termination through the lesser of (a) the number of months
remaining under the terms of this Agreement, or (b) 12 months, in either case
based upon the incentive compensation paid or payable to the Employee pursuant
to Section 3(b) in respect of the Company's preceding fiscal year. As used
herein, the term "change in control" shall have the meaning ascribed thereto in
Paragraph 3(d) of the Shareholders' Agreement dated as of July 31, 1989, by and
among Merchants Metals Holding Company, a Delaware corporation ("Holding"), the
Employee and certain other shareholders of Holding named therein.
8. Disclosure of Information. The Employee hereby acknowledges
that he will have access to certain trade secrets and confidential information
of the Company and of corporations affiliated with the Company and that such
information constitutes valuable, special and unique property of the Company
and such other corporations. The Employee will not, during or after the term
of his employment hereunder, disclose any such trade secrets or confidential
information to any person or entity for any reasons or purpose whatsoever,
except as may be required by law.
9. Notice. Any notice required or permitted hereunder shall be
deemed sufficiently given if in writing and either personally delivered or sent
by registered, certified, or first class mail, postage prepaid, addressed to
the part at the address set forth below, or at such other address as the party
may subsequently designate:
If to the Employee, to: (a) Xxxxxx X. Xxxxx
000 Xxxx Xxxxxx Xxxx, #000
Xxxxxxx, Xxxxx 00000
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If to the Company, to: (b) MMI Products, Inc.
000 Xxxx Xxxxxx Xxxx, #000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxxxxxx
Copy to: Citicorp Venture Capital Ltd.
000 Xxxx Xxxxxx
Xxxxx 00/Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. XxXxxxxxxx
10. Amendment; Waiver. No modification or amendment hereof shall
be valid and binding, unless it be in writing and signed by the parties hereto.
The waiver of any provision hereof shall be effective only in the specific
instance and for the particular purpose for which it was given. No failure to
exercise, and no delay in exercising, any right or power hereunder shall
operate as a waiver thereof.
11 Benefit. This Agreement shall inure to the benefit of and
shall be binding upon the Employee, his heirs and personal representatives, and
the Company, its successors and assigns. Neither this Agreement, nor the
rights and obligations created hereunder, may be assigned by either party
without the consent of the other party.
12. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provisions had never comprised a part hereof; and the remaining
provisions shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
13 Headings. The headings of the paragraphs of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict or modify any of the terms or provisions hereof.
14 Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he or it may be
entitled.
15 Entire Agreement; Modification. This Agreement contains the
entire agreement between the parties and supersedes all prior agreements and
understandings, oral or written, with
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respect to the transactions contemplated herein, including any and all
severance pay agreements between the Company or its predecessors and the
Employee.
16. Governing Law. This Agreement has been entered into the State
of Texas and shall be construed in accordance with, and governed by, the laws
excluding the conflicts of law rules of the State of Texas.
IN WITNESS WHEREOF, the parties have duly executed this Agreement, as
of the date and year first above written.
EMPLOYER;
MMI PRODUCTS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx
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Xxxxxx X. XxXxxxxxxx,
Director
EMPLOYEE:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (the "Amendment")
is made and entered into as of the 16th day of April, 1997, by and between MMI
Products, Inc., a Delaware corporation (the "Company") and Xxxxxx X. Xxxxx (the
"Employee").
WHEREAS, the Company and Employee entered into that certain
Employment Agreement dated as of December 31, 1994 (the "Employment
Agreement").
WHEREAS, the Company and Employee desire to further amend the
provisions of the Employment Agreement as provided herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The first sentence of Section 3(a) of the Employment
Agreement is hereby amended by deleting the text which reads "$200,000" and
replacing it with "$250,000."
2. The text of Section 3(b) of the Employment Agreement
is hereby deleted and replaced in its entirety with the following:
(b) The Employee will be entitled to earn annual
incentive compensation based on performance criteria
established from time to time by the Board of Directors of the
Company. The amount of such incentive compensation will be
based on, among other things, the Company's earnings and
return on investment.
3. Except as expressly amended by this Amendment, the
Employment Agreement shall remain in full force and effect in the form in which
it was in effect prior to the execution and delivery of this Amendment.
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first above written.
MMI PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and
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Chief Financial Officer
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EMPLOYEE:
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
