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Exhibit 10.24
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 1st day
of September, 2000, by and between SIX INDUSTRIES, INC., a Texas corporation
(the "Company"), XXXXXX STEEL COMPANY, a Delaware Corporation (the "Parent"),
and XXXXX X. XXXXX, an individual ("Executive").
RECITALS
Company desires to employ Executive, and Executive desires to be
employed by Company, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Definitions. As used herein:
(a) "Parent Confidential Information" shall mean confidential,
proprietary information or trade secrets of Parent and its
subsidiaries, whether now existing, or acquired, developed, or made
available anytime in the future to or by Parent or its subsidiaries,
including, without limitation, the following: (1) customer and vendor
lists and related information as compiled by Parent and its
subsidiaries, including name, address, contact persons, pricing, sale
and contract terms and conditions, and contract expirations; (2)
Parent's and its subsidiaries' internal practices and procedures; (3)
Parent's and its subsidiaries' financial condition and financial
results of operation; (4) information relating to Parent's and its
subsidiaries' strategic planning, sales, financing, bonding and
insurance, purchasing, marketing, promotion, distribution, and selling
activities; (5) all information which Executive has a reasonable basis
to consider confidential or which is treated by Parent or its
subsidiaries as confidential; and (6) any and all information having
independent economic value to Parent or its subsidiaries that is not
generally known to, and not readily ascertainable by proper means by,
persons who can obtain economic value from its disclosure or use.
Executive acknowledges that such information is Parent Confidential
Information whether disclosed to or learned by Executive or originated
by Executive during his employment by Company or any of its
subsidiaries. In the event that information is not clearly and
obviously publicly available, the information shall be presumed to be
confidential.
(b) "Termination" shall mean termination of Executive's
employment with Company pursuant to Sections 15 to 19 hereof.
2. Effective Date of Agreement. This Agreement will commence as of
September 1, 2000, and supercedes a similar agreement dated May 3, 1999.
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3. Position with Company. Executive shall serve as President of the
Company. Executive shall devote his full time and efforts to the affairs of the
Company, and shall faithfully and diligently perform all duties commensurate
with such position, including, without limitation, those duties reasonably
requested by the Company's Board of Directors. In addition, Executive shall be
subject to and comply with the Company's policies and procedures.
4. Salary/Bonus.
(a) Executive shall be entitled to receive a minimum base
salary from the Company in the amount of $150,000 annually (prorated as
appropriate), payable in equal installments in accordance with the
Company's general salary payment policies (the "Minimum Base Salary").
The Minimum Base Salary shall be reviewed annually in December and may
be increased at such times and in such amounts as Company's Board of
Directors shall determine, taking into account Executive's performance
and duties, and such other factors as it deems appropriate
(b) Executive shall be entitled to receive a minimum annual
bonus of $30,000 (prorated as appropriate), payable on or before the
90th day following the end of the Company's fiscal year. In its
discretion, the Board of Directors of the Parent may award additional
bonuses to Executive from time to time.
5. Stock Options. Beginning with the year 2000, Parent shall annually
grant Executive an option to acquire a minimum of 5,000 shares of Parent common
stock, par value $.001 per share, under the existing option plan of Parent at
the closing market price of such shares, as reported on the American Stock
Exchange on the date of grant. In addition, the Board of Directors of Parent
will review Executive's option position annually and in its discretion may award
Executive additional options based upon Executive's job performance and
Company's operating results and financial performance.
6. Benefit Plans / Other Benefits. Executive shall be entitled to
participate in the Company's benefit plans of general application, including its
health insurance program; provided, however, that nothing herein shall restrict
Company's ability to terminate or modify any benefit plan or arrangement.
7. Expenses and Related Matters. Company shall pay for or reimburse
Executive for all ordinary and necessary business expenses incurred or paid by
Executive in furtherance of Company's business and provide Executive with a
Company automobile or an automobile allowance, all subject to and in accordance
with Company's policies and procedures of general application and applicable tax
laws.
8. Covenants of Employee. Executive hereby covenants and agrees that,
during the term of this Agreement and for a period of twelve months after any
Termination of employment, Executive will not:
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(a) Engage, directly or indirectly, either as principal,
partner, joint venturer, director, officer, employee, consultant or
independent contractor, agent, or proprietor or in any other manner
participate in the ownership, management, operation, or control of any
person, firm, partnership, limited liability company, corporation, or
other entity which engages in the business of providing any products or
services, including, without limitation, engineering, detailing, steel
fabrication and erection and joist manufacturing, which are competitive
with those products or services offered or sold by Parent or its
subsidiaries within any jurisdiction in which Parent or its
subsidiaries does or proposes to do business.
