Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into and effective as of
October 20, 2003, by and between Xxxxxx X. Xxxx ("EXECUTIVE") and Beacon Sales
Acquisition, Inc. d/b/a Beacon Sales Company, a Delaware corporation (the
"COMPANY").
R E C I T A L S :
A. The Company and its Subsidiaries (as defined herein) are engaged in
the business of distributing commercial and residential roofing and related
products, including without limitation, shingles, sheet metal, lumber, water
proofing products, siding, windows and insulation.
B. The Company desires to employ Executive as its President and Chief
Executive Officer, and Executive desires to be so employed by the Company, on
the terms and conditions set forth herein.
C. The Company desires to bind Executive to certain restrictive
covenants, and Executive agrees to be so bound, on the terms and conditions set
forth herein.
A G R E E M E N T S:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT TERM. Subject to the terms and conditions set forth
herein, the Company agrees to employ Executive, and Executive agrees to be
employed by the Company, for a term commencing on the date hereof and ending on
November 19, 2006, unless sooner terminated as herein provided (the "INITIAL
TERM"). The parties may, by mutual written agreement executed in their sole
discretion, extend the Initial Term (any such extension, together with the
Initial Term, the "EMPLOYMENT TERM").
2. EMPLOYMENT DUTIES; OTHER OFFICES.
(a) During the Employment Term, Executive shall serve as the President
and Chief Executive Officer ("CEO") of the Company under the direction and
control of the board of directors of the Company (the "BOARD OF DIRECTORS"),
subject to the terms of this Agreement. Executive shall perform such services
and assume such duties and responsibilities as are commensurate with his
position as such President and CEO, including such services, duties and
responsibilities as may from time to time be assigned to him by the Board of
Directors. Executive shall serve the Company faithfully, diligently and
competently and to the best of his ability, and Executive shall use his best
efforts to further enhance and develop the Company's business affairs, interests
and welfare. Except for illness, vacation periods and reasonable leaves of
absence, Executive shall devote his full business time and attention to the
business and affairs of the Company and the performance of his duties hereunder.
(b) Code, Xxxxxxxx & Xxxxxxx III, L.P., a Delaware limited partnership
("CHS"), shall cause Executive to be elected as a director of the Company's
parent, Beacon Roofing Supply, Inc., a Delaware corporation (the "PARENT") at
all times during the Employment Term that CHS owns a majority of the shares of
voting stock of Parent. CHS shall cause Executive to be elected as the President
and CEO of Parent at all times during the Employment Term that CHS owns a
majority of the shares of voting
stock of Parent. Although Executive shall serve as a director and the President
and Chief Executive Officer of Parent, he shall not be an employee of Parent.
3. COMPENSATION. During the Employment Term, the Company shall pay to
Executive the following:
(a) The Company shall pay to Executive a salary ("BASE SALARY") for all
services rendered by Executive under this Agreement of $430,000 per year in
fiscal year 2004 (prorated for any partial year), which ends on September 25,
2004, and of $445,000 per year for fiscal year 2005 (prorated for any partial
year), which ends on September 24, 2005. Thereafter, the Base Salary shall be
reviewed annually by the Board of Directors and shall be subject to additional
increases (but not decreases) at the sole discretion of the Board of Directors.
The Base Salary shall be paid on a regular basis in accordance with the
Company's normal payroll procedures and policies, and shall be prorated for any
partial fiscal years.
