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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement) by and between SEPCO
INDUSTRIES, INC., a Texas corporation (the "Company"), and XXXXX X. XXXXX (the
"Executive") is made and entered into as of the Effective Date set forth in
Section 1.3 below:
RECITALS
A. The Company desires to employ the Executive in the capacity
set forth on Exhibit A pursuant to the provisions of this
Agreement; and
B. The Executive desires employment as an employee of the Company
pursuant to the provisions of this Agreement.
ARTICLE I.
TERMS OF EMPLOYMENT
The terms of employment are as follows:
1.1 Employment. The Company hereby employs the Executive for and
during the term hereof in the capacity set forth on Exhibit A, but Company may
subsequently assign Executive to a different position or modify Executive's
duties and responsibilities. The Executive hereby accepts employment under the
terms and conditions set forth in this Agreement.
1.2 Duties of Executive. The Executive shall perform in the
capacity described in Section 1.1 hereof and shall have such duties,
responsibilities, and authorities as may be designated for such office. The
Executive agrees to devote the Executive's best efforts, abilities, knowledge,
experience and full business time to the faithful performance of the duties,
responsibilities, and authorities which may be assigned to the Executive.
Executive may not engage, directly or indirectly, in any other business,
investment, or activity that interferes with Executive's performance of
Executive's duties hereunder, is contrary to the interests of the Company, or
requires any significant portion of Executives's business time. Executive
shall at all times comply with and be subject to such policies and procedures
as the Company may establish from time to time. Executive acknowledges and
agrees that Executive owes a fiduciary duty of loyalty, fidelity and allegiance
to act at all times in the best interests of the Company and to do no act which
would injure Company's business, its interests, or its reputation.
1.3 Term. This Agreement shall become effective as of the 1st day
of July, 1996 (the "Effective Date") and shall continue in force and effect for
one (1) year unless sooner terminated as provided in Section 2.1 hereof.
Unless this Agreement is terminated before its annual anniversary date, the
term hereof shall be automatically extended for one (1) year unless this
Agreement is renewed or extended by written agreement between the Company and
the Executive pursuant to terms and conditions mutually acceptable.
1.4 Compensation. The Company shall pay the Executive, as
"Compensation" for services rendered by the Executive under this Agreement the
following Salary plus Bonus.
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(a) Salary: A base salary per month as set forth on Exhibit A,
prorated for any partial period of employment ("Salary"). Such Salary
shall be paid in installments in accordance with the Company's regular
payroll practices.
(b) Bonus: A bonus as set forth in Exhibit "A" ("Bonus").
1.5 Employment Benefits. In addition to the Salary payable to the
Executive hereunder, the Executive shall be entitled to the following benefits:
(a) Employment Benefits. As an employee of the Company,
the Executive shall participate in and receive all general employee
benefit plans and programs, as may be in effect from time to time,
upon satisfaction by the Executive of the eligibility requirements
therefor. Nothing in this Agreement is to be construed or interpreted
to provide greater rights, participation, coverage, or benefits under
such benefit plans or programs than provided to similarly situated
employees pursuant to the terms and conditions of such benefit plans
and programs.
(b) Working Facilities. During the term of this
Agreement, the Company shall provide, at its expense, office space,
furniture, equipment, supplies and personnel as shall be adequate for
the Executive's use in performing Executive's duties and
responsibilities under this Agreement.
(c) Automobile Allowance. During the term of this
Agreement, the Company shall provide Executive with a vehicle in
accordance with the Company's vehicle policy.
(d) Limitations. Company shall not by reason of this Article
1.5 be obligated to institute, maintain, or refrain from changing,
amending, or discontinuing, any such incentive compensation or
employee benefit program or plan, so long as such actions are
similarly applicable to covered employees similarly situated.
ARTICLE II.
