AGREEMENT
AGREEMENT dated as of March 31, 1994, between Xxxxxx Building Products,
Inc. ("Building Products") and Xxxxxx X. Xxxx ("Executive").
Whereas, Building Products recognizes that the Executive's contribution to
the growth and success of Building Products has been substantial;
Whereas Executive possesses an intimate knowledge of the business and
affairs of Building Products, its policies, methods, personnel and problems;
Whereas, Building Products desires that Executive i) remain in the employ
of Building Products to assure itself of the continued services of Executive in
light of the major issues that have absorbed and will continue to absorb
Building Products' and Executive's attention;
Whereas, Building Products, in order to achieve its objectives as set forth
above, is willing to set forth the minimum severance benefits which Building
Products agrees will be provided to Executive in the event Executive's
employment with Building Products is terminated at any time;
Whereas, absent this Agreement, Building Products is under no legal
obligation to provide additional compensation to Executive in addition to the
compensation and benefits Executive is presently receiving; and
Whereas, Executive is willing to continue in the employ of Building
Products and to provide continued dedicated services to Building Products and
its subsidiaries, provided he receives adequate assurance that he will receive
certain compensation in the event of the termination of his employment.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency all of which are hereby acknowledged by the parties hereto agree as
follows:
1. EMPLOYMENT. Building Products hereby agrees to continue to employ
Executive, and Executive agrees to continue to provide dedicated services to
Building Products and its subsidiaries, on the terms and conditions set forth
herein.
2. POSITION AND DUTIES. Executive shall serve as Controller of Building
Products and shall have such responsibilities, powers and duties as are normally
attendant such position, and as may from time to time be prescribed by the Board
of Directors of Building Products or the President, provided that such duties
and responsibilities are substantially consistent with Executive's present
duties.
3. COMPENSATION. Executive shall receive a base salary at the annual
rate of at least $77,500.00 (the "Minimum Rate"), subject to increase from time
to time in the sole discretion of Building Products. Any increase in Base
Salary or other compensation shall in no way limit or reduce any other
obligation of Building Products hereunder.
4. BENEFITS; VACATION. Executive shall be entitled (a) to continue to
participate in or receive benefits under all compensation plans, insurance
plans, benefit plans and fringe benefit plans or arrangements presently in
effect (or plans and arrangements providing Executive with substantially similar
benefits), and shall be eligible to participate in any such plans or
arrangements which are made available by Building Products in the future to its
executives and key management employees, and (b) to not less than three (3)
weeks of paid vacation each year together with all paid holidays given to senior
executive officers. Nothing paid to Executive under any such plan or
arrangement shall be deemed to be in lieu of compensation to Executive
hereunder.
5. TERMINATION.
(a) TERMINATION FOR ANY REASON. Building Products may terminate
Executive's employment at any time subject to providing the severance benefits,
if any, as hereinafter specified according to the terms hereof. The "Date of
Termination" shall mean the date on which Executive's employment hereunder
terminates, and shall be specified in a written notice.
(b) TERMINATION FOR CAUSE. Building Products may terminate
Executive's employment for Cause. For the purposes of this Agreement, Cause
shall mean i) the deliberate and willful failure by Executive to substantially
perform Executive's duties with Building Products, other than any such failure
resulting from Executive's incapacity due to physical or mental illness, or ii)
the willful engaging by Executive in gross misconduct injurious to Building
Products in the sole determination of the Board of Directors of Building
Products acting in good faith, or iii) the conviction of Executive of fraud,
misappropriation, embezzlement or any felony. For purposes of this
subparagraph, no act, or failure to act, on Executive's part shall be considered
"willful" unless done, or omitted to be done, by Executive not in good faith and
without reasonable belief by Executive that Executive's action or omission was
in the best interest of Building Products.
(c) TERMINATION FOR GOOD REASON. Executive may terminate his employment
for Good Reason. "Good Reason" shall mean i) any reassignment of the Executive
to duties materially inconsistent with those attendant his position, title and
status with Building Products as set forth in paragraph 2 hereof, ii) any
reduction in Executive's base salary below the Minimum Rate or the removal of
Executive from participation in any employee benefit plan generally provided to
all executive officers, or iii) any material breach by Building Products of any
provision of this Agreement or the failure by Building Products to obtain the
assumption of and the agreement to perform this Agreement by any successor as
contemplated in paragraph 11(vi).