(b) Directly or indirectly solicit for employment (whether as
an employee, consultant, independent contractor, or otherwise) any
person who is or was at any time within six (6) months of Termination
an employee, consultant, independent contractor or the like of Parent
or any of its subsidiaries, unless Parent gives its written consent to
such employment or offer of employment.
(c) Call on or directly or indirectly solicit or divert or
take away from Parent or any of its subsidiaries (including, without
limitation, by divulging to any competitor or potential competitor of
Parent or its subsidiaries) any person, firm, corporation, or other
entity who is, or during the preceding twelve months was, a customer or
prospective customer of Parent or any of its subsidiaries.
9. Confidentiality and Nondisclosure. It is understood that in the
course of Executive's employment with Company, Executive will become acquainted
with Parent Confidential Information. Executive recognizes that Parent
Confidential Information has been developed or acquired at great expense, is
proprietary to Parent or its subsidiaries, and is and shall remain the exclusive
property of Parent. Accordingly, Executive hereby covenants and agrees that he
will not, without the express written consent of Parent, during Executive's
employment with Company or its subsidiaries and thereafter or until such time as
Parent Confidential Information becomes generally known, or readily
ascertainable by proper means, by persons unrelated to Parent or its
subsidiaries, disclose to others, copy, make any use of, or remove from Parent's
or its subsidiaries' premises any Parent Confidential Information, except as
Executive's duties for Company or its subsidiaries may specifically require.
10. Acknowledgment; Relief for Violation. Executive hereby agrees that
the period of time provided for in Sections 8 and 9 and the territorial
restrictions and other provisions and restrictions set forth therein are
reasonable and necessary to protect Parent, its subsidiaries and its and their
successors and assigns in the use and employment of the good will of the
business conducted by Parent and its subsidiaries. Executive further agrees that
damages cannot compensate Parent in the event of a violation of Section 8 or 9,
and that, if such violation should occur, injunctive relief shall be essential
for the protection of Parent, its subsidiaries, and its and their successors and
assigns. Accordingly, Executive hereby covenants and agrees that, in the event
any of the provisions of Sections 8 and 9 shall be violated or breached, Parent
and any subsidiary shall be entitled to obtain injunctive relief against
Executive, without bond but upon due notice, in addition to such further or
other relief as may appertain at equity or law. Obtainment of such an injunction
by Parent shall not be considered an election of remedies or a waiver of any
right to assert any other remedies which
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Parent has at law or in equity. No waiver of any breach or violation hereof
shall be implied from forbearance or failure by Parent to take action thereon.
Executive hereby agrees that he has such skills and abilities that the
provisions of Sections 8 and 9 will not prevent him from earning a living.
11. Extension During Breach. Executive agrees that the time period
described in Sections 8 and 9 shall be extended for a period equal to the
duration of any breach of such provisions by Executive.
12. No Conflicts of Interest.
(a) During the period of Executive's employment with Company,
Executive will not independently engage in the same or a similar line
of business as Parent or its subsidiaries, or, directly or indirectly,
serve, advise, or be employed by any individual, firm, partnership,
association, corporation, or other entity engaged in the same or
similar line or lines of business.
(b) Executive is not a promoter, director, employee, or
officer of, or consultant or independent contractor to, a business
organized for profit, nor will Executive become a partner, promoter,
director, employee, or officer of, or consultant to, such a business
while employed by Company or its subsidiaries without first obtaining
the prior written approval of Parent. Executive disclaims any such
relationship or position with any such business. Should Executive
become a promoter, director, employee, or officer of, or a consultant
to, a business organized for profit upon obtaining such prior written
approval, Executive understands that Executive has a continuing
obligation to advise Parent at such time of any activity of Parent or
such other business that presents Executive with a conflict of interest
as an employee of Company.
(c) Should any matter of dealing in which Executive is
involved, or hereafter becomes involved, on his own behalf or as an
employee of Company, appear to present a possible conflict of interest
under any policy of Parent or any subsidiary then in effect, Executive
will promptly disclose the facts to Parent's Board of Directors so that
a determination can be made as to whether a conflict of interest does
exist. Executive will take whatever action is requested of Executive by
Parent or its Board of Directors to resolve any conflict which it finds
to exist, including severing the relationship which creates the
conflict.
