Exhibit 10(d)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of the 28th day of March, 2000, by
and between XXXXXX HOLDINGS, LTD., d/b/a/ XXXXXX BUILDING PRODUCTS, CORP,
hereinafter the "Employer" and XXXXXXXX X. XXXXXXXX, hereinafter the "Employee".
WITNESSETH:
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WHEREAS, this Employer and Employee entered into an Employment Agreement
as of January 1, 1994, which Employment Agreement has subsequently been amended
on several occasions;
WHEREAS, Employer and Employee wish to restate such Employment Agreement,
as so amended, in its entirety herein; and
WHEREAS, except with respect to certain agreements concerning the grant to
Employee of options to purchase shares of the common stock of Employer, entered
into prior to the date hereof, this Restated Employment Agreement shall
constitute the entire understanding between Employer and Employee as to
Employee's employment by Employer.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto intending to be legally bound hereunder,
agree as follows:
1. TERM OF EMPLOYMENT
Subject to the terms and conditions hereinafter set forth, Employer
hereby agrees to employ Employee for a term of years ending on December 31,
2000.
2. SCOPE OF EMPLOYMENT
During the term of employment, Employee shall serve as Chief
Executive Officer of Employer. Employee shall faithfully render and perform such
services as are necessary to fulfill the responsibilities of the office of Chief
Executive Officer, and such services as may be assigned to him by or under the
authority of the Board of Directors of Employer. Employee shall devote full time
efforts to the business affairs of Employer and shall render such services to
the best of his ability in the best interests of Employer. Employee shall
maintain his offices at 000 Xxxxxxxxxxxx Xxxx., Xxxxxxxxxxxx, Xxxxxxxxxxxx, or
at such other addresses to which the Company may relocate. Employee shall be
permitted to engage in other business activities or trades, provided, however,
that such business activities or trades do not interfere with his duties
hereunder.
3. COMPENSATION
(a) For all services rendered by Employee to Employer during the term
of employment, Employer shall pay, or cause to be paid to Employee base
compensation ( "Base Compensation"), payable weekly in the amount of $203,000
per annum.
(b) Employee shall be entitled to bonuses, if, as and when declared
by the Board of Directors of Employer, in its sole, total and absolute
discretion.
4. REIMBURSEMENT FOR EXPENSES
The Employee shall be reimbursed by the Employer for all actual,
ordinary, necessary and reasonable expenses incurred by him in the course of the
business of the Employer. The Employee shall keep an itemized account of such
expenses to be rendered to the Employer, together with vouchers and/or receipts
verifying the same.
5. EMPLOYEE BENEFITS
Employee shall be entitled to participate in all employee benefit
programs, including without limitation, group life insurance, medical and
hospitalization plans, pension and profitsharing plans, as are being presently
offered by Employer or which may hereafter during the term of employment be
offered by employer generally to its executive officers. Employer shall also
furnish to Employee an automobile for Employee's usage during the term of
employment. The Employer shall be responsible for all expenses in maintaining
the automobile, including, but not limited to insurance, gasoline costs, and all
necessary repairs.
6. INSURANCE
The Employer shall obtain for the Employee a life insurance policy
(or its equivalent) in the face amount of $500,000 wherein Employee, or his
designee, will be the owner of said policy and will retain all rights to
designate beneficiaries thereunder. The Employer shall be solely responsible for
maintaining the policy and paying the premiums as they become due.
7. DISABILITY
(a) If the Employee shall be unable, for an aggregate period of more
than 180 days in any 365 day period, to perform the services provided for herein
as a result of illness or disability of any nature, Employer may, upon 90 days
notice, terminate Employee's employment and Employer's obligations hereunder.
Employer nevertheless shall remain obligated to pay Employee his full salary for
a period of 12 months, including within such 12 month period any periods prior
to such termination for which Employee received salary while being unable to
provide services hereunder.