(d) TERMINATION FOR DISABILITY; RETIREMENT.
(i) If, as a result of Executive's incapacity due to physical or
mental illness, Executive shall have been absent from his duties with Building
Products on a full time basis for six (6) consecutive months, and within thirty
(30) days after written notice of termination is
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given, Executive shall not have returned to the full time performance of
Executive's duties, Building Products may terminate this Agreement for
"Disability".
(ii) Termination by Building Products or Executive of Executive's
employment based on "Retirement" shall mean termination at normal retirement age
in accordance with the Company's retirement policy, generally applicable to its
salaried employees or in accordance with any retirement arrangement established
with Executive's consent with respect to Executive.
6. COMPENSATION UPON TERMINATION.
(a) Upon termination of Executive's employment i) by Building Products for
any reason other than for Cause, Disability, Retirement or Death, or ii) by the
Executive for Good Reason, in lieu of any severance payments that would
otherwise be due Executive upon termination of his employment, which severance
benefits are hereby waived and relinquished by Executive, Building Products
shall:
(i) pay Executive, Executive's full base salary through the Date of
Termination at the rate in effect at the time notice of termination is given
(but in no event less than the Minimum Rate), and a bonus, with respect to the
immediately preceding fiscal year then ended (provided same has not already been
paid) which accrued to Executive;
(ii) pay Executive, for all accrued and unused vacation through the
Date of Termination;
(iii) pay Executive, Executive's full base salary at the rate in
effect at the time notice of termination is given (but in no event less than the
Minimum Rate), for twelve (12) months after the Date of Termination plus the pro
rata share of a bonus, if any, with respect to then current fiscal year to which
the Executive would otherwise be entitled but for the termination of Executive's
employment, based upon the factors used in determining the bonus provided to
Executive for Building Products' previous fiscal year. Such bonus shall be
determined in the good faith determination of the Board of Directors of Building
Products; and
(iv) maintain in full force and effect, for the continued benefit of
Executive for twelve (12) months after the Date of Termination, all employee
benefit plans relating to hospitalization, medical, life insurance and
disability programs or arrangements in which Executive was entitled to
participate immediately before the Date of Termination provided that Executive's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Executive's participation in any
such plan or program is barred, Building Products shall arrange to provide
Executive with benefits substantially similar to those which Executive is
entitled to receive under such plans and programs.
(b) Executive shall not be required to mitigate the amount of any payment
provided for in subparagraph 6 (iii) hereof by seeking other employment or
otherwise, provided however, that should Executive obtain other employment, the
amounts of any salary and bonus provided to Executive pursuant to such
subsequent employment shall offset amounts otherwise due under subparagraph 6
(iii) hereof. Building Products shall no longer have an obligation to provide
benefits relating to hospitalization, medical, life insurance and disability
programs or
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arrangements to the extent Executive is covered by any hospitalization, medical,
life insurance and disability program or arrangement pursuant to such subsequent
employment.
(c) Upon termination of Executive's employment for Cause, Building Products
shall pay Executive, Executive's full base salary through the Date of
Termination at the rate in effect at the time notice of termination is given
(but in no event less than the Minimum Rate), and Building Products shall have
no further obligations to Executive under this Agreement.
(d) During any period that the Executive fails to perform Executive's
duties hereunder as a result of incapacity due to physical or mental illness,
Building Products shall pay Executive, Executive's full base salary through the
Date of Termination at the rate in effect at the time notice of termination is
given (but in no event less than the Minimum Rate), and Building Products shall
have no further obligations to Executive under this Agreement.
7. Any provision of this Agreement to the contrary notwithstanding, if
any amount otherwise payable to Executive pursuant to this Agreement would cause
Executive to be subject to an excise tax with respect to such amount on account
of Internal Revenue Code section 4999, then the amount payable to Executive
pursuant to this Agreement shall be reduced to an amount which will not cause
Executive to be subject to the excise tax imposed with respect to any such
amount on account of Internal Revenue Code section 4999.