13. Return of Company Materials and Parent Confidential Information.
Upon Termination, Executive shall promptly deliver to Company the originals and
all copies of any and all materials, documents, notes, manuals, or lists
containing or embodying Parent Confidential Information or relating directly or
indirectly to the business of Parent or its subsidiaries in the possession or
control of Executive.
14. No Agreement With Others. Executive represents, warrants, and
agrees that Executive is not a party to any agreement with any other person or
business entity, including former employers, that in any way affects Executive's
employment by Company or relates to the same
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subject matter of this Agreement or conflicts with his obligations under this
Agreement, or restricts Executive's services to Company.
15. Termination for Cause. Company shall have the right to terminate
Executive for Cause at any time if the Board of Directors of Parent determines,
in its reasonable discretion, that any of the following events have occurred:
(a) Executive willfully fails to perform his duties hereunder
(whether by reason of drug or alcohol addiction or otherwise), or
otherwise materially breaches this Agreement;
(b) Executive refuses or fails to follow any lawful direction
of Company's Board of Directors or violates any lawful rule or
regulation established by Company from time to time regarding the
conduct of its businesses and such failure or violation is reasonably
likely to have a material adverse effect on or be materially disruptive
to the business; or
(c) Executive is convicted of committing a felony or crime
(other than routine traffic violations), or engages in conduct
involving fraud, moral turpitude, dishonesty, gross misconduct,
embezzlement, theft, or other conduct that is materially detrimental to
Company or is reasonably likely to have a material adverse impact on
the standing or reputation of Executive or Company.
Company shall provide written notice of a termination for Cause hereunder and,
with respect to a purported violation of subsection (a) or (b) above that is
curable in such time period, shall afford Executive an opportunity to cure or
disprove the purported violation for the twenty-day period following such
notice. Upon a termination for Cause, Executive shall be entitled to receive
only his Minimum Base Salary, the amount of any unpaid Annual Bonus earned in
any complete fiscal year of the Company preceding the date of Termination, and
any benefits as are due Executive through the effective date of such
Termination.
16. Termination Upon Voluntary Resignation. Executive may resign his
employment with Company at any time and shall provide Company with not less than
90 days prior written notice thereof. In the event Executive voluntarily resigns
his employment with Company, Executive shall be entitled to receive only (i)
such Minimum Base Salary through the date of termination, (ii) the amount of any
unpaid Annual Bonus earned in any completed fiscal year of the Company preceding
the date of Termination, (iii) the amount of any unpaid Annual Bonus earned in
the year of termination, such bonus to be prorated and payable upon
determination at the end of such year, (iv) stock options earned pursuant to
Section 5 in any completed fiscal year of the Company preceding the date of
Termination, and (v) any benefits as are due Executive through the effective
date of such resignation.
17. Termination Upon Death of Executive. If during the term of this
Agreement Executive dies, then this Agreement shall terminate and Company shall
pay to the estate of Executive only (i) such Minimum Base Salary through the
date of termination, (ii) the amount of any unpaid Annual Bonus earned in any
completed fiscal year of the Company preceding the date of Termination, (iii)
the amount of any unpaid Annual Bonus earned in the year of termination, such
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bonus to be prorated and payable upon determination at the end of such year,
(iv) stock options earned pursuant to Section 5 in any completed fiscal year of
the Company preceding the date of Termination, and (v) any benefits as are due
Executive through the date of his death.
18. Termination Upon Disability of Executive. If during the term of
this Agreement Executive is unable to perform the services required of Executive
pursuant to this Agreement for a continuous period of ninety (90) days due to
disability or incapacity by reason of any physical or mental illness (as
reasonably determined by Parent's Board of Directors and consistent with the
standards set forth in Parent's stock option plan), then Company shall have the
right to terminate this Agreement at the end of such ninety-day period by giving
written notice to Executive. Executive shall be entitled to receive only (i)
such Minimum Base Salary through the date of termination, (ii) the amount of any
unpaid Annual Bonus earned in any completed fiscal year of the Company preceding
the date of Termination, (iii) the amount of any unpaid Annual Bonus earned in
the year of termination, such bonus to be prorated and payable upon
determination at the end of such year, (iv) stock options earned pursuant to
Section 5 in any completed fiscal year of the Company preceding the date of
Termination, and (v) any benefits as are due Executive through the date of such
Termination.
