EXHIBIT 10.2
[EXECUTION COPY]
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as June 30, 2003
by and between CAVCO INDUSTRIES, INC., a Delaware corporation (the "Company"),
and XXXXXX X. XXXXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of Centex Corporation ("Centex") has
determined that it would be advisable and in the best interests of Centex for
Centex to organize the Company, and to transfer substantially all of the
business, operations, assets and liabilities related to Cavco Industries, LLC to
the Company; and
WHEREAS, the Company has agreed to assume substantially all of the
business, operations, assets and liabilities related to Cavco Industries, LLC;
and
WHEREAS, the Board of Directors of Centex has also determined that it
would be advisable and in the best interests of Centex for Centex to distribute
on a pro-rata basis to the holders of record of Centex common stock, par value
$0.25 per share (the "Centex Common Stock"), without any consideration being
paid by such holders, all of the outstanding shares of the Company's common
stock, par value $.01 per share (the "Cavco Common Stock"), owned by Centex (the
"Distribution"); and
WHEREAS, for United States federal income tax purposes, the Distribution
is intended to qualify as a tax-free spin-off within the meaning of Sections 355
and 368(a)(1)(D) of the United States Internal Revenue Code of 1986, as amended
(the "Code"); and
WHEREAS, from and after the date (the "Effective Date") upon which the
Distribution is effectuated, the Company desires to employ the Executive, and
the Executive is willing to accept such employment, all upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the terms and provisions
set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and subject to the Distribution being effectuated on or
before June 30, 2003, the parties hereto agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following
definitions shall apply:
"Average Bonus" shall mean the result obtained by dividing by two the sum
of the bonuses, if any, paid to the Executive pursuant to Subsection 5(b)
below in
respect of the two (2) fiscal years next preceding the fiscal year in
which the Average Bonus is due. If the employment of the Executive is
terminated prior to the conclusion of two (2) fiscal years under the Term
of this Agreement, and payment of the Average Bonus is due to Employee,
then the amount paid will be $400,000.
"Board" shall mean the Board of Directors of the Company.
"Breach" shall mean a breach by either the Executive or the Company, as
the case may be, of a term of this Agreement which breach remains uncured
for 15 days after written notice is received by the party in breach from
the party asserting the breach.
"Change in Control" shall be deemed to have occurred if, subsequent to the
Distribution: (i) the Company merges or consolidates with any other
corporation (other than a wholly-owned subsidiary) and is not the
surviving corporation (or survives only as a subsidiary of another
corporation), (ii) the Company sells all or substantially all of its
assets to any other person or entity (other than a wholly-owned
subsidiary), (iii) the Company is dissolved, or (iv) a third person,
including a "group" as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, becomes the beneficial owner of shares of Cavco
Common Stock having 50% or more of the total number of votes that may be
cast for the election of directors of the Company; or as a result of, or
in connection with, a contested election for directors, the persons who
were directors of the Company before such election shall cease to
constitute a majority of the Board of the Company. Notwithstanding any
provision of this paragraph, an event, transaction, or corporate action
described in this Subsection which would otherwise be deemed a Change in
Control, will not be deemed a Change in Control if: it is a management led
or supported transaction by persons who were the directors of the Company
and persons who were the executive officers of the Company as of six
months prior to such event; and if immediately after such event such
persons constitute a majority of the directors and constitute a majority
of executive officers for, and own in the aggregate at least fifteen
percent of the voting securities or interest of, the Company or the
surviving or resulting corporation or the parent of the resulting
corporation.
"Common Stock" means the common stock of the Company, par value $.01.
"Disability" shall mean the Executive's inability, by reason of a mental
or physical impairment, to perform his duties and responsibilities, as set
forth in Section 4, below for a period of at least six (6) consecutive
months.
"Termination for Cause" shall mean the Company's termination of the
Executive's employment pursuant to a determination by the Board, in its
sole and absolute discretion, but acting in good faith, that the Executive
is guilty of engaging in acts
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during the Term of this Agreement that constitute theft, dishonesty,
fraud, or embezzlement, or that constitute willful and repeated
insubordination.