8. UNAUTHORIZED DISCLOSURE. During the period of Executive's employment
hereunder, Executive acknowledges and agrees that all of the documents and
information to which he has had access during his employment, including, but not
limited to, this Agreement, all information pertaining to any specific business
transactions in which Building Products was involved, all information pertaining
in any way to customers of Building Products, and in general, the business and
operations of Building Products, are considered confidential and, that during
the period of Executive's employment hereunder, and for the two (2) year period
following termination of Executive's employment with Building Products, he shall
not disclose to any person, other than an employee of Building Products or a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by Executive of his duties as an executive of Building
Products or any subsidiary thereof (individually or collectively as the context
may require, the "Building Products Group"), material confidential information
obtained by him while in the employ of Building Products including, but not
limited to confidential information with respect to any of the Building Products
Group's products, improvements, formulas, customers, distribution of products or
methods of manufacture; provided, however, that confidential information shall
not include any information a) known generally to the public (other than as a
result of unauthorized disclosure by the Executive), b) otherwise known or
available to Executive prior to his employment by Building Products, or c) not
treated as confidential by Building Products, except that Executive may disclose
(a) the existence of and the terms of this Agreement to Executive's spouse,
attorney, accountant or tax return preparer if such person has agreed to keep
its existence and provisions confidential, (b) to the extent required by
judicial process and (c) with the written consent of the Building Products'
Board of Directors or a person authorized thereby.
9. NON-COMPETE. Executive agrees that, following termination of his
employment with Building Products for any reason whatsoever, Executive shall
not, for a period of one (1)
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after the date of such termination of employment, directly or have others on his
behalf solicit, induce or encourage any employee of the Building Products Group
to leave his or her employment.
10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
IF TO EXECUTIVE: IF TO BUILDING PRODUCTS:
Xxxxxx X. Xxxx Board of Directors
1504 Pecos Xxxxxx Building Products, Inc.
Xxxxxxxxx, XX 00000 0000 Xxxxxx Xxxx Xxxx
Xxxxxx XX 00000
or to such other address as any party hereto may have furnished to the other in
writing.
11. MISCELLANEOUS.
(i) No provision of this Agreement may be amended, modified, waived or
discharged unless such amendment, modification, waiver or discharge is agreed to
in writing signed by Executive and such officer as may be specifically
designated by the Board of Directors of Building Products.
(ii) No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
(iii) The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the state of Texas.
(iv) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect provided,
however, that if any provision of this Agreement is deemed or held to be
illegal, invalid, or unenforceable there shall be added hereto automatically a
provision as similar as possible to such illegal, invalid, or unenforceable
provision and be legal, valid, and enforceable.
(v) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to Executive hereunder if Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Executive's devisee,
legatee, or other designee or, if there be no such designee, to Executive's
estate.
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(vi) This Agreement shall be binding upon Building Products and
Building Products' successors and assigns. Building Products will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of Building
Products, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Building Products would be required to
perform it if no such succession had taken place. Failure of Building Products
to obtain such agreement prior to the effectiveness of any such succession shall
constitute a breach of this Agreement and shall entitle Executive to
compensation from Building Products in accordance with paragraphs 6 (a) and (b)
hereof.
(vii) This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. Executive acknowledges that he has read this Agreement, that his
execution hereof is knowing and voluntary, that Executive had a reasonable time
to deliberate regarding this Agreement, and that Executive understands that he
had the right to consult with an attorney regarding this Agreement.
13. No right or interest of Executive hereunder may be sold, assigned,
transferred or pledged, in whole or in part, by operation of law or otherwise by
Executive.
14. The Parties agree that this Agreement: (a) contains and constitutes
the entire understanding and agreement between them respecting the subject
matter hereof, (b) supersedes and cancels any previous discussions,
negotiations, agreements, commitments and writings respecting that subject
matter, and (c) shall not be deemed or construed to create a trust fund or grant
a security interest of any kind for the benefit of Executive, and to the extent
that Executive acquires any rights to receive the severance payments hereunder,
such rights shall be no greater than the right of any unsecured general creditor
of Building Products.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first written above.
XXXXXX BUILDING PRODUCTS, INC EXECUTIVE
By: \s\ Xxxxxx X. Xxxxxxxx \s\ Xxxxxx X. Xxxx
------------------------- -----------------------
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxx
Vice President
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