19. Termination by Company Other than for Cause, Death, Disability, or
Voluntary Resignation. Company may elect at any time to terminate Executive for
any reason other than for Cause, death, disability, or voluntary resignation of
Executive. If such Termination occurs, Executive shall be entitled to receive
(i) an amount equal to the Minimum Base Salary for the following twelve months,
such amount to be paid in a lump sum promptly following such termination, (ii)
the amount of any unpaid Annual Bonus earned in any completed fiscal year of the
Company preceding the date of Termination, (iii) the Annual Bonus for the fiscal
year of termination, payable upon determination at the end of such fiscal year,
(iv) stock options earned pursuant to Section 5 in any completed fiscal year of
the Company preceding the date of Termination, and (v) any benefits as are due
Executive through the date of such Termination.
20. Termination Upon Voluntary Resignation for Good Reason. The
Executive may resign his employment at any time for Good Reason. "Good Reason"
shall mean (i) the removal of the Executive from the position of President of
the Company, or a material reduction by the Company in the Executive's
authorities, powers, functions or duties; (ii) relocation of the Executive's
principal office from Houston, Texas; (iii) the failure of the successor to the
Company to adopt and assume the Company's obligations under this Agreement
pursuant to Section 26; or (iv) a material breach of this Agreement by the
Company or Parent. Executive shall provide the Company with written notice of a
termination for Good Reason hereunder and, shall afford the Company the
opportunity to cure the removal, reduction, relocation, failure or breach, as
applicable, during the 20 day period following the notice. Upon a termination
for Good Reason, Executive shall be entitled to receive (i) an amount equal to
the Minimum Base Salary for the following twelve months, such amount to be paid
in a lump sum promptly following such termination, (ii) the amount of any unpaid
Annual Bonus earned in any completed fiscal year of the Company preceding the
date of Termination, (iii) the Annual Bonus for the fiscal year of termination,
payable upon determination at the end of such fiscal year, (iv) stock options
earned pursuant to Section 5 in any completed fiscal
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year of the Company preceding the date of Termination, and (v) any benefits as
are due Executive through the date of such Termination.
21. Dispute Resolution. (a) Except as specifically provided herein, any
unresolved dispute or controversy arising under or in connection with this
Agreement, or the breach thereof, shall be exclusively and finally settled by
binding arbitration pursuant to this Section 21. The arbitration proceedings
shall be conducted in accordance with the terms of this Section 21 and the
Commercial Arbitration Rules of the American Arbitration Association as in
effect from time to time (the "Arbitration Rules").
(b) Any party hereto may invoke arbitration under Section 21
at any time by serving on the other interested parties a written notice
of arbitration, which shall specify with reasonable details (1) the
matter in dispute, (2) the relief requested and (3) the grounds
therefor. The arbitration shall be heard and determined by a single
arbitrator who shall be impartial and independent of the parties to the
dispute. The single arbitrator shall be appointed by the unanimous
consent of the parties. If the parties cannot reach agreement on an
arbitrator within thirty (30) days of the submission of a notice of
arbitration, the arbitrator shall be selected by the Phoenix Office of
the American Arbitration Association. If an arbitrator should die,
withdraw or otherwise become incapable of serving, a replacement shall
be selected and appointed in a like manner as the original arbitrator.
(c) (i) Unless the parties and the arbitrator agree
otherwise, the arbitration proceedings shall be held in Phoenix,
Arizona, at a place determined by the arbitrator.
(ii) The parties may offer such evidence as is
relevant and material to the dispute and shall produce such additional
evidence as the arbitrator may deem necessary to the determination of
the dispute.
(d) The prevailing party in any such arbitration proceedings
shall be entitled to attorneys' fees and other out-of-pocket expenses
reasonably and necessarily incurred in connection with such
proceedings, the amounts of which shall be contained in the award of
the arbitrator.
(e) This Section 21 shall survive the termination or
expiration of this Agreement.
(f) Nothing herein shall limit a party's rights to seek
equitable relief, including specific performance or injunctive relief,
from a court of law.
