EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 1st day of December, 1997, between WM.
CAMERON & CO., a Georgia corporation dba Xxxxxxx Xxxxxx Building Products
(the "Company"), and XXXX X. XXXXXXXXX, a resident of the State of Texas
("Employee").
BACKGROUND
The Company desires to employ Employee on the terms and conditions set forth
below. Employee desires to accept employment on the terms and conditions set
forth below.
AGREEMENT
In consideration of the employment and continued employment of Employee
by the Company, the premises, and the mutual agreements hereinafter set
forth, the parties agree:
1. DEFINITIONS. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business of the
wholesale distribution, sale and marketing of building materials, building
supplies and mill work.
(b) "Cause" means conduct amounting to fraud or dishonesty against
the Company; Employee's violation of Sections 2(a) or (b) hereof, or any of
the Company's work rules or policies, or absences from work without a
reasonable excuse, if the Chairman and Chief Executive Officer notifies
Employee of such violation or absence in writing and Employee fails to cure
such violation or absenteeism within five (5) days after written notice has
been given, provided that written notice relating to such violation or
absenteeism shall only be given once as it relates to a particular manner of
conduct; intoxication with alcohol or drugs while on Company business during
regular business hours; a conviction or plea of guilty or NOLO CONTENDERE to
a felony or a crime involving dishonesty against the Company; or Employee's
failure to observe the requirements of Sections 2(c), 5 and 6 hereof.
(c) "Disability" means (i) the inability of Employee to perform
the duties of Employee's employment due to physical or emotional incapacity
or illness, where such inability is expected to be of long-continued and
indefinite duration or (ii) Employee shall be entitled to (x) disability
retirement benefits under the federal Social Security Act or (y) recover
benefits under any long-term disability plan or policy maintained by the
Company. In the event of a dispute, the determination of Disability shall be
made reasonably by the Board of Directors of the Company and shall be
supported by advice of a physician competent in the area to which such
Disability relates.
(d) "Effective Date" means the date hereof.
2. TERMS OF ENGAGEMENT; DUTIES
(a) The Company hereby employs Employee, commencing on the
Effective Date, and Employee hereby accepts employment by the Company subject
to the terms and conditions hereof. Employee is engaged with the title and
functions of Executive Vice President and Chief Accounting Officer of the
Company and of Xxxxxxx Xxxxxx Building Products, Inc. (the "Parent").
Employee shall report to, shall have the title assigned by, and shall perform
the duties assigned by the Chairman of the Board and Chief Executive Officer
in connection with the conduct of the Business of the Company. Nothing
herein shall preclude the Chairman and Chief Executive Officer of the Company
from changing the Employee's title and duties if the Chairman and Chief
Executive Officer in his reasonable judgment that such change is in the
Company's best interests.
(b) Throughout the term of this Agreement, Employee shall:
(i) devote all of Employee's business effort, time, energy and
skill (reasonable vacations and reasonable absences due to illness
excepted) to the duties of Employee's employment hereunder assigned by the
Chairman and Chief Executive Officer of the Company;
(ii) faithfully, loyally, and industriously perform such duties,
subject to the control and supervision of the Chairman and Chief Executive
Officer of the Company; and
(iii) diligently follow and implement all lawful management
policies and decisions of the Company that are communicated to Employee.
(c) During the term of this Agreement, Employee shall not be
engaged (whether or not during normal business hours) in any other business
or professional activity, whether or not such activity is pursued for gain,
profit or other pecuniary advantage; but this shall not be construed as
preventing Employee from (i) investing his personal assets in businesses
which do not compete with the Company in such form or manner as will not
require any services on the part of Employee in the operation or the affairs
of the companies in which such investments are made and in which his
participation is solely that of an investor, (ii) purchasing securities in
any corporation whose securities are regularly traded provided that such
purchase shall not result in his collectively owning beneficially at any time
five percent (5%) or more of the equity securities of any corporation engaged
in a business competitive to that of the Company, or (iii) participating in
conferences, preparing or publishing papers or books or teaching so long as
the Employee's supervisor approves of such activities prior to Employee's
engaging in them.
3. COMPENSATION.
(a) In consideration of the services rendered by Employee pursuant to
this Agreement, the Company shall provide the following:
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(i) A base salary of One Hundred Sixty Thousand Dollars
($160,000) per annum (the "Base Salary") which Base Salary will be reviewed
periodically and may be increased by the Company from time to time. The
Base Salary shall be paid in accordance with the Company's standard payroll
practices in effect from time to time, and shall be subject to such
deductions and withholdings as are required by law or by policies of the
Company.
