EXHIBIT 10.08.1
EMPLOYMENT AGREEMENT
This Agreement is made effective as of the 17th day of June, 1997, the
"Effective Date," by and between Falcon Building Products, Inc. (the "Company"),
and Xxxxxx X. Xxxxxxxx, Xx., an individual residing at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (the "Employee").
WHEREAS, as a condition to an Agreement and Plan of Merger between the
Company and FBP Acquisition Corp., Inc. (the "Merger Agreement"), the Employee
has agreed to be employed by the Company on and after the date as of which such
merger is effective (the "Merger Date"); and
WHEREAS, the Company wants to employ the Employee and the Employee wants to
be employed by the Company on and after the Effective Date in accordance with
the terms of this Employment Agreement, which Employment Agreement supersedes
and replaces any and all other employment agreements or arrangements between
Employee and the Company;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby agrees to employ the Employee
as the Vice President - Operations, Planning and Development and the Employee
hereby agrees to serve the Company in such capacity, subject to the terms and
conditions hereof for the period commencing on the Merger Date and continuing
until terminated as provided in Section 5 (the "Termination Date"). The
Employee is being engaged on a full time basis to perform services consistent
with the title of Vice President - Operations, Planning and Development. Prior
to the Merger Date, Employee will be compensated in accordance with the terms of
his employment as in effect immediately prior to the Effective Date.
2. COMPENSATION. The Employee shall be paid for the performance of his
duties under this Agreement during the term of his employment with the Company
in accordance with the following:
(a) BASE COMPENSATION. The Company shall pay the Employee base
compensation, which on and after the Merger Date shall be at the rate of not
less than $225,000 per year ("Base Compensation"). The Employee's Base
Compensation shall be payable semi-monthly, shall not be decreased and shall be
subject to annual or periodic review beginning June 1, 1998 in accordance with
the Company's customary practices for its other executives and be increased in
the sole discretion of the Company's Board of Directors (the "Board"). In the
event the Board increases the Employee's Base Compensation, such compensation
may not be decreased thereafter.
(b) BONUS. The Company shall pay the Employee a bonus for each
fiscal year based upon target performance goals (the "Target") to be mutually
agreed upon by the Board and the Employee and measured as a percentage of the
Employee's Base Compensation. Notwithstanding the preceding sentence, if the
Target is achieved, the Employee shall be entitled to a bonus the amount of
which is no less than 50% of Base Compensation. The bonus shall be payable
as soon after the end of each fiscal year as it can be determined, but in any
event within ninety (90) days thereafter. If the
employment of Employee is terminated at other than year-end, the bonus will
be prorated to reflect the period during the year Employee was employed.
(i) For the portion of the 1997 fiscal year which ends
immediately prior to the Merger Date, the Employee shall be entitled to a
prorated bonus under the terms of the bonus plan as in effect on the
Effective Date.
(ii) For fiscal year 1997, the Target shall be based upon the
Company's earnings before interest, taxes, depreciation and amortization
from continuing operations and before corporate overhead and Ultravent
charges ("Subsidiary EBITDA"). For fiscal year 1997, Subsidiary EBITDA is
estimated to be $93.7 million and the bonus for fiscal year 1997 will be
paid pro rata based upon the Subsidiary EBITDA earned after the Merger
Date.
(iii) For the portion of the 1997 fiscal year which commences
on the Merger Date, the Employee shall be entitled to a bonus provided that
at least 85% of the Target is achieved. The amount of the bonus shall be
prorated for the portion of the fiscal year following the Merger Date from
an amount determined by straight line interpolation from 25% of Base
Compensation if 85% of Target is achieved to 75% of Base Compensation if
107.5% of the Target is achieved. The Board may, in its sole and absolute
discretion, increase the bonus by an amount up to 25% of Base Compensation.
3. BENEFITS. The Employee shall be entitled to participate in and
receive benefits under any retirement plan, savings plan, related override
benefit plan, nonqualified deferred compensation plan, health plan, disability
plan, life insurance plan and any other employee benefit plan or arrangement
(collectively, "Benefit Plans") made available from time to time to executives
of the Company. The Employee shall be entitled to such other benefits,
including vacation, executive perquisites, fringe benefits and expense
reimbursements as currently in effect for executives of the Company and as the
same may from time to time be amended.