(b) Subject to the last sentence of this Section 3(b), the Company shall
pay an annual bonus ("INCENTIVE BONUS") of up to 100% of Base Salary for each
fiscal year of the Company in which the Executive is employed by the Company
during such fiscal year, based upon achievement of the performance target for
such fiscal year as follows: If the Company achieves only 85% or less of the
target for a fiscal year, then no Incentive Bonus shall be paid for such fiscal
year. If the Company achieves 100% of the target for a fiscal year, then the
Incentive Bonus for that fiscal year shall be equal to 50% of the Base Salary
for that fiscal year. If the Company achieves 115% or more of the target for a
fiscal year, then the Incentive Bonus for that year shall be equal to 100% of
the Base Salary for that fiscal year. If the Company achieves a percentage of
the target for a fiscal year that is between any two of the 85%, 100% or 115%
thresholds referred to above, then the Incentive Bonus shall be calculated on a
straight line basis between the Incentive Bonus that would apply at those two
thresholds. For example, (i) if the Company achieves 92.5% of the target for a
fiscal year, then the Incentive Bonus for that fiscal year shall be equal to 25%
of the Base Salary for that fiscal year; and (ii) if the Company achieves 107.5%
of the target for a fiscal year, then the Incentive Bonus for that fiscal year
shall be equal to 75% of the Base Salary for that fiscal year. As used in this
Section 3(b), the phrase "Base Salary for that year" means the rate of Base
Salary in effect for a majority of that fiscal year (or, if no Base Salary rate
was in effect for a majority of such fiscal year, then the weighted average Base
Salary for that fiscal year). No later than sixty (60) days after the beginning
of each fiscal year, the Board of Directors and Executive shall mutually agree
upon the performance target for such fiscal year. Notwithstanding anything to
the contrary herein, the Company shall not be obligated to pay any Incentive
Bonus for any fiscal year unless Executive is employed by the Company at the end
of that fiscal year.
4. PAYMENTS. All payments made to Executive pursuant to this Agreement
(whether during his employment with the Company or thereafter as severance)
shall be treated as wages for withholding and employment tax purposes as
provided by law (except that reimbursement of expenses will not be so treated to
the extent permitted by law).
5. LOCATION.
(a) Subject to Section 5(b), during the Employment Term, Executive's
office shall be located at a Company facility in the greater Boston metropolitan
area. During the Apartment Period, the Company shall rent an apartment in the
greater Boston metropolitan area for Executive's use; provided that until
December 1, 2003, the Company may instead provide hotel accommodations in the
greater Boston metropolitan area for Executive's use. As used herein, "APARTMENT
PERIOD" means the period starting on the date hereof and ending on the earlier
of (i) the date that Executive changes his permanent primary residence from the
Cincinnati area to the Boston area or any other area in accordance with Section
5(b) or (ii) the date that the Employment Term ends pursuant to Section 8.
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(b) At any time during the period starting on July 31, 2004 (or earlier,
if mutually agreed by the parties) and ending on December 31, 2004 (the
"RELOCATION PERIOD"), the Company may, after consultation with Executive,
request that Executive relocate to a greater metropolitan area located in the
Xxxxxxxxxxxx, Xxxxxxx, xx Xxxxxxxxxxxx Xxxxxx Xxxxxx, including the Washington,
D.C. area. If the Company does so, then (i) Executive shall, by the later of
December 31, 2004 or three months after receiving such request, relocate his
office to the requested metropolitan area, establish his primary permanent
residence in such area, and move himself and his family permanently out of his
home in the Cincinnati area; and (ii) Executive shall use commercially
reasonable efforts to sell his home in the Cincinnati area promptly after
receiving such request. If, during the Relocation Period, the Company, after
consultation with Executive, notifies Executive that he should not relocate his
office but should instead remain in the greater Boston metropolitan area, then
(i) Executive shall, by the later of December 31, 2004 or three months after
receiving such request, establish his primary permanent residence in the greater
Boston metropolitan area, and move himself and his family permanently out of his
home in the Cincinnati area; and (ii) Executive shall use commercially
reasonable efforts to sell his home in the Cincinnati area promptly after
receiving such request. If the Executive sells his home in the Cincinnati area
and moves his primary, permanent residence in accordance with this Section 5(b),
then the Company shall reimburse Executive for all reasonable, documented
expenses incurred by Executive during the Employment Term on or prior to
September 30, 2005 for such relocation, including expenses for any house search,
moving company, broker's fee and up to $500 of attorneys fees on the sale of
Executive's home in Cincinnati.
