EXHIBIT 10.11
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into as of
March 31, 2002 by and between Xxxxx X. Xxxxx ("Xxxxx"), an individual residing
in Dallas County, Texas and Centex Corporation, a Nevada corporation, with
offices in Dallas County, Texas.
RECITALS
Xxxxx has retired from employment with Centex Corporation and its
Affiliates as of March 31, 2002. However, Xxxxx will continue to serve on the
Boards of Directors of both Centex Corporation and CXP, as is set forth below.
Centex Corporation and Xxxxx have agreed that beginning April 1, 2002 and
ending March 31, 2007 Centex Corporation will retain Xxxxx as a consultant,
subject to the terms and conditions of this Agreement.
WITNESSETH
NOW THEREFORE, in consideration of the covenants herein set forth, Centex
Corporation and Xxxxx agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following definitions
shall apply unless the context requires otherwise.
a. "Affiliate" shall mean any entity or corporation that controls, is
controlled by, or is under common control with Centex Corporation.
b. "Compensation Committee" shall mean the Compensation and Stock
Option Committee of the Board of Directors of Centex Corporation.
c. "Consulting Period" shall mean the period beginning on April 1, 2002
and ending on March 31, 2007, unless sooner terminated under the
terms of this Agreement.
d. "CXP" shall mean Centex Construction Products, Inc., a Delaware
corporation.
e. "Effective Date" shall mean April 1, 2002.
2. CONSULTING SERVICES AND COMPENSATION.
a. Consulting Period: On April 1, 2002 Xxxxx shall be retained by
Centex Corporation for the Consulting Period.
b. Services During Consulting Period: Xxxxx'x duties to Centex
Corporation as a consultant during the Consulting Period shall be to
assist Centex Corporation and its Affiliates with, among other
matters, the following:
i. pending litigation in the U.S. Court of Federal Claims
entitled Centex Corporation and CTX Holding Company v. United
States of America, including the damages award and any future
appeals;
ii. acquisitions from a structural standpoint;
iii. pursuit of new speciality acquisition opportunities;
iv. strategic business and financial planning, including related
tax matters;
v. dispositions and restructuring;
vi. special reviews or examinations; and
vii. corporate structural planning.
c. Compensation During Consulting Period: During the Consulting Period,
with the understanding that Xxxxx will not accept full-time
employment with any third party until April 1, 2004, Centex
Corporation shall pay Xxxxx as follows:
i. $400,000 per year for the first 24 months. Such amounts shall
be paid as depicted on the schedule described in section 2. c.
iii. below.
ii. Xxxxx Xxxxx 00, 0000 Xxxxxx Corporation shall provide Xxxxx
with such medical and dental coverages as were being provided
to Xxxxx as an employee of Centex Corporation at March 31,
2002. The provision of such coverage will be subject to any
changes of general application in the programs which provide
such coverages to employees of Centex Corporation.
iii. Prior to the conclusion of fiscal year 2001 Xxxxx and Centex
Corporation agreed that, with respect to such year, payment of
Xxxxx'x annual bonus and payment of cash to Xxxxx in lieu of
his annual stock option award would be deferred until April
2002, and such deferred payments would accrue interest at the
rate of 7% per annum. The parties further agreed that
commencing April 2002, for a period of five years, Centex
Corporation would make amortizing monthly payments to Xxxxx of
such deferred amounts, together with interest thereon at the
rate of 7% per annum.
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As of the Effective Date the amount of such deferred bonus is
$2,889,000 and the amount of such deferred cash in lieu of
options is $1,797,600. Attached to this agreement is a
schedule which describes the dates and monthly payments of
said deferred amounts, and the consulting payments described
in section 2. c. i. above. Centex Corporation will make these
payments as scheduled, subject to all appropriate deductions.
iv. It is anticipated that Xxxxx will be awarded a bonus and cash
in lieu of stock option grant for the fiscal year concluded
March 31, 2002. Such awards will be determined and approved by
the Compensation Committee in its May 2002 meeting. Xxxxx had
elected, prior to March 31, 2002, to defer the receipt of such
bonus and cash in lieu of stock option grant for a period of
time not to exceed eighty-four (84) months from the Effective
Date. Interest will accrue on the amount of compensation so
deferred at the rate of 7% per annum commencing with the
Effective Date. Xxxxx may elect during any calendar year,
beginning in the calendar year 2002, to receive a distribution
of some portion or all of the deferred compensation, provided
that such distribution will not be made, or will not commence
if paid in installments, until the calendar year following the
year in which such election is made. In any case, any portion
of such deferred compensation not distributed to Xxxxx on or
before April 1, 2009 will automatically be distributed to
Xxxxx, whether or not he makes such election, within 30 days
following such date. Any distribution to Xxxxx will include
all interest accrued on the amount distributed.