(ii) Reimbursement for all reasonable business expenses
(including a $600.00 per month car allowance) incurred by Employee in
connection with the Business of the Company subject to compliance with the
expense reimbursement policies established by the Company and in sufficient
detail to comply with Internal Revenue Service Regulations.
(b) Employee shall be eligible to be considered for an annual cash
performance bonus, which may consist of an amount of up to one hundred
percent (100%) of the Base Salary in the applicable year based on the
attainment of performance objectives established by the Board of Directors of
the Company and the Parent in good faith and Employee's contributions to the
attainment of those objectives, and shall be in such amount and payable in
such manner and on such terms as are determined by the Board of Directors of
the Company and the Parent. Nothing contained in this subsection (b) shall
obligate the Company to pay a bonus to Employee, unless the Board of
Directors of the Company and the Parent determines to award such a bonus to
Employee.
(c) Employee shall have the right to participate in (i) any
insurance plans maintained by the Company from time to time to the extent
that Employee's position, tenure, salary, age, health and other
qualifications make him eligible to participate, and (ii) such other fringe
benefit plans or programs as are provided to the other officers of the
Company, provided that the Company shall not be required to adopt or continue
any insurance plans or fringe benefit plans or programs.
(d) Employee shall receive options to purchase 30,000 shares of
common stock of the Parent pursuant to the terms of a Non-Qualified Stock
Option Agreement, subject to and effective as of the date of approval
thereof by the Compensation Committee of the Parent. Such options will have
a term of ten years and will vest in one-third increments over three years
from the date of grant and the exercise price of such options shall be the
fair market value of the Parent's Common Stock as of the date of grant.
(e) The remuneration and benefits set forth in this Section 3
shall be the only compensation payable to Employee with respect to his
employment hereunder, and Employee shall not be entitled to receive any
compensation in addition to that set forth in this Section 3 for any services
rendered by him in any capacity to the Company or any affiliated corporation
unless agreed to in writing by the Company or such affiliated corporation.
4. TERM AND TERMINATION OF THIS AGREEMENT. The term of employment of
Employee pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of three (3) years, or until sooner terminated as
provided herein.
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(a) Employee's employment hereunder may be terminated:
(i) By the Company, upon the death or Disability of
Employee;
(ii) By the Company, immediately for Cause;
(iii) By Employee upon ninety (90) days prior written notice
to the Company;
(iv) By mutual agreement between Employee and the Company;
and
(v) By the Company, without Cause.
(b) In the event the Company terminates the employment of the
Employee without Cause, then, during the twelve (12) month period immediately
following the effective date of the termination of his employment, the
Employee shall continue to receive his base salary under this Agreement as in
effect on the date that his employment terminates. The payments described in
this Section 4(b) are hereinafter referred to as "Severance Pay," and shall
be made to the Employee without any obligation on his part to render services
hereunder after the effective date of the termination of Employee's
employment, in full settlement of all of the obligations of the Company
hereunder. No Severance Pay shall be paid to the estate or personal
representative of the Employee in the event of his death during the term of
this Agreement.
(c) Except as set forth above, upon termination of Employee's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Employee or his personal representative with respect to
remuneration due under this Agreement, except for Base Salary earned but
unpaid at date of termination; provided however, Employee's covenants in
Sections 5 and 6 of this Agreement shall survive the termination of
Employee's employment hereunder. If Employee fails to observe the
requirements of Sections 5 or 6 hereof, then the Company shall have no
obligation to pay any portion of the Base Salary remaining unpaid to Employee
and the Company shall have no obligation to pay any portion of the Severance
Pay. It is understood that Employee's coverage under the Company's
disability, accidental death or dismemberment and group life insurance plans
shall cease as of the date of termination.
5. OWNERSHIP, NON-DISCLOSURE, AND NON-USE OF TRADE SECRETS.
(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or information that is
a Trade Secret hereunder (1) that has been voluntarily disclosed to the
public by the Company or has become generally known to the public (except
where such public disclosure has been made by or through the Employee or by
a third person or entity with the knowledge of the Employee without
authorization by the Company); (2) that has been independently developed
and disclosed by parties other than the Employee or the Company to the
Employee or to the public generally without a breach of any obligation of
confidentiality by
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any such person running directly or indirectly to the Company; or (3)
that otherwise enters the public domain through lawful means.