6. BENEFITS.
(a) Executive shall be entitled during the Employment Term to
participate in such employee benefit plans and programs, including, without
limitation, life and disability insurance and medical, dental and 401(k) plans
and the Company's standard stock option plan, as are maintained from time to
time for salaried employees of the Company, to the extent that his position,
tenure, compensation, age, health and other qualifications make him (and his
dependents) eligible to participate. Notwithstanding anything to the contrary
herein contained, (i) the Company does not promise the continuance of any
particular plan or program during the Employment Term, (ii) Executive's (and his
dependents') participation in any such plan or program shall be subject to the
provisions, rules, regulations and laws applicable thereto and (iii) such plans
or programs may be amended or terminated at any time by the Board of Directors
in its sole discretion.
(b) During the Employment Term, Executive shall be entitled to four (4)
weeks of paid vacation per fiscal year (pro rated for partial years) to be taken
at times mutually acceptable to Executive and the Company, and such holidays as
are observed by the Company from time to time. Paid vacation which is not used
in a fiscal year may not be carried over to a subsequent fiscal year, except as
expressly agreed by the Board of Directors.
(c) During the Employment Term, Executive shall be entitled to a car
allowance of $750 per month. Any automobile lease payments, insurance payments
or other payments made by the Company with respect to any vehicle leased by the
Company for Executive's use (the "LEASED VEHICLE") shall be credited against
such car allowance.
7. REIMBURSEMENT OF EXPENSES. Except for expenses related to the Leased
Vehicle, Executive shall be entitled to reimbursement for ordinary, necessary
and reasonable out-of-pocket business expenses which Executive incurs in
connection with performing his duties under this Agreement, including reasonable
travel expenses. The reimbursement of all such expenses shall be made in
accordance with the Company's customary practices and policies (including
presentation of evidence reasonably satisfactory to the Company of the amounts
and nature of such expenses) for reimbursement
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of expenses of senior executive officers. Notwithstanding the foregoing, during
the Apartment Period, Executive shall be entitled to reimbursement from the
Company for reasonable travel expenses for up to two round trips per month for
each of Executive and his wife between the Boston area and the Cincinnati area,
upon presentation to the Company of evidence reasonably satisfactory to the
Company of the amounts and nature of such expenses.
8. TERMINATION; SEVERANCE.
(a) Executive's employment with the Company: (x) shall terminate upon
Executive's resignation, death, Disability or Retirement (as defined herein);
and (y) may be terminated at any time by the Board of Directors for any reason
(or no reason), including for Cause (as defined herein). As used in this
Agreement, "CAUSE" means any of the following, as determined by the Board of
Directors, in its reasonable judgment: (i) Executive's failure or refusal to
perform such material duties and responsibilities as are reasonably requested by
the Board of Directors; (ii) Executive's failure to observe all material
policies of the Company generally applicable to executives of the Company; (iii)
Executive's gross negligence or willful misconduct in the performance of
Executive's duties; (iv) any act of fraud or embezzlement by Executive against
the Company Group, other wrongful taking by Executive of money or other assets
of the Company Group for Executive's personal use, self-dealing by Executive or
his spouse or children directly or indirectly involving the Company Group, or
Executive's conviction for (or plea of nolo contendere or the like with respect
to) any felony; (v) Executive's dissemination of information, observations and
data concerning the business plans, financial data, referral sources, customers,
suppliers, manufacturing procedures and techniques, trade secrets or acquisition
strategies of the Company Group or any other Confidential Information in
violation of Section 9(b); (vi) a breach by Executive of any obligation under
Section 2(a) of the Securities Agreement (as defined herein); or (vii) any other
material breach of the terms of this Agreement or the Securities Agreement. As
used herein, the "COMPANY GROUP" means the Parent and its Subsidiaries,
including the Company. "RETIREMENT" means the voluntary termination of
Executive's employment with the Company when Executive is at least 65 years old
(for purposes hereof, such a termination shall not be treated as a resignation).
(b) For purposes of this Agreement, Executive's employment shall be
terminated: (i) if terminated as a result of the Disability of Executive, on the
effective date of Executive's termination of employment pursuant to Section 10
hereof; (ii) if terminated by Executive's resignation or Retirement, on the date
specified in a written notice delivered by Executive to the Company, which date
shall be at least sixty (60) days following the date of such written notice;
(iii) if terminated as a result of the death of Executive, on the date of such
death; (iv) if terminated by the Company with or without Cause, at the time
specified in a written notice delivered by the Company to Executive (which time
shall not be earlier than the time that the notice is given).