"Termination Without Cause" shall mean the Company's termination of the
Executive's employment other than a Termination for Cause. In addition, if
the Board alters the Executive's duties so that he no longer renders such
services of an executive and administrative character to the Company as
are usual and customary in the case of the chief executive officer of an
entity such as the Company, and the Executive thereafter terminates
employment with the Company, such termination by the Executive shall be
deemed not a voluntary termination of employment by the Executive but a
Termination Without Cause.
All other defined terms set forth in the text of this Agreement will have
the meaning assigned to them in this Agreement.
SECTION 2. Employment. From and after the Effective Date, the Company will
employ the Executive upon the terms and conditions set forth herein.
SECTION 3. Term. Subject to the terms and conditions set forth herein, the
Executive shall be employed for a term commencing on the Effective Date and
ending on the third anniversary thereof (the "Initial Term"), unless earlier
terminated as provided in this Agreement. Thereafter, the term of this Agreement
shall automatically be extended for successive one (1) year periods ("Renewal
Terms") unless either the Board or the Executive gives written notice to the
other at least ninety (90) days prior to the end of the Initial Term or any
Renewal Term, as the case may be, of its or his intention not to renew the term
of this Agreement. The Initial Term and any Renewal Terms of this Agreement
shall be collectively referred to as the "Term."
SECTION 4. Duties and Responsibilities.
(a) The Executive shall initially serve in the capacity of Chairman of
the Board, President and Chief Executive Officer of the Company, subject to the
direction of the Board of Directors of the Company. The Executive's duties under
this Agreement shall consist of the performance of such services as are
consistent with the responsibilities of said office and such other services
commensurate with his position as a senior executive of the Company as may be
assigned to him from time to time by the Board. Such duties shall be performed
within the policies and guidelines established from time to time by the Board,
subject at all times to the ultimate control and direction of the Board.
(b) At all times during the Term, the Executive shall devote
substantially all of his business time, attention and energies to the
performance of his duties under this Agreement, and shall not undertake or be
engaged in any other activities, whether or not pursued for gain, profit or
other pecuniary advantage, which could impair his ability to fulfill his duties
to the Company under this Agreement, without the prior written consent
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of the Board. Notwithstanding the foregoing, the Company agrees that it shall
not be a violation of this paragraph for the Executive to provide services as a
part-time employee-consultant to Centex through March 31, 2005.
(c) The Executive shall perform his duties under this Agreement with
fidelity and loyalty, to the best of his ability, experience and talent and in a
manner consistent with his fiduciary responsibilities.
SECTION 5. Compensation.
(a) Base Salary. During the Term, the Company shall pay a salary (the
"Base Salary") of $225,000 per annum to the Executive, payable in accordance
with the general payroll practices of the Company in effect from time to time.
The Company shall review the Base Salary then being paid to the Executive at
such times as the Company regularly reviews the compensation being paid to its
executives generally (but no less frequently than once each year). Upon
completion of such review, the Company may in its sole discretion adjust the
Executive's then current Base Salary; provided, however, that the Company may
not decrease the Executive's then current Base Salary without the prior written
consent of the Executive.
(b) Bonus. In addition to the payment of Base Salary, for each fiscal
year of the Company during the Term, the Executive shall be awarded a bonus in
an amount equal to (i) three percent (3%) of the first $2.5 million of pretax
income of the Company, plus (ii) 6% of the pretax income of the Company above
$2.5 million (if any). For purposes of this paragraph, the amount of pretax
income of the Company for the relevant time periods shall be determined by the
Board of Directors of the Company.
(c) Stock Options. In connection with the Distribution, the Company has
established or will establish a stock incentive plan (the "Plan"). As soon as
reasonably practicable following the Effective Date, the Company shall reserve a
sufficient number of shares to grant to the Executive the following stock
options in accordance with the Plan:
(i) Initial Grant. As soon as reasonably practicable following the
Effective Date, the Company will grant the Executive an initial
non-qualified option to purchase a number of shares of Cavco Common Stock
equal to 6% of all then issued and outstanding Cavco Common Stock. The
Initial Grant shall be subject to pro rata vesting over a three-year
period (i.e., 25% on the grant date, with the remainder becoming vested in
cumulative 25% increments on each of the first through third anniversaries
of the grant date).
