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CENTEX EXHIBIT 10.5a
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made as of the 1st day of
June, 2000, by and between Centex Corporation, a Nevada corporation, (the
"Corporation") and Xxxxxx X. Xxxxxx, an individual residing in Dallas County,
Texas (the "Executive").
RECITALS:
The Company desires to employ Executive and Executive desires to be employed by
and to serve the Company in the capacities and for the term and compensation and
upon and subject to the terms and conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, the Corporation and the Executive agree as follows:
1. Definitions. For the purposes of the Agreement, the following
definitions shall apply unless the context requires otherwise:
a. "Affiliate" shall mean any individual, entity, or corporation that
controls, is controlled by, or is under common control with the
Corporation.
b. "Average Bonus" shall mean the result obtained by dividing the sum
of the bonuses, if any, paid to the Executive pursuant to Subsection 4.b
below in respect of the two fiscal years next preceding the fiscal year in
which a Change in Control of the Corporation occurs by the number of years
during such two-year period in which the Executive was entitled to receive
a bonus pursuant to Subsection 4.b below.
c. "Board" shall mean the Board of Directors of the Corporation.
d. "Breach" shall mean a breach by the Executive or the Corporation,
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.
e. A "Change in Control" shall be deemed to have occurred if (i) the
Corporation 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 Corporation sells
all or substantially all of its assets to any other person or entity (other
than a wholly-owned subsidiary), (iii) the Corporation 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 Common Stock of the Corporation having 50% or more of the total number
of votes that may be cast for the election of directors of the Corporation;
or as a result of, or in connection with, a contested election for
directors, the persons who were directors of the Corporation
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before such election shall cease to constitute a majority of the Board of
Directors of the Corporation. Notwithstanding any provision of this
Subsection 1.e., 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 Corporation and
persons who were the executive officers of the Corporation 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 Corporation or the surviving
or resulting corporation or the parent of the resulting corporation.
f. "Common Stock" shall mean the common stock of the Corporation, par
value $.25.
g. "Disability" shall mean the Executive's inability, by reason of a
mental or physical impairment, to perform his obligations and agreements as
set forth in Section 3 below for a period of twelve (12) consecutive months
or more.
h. "Termination for Cause" shall mean the Corporation's termination of
the Executive's employment with the Corporation pursuant to a determination
by the Board, in its sole and absolute discretion, but acting in good
faith, that the individual is guilty of engaging in acts in the course of
his employment with the Corporation that constitute theft, dishonesty,
fraud, or embezzlement.
i. "Termination Without Cause" shall mean any termination by the
Corporation of the Executive's employment with the Corporation other than a
Termination for Cause. In addition, if (i) the Board alters the duties of
the Executive so that the Executive no longer renders such services of an
executive and administrative character to the Corporation and its
Affiliates as are usual and customary in the case of the executive vice
president and chief financial officer of a corporation such as the
Corporation and (ii) the Executive thereafter terminates employment with
the Corporation, such termination by the Executive shall be deemed not a
voluntary termination of employment by the Executive but a termination by
the Corporation of the Executive's employment with the Corporation that is
a Termination Without Cause.
2. Employment Period. The Corporation agrees to employ the Executive and
Executive accepts such employment for a term of two (2) years to begin on the
date of this Agreement and such term shall be automatically renewed and
recommenced on a daily basis so that on any day of the term of this Agreement
the remainder of the term shall be two (2) years.
3. Services. Subject to the power of the Board to elect and remove
officers, during the term of his employment under this Agreement the Executive
shall serve as Executive Vice President and Chief Financial Officer of the
Corporation (or in such other office of comparable or greater responsibility as
the Board may determine). In such capacities the Executive shall, as the Board
may from time to time direct, render such services of an executive and
administrative
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character to the Corporation and its Affiliates as are usual and customary in
the case of the executive vice president and chief financial officer of a
corporation such as the Corporation. The Executive shall devote his best efforts
and substantially all of his business time and attention (except for vacation
periods and reasonable periods of illness or other incapacity) to the business
of the Corporation and its Affiliates.
4. Compensation.
a. Base Salary. The Corporation shall pay the Executive, in addition
to other compensation for services rendered by the Executive under this
Agreement, a "Base Salary" (herein so-called). The initial Base Salary
shall be $450,000 per year. The Executive's Base Salary shall be paid in
accordance with the customary payroll policy of the Corporation in effect
at the time payments thereof are to be made, or as may otherwise be
mutually agreed upon by the Executive and the Corporation. The Executive's
Base Salary shall be reviewed by the Board in May 2001, and during each
subsequent May during the term of the Executive's employment under this
Agreement, with adjustments in such Base Salary to become effective as
provided by the Board; provided, however, that the Executive's annualized
Base Salary shall not be less than the initial Base Salary or the highest
subsequent Base Salary established by the Board. Any adjustment of Base
Salary by the Board shall become effective immediately for purposes of this
Agreement.
b. Bonuses. For each of the Corporation's fiscal years during which
this Agreement is in effect, the Executive shall participate in the
Corporation's bonus program for executives in accordance with the
Corporation's policy.
c. Fringe Benefits. The Corporation shall provide to the Executive,
during the Executive's employment under this Agreement, all so-called
"fringe benefits", including, but not limited to, hospitalization
insurance, disability insurance, life insurance, and the like, that are
currently granted to or provided for executives and employees of the
Corporation or that may be granted to or provided for them during the term
of the Executive's employment under this Agreement. In addition, the
Corporation shall provide the Executive with an automobile allowance
consistent with the terms of the Corporation's policies as from time to
time in effect.