(c) If Executive's employment is terminated by the Company without Cause
or if the Executive's employment ends effective as of the expiration of the then
current term hereof because the Company is unwilling to extend this Agreement on
the same terms as then currently apply, Executive shall be entitled to the
continuation of Executive's Base Salary (the "SEVERANCE PAYMENT") for a period
of twelve (12) months from the date of termination of Executive's employment.
The Severance Payment shall be paid in accordance with the Company's customary
payroll practices over such twelve (12) month period. Notwithstanding the
foregoing, the Company shall not be obligated to pay the Severance Payment (i)
at any time when Executive is in material breach of any material provision of
this Agreement, and (ii) unless and until Executive executes and delivers to the
Company a release (in form and substance reasonably satisfactory to the Company)
whereby Executive releases the Company Group, and their respective directors,
officers, employees, agents, representatives and shareholders, from all claims
Executive may have from or arising out of this Agreement or otherwise from his
employment with the Company, except for the Company's obligation under this
Section 8(c) and the Parent's obligations under
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Section 2, 3 and 4 of the Stock Option Agreement and Sections 3, 7, 8 and 13 of
the Securities Agreement (both as defined herein).. Without limiting any other
provision of this Agreement, the Company shall not be obligated to make the
Severance Payments (or any other severance payment) if Executive's employment is
terminated by the Company for Cause, or by the Executive's death, Disability,
resignation or Retirement, or upon expiration of this Agreement (other than
expiration under the circumstances described in the first sentence of this
Section 8(c)). If Executive's title is diminished or his duties are
substantially and materially reduced (including his title and duties as
President and Chief Executive Officer of Parent), or his Base Salary or bonus
opportunity is reduced and Executive resigns as a result thereof, such
resignation will constitute termination by the Company without Cause. For
purposes hereof, Executive's "bonus opportunity" shall be treated as reduced if
(and only if) the Company breaches its obligations under Section 3(b).
(d) Upon termination of employment for any reason, Executive (or, if
Executive is deceased, his estate) shall be entitled to any accrued but unpaid
Base Salary under Section 3, benefits under Section 6 required to be extended to
Executive pursuant to applicable law or the terms of a particular plan or
program, and reimbursement for expenses under Sections 5 and 7, in each case
with respect to the period ending on the date of termination of employment.
(e) Upon termination of his employment, Executive shall be entitled only
to the payments described in this Section 8 and shall not be entitled to any
other salary, benefits or other payments from the Company Group pursuant to this
Agreement.
(f) Concurrent with termination of Executive's employment with the
Company for any reason, Executive shall resign from all positions with the
Company Group.
(g) Nothing in this Section 8 shall relieve the Company of any
obligation it may have under applicable law to continue any health benefits.
9. RESTRICTIVE COVENANTS.
(a) NON-COMPETE. During the Restricted Period, Executive must not
directly or indirectly: (i) engage in the Business anywhere in the Territory
other than on the Company Group's behalf; (ii) solicit any actual (as opposed to
merely prospective) customer of the Company Group, with whom Executive has had
direct contact while employed by the Company, to purchase other than from the
Company Group any goods or services sold by the Company Group; or (iii) solicit
the employment (or solicit to retain the services) of any employee, sales
representative or sales agent of the Company Group. Nothing in this Agreement,
however, prevents Executive from (x) owning less than five percent (5 %) of any
class of publicly traded securities so long as such investment is passive and
Executive has no other involvement with the issuer of such securities or (y)
continuing to receive benefits from his prior employer, provided that Executive
does not perform any services for his prior employer. To "ENGAGE" in a business
in the Territory means (x) to render services in (or with respect to) the
Territory for that business, or (y) to own, manage, operate or control (or
participate in the ownership, management, operation or control of) an enterprise
engaged in that business in the Territory. "RESTRICTED PERIOD" means the period
beginning on the date hereof and ending eighteen (18) months after the last day
of Executive's employment by the Company. "TERRITORY" means the state of Texas
and all states in the United States east of the Mississippi River. "BUSINESS"
means the wholesale distribution of (i) commercial roofing products, (ii)
residential roofing products or (iii) any related products, including shingles,
sheet metal, lumber, water proofing products, siding, windows and insulation.