(ii) First Anniversary Grant. As soon as reasonably practicable
following the first anniversary of the Distribution, the Company will
grant the Executive a non-qualified option to purchase a number of shares
of Cavco Common Stock not less than 1% of the then issued and outstanding
Cavco
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Common Stock. The vesting schedule of this option grant will match the
vesting schedule of the initial grant.
(iii) Second Anniversary Grant. As soon as reasonably practicable
following the second anniversary of the Distribution, the Company will
grant the Executive an additional non-qualified option to purchase a
number of shares of Cavco Common Stock not less than 1% of the then issued
and outstanding Cavco Common Stock. The vesting schedule of this option
grant will match the vesting schedule of the initial grant.
Each such option grant shall be memorialized in a written agreement. The
per share exercise price will be equal to the fair market value of Cavco Common
Stock on the date of the grant, as determined in accordance with the Plan. When
calculating the number of outstanding shares of Cavco Common Stock for purposes
of the Initial, First Anniversary and Second Anniversary Grants, the Restricted
Stock awarded to the Executive in accordance with Subsection 5(d) below shall be
included in the total number of outstanding shares of Cavco Common Stock.
(d) Restricted Stock. As soon as reasonably practicable, the Company
shall reserve a sufficient number of shares to grant to the Executive following
the Effective Date a number of shares of Cavco Common Stock (the "Restricted
Stock") having a fair market value on the date of the grant equal to the sum of
One Million ($1,000,000) Dollars. Upon receipt of the required approval by the
Company's Board, the Executive will receive said grant of Restricted Stock,
which shall be reflected in a written agreement. The Restricted Stock shall be
ratably released from restriction (or "vested") over a three-year period (i.e.,
25% on the grant date, with the remainder becoming vested in cumulative 25%
increments on each of the first through third anniversaries of the grant date).
Except as provided herein, vesting of this award is dependent on the Executive's
continued employment with the Company.
(e) Expense Reimbursement. During the Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable out-of-pocket
expenses incurred in the reasonable discretion of the Executive in connection
with the due and proper performance of his duties hereunder in accordance with
the Company's regular practices with respect to other similarly situated
executives of the Company.
(f) Incentive, Savings and Retirement Plans. During the Term, the
Executive shall be entitled to participate in all incentive, savings and
retirement plans (whether or not qualified under the Code) as amended,
established or adopted and maintained by the Company from time to time, in
accordance with the Company's regular practices applicable to other similarly
situated executives of the Company. The provisions of this paragraph (f) shall
not affect in any way the rights of the Company to amend or terminate any such
incentive, savings or retirement plans in accordance with the terms of such
plans and the provisions of applicable law.
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(g) Group Benefit Plans. During the Term, the Executive shall be
entitled to participate in all group benefit plans (including, but not limited
to, disability, accident, medical, life insurance and hospitalization plans)
established or adopted and maintained by the Company from time to time, in
accordance with the Company's regular practices applicable to other similarly
situated executives of the Company. The provisions of this paragraph (g) shall
not affect in any way the rights of the Company to amend or terminate any such
group benefit plans in accordance with the terms of such plans and the
provisions of applicable law.
(h) Vacation. The Executive shall be entitled to such vacation, holidays
and other paid or unpaid leaves of absence as are consistent with the Company's
normal policies or as are otherwise approved by the Company.
(i) Automobile Allowance. The Company will provide the Executive with an
automobile allowance consistent with the terms of the Company's policies as from
time to time in effect.