TERMINATION
2.1 Termination. Notwithstanding anything herein to the contrary,
this Agreement and the Executive's employment hereunder may be terminated
without any breach of this Agreement at any time during the term hereof by
reason of and in accordance with the following provisions:
(a) Death. If the Executive dies during the term of this
Agreement and while in the employ of the Company, this Agreement shall
automatically terminate as of the date of the Executive's death, and
the Company shall have no further liability hereunder to the Executive
or Executive's estate, except to the extent set forth in Section
2.2(a) hereof.
(b) Disability. If, during the term of this Agreement,
the Executive shall be prevented from performing the Executive's
duties hereunder by reason of becoming disabled as hereinafter
defined, the Company may terminate this Agreement immediately
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upon written notice to the Executive without any further liability
hereunder to the Executive except as set forth in Section 2.2(b)
hereof. For purposes of this Agreement, the Executive shall be deemed
to have become disabled when the Board of Directors of the Company,
upon the written report of a qualified physician designated by the
Board of Directors of the Company or by its insurers, shall have
determined that the Executive has become mentally, physically and/or
emotionally incapable of performing Executive's duties and services
under this Agreement.
(c) Termination by the Company for Cause. Prior to the
expiration of the term of this Agreement, the Company may discharge
the Executive for cause and terminate this Agreement immediately upon
written notice to the Executive without any further liability
hereunder to the Executive, except to the extent set forth in Section
2.1(c) hereof. For purposes of this Agreement, a "discharge for
cause" shall mean termination of the Executive upon written notice to
the Executive limited, however, to one or more of the following
reasons:
(1) Conviction of the Executive by a court of
competent jurisdiction of a felony or a crime involving moral
turpitude;
(2) The Executive's failure or refusal to comply
with the Company's policies, standards, and regulations of the
Company, which from time to time may be established;
(3) The Executive's engaging in conduct amounting
to fraud, dishonesty, gross negligence, willful misconduct or
conduct that is unprofessional, unethical, or detrimental to
the reputation, character or standing of the Company; or
(4) The Executive's failure to faithfully and
diligently perform the duties required hereunder or to comply
with the provisions of this Agreement.
Prior to terminating this Agreement pursuant to
Section 2.1(c), (2), or (4), the Company shall furnish the
Executive written notice of the Executive's alleged failure to
abide by or alleged breach of this Agreement. The Executive
shall have thirty (30) days after the Executive's receipt of
such notice to cure such failure to abide or breach and the
Company's Board of Directors shall determine if the failure to
abide or breach is cured.
(d) Termination by the Company with Notice. The Company
may terminate this Agreement at any time, for any reason, other than
as set forth in Subparagraphs (a), (b) or (c) of this Section 2.1,
with or without cause, in the Company's sole discretion, immediately
upon written notice to the Executive without any further liability
hereunder to the Executive, except to the extent set forth in Section
2.2(d) hereof.
(e) Termination by the Executive for Good Reason. The
Executive may terminate this Agreement at any time for Good Reason (as
hereinafter defined) in which event the Company shall have no further
liability hereunder to the Executive except to
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the extent set forth in Section 2.2(e) hereof. For purposes of this
Agreement, the term "Good Reason" shall mean, without the Executive's
express written consent, the occurrence of any of the following
circumstances:
(1) The Company's failure to pay the Executive
the Compensation pursuant to the terms of this Agreement that
has not been cured within thirty (30) days after notice of
such noncompliance has been given by the Executive to the
Company;
(2) The failure of the Company to obtain an
agreement, from any successor to assume and agree to perform
this Agreement; or
(3) Any failure by the Company to comply with any
material provision of this Agreement that has not been cured
within thirty (30) days after notice of such noncompliance has
been given by the Executive to the Company.
(f) Termination by the Executive with Notice. The
Executive may terminate this Agreement for any reason other than Good
Reason on thirty (30) days prior written notice, in the sole
discretion of the Executive, in which event the Company shall have no
further liability hereunder to the Executive, except to the extent set
forth in Section 2.2(f) hereof.