(b) CONFIDENTIALITY. During the Confidentiality Period: (i) Executive
must maintain all Confidential Information in confidence and must not disclose
any Confidential Information to anyone
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outside of the Company Group; and (ii) Executive must not use any Confidential
Information for the benefit of Executive or any third party. Nothing in this
Agreement, however, prohibits Executive: (1) from disclosing any Confidential
Information (or taking any other action) in furtherance of Executive's duties to
the Company Group while employed by the Company; or (2) from disclosing
Confidential Information to the extent required by law (after giving prompt
notice to the Company in order that the Company Group may attempt to obtain a
protective order or other assurance that confidential treatment will be accorded
such information). Upon the Company's request at any time, Executive must
immediately deliver to the Company all tangible items in Executive's possession
or control that are or that contain Confidential Information, without keeping
any copies. For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means
information regarding the Company Group that is not generally available to the
public, including (to the extent that it is not so generally available): (1)
information regarding the Company Group's business, operations, financial
condition, customers, vendors, sales representatives and other employees; (2)
projections, budgets and business plans regarding the Company Group; (3)
information regarding the Company Group's planned or pending acquisitions,
divestitures or other business combinations; (4) the Company Group's trade
secrets and proprietary information; and (5) the Company Group's technical
information, discoveries, inventions, improvements, techniques, processes,
business methods, equipment, algorithms, software programs, software source
documents and formulae. For purposes of the preceding sentence, information is
not treated as being generally available to the public if it is made public by
Executive in violation of this Agreement. "CONFIDENTIALITY PERIOD" means the
period beginning on the date hereof and ending three years after the last day of
Executive's employment by the Company.
10. DISABILITY. If at any time during the term of this Agreement,
Executive is suffering from any illness, injury or other disability which has
caused (or which the Board of Directors reasonably determines will cause)
Executive to be unable to perform Executive's duties with the Company for 90
consecutive days or for 120 cumulative days during any 180 day period or
Executive is receiving long term disability benefits under any policy, plan or
program ("DISABILITY"), the Company may assume management responsibilities for
the duration of Executive's absence and may, upon thirty (30) days prior written
notice to Executive, terminate Executive's employment for Disability.
11. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, or sent by confirmed facsimile
(provided, however, that notices delivered by facsimile shall be effective only
if such notice is also delivered by hand, or mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
(charges prepaid), on or before two (2) business days after its delivery by
facsimile) or by reputable overnight courier service (charges prepaid) to the
recipient at the address indicated below:
TO THE COMPANY:
Beacon Sales Acquisition, Inc.
c/o Code, Xxxxxxxx & Xxxxxxx III, L.P.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
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WITH A COPY TO:
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: S. Xxxxxxx Xxxx and Xxxxx Xxxx
Fax: (000) 000-0000
TO EXECUTIVE:
Xxxxxx X. Xxxx
5650 Wm. X. Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
WITH A COPY TO:
Xxxx X. Xxxxx
Xxxxx Xxxxx Xxxx LLC
0000 XXX Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
and/or such other address and/or to the attention of such other person as the
recipient party shall have designated by notice given in accordance with this
Section 11. Any notice under this Agreement shall be deemed to have been given:
(i) if delivered in person, at the time delivered; (ii) if sent by confirmed
facsimile, at the time sent; or (iii) if sent by overnight courier, one (1)
business day after being given to the courier.
12. GENERAL PROVISIONS.
(a) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, and this Agreement shall (subject
to Section 12(c) hereof) be reformed, construed and enforced in such
jurisdiction so as to best give effect to the intent of the parties under this
Agreement.