SECTION 6. Termination and Resignation. The Company shall have the right
to terminate the Executive's employment hereunder at any time and for any
reason, and upon any such termination the Executive shall be entitled to receive
from the Company prompt payment of the amount determined pursuant to the
applicable Subsection of Section 7 below. The Executive shall have the right to
terminate his employment hereunder at any time by resignation, and thereupon the
Executive will be entitled to receive from the Company prompt payment of the
amount determined pursuant to the applicable Subsection of Section 7 below.
SECTION 7. Payments Upon Termination and Resignation.
(a) Pro Rata Payment. If the Company terminates the Executive's
employment for Cause, or if the Executive voluntarily resigns prior to the
occurrence of a Change in Control of the Company at a time when there is no
uncured Breach by the Company of this Agreement, then in either case the
Executive shall be entitled to receive only his then current Base Salary on a
pro rata basis to the date of such termination or resignation.
(b) Base Salary Payment. If the Executive dies, or becomes Disabled, or
if the Company terminates the Executive's employment Without Cause prior to the
occurrence of a Change in Control, or if the Executive resigns because of a
Breach by the Company of this Agreement, then in each case the Executive (or his
heirs or executors) shall continue to receive his Base Salary for each fiscal
year under the remaining Term of this Agreement and the Average Bonus for such
year(s), plus an additional year of Base Salary, an Average Bonus and health
insurance for such additional year.
(c) Multiple Base Salary and Bonus Payment. If within two (2) years
after the occurrence of a Change in Control of the Company, (a) the Company
terminates the
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Executive's employment hereunder for any reason other than for Cause, or (b) the
Executive voluntarily resigns his employment hereunder for any reason, then in
each case the Company will pay to the Executive a lump sum termination payment
equal to two times the sum of the Executive's then current Base Salary and
Average Bonus.
SECTION 8. Confidentiality. The Executive recognizes and acknowledges that
the names of the Company's customers, the Company's methods of operation, sales,
engineering and other trade secrets, as they may exist from time to time, are
valuable, special and unique assets of the Company. The Executive shall not,
during or after the term of his employment under this Agreement, disclose any
such names or other trade secrets, or any part thereof, that he becomes aware of
during his employment, to any person, firm, corporation, association or other
entity.
SECTION 9. Competitive Activity.
(a) The Executive recognizes and acknowledges that the relationship
created by this Agreement is one of trust, and the Executive agrees that, while
he is employed by the Company or is being paid under this Agreement following a
Termination Without Cause, the Executive shall not (whether acting alone or
through any affiliate) or in any other capacity whatsoever and whether by
investing in, or holding securities of, any corporation or other entity,
advancing or lending any funds to, making available any facilities, equipment or
other assets to any entity or other person, engage in any of the following
activities:
(i) except in connection with the due and proper performance of
his duties hereunder, engage in the business of designing, manufacturing
or selling manufactured housing;
(ii) except in connection with the due and proper performance of
his duties hereunder, solicit or contact (with respect to the manufactured
housing industry) retailers, dealers, suppliers, customers or potential
customers on behalf of any corporation or other entity or any other person
engaged in the business of designing, manufacturing and selling
manufactured housing;
(iii) solicit or otherwise induce any employee of the Company or any
of its subsidiaries to terminate his or her service with the Company or
any such subsidiary or hire any person who was an employee of the Company
or any such subsidiary at any time during the 12-month period immediately
prior to the date of termination or expiration of the Executive's
employment hereunder.
(c) Notwithstanding anything to the contrary in this Section 9, the
Company agrees that it shall not be a violation of this Agreement for the
Executive to provide services as a part-time employee-consultant to Centex
through March 31, 2005.
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(d) Notwithstanding anything to the contrary in this Section 9, the
Executive may own, for investment purposes only, up to three percent of the
stock of any publicly-held corporation that engages in the business of
designing, manufacturing and selling manufactured housing or that otherwise
directly or indirectly competes with the Company if the stock of such
corporation is either listed on a national securities exchange or traded on the
NASDAQ National Market and if the Executive is not an employee or consultant of,
and is not otherwise affiliated with, such corporation.