(ii) "Trade Secrets" means information which derives economic
value, actual or potential, from not being generally known and not being
readily ascertainable to other persons who can obtain economic value from
its disclosure or use and which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy or
confidentiality. Trade Secrets may include either technical or
non-technical data, including without limitation, (1) any useful process,
machine, chemical formula, composition of matter, or other device which
(A) is new or which Employee has a reasonable basis to believe may be new,
(B) is being used or studied by the Company and is not described in a
printed patent or in any literature already published and distributed
externally by the Company, and (C) is not readily ascertainable from
inspection of a product of the Company; (2) any engineering, technical, or
product specifications including those of features used in any current
product of the Company or to be used, or the use of which is contemplated,
in a future product of the Company; (3) any application, operating system,
communication system, or other computer software (whether in source or
object code) and all flow charts, algorithms, coding sheets, routines,
subroutines, compilers, assemblers, design concepts, test data,
documentation, or manuals related thereto, whether or not copyrighted,
patented or patentable, related to or used in the Business of the Company;
or (4) information concerning the customers, suppliers, products, pricing
strategies of the Company, personnel assignments and policies of the
Company, or matters concerning the financial affairs and management of the
Company or any parent, subsidiary, or affiliate of the Company; provided
however, that Trade Secrets shall not include any Excluded Information.
(b) Employee acknowledges and agrees that all Trade Secrets, and
all physical embodiments thereof, are confidential to and shall be and remain
the sole and exclusive property of the Company and that any Trade Secrets
produced by the Employee during the period of Employee's employment by the
Company shall be considered "work for hire" as such term is defined in 17
U.S.C. Section 101, the ownership and copyright of which shall be vested
solely in the Company. Employee agrees (i) immediately to disclose to the
Company all Trade Secrets developed in whole or part by Employee during the
term of Employee's employment by the Company, and (ii) at the request and
expense of the Company, to do all things and sign all documents or
instruments reasonably necessary in the opinion of the Company to eliminate
any ambiguity as to the rights of the Company in such Trade Secrets
including, without limitation, providing to the Company Employee's full
cooperation in any litigation or other proceeding to establish, protect, or
obtain such rights. Upon request by the Company, and in any event upon
termination of Employee's employment by the Company for any reason, Employee
shall promptly deliver to the Company all property belonging to the Company
including, without limitation, all Trade Secrets (and all embodiments
thereof) then in Employee's custody, control, or possession.
(c) Employee agrees that all Trade Secrets of the Company received
or developed by Employee as a result of Employee's employment with the
Company will be held in trust and strictest confidence, that Employee will
protect such Trade Secrets from disclosure, and that Employee will make no
use of such Trade Secrets, except in connection with Employee's employment
hereunder, without the Company's prior written consent. The obligations of
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confidentiality contained in this Agreement shall apply during Employee's
employment by the Company and (i) with respect to all Trade Secrets
consisting of scientific or technical data, at any and all times after
expiration or termination (for whatever reason) of such employment; and (ii)
with respect to all other Trade Secrets, for a period of two (2) years after
such expiration or termination, unless a longer period of protection is
provided by law.
6. NONCOMPETE; NONSOLICITATION COVENANTS.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
(i) "Affiliate" means any person or entity directly or
indirectly controlling, controlled by, or under common control with
Employee. As used herein, the word "control" means the power to direct the
management and affairs of a person.
(ii) "Area" means the United States of America and all provinces
of Canada.
(iii) "Competing Enterprise" means any person or any business
organization of whatever form, engaged directly within the Area in the
Business of the Company.
(b) Employee covenants that Employee shall, during the term of
this Agreement, and for a period of twelve (12) months following termination
for any reason of Employee's employment by the Company, observe the following
separate and independent covenants:
(i) Neither Employee nor any Affiliate will, without the
prior written consent of the Company, within the Area, either directly or
indirectly, (A) become financially interested in a Competing Enterprise
(other than as a holder of less than five percent of the outstanding voting
securities of any entity whose voting securities are listed on a national
securities exchange or quoted by the National Association of Securities
Dealers, Inc. automated quotation system), or, (B) engage in or be employed
by any Competing Enterprise as a consultant, officer, director, or
executive or managerial employee.