Xxxxx acknowledges and agrees that any liability or obligation of
Centex Corporation to him under this Agreement will be based solely
upon contractual obligations created in this Agreement, and no such
liability or obligation of Centex Corporation shall be deemed to be
secured by any pledge or other encumbrance on any property of Centex
Corporation.
d. Stock Options: Xxxxx and Centex Corporation are parties to three
subsisting stock option agreements. As of April 1, 2002 all of such
options will be vested except 33,600 shares under the option whose
grant date is April 1, 1999 and whose option price is $36.06 per
share and 67,200 shares under the option whose grant date is April
1, 2000 and whose option price is $23.81 per share. These subsisting
stock option agreements will remain in full force and effect and
will not be altered in any manner by the terms of this Agreement.
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3. CENTEX CORPORATION BOARD OF DIRECTORS. Xxxxx agrees to continue to serve
as a member of the Board of Directors of Centex Corporation until the end
of his term, which is set to expire at the annual stockholders meeting in
2004. Following the conclusion of such term, Xxxxx will remain eligible
for re-election to such Board. From and after the Effective Date, Xxxxx
will receive standard directors' fees for his service as a Director of
Centex Corporation.
4. CXP BOARD OF DIRECTORS. Xxxxx agrees to continue to serve as a member of
the Board of Directors of CXP without any additional compensation (other
than as is provided for in Section 2.c. above), until the annual
stockholders meeting of CXP to be held in July 2003, and if re-elected in
2003, until the annual stockholders meeting to be held in July 2004.
Thereafter, Xxxxx will be eligible for re-election to the Board of
Directors of CXP but from and after the annual stockholders meeting in
July 2004, if Xxxxx does continue to serve as a Director, he will be
compensated like any other outside Director of CXP.
5. COOPERATION ON LEGAL MATTERS. During the Consulting Period Xxxxx will
cooperate with Centex Corporation on a reasonable basis, and at the
reasonable convenience of Xxxxx, by providing Centex Corporation with
whatever information Xxxxx may have, as requested by Centex Corporation
from time to time, with regard to legal matters on which Xxxxx worked for
Centex Corporation or its Affiliates which occurred prior to the
commencement of the Consulting Period in order to aid Centex Corporation
in the conduct of its business. However, any reasonable expenses incurred
by Xxxxx in providing such cooperation will be reimbursed by Centex
Corporation upon request therefor, provided the same were approved by
Centex Corporation before being incurred.
6. NON-COMPETE. During the period April 1, 2002 through March 31, 2004 Xxxxx
will not engage in, or have an interest (as stockholder, director,
officer, employee, agent, partner or otherwise) in any corporation,
partnership, association, limited liability company or other entity that
engages in any business activity in which Centex Corporation or any of its
Affiliates is engaged at any time during said two year period. This
restriction will not apply to ownership by Xxxxx of one percent or less of
any class of equities, securities or one or more publicly traded entities
or his participation or interest in any business activity that results in
annual revenues to him or to any such entity of $500,000 or less.
7. APPLICABLE LAW. This Agreement shall be governed by and construed in
accord with the laws of the State of Texas. Should a court or other body
of competent jurisdiction determine that any provision of this Agreement
is excessive in scope or otherwise invalid or unenforceable, such
provision shall be adjusted rather than voided, if possible, so that it is
enforceable to the maximum extent possible, and all other
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provisions of this Agreement shall be deemed valid and enforceable to the
extent possible.
8. BINDING ON SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of Centex Corporation and its Affiliates and Xxxxx, as well as
their respective heirs, personal representatives, successors and assigns.
However, except as provided in this Agreement, neither party may assign
any rights hereunder nor delegate any duties hereunder without the prior
written consent of the other, which consent will not be unreasonably
withheld, conditioned or delayed.
9. ENTIRE AGREEMENT. This Agreement represents the entire agreement between
the parties respecting the subject matters contained herein and supersedes
all other agreements, written or oral, respecting such subject matters.
Xxxxx acknowledges and agrees that this Agreement supersedes in all
respects that certain employment agreement made between Centex Corporation
and Xxxxx in 1991, and waives and releases any and all claims he may have
thereunder.
10. NOTICE. Any notice to be given to Centex Corporation hereunder shall be
deemed sufficient if addressed to Centex Corporation in writing and
personally delivered or mailed by certified mail to its office at 0000
Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000. Any notice to be given to Xxxxx
hereunder shall be deemed sufficient if addressed to him in writing and
personally delivered to him or mailed by certified mail to 0 Xxxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxx 00000. Either party may, by notice as aforesaid,
designate a different address or addresses.
IN WITNESS WHEREOF, the parties hereto executed this Agreement on the day
first above written.
CENTEX CORPORATION
/s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxx Xxxxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
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Centex Corporation
Xxxxx Xxxxx
Summary of Payments
[Schedule will be furnished to the SEC upon request].