(b) REMEDIES. If Executive breaches any of the provisions of this
Agreement (including the provisions of Section 9), then the Company shall be
entitled, in addition to any other remedies that it may have, to specific
injunctive or other equitable relief (without the requirement of posting of a
bond or other security) in order to enforce such provision.
(c) SCOPE OF COVENANTS. Executive acknowledges that the territorial,
time and activity limitations set forth in Section 9 (or the lack thereof, as
the case may be) are reasonable and are properly required for the protection of
the Company. If any such territorial, time or activity limitation (or the lack
thereof) is determined to be unreasonable by a court or other tribunal, the
parties agree to the reduction of such territorial, time or activity limitations
(including the imposition of such a limitation if it is missing) to such an
area, period or scope of activity as said court or tribunal shall deem
reasonable under the circumstances. Also, if the Company seeks partial
enforcement of Section 9 as to only a territory, time and scope of activity
which is reasonable, then the Company shall be entitled to such reasonable
partial enforcement. If such reduction or (if the Company seeks partial
enforcement) such partial enforcement is
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not possible, then the unenforceable provision or portion thereof shall be
severed as provided in Section 12(a).
(d) COMPLETE AGREEMENT. This Agreement, that certain Special Purchase
Agreement of even date herewith between Executive and the Parent ("STOCK OPTION
AGREEMENT"), and that certain Executive Securities Agreement of even date
herewith among Executive, the Parent and Code, Xxxxxxxx & Xxxxxxx III, L.P. (the
"SECURITIES AGREEMENT"), and any and all other documents executed by Executive
on the date hereof in connection with the transactions contemplated by the
foregoing embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof or thereof in any way.
(e) COUNTERPARTS. This Agreement may be executed in separate
counterparts (including by facsimile), each of which is deemed to be an original
and all of which taken together constitute one and the same agreement.
(f) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company Group and their respective heirs, legal representatives,
successors and assigns; provided that the rights and obligations of Executive
under this Agreement shall not be assignable.
(g) CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the Applicable State, without giving effect
to any choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the Applicable State. As
used herein, "APPLICABLE STATE" means the Commonwealth of Massachusetts;
provided, however, that when and if Executive relocates his offices to a
location outside of the greater Boston metropolitan area in accordance with
Section 5(b), then the Applicable State shall be (at all times thereafter) the
state in which such relocated office is situated immediately after such
relocation.
(h) CONSENT TO JURISDICTION. The parties irrevocably consent and submit
to the nonexclusive jurisdiction of any local, state or federal court within the
Applicable County for the enforcement of this Agreement. The parties irrevocably
waive (with respect to any such court) any objection they may have to venue in
the defense of an inconvenient forum to the maintenance of such actions or
proceedings to enforce this Agreement. As used herein, "APPLICABLE COUNTY" means
Suffolk County, Massachusetts; provided, however, that when and if Executive
relocates his offices to a location outside of the greater Boston metropolitan
area in accordance with Section 5(b), then the Applicable County shall be (at
all times thereafter) the county in which such relocated office is situated
immediately after such relocation.
(i) WAIVER. The failure of any party to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(j) HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
(k) AMENDMENTS. This Agreement shall not be amended or modified unless
pursuant to an agreement in writing signed by the Company and Executive.
(l) SURVIVAL. The rights and obligations of the parties shall survive
the termination of Executive's employment to the extent that any performance is
required following termination.
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(m) CERTAIN DEFINITIONS. As used herein, "SUBSIDIARY," of a specified
person means (i) an entity that is directly or indirectly Controlled by the
specified person, or (ii) an entity in which the specified person, directly or
indirectly, owns a majority economic interest; and "CONTROL" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through ownership of voting
securities, by contract or otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BEACON ROOFING SUPPLY, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, Vice President
EXECUTIVE
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
JOINDER
The undersigned hereby agrees to be bound by Section 2(b) of this
Employment Agreement.
CODE, XXXXXXXX & XXXXXXX III, L.P.
By: CHS Management III, L.P.,
its general partner
By: CODE, XXXXXXXX & XXXXXXX, L.L.C.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx, Member