(ii) Neither Employee nor any Affiliate will, without the
prior written consent of the Company, either directly or indirectly, on
Employee's own behalf or in the service or on behalf of others, solicit,
divert, or appropriate, or attempt to solicit, divert, or appropriate, to
any Competing Enterprise within the Area, any person or entity whose
account with the Company was serviced by or under Employee's direction or
supervision during the term of his employment with the Company.
(iii) Neither Employee nor any Affiliate will, without the
Company's prior written consent, either directly or indirectly, on
Employee's own behalf or in the service or on behalf of others, solicit,
divert, or hire away, or attempt to solicit, divert, or hire away, to any
Competing Enterprise, any person employed by the Company, whether or not
such Employee is a full-time or a temporary Employee of the Company and
whether or not such
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employment is pursuant to written agreement and whether or not such
employment is at will.
7. REMEDIES. Employee acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that
by virtue of the training, duties, and responsibilities attendant with
Employee's employment by the Company and the special knowledge of the
business and operations of the Company that Employee will have as a
consequence of Employee's employment by the Company, great loss and
irreparable damage would be suffered by the Company if the Employee should
breach or violate any of the terms or provisions of the covenants and
agreements set forth herein. Employee further acknowledges and agrees that
each such covenant and agreement is reasonably necessary to protect and
preserve the interest of the Company. Therefore, in addition to all the
remedies provided at law or in equity, Employee agrees and consents that the
Company shall be entitled to a temporary restraining order and a permanent
injunction to prevent a breach of any of the covenants or agreements of
Employee contained herein and to collect from Employee reasonable attorney's
fees incurred by the Company in the enforcement hereof. The existence of any
claim, demand, action or cause of action of Employee against the Company
shall not constitute a defense to the enforcement by the Company of any of
the covenants or agreements herein whether predicated upon this Agreement or
otherwise, and shall not constitute a defense to the enforcement by the
Company of any of its rights hereunder.
8. GENERAL PROVISIONS.
(a) In the event that any one or more of the provisions, or parts
of any provisions, contained in the Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed
and shall be construed as a separate and independent covenant and should any
part or provision of any of such covenants be held or declared invalid by any
court of competent jurisdiction, such invalidity shall in no way render
invalid or unenforceable any other part or provision thereof or any other
covenant of the parties not held or declared invalid.
(b) This Agreement and the rights and obligations of the Company
hereunder may be assigned by the Company to any subsidiary of or successor to
the Company, and shall inure to the benefit of, shall be binding upon, and
shall be enforceable by any such assignee, provided that any such assignee
shall agree to assume and be bound by this Agreement. This Agreement and the
rights and obligations of Employee hereunder may not be assigned by Employee.
(c) The waiver by the Company of any breach of this Agreement by
Employee shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder shall
be governed by and construed in accordance with the laws of the State of
Texas.
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(e) This Agreement embodies the entire agreement of the parties
relating to the employment of Employee by the Company. No amendment,
modification extension or renewal of this Agreement shall be valid or binding
upon the Company or Employee unless made in writing and signed by the
parties. All prior understandings and agreements relating to the employment
of Employee by the Company are hereby expressly terminated.
(f) Employee acknowledges and affirms that the employment
agreement between Employee and the Predecessor has been terminated and that
(i) he is not a party to any other employment agreement, (ii) he is not
entitled to any severance benefits arising out of or in connection with his
employment by the Predecessor which may cause the Company to incur any
obligations either to Employee or the Predecessor, and (iii) the only
severance benefits to which he will be entitled are those contained herein.
(g) Any notice, request, demand, or other communication required
to be given hereunder shall be made in writing and shall be deemed to have
been fully given if personally delivered or if mailed by overnight delivery
(the date on which such notice, request, demand, or other communication is
received shall be the date of delivery) to the parties at the following
addresses (or at such other addresses as shall be given in writing by any
party to the other party hereto):
If to Employee:
Xxxx Xxxxxxxxx
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
If to Company:
Wm. Cameron & Co. dba Xxxxxxx Xxxxxx Building Products
00000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx, Chairman and Chief Executive Officer
Telecopy: (000) 000-0000
(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and it shall not be
necessary for the same counterpart of this agreement to be signed by all of
the undersigned in order for the agreements set forth herein to be binding
upon all of the undersigned in accordance with the terms hereof.
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IN WITNESS WHEREOF, the Company and Employee have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
WM. CAMERON & CO. dba Xxxxxxx Xxxxxx Building Products
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman & Chief Executive Officer
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
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