2.2 Compensation upon Termination.
(a) Death. In the event the Executive's employment
hereunder is terminated pursuant to the provisions of Section 2.1(a)
hereof due to the death of the Executive, the Company shall have no
further obligation to the Executive or Executive's estate, except to
pay to the Executive's spouse, or if none, to the estate of the
Executive any accrued, but unpaid, Salary and any vacation or sick
leave benefits, which have accrued as of the date of death but were
then unpaid or unused. Any amount due the Executive hereunder shall
be paid in a lump sum in cash within thirty (30) days after the death
of the Executive.
(b) Disability. In the event the Executive's employment
hereunder is terminated pursuant to the provisions of Section 2.1(b)
hereof due to Disability of the Executive, the Company shall be
relieved of all of its obligations under this Agreement, except to pay
the Executive any accrued, but unpaid Salary, and vacation or sick
leave benefits which have accrued as of the date on which such
permanent disability is determined, but then remain unpaid. The
provisions of the preceding sentence shall not affect the Executive's
rights to receive payments under the Company's disability insurance
plan, if any. Any amount due the Executive hereunder shall be paid in
a lump sum in cash within thirty (30) days after the termination of
the Executive's employment hereunder.
(c) Cause. In the event the Executive's employment
hereunder is terminated by the Company for Cause pursuant to the
provisions of Section 2.1(c) hereof, the Company shall have no further
obligation to the Executive under this Agreement except
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to pay the Executive any accrued, but unpaid, Salary and any vacation
or sick leave benefits, which have accrued as of the date of
termination of this Agreement, but were then unpaid or unused. Any
amount due the Executive hereunder shall be paid in a lump sum in cash
within sixty (60) days after the termination of the Executive's
employment hereunder.
(d) Termination Pursuant to Section 2.1(d). In the event
the Executive's employment hereunder is terminated by the Company
pursuant to the provisions of Section 2.1(d) hereof, the Executive
shall be entitled to receive (i) any accrued, but unpaid, Salary and
any vacation or sick leave benefits, which have accrued as of the date
of termination of this Agreement, but were then unpaid or unused, (ii)
an amount payable in monthly installments equal to the Executive's
full monthly Salary payable for a period of twelve (12) months and
(iii) the Termination Bonus set forth in Exhibit A. Any amount due
the Executive hereunder (i) of this Section shall be paid in a lump
sum in cash within thirty (30) days after the termination of the
Executive's employment hereunder.
(e) Termination by the Executive for Good Reason. In the
event this Agreement is terminated by the Executive pursuant to the
provisions of Section 2.1(e) hereof, the Executive shall be entitled
to receive (i) any accrued, but unpaid, Salary and any vacation or
sick leave benefits which have accrued as of the date of
termination-of the Agreement, but were then unpaid or unused, (ii) the
full monthly Salary payable hereunder for a period of twelve (12)
months after this Agreement is terminated by the Executive in
accordance with the Company's regular payroll periods or over such
lesser period as the Company may determine and (iii) the Termination
Bonus set forth in Exhibit A. Any amount due the Executive hereunder
(i) of this Section shall be paid in a lump sum in cash within thirty
(30) days after the termination of the Executive's employment
hereunder.
(f) Termination Pursuant to Section 2.1(f). In the event
the Executive's employment hereunder is terminated by the Executive
pursuant to the provisions of Section 2.1(f) hereof, all future
compensation to which Executive is entitled and all future benefits
for which Executive is eligible shall cease and terminate as of the
date of termination. Executive shall be entitled to pro rata Salary
through the date of termination. Any amount due the Executive
hereunder shall be paid in a lump sum in cash within sixty (60) days
after the termination of Executive's Employment hereunder.
(g) Termination of Obligations of the Company Upon
Payment of Compensation. Upon payment of the amount, if any, due the
Executive pursuant to the preceding provisions of this Section, the
Company shall have no further obligation to the Executive under this
Agreement.
2.3 Merger or Acquisition. In the event the Company should
consolidate, or merge into another corporation, or transfer all or
substantially all of its assets to another entity, or divide its assets among a
number of entities, this Agreement shall continue in full force and effect.