5. Participation in Salary Continuation Plan. The Executive shall be
entitled to participate in the Corporation's Salary Continuation Plan upon the
same terms and conditions as are offered to other executives of the Corporation.
6. Participation in Profit Sharing and Retirement Plan. The Executive shall
be eligible to participate in the Corporation's Profit Sharing and Retirement
Plan on the same terms and conditions as are provided for other employees of the
Corporation.
7. Club Memberships. The Corporation shall provide the Executive with club
memberships pursuant to the Corporation's existing policy, and such memberships
shall be maintained during the term of the Executive's employment with the
Corporation.
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8. Termination and Resignation. The Corporation 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 Corporation prompt payment of the amount determined pursuant to the
applicable Subsection of Section 9 below. The Executive shall have the right to
terminate his employment hereunder at any time by resignation, and he shall
thereupon be entitled to receive from the Corporation prompt payment of the
amount determined pursuant to the applicable Subsection of Section 9 below.
9. Payments Upon Termination and Resignation.
a. Pro Rata Payment. If the Corporation terminates the Executive's
employment for Cause, or because of the Breach by the Executive of this
Agreement, or if the Executive voluntarily resigns prior to the occurrence
of a Change in Control of the Corporation at a time when there is no
uncured Breach by the Corporation of any term of this Agreement, then in
each 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. Multiple Base Salary Payment. If the Executive dies, or becomes
Disabled, or if prior to the occurrence of a Change in Control the
Corporation terminates the Executive's employment Without Cause, or if the
Executive resigns because of the Breach by the Corporation of any term of
this Agreement, then in each case the Executive (or his heirs or executors)
shall be entitled to receive his Base Salary for the remaining term of this
Agreement (i.e., for two years after such death, disability, termination or
resignation).
c. Multiple Base Salary and Bonus Payment. If with in two years after
the occurrence of a Change in Control of the Corporation, (a) the
Corporation terminates the 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 Corporation will
pay to the Executive a lump sum termination payment equal to two times the
sum of his then current Base Salary and his Average Bonus.
10. Confidentiality and Competition.
a. Trade Secret. The Executive recognizes and acknowledges that the
names of the Corporation's customers, the Corporation'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
Corporation. The Executive shall not, during or after the term of his
employment hereunder, disclose any such names or other trade secrets, or
any part thereof, that the Executive becomes aware of during his
employment, to any person, firm, corporation, association or other entity.
b. Non-Competition. The Executive agrees that while he is employed by
the Corporation, and for two years after his termination of employment with
the Corporation for any reason other than termination resulting from a
Change in Control or Breach of this Agreement by the Corporation, he will
not directly or indirectly associate with any business
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that is deemed by the Board to be a significant competitor of the
Corporation or any of the Corporation's Affiliates or principal divisions.
For purposes of this Subsection 10.b., the Board, in its sole discretion
and acting in good faith, will determine if a business is a significant
competitor of the Corporation or any of the Corporation's Affiliates or
principal divisions. The Board shall make such determination within twenty
(20) days after the Executive notifies the Corporation that the Executive
intends to associate with or is associated with a business that might be
deemed to be a significant competitor of the Corporation. During the two
year period following the Executive's termination or resignation under this
Agreement, the Executive shall not attempt to entice away any customer or
employee of the Corporation or its Affiliates. For purposes of this
Subsection 10.b., the Executive will not be deemed to be associated with a
business if his sole association with such a business is his ownership of
less than 1% of its issued and outstanding capital stock.
11. 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 commencing such action, the
Corporation 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.
12. Succession. This Agreement shall inure to the benefit of and be binding
upon the Corporation, its successors and assigns, including without limitation,
any person, partnership or corporation which may acquire all or substantially
all or a majority of the Corporation's assets and business, or with or into
which the Corporation 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.
13. Waiver of Provisions. 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.
14. Notice. Any notice to be given to the Corporation hereunder shall be
deemed sufficient if addressed to the Corporation in writing and personally
delivered or mailed by certified mail to its office at 0000 Xxxxx Xxxxxxx,
Xxxxxx, Xxxxx 00000, Attn: Vice Chairman. Any notice to be given to the
Executive hereunder shall be deemed sufficient if addressed to him in writing
and personally delivered or mailed by certified mail to 0000 Xxxxx Xxxxxxx,
Xxxxxx, Xxxxx 00000. Either party may, by notice as aforesaid, designate a
different address or addresses.
15. 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
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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.
16. 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.
17. 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.
18. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ATTEST: CENTEX CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice Chairman
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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