4. STOCK OWNERSHIP.
(a) STOCK OPTIONS. On the Merger Date, the Company shall grant the
Employee stock options on shares equal to no less than 1.00% of the Company's
then outstanding shares of common stock. To the extent permitted by law,
such options shall constitute incentive stock options under the Internal
Revenue Code. Such options will be exercisable at a price equal to the Cash
Election Price (as defined in the Merger Agreement), subject to adjustment
for changes in capital, and will provide for seven (7) year cliff vesting
with four (4) year accelerated vesting based on meeting agreed-upon financial
performance and acquisition targets and/or cumulative performance vesting
goals, with further accelerated vesting in the event of an IPO or other exit
scenarios provided in the latter event that agreed upon IRR target levels are
achieved. Additionally, these options shall include put provisions in the
event of the Employee's death, disability or retirement, and call provisions
in the event of termination of employment -- both put and call provisions to
be exercised at either cost or fair market value depending on the
circumstances. Said provisions and such other additional reasonable terms
and conditions will be set forth in a stock option plan to be adopted by the
Company before the Merger Date.
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(b) OWNERSHIP. On the Merger Date, the Employee shall purchase or
retain ownership of not less than .17% of the Company's outstanding shares of
common stock on the Merger Date.
(c) SENIOR EXECUTIVE STOCK LOAN PLAN. As soon as practicable after
the Merger Date, the Company shall establish the Senior Executive Stock Loan
Plan to incent management to purchase additional shares of capital stock of the
Company.
(d) PUT/CALL RIGHTS. The Employee will have rights to put to the
Company and the Company shall have rights to call from the Employee shares of
capital stock of the Company owned or acquired by the Employee on the Merger
Date without restriction as set forth on attached Exhibit A. The parties will
agree on a fair and reasonable valuation process no later than the Merger Date.
5. TERMINATION.
(a) This Agreement may be terminated by the Company by written notice
to the Employee only by action of a majority of the Board. The termination will
not be effective until the later of three years after the Merger Date or two
years after written notice of termination is given to the Employee unless the
termination is for "Good Cause." "Good Cause" shall mean (i) the Employee's
conviction of any embezzlement or any felony involving fraud or breach of trust
relating to the performance of the Employee's duties, (ii) the Employee's
willful engagement in gross misconduct in the performance of his duties,
(iii) the Employee's death, or (iv) permanent disability which materially
impairs the Employee's performance of his duties. Termination for "Good Cause"
shall be effective immediately.
(b) The Employee may terminate this Agreement by giving the Company
written notice of termination. The termination will be effective sixty (60)
days after written notice of termination is given to the Company. The
Employee may terminate this Agreement for "Good Reason." "Good Reason" shall
exist if (i) the Company continues a reduction in compensation or
expenditures for Benefit Plans, relocates outside the Chicago area or commits
another material breach of this Agreement for more than 30 days after being
notified in writing by the Employee of such breach PROVIDED the Employee has
given such notice to the Company within 30 days of first becoming aware of
the facts constituting such breach, (ii) the Company gives the Employee a
notice of termination without Good Cause (as defined above) PROVIDED the
Employee terminates this Agreement within 30 days of receiving such notice,
(iii) a "Change of Control" occurs, and the Employee's employment hereunder
is terminated by either party for any reason other than "Good Cause," (iv)
the Employee retires from the Company on a date that is mutually agreed upon
by the Company and the Employee, or (v) before January 1, 2000, the Employee
has not been offered a mutually acceptable operating position with the
Company. A "Change of Control" shall occur when any person (as such term is
used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, the "Exchange Act") other than a majority shareholder on the Merger
Date is or becomes the "beneficial owner" (as defined in Rule 13(d)-3 under
the Exchange Act) of securities of the Company representing more than 35% of
the combined voting power of the Company's then outstanding voting
securities; provided, however, that no Change of Control shall be deemed to
have occurred if beneficial ownership by such person is less than 50% of the
combined voting power of the Company's then outstanding voting securities and
the original investors in FBP Acquisition Corp.,
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Inc. who at the Merger Date received voting securities of the Company
beneficially own at least 20% of the combined voting power of the Company's
then outstanding voting securities.