The Company will require any and all successors (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to expressly assume and agree
pursuant to an
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appropriate written assumption agreement to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
agreement prior to or contemporaneously with the effectiveness of any such
successor shall be a breach of the Agreement and shall entitle the Executive,
as his or her sole remedy, to terminate Executive's employment and this
Agreement for Good Reason.
2.4 Offset. The Company shall have the right to deduct from any
amounts due the Executive hereunder any obligations owed by the Executive to
the Company.
ARTICLE III.
PROTECTION OF INFORMATION AND NON-COMPETITION
Protective Covenants. The Executive recognizes that his employment by
the Company is one of the highest trust and confidence because (i) the
Executive will become fully familiar with all aspects of the Company's business
during the period of his employment with the Company, (ii) certain information
of which the Executive will gain knowledge during his employment is proprietary
and confidential information which is special and peculiar value to the
Company, and (iii) if any such proprietary and confidential information were
imparted to or became known by any person, including the Executive, engaging
in a business in competition with that of the Company, hardship, loss or
irreparable injury and damage could result to the Company, the measurement of
which would be difficult if not impossible to ascertain. The Executive
acknowledges that the Company has developed unique skills, concepts, designs,
marketing programs, marketing strategy, business practices, methods of
operation, trademarks, licenses, hiring and training methods, financial and
other confidential and proprietary information concerning its operations and
expansion plans ("Trade Secrets"). Therefore, the Executive agrees that it is
necessary for the Company to protect its business from such damage, and the
Executive further agrees that the following covenants constitute a reasonable
and appropriate means, consistent with the best interest of both the Executive
and the Company, to protect the Company against such damage and shall apply to
and be binding upon the Executive as provided herein:
(a) Trade Secrets. The Executive recognizes that his
position with the Company is one of the highest trust and confidence
by reason by of the Executive's access to and contact with certain
Trade Secrets of the Company. The Executive agrees and covenants to
use his best efforts and exercise utmost diligence to protect and
safeguard the Trade Secrets of the Company. The Executive further
agrees and covenants that, except as may be required by the Company in
connection with this Agreement, or with the prior written consent of
the Company, the Executive shall not, either during the term of this
Agreement or thereafter, directly or indirectly, use for the
Executive's own benefit or for the benefit of another, or disclose,
disseminate, or distribute to another, any Trade Secret (whether or
not acquired, learned, obtained, or developed by the Executive alone
or in conjunction with others) of the Company or of others with whom
the Company has a business relationship. All memoranda, notes,
records, drawings, documents, or other writings whatsoever made,
compiled, acquired, or received by the Executive during the term of
this Agreement, arising out of, in connection with, or related to any
activity or business of the Company, including, but
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not limited to, the Company's operations, the marketing of the Company's
products, the Company's customers, suppliers, or others with whom the Company
has a business relationship, the Company's arrangements with such parties, and
the Company's pricing and expansion policies and strategy, are, and shall
continue to be, the sole and exclusive property of the Company, and shall,
together with all copies thereof and all advertising literature, be returned
and delivered to the Company by the Executive immediately, without demand, upon
the termination of this Agreement, or at any time upon the Company's demand.
(b) Restriction on Soliciting Employees of the Company.
The Executive covenants that during the term of this Agreement and for
a period of twelve (12) months following the termination of this
Agreement, he will not, either directly or indirectly, call on,
solicit, or take away, or attempt to call on, solicit, induce or take
away any employee of the Company, either for himself or for any other
person, firm, corporation or other entity. Further, Executive shall
not induce any employee of the Company to terminate his or her
employment with the Company.
(c) Covenant Not to Compete. The Executive hereby
covenants and agrees that during the term of this Agreement and for
the period set forth in Exhibit "A" following the termination of this
Agreement ("Non- Compete Period"), he will not, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, shareholder (other than through ownership of
publicly-traded capital stock of a corporation which represents less
than five percent (5%) of the outstanding capital stock of such
corporation), corporate officer, director, investor, financier or in
any other individual or representative capacity, engage or participate
in any business competitive with the business conducted by the Company
within Texas, Oklahoma or Louisiana.