(e) It is hereby agreed by and between the Executive and the Company
that if (notwithstanding the provisions of paragraph (d) below) the
non-competition covenants contained in this Agreement should be held by any
court or other constituted legal authority to be void or unenforceable in any
particular area or jurisdiction, then the parties hereto shall consider this
Agreement to be amended and modified so as to eliminate therefrom that
particular area or jurisdiction as to which the non-competition covenants are
held to be void or otherwise unenforceable, and as to all other areas and
jurisdictions covered by this Agreement, the terms and provisions hereof shall
remain in full force and effect as originally written.
(f) It is further agreed that if the non-competition covenants contained
in this Agreement should be held by any court or other constituted legal
authority to be effective in any particular area or jurisdiction only if said
covenants are modified to limit their duration or scope, then the parties hereto
shall consider such non-competition covenants to be amended and modified with
respect to that particular area or jurisdiction so as to comply with the order
of any court or other constituted legal authority, and as to all other areas and
jurisdictions, the non-competition covenants contained herein shall remain in
full force and effect as originally written.
(g) The Executive and the Company agree that the covenants set forth
herein are appropriate and reasonable when considered in light of the nature and
extent of the business of designing, manufacturing and selling manufactured
housing as conducted by the Company and its subsidiaries. The Executive
acknowledges that (i) the Company has a legitimate interest in protecting its
business, (ii) the covenants set forth herein are not oppressive to the
Executive and contain such reasonable limitations as to time, scope,
geographical area and activity, (iii) the covenants do not harm in any manner
whatsoever the public interest, and (iv) the Executive has received and will
receive substantial consideration for agreeing to such covenants.
SECTION 10. Miscellaneous.
(a) Reimbursement of Legal Expenses. If at any time the Executive (or
his beneficiary or beneficiaries, or his estate, as the case may be) shall
commence any legal action to enforce any of the terms or provisions of this
Agreement, including, without limitation, any term or provision requiring the
payment of compensation to the Executive hereunder, whether in installments or
in a lump sum, or the payment of the severance benefit hereunder, and such legal
action results in a decision favorable to the person so
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commencing such action, the Company agrees to reimburse such person for all
costs and expenses of such action, including reasonable attorney's fees,
incurred by such person in connection therewith.
(b) Succession. This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, including without
limitation, any person, partnership or corporation which may acquire all or
substantially all or a majority of the Company's assets and business, or with or
into which the Company may be consolidated or merged, and this provision shall
apply in the event of any subsequent mergers, consolidations, and transfers, and
shall be binding upon the Executive, his heirs and personal representatives.
(c) No Waiver. The failure of either party to insist, in any one or more
instances, upon performance of any of the terms or conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder or of the future performance of any such term or condition, but the
obligation of the other party with respect thereto shall continue in full force
and effect.
(d) Notice. Any notice to be given to the Company hereunder shall be
deemed sufficient if addressed to the Company in writing and personally
delivered or mailed by certified mail to its office at 0000 X. Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attn: Secretary. Any notice to be given to
the Executive hereunder shall be deemed sufficient if addressed to the Executive
in writing and personally delivered or mailed by certified mail to 0000 X.
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx 00000. Either party may, by notice
as aforesaid, designate a different address or addresses.
(e) Severability. In any event any provision of this Agreement shall be
held to be illegal, invalid or unenforceable for any reason, the illegality,
invalidity, or unenforceability shall not affect the remaining provisions
hereof, but such illegal, invalid or unenforceable provision shall be fully
severable and this Agreement shall be construed and enforced as if the illegal,
invalid or unenforceable provision had never been included herein.
(f) Headings. The titles and headings of Sections are included for
convenience of reference only and are not to be considered in construction of
the provisions hereof.
(g) Word Usage. Words used in the masculine shall apply in the feminine
where applicable, and wherever the context of this Agreement dictates, the
plural shall be read as the singular and the singular as the plural.
(h) Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Arizona.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CAVCO INDUSTRIES, INC.
By:/s/ XXXX X. XXXXX
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Its Vice President and Chief
Financial Officer
/s/ XXXXXX X. XXXXXXXXX
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XXXXXX X. XXXXXXXXX
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