(c) If the Company by written notice to the Employee elects to
terminate his employment with the Company prior to the Termination Date provided
by Section 5(a) for other than Good Cause or, if the Employee terminates this
Agreement and simultaneously therewith his employment by the Company and its
parent and subsidiary corporations for Good Reason, then the following shall
occur:
(i) All of the Employee's outstanding and unexercised options
to purchase stock of the Company shall, to the extent vested at the date of
notice of termination, continue to be exercisable for a period ending on
the earlier of the date 18 months from the date of such notice and the
specific expiration date stated in the option.
(ii) The Company for a period of two years from the date of
notice of such termination or through three years after the Merger Date
whichever is later (the "Severance Period") shall continue to provide to
the Employee (1) his Base Compensation, at the rate most recently
determined, (2) a bonus for each fiscal year (and a pro rata amount for
each partial year) in an amount equal to the latest Target bonus,
(3) health coverage, life insurance and disability insurance (subject in
the case of long-term disability to the availability of such coverage under
the Company's insurance policy), (4) suitable office space and secretarial
services, and (5) reimbursement for outplacement services. If the Employee
dies during the Severance Period, the payments provided by (1) and
(2) above shall be made to the Employee's spouse at the time of his death
as long as she is alive and if she should not survive him or shall
subsequently die, to the estate of the Employee, and the health coverage
shall be made available to his spouse and eligible dependents. The period
of health coverage provided by this Agreement shall reduce the period of
COBRA coverage which would otherwise be required.
(iii) The Employee will be fully vested in all retirement and
savings plans.
(d) The parties agree that the payments and benefits provided for in
subsection (c) of this Section shall be deemed to constitute liquidated damages
for the Company's breach or constructive breach of this Agreement and payment
for the non-competition provisions of this Agreement, and the Company agrees
that (i) the Employee shall not be required to mitigate his damages by seeking
other employment or otherwise, and (ii) the Company's payments and other
obligations under this Agreement shall not be reduced in any way by reason of
any compensation received by the Employee from sources other than the Company
and its affiliates, except as otherwise expressly provided herein.
6. ENTIRE AGREEMENT. The terms and provisions of this Agreement
constitute the entire agreement between the parties and supersede any previous
oral or written communications, representations or agreements with respect to
the subject matter hereof.
7. NOTICE. Any Notices given hereunder shall be in writing and shall be
given by personal delivery or by certified or registered mail, return receipt
requested, addressed to:
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If to the Company: If to the Employee:
President To the address shown at
Falcon Building Products, Inc. the beginning of this Employment
0 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
or such other address as shall be furnished in writing by one party to the
other.
8. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision had been omitted.
9. SUCCESSORS. The Company's obligation hereunder shall be binding legal
obligations of any successor to all or substantially all of the Company's
business by purchase, merger, consolidation or otherwise. The Company may not
sell or otherwise dispose of all or substantially all of its assets or merge or
consolidate with any other entity without making adequate provision for its
obligations hereunder. The Employee may not assign this Agreement during his
life, and upon his death, this Agreement shall be binding upon and inure to the
benefit of his heirs, legatees and the legal representative of each.
10. APPLICABLE LAW. This Agreement shall be construed and interpreted
pursuant to the laws of Illinois.
11. AMENDMENT. This Agreement may be amended only by a written document
signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
effective as of the day and year first above written.
Falcon Building Products, Inc. Employee
Xxxxxx X. Xxxxxxxx, Xx.
By: /s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Its: President
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EXHIBIT A
The provisions of the Put/Call arrangements are as follows:
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CALL PROVISION CALL PRICE
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WITHIN 3 YEARS AFTER 3 YEARS
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Employee leaves without Good Reason Lower of Cost or FMV FMV
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Employee leaves with Good Reason FMV FMV
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Employee is terminated for Cause Lower of Cost or FMV Lower of Cost or FMV
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Any other reason FMV FMV
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PUT PROVISION PUT PRICE
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BEFORE 3 YEARS AFTER 3 YEARS
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Employee is terminated without Cause Lower of Cost or FMV FMV
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Resignation for Good Reason Lower of Cost or FMV FMV
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Employee leaves without Good Reason
(provided employee does not go to a
competitor) None FMV
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Death, Disability, Retirement FMV FMV
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Cost to be grossed up by an appropriate interest rate.
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