(d) Survival of Covenants. Each covenant of the
Executive set forth in this Article III shall survive the termination
of this Agreement and shall be construed as an agreement independent
of any other provision of this Agreement, and the existence of any
claim or cause of action of the Executive against the Company whether
predicated on this Agreement or otherwise shall not constitute a
defense to the enforcement by the Company of said covenant.
(e) Remedies. In the event of breach or threatened
breach by the Executive of any provision of this Article III, the
Company shall be entitled to relief by temporary restraining order,
temporary injunction, or permanent injunction or otherwise, in
addition to other legal and equitable relief to which it may be
entitled, including any and all monetary damages which the Company may
incur as a result of said breach, violation or threatened breach or
violation. The Company may pursue any remedy available to it
concurrently or consecutively in any order as to any breach,
violation, or threatened breach or violation, and the pursuit of one
of such remedies at any time will not be deemed an election of
remedies or waiver of the right to pursue any other of such remedies
as to such breach, violation, or threatened breach or violation, or as
to any other breach, violation, or threatened breach or violation.
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The Executive hereby acknowledges that the Executive's agreement to be
bound by the protective covenants set forth in this Article III was a material
inducement for the Company entering into this Agreement and agreeing to pay the
Executive the compensation and benefits set forth herein. Further, Executive
understands the foregoing restrictions may limit his or her ability to engage
in certain businesses during the period of time provided for, but acknowledges
that Executive will receive sufficiently high remuneration and other benefits
under this Agreement to justify such restriction.
ARTICLE IV.
GENERAL PROVISIONS
4.1 Notices. all notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed to
have been delivered on the date personally delivered or on the date deposited
in a receptacle maintained by the United States Postal Service for such
purpose, postage prepaid, by certified mail, return receipt requested,
addressed to the respective parties as follows:
If to the Executive: As set forth in Exhibit "A"
If to the Company: Sepco Industries, Inc.
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
ATTN: Xxxxx X. Xxxxxx
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
4.2 Severability. If any provision contained in this Agreement is
determined by a court of competent jurisdiction or an arbitrator pursuant to
Section 5 below to be void, illegal or unenforceable, in whole or in part, then
the other provisions contained herein shall remain in full force and effect as
if the provision which was determined to be void, illegal, or unenforceable had
not been contained herein. If the restrictions contained in Article III are
found by a court to be unreasonable or overly broad as to geographic area or
time, or otherwise unenforceable, the parties intend for said restrictions to
be modified by said court so as to be reasonable and enforceable and, as so
modified, to be fully enforced.
4.3 Waiver Modification, and Integration. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party. This instrument
contains the entire agreement of the parties concerning employment and
supersedes all prior and contemporaneous representations, understandings and
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Company and all such prior or
contemporaneous
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representations, understandings and agreements, both oral and written, are
hereby terminated. This Agreement may not be modified, altered or amended
except by written agreement of all the parties hereto.
4.4 Binding Effect. This Agreement shall be binding and effective
upon the parties and their respective successors. Neither party shall assign
this Agreement without the prior written consent of the other party, except
that the Company shall have the right to assign this Agreement to an entity.
4.5 Governing Law. The parties intend that the laws of the State
of Texas should govern the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties of the parties hereto.
4.6 Representation of Executive. The Executive hereby represents
and warrants to the Company that the Executive has not previously assumed any
obligations inconsistent with those contained in this Agreement. The Executive
further represents and warrants to the Company that the Executive has entered
into this Agreement pursuant to Executive's own initiative and that this
Agreement is not in contravention of any existing commitments. The Executive
acknowledges that the Company has entered into this Agreement in reliance upon
the foregoing representations of the Executive.