22. Severability; Reformation. In the event any court or arbiter
determines that any of the restrictive covenants in this Agreement, or any part
thereof, is or are invalid or unenforceable, the remainder of the restrictive
covenants shall not thereby be affected and shall be given full effect, without
regard to invalid portions. If any of the provisions of this Agreement should
ever be deemed to exceed the temporal, geographic, or occupational limitations
permitted by applicable laws, those provisions shall be and are hereby reformed
to the maximum temporal, geographic, or occupational
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limitations permitted by law. In the event any court or arbiter refuses to
reform this Agreement as provided above, the parties hereto agree to modify the
provisions held to be unenforceable to preserve each party's anticipated
benefits thereunder.
23. Notices. All notices and other communications hereunder shall be in
writing and shall be sufficiently given if made by hand delivery, by telecopier,
or by registered or certified mail (postage prepaid and return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by it by like notice):
If to Parent
or Company : Xxxxxx Steel Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attention: President
With a copy to: Xxxxx & Xxxxxx L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Executive: Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
All such notices and other communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; three business days
after being deposited in the mail, postage prepaid, if delivered by mail; and
when receipt is acknowledged, if telecopied.
24. Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute one and the same agreement.
25. Governing Law. The validity, construction, and enforceability of
this Agreement shall be governed in all respects by the laws of the State of
Texas, without regard to its conflict of laws rules.
26. Assignment; Third Party Beneficiaries. This Agreement shall not be
assigned by operation of law or otherwise, except that Company may assign all or
any portion of its rights under this Agreement to any subsidiary or affiliate of
the Company, but no such assignment shall relieve
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Company of its obligations hereunder, and except that this Agreement may be
assigned to any corporation or entity with or into which Company may be merged
or consolidated or to which Company transfers all or substantially all of its
assets, and such corporation or entity assumes this Agreement and all
obligations and undertakings of Company hereunder. Parent and its subsidiaries
are third party beneficiaries hereof and each may enforce this Agreement.
27. Further Assurances. At any time on or after the date hereof, the
parties hereto shall each perform such acts, execute and deliver such
instruments, assignments, endorsements and other documents and do all such other
things consistent with the terms of this Agreement as may be reasonably
necessary to accomplish the transaction contemplated in this Agreement or
otherwise carry out the purpose of this Agreement.
28. Gender, Number and Headings. The masculine, feminine, or neuter
pronouns used herein shall be interpreted without regard to gender, and the use
of the singular or plural shall be deemed to include the other whenever the
context so requires.
29. Waiver of Provisions. The terms, covenants, representations,
warranties, and conditions of this Agreement may be waived only by a written
instrument executed by the party waiving compliance. The failure of any party at
any time to require performance of any provisions hereof shall, in no manner,
affect the right at a later date to enforce the same. No waiver by any party of
any condition, or breach of any provision, term, covenant, representation, or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation, or warranty of this Agreement.
30. Attorneys' Fees and Costs. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees, accounting
fees, and other costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
31. Paragraph Headings. The paragraph headings in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
32. Amendment. This Agreement may be amended only by an instrument in
writing executed by all parties hereto.
33. Expenses. Except as otherwise expressly provided herein, each party
shall bear its own expenses incident to this Agreement and the transactions
contemplated hereby, including without limitation, all fees of counsel,
consultants, and accountants.
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34. Entire Agreement. This Agreement constitutes and embodies the full
and complete understanding and agreement of the parties hereto with respect to
the subject matter hereof, and supersedes all prior understandings or
agreements, whether oral or in writing.
35. Withholding. Executive acknowledges and agrees that payments made
to Executive by Company pursuant to the terms of this Agreement may be subject
to tax withholding and that Company may withhold against payments due Executive
any such amounts as well as any other amounts payable by Executive to Company.
36. Release. Receipt of any of the benefits to be provided to Executive
under this Agreement following termination of Executive's employment hereunder
shall be subject to Executive's compliance with any reasonable and lawful
policies or procedures of Company relating to employee severance including the
execution and delivery by Executive of a release reasonably satisfactory to
Company of any and all claims that Executive may have against Company or any
related person, except for the continuing obligations provided herein, and an
agreement that Executive shall not disparage Company or any of its directors,
officers, employees or agents.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement or caused this Agreement to be duly executed on their respective
behalf, by their respective officers thereunto duly authorized, all as of the
day and year first above written.
SIX INDUSTRIES, INC., a
Texas corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
Its: President
XXXXXX STEEL COMPANY, a
Delaware corporation
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Its: President
/s/ Xxxxx X. Xxxxx
------------------------------------------------
XXXXX X. XXXXX
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