4.7 Counterpart Execution. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
4.8 Company. For the purposes of this Agreement, Company shall
include any parent, subsidiary division of the Company, or any entity, who
directly or indirectly, controls, is controlled by, or is under common control
with the Company.
ARTICLE V.
ARBITRATION
5.1 Resolution of Disputes. In any dispute between the Parties,
the Parties shall cooperate in good faith to resolve the dispute. If the
parties cannot resolve the dispute between themselves, they shall each, within
ten (10) days, select one mediator to help resolve the dispute. If a resolution
of the dispute does not occur through mediation within thirty (30) days after
the selection of the two mediators, any Party may demand binding arbitration.
5.2 Arbitration. In the event any dispute cannot be resolved
through mediation the Parties agree to submit such dispute to binding
arbitration. Any such arbitration arising hereunder shall be conducted in
Houston, Texas in accordance with the rules of the American Arbitration
Association then in effect. The costs of arbitration shall be borne equally by
the Parties. However, each Party shall be responsible for such Party's own
attorneys' fees.
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ARTICLE VI.
CONFIDENTIALITY
6.1 Confidentiality. This Agreement is confidential, and the
substance may be disclosed only as mutually agreed by the Parties or as may be
required by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written effective as of the Effective Date.
THE COMPANY:
SEPCO INDUSTRIES, INC., a Texas corporation
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Printed Name: XXXXX X. XXXXXX
-------------------------
Title: Chairman & CEO
--------------------------------
EXECUTIVE:
By: /s/ XXXXX X. XXXXX
----------------------------------------
XXXXX X. XXXXX
Senior Vice President
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EXHIBIT "A"
TO
EMPLOYMENT AGREEMENT
NAME: Xxxxx X. Xxxxx
POSITION: Senior Vice President
MONTHLY BASE: $10,833.42
BONUS: Two percent (2%) of the monthly
profit before tax of DXP
Enterprises, Inc., excluding sales
of fixed assets and extra-ordinary
items, as determined by DXP, which
shall be payable monthly in
accordance with the Company's
regular bonus practices
NON-COMPETE PERIOD: Twelve (12) months
HOME ADDRESS: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
TERMINATION BONUS: The sum equal to the total of twelve
(12) previous monthly bonus payments
made to Employee in accordance with
Section 1.4(b) of this Agreement
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AMENDMENT TO EMPLOYMENT AGREEMENT
WHEREAS, on July 1, 1996, SEPCO INDUSTRIES, INC., a Texas corporation
("the Company") and XXXXX X. XXXXX (THE "EXECUTIVE") entered into that one
certain Employment Agreement (the "Agreement");
WHEREAS, the Company and the Executive desire to amend said Employment
Agreement pursuant to the provisions hereof.
NOW, THEREFORE, in consideration of the covenants, and agreements set out
below, the parties agree as follows:
1. All terms defined in the Agreement, which are used in this First
Amendment, shall have the same meaning as set forth in the Agreement
except as specifically changed or modified hereby.
2. The Company has become a wholly owned subsidiary of DXP Enterprises,
Inc., a Texas corporation ("DXP"). Therefore the Company shall, for
the purposes of the Agreement, be DXP.
3. Section 1.3 is hereby amended by adding the following as the last
sentence:
"This Agreement shall terminate June 30, 1998, if the Company and
Executive execute a new Employment Agreement."
4. The Bonus Section in Exhibit A to the Agreement is hereby amended by
adding the following as the last sentence:
"Notwithstanding the foregoing, the annual total of the monthly bonus
shall not exceed twice the annual base salary."
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5. Except as herein amended and modified, the Agreement shall remain in full
force and effect.
EXECUTED effective the 21st day of May, 1998.
DXP EXTERPRISES, INC.
By:/s/ XXXXX X. XXXXXX
-------------------------------------
XXXXX X. XXXXXX
Chairman and Chief Executive Officer
/s/ XXXXX X. XXXXX
-------------------------------------
XXXXX X. XXXXX
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