(b) Commencing upon the end of the 12 month period referred to in the
last sentence of subparagraph (a) above, Employer shall be obligated to pay
Employee the sum of
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$1,000 per week for a period of three (3) years; provided that such $1,000 per
week payments shall be reduced to $500 per week if the Net Worth of the Company
as set forth in the then most recent audited annual statements filed with the
Securities and Exchange Commission ("Annual Statements") does not equal at least
$4,000,000. Such payments shall be subject to subsequent increase to $1,000 per
week (and subsequent decrease to $500) during the period such payments are made
in the event that subsequent Annual Statements show a Net Worth at least equal
to $4,000,000 (or less than $4,000,000); provided that all such reductions and
increases shall be made solely on a prospective basis from the time the
applicable Annual Statements are filed. Upon the expiration of such 3 year
period, Employer shall be obligated to pay Employee the sum of $500 a week for
the remainder of Employee's life.
(c) The Employer may, but is not obligated to, obtain a disability
insurance policy in the amounts set forth above (or a portion thereof) in order
to secure its obligations hereunder (or a portion thereof).
8. TERMINATION
(a) By Death.
If the Employee dies, then this Agreement shall continue for a
period of 60 days with full benefits after which time this agreement shall
terminate immediately, and his rights to compensation and fringe benefits
hereunder shall terminate as of the date of such 60 day period, except that
Employee's heirs, personal representatives or estate shall be entitled to any
unpaid portion of his salary, accrued bonus and accrued benefits, if any, up to
the date of such termination.
(b) For Cause.
The Employer may terminate the Employee's employment and rights
to compensation and benefits hereunder immediately for "cause" (subject to the
last paragraph of this subparagraph (b)), except that the Employee shall be
entitled to any unpaid portion of his salary, accrued bonus, and accrued fringe
benefits, if any, up to the date of termination. "Cause" shall exist if:
(i) the Employee substantially fails to perform his duties
hereunder;
(ii) the Employee intentionally commits any acts or omits to
take any action, or commits any act of dishonesty or breach of trust, resulting
directly or indirectly in personal gain or enrichment of the Employee to the
detriment of the Employer; or
(iii) the Employee is commits a felony.
If "cause" exists as set forth in subparagraph (i) above, Employer
shall give Employee thirty (30) days prior written notice of termination
specifying the nature of the alleged "cause" and the Employee shall have such
thirty (30) day period in which to take remedial action
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to cure the situation that constituted the "cause". If after receiving said
thirty (30) day notice, the Employee does not cure said "cause" within such time
period, then this Agreement shall terminate as of the end of such time period.
(c) Procedure Upon Termination.
Upon termination of his employment, the Employee shall promptly
return to the Employer all documents, including without limitation, copies and
all other materials and properties of the Employer, or pertaining to its
business, including without limitation, customer and prospect lists, contacts,
files, manuals, letters, reports and records in his possession and control, no
matter from whom or in what manner acquired.
9. RESTRICTIVE COVENANT
(a) Employee agrees that, during the term of employment and so long
thereafter as he receives payments pursuant to Section 10 (Employee having the
right voluntarily to terminate such payments at any time), the Employee shall
not directly or indirectly engage in any business which is the same as, similar
to, or in competition with the business of the Employer. Employee acknowledges
that the restrictions contained herein in view of the nature of the business in
which Employee has been engaged, are reasonable and necessary to protect the
legitimate interest of Employer, and that any violation of these restrictions
would result in irreparable injury to Employer. Employee acknowledges that in
the event of a violation of any such restrictions, Employer shall be entitled to
preliminary and permanent injunctive relief as well as an equitable accounting
of all earnings, profits and other benefits arising from such violation which
rights shall be cumulative and in addition to any other rights or remedies to
which Employer may be entitled. In the event that the Employee shall engage,
directly or indirectly in any business in competition with the business of
employer, the period of non- competition referred to above shall be extended by
a period of time equal to that period beginning when such violation commenced,
and ending when the activities constituting such a violation shall have finally
been terminated in good faith.
(b) In addition, during the term of employment, and at all times
thereafter, the Employee shall not disclose confidential information of the
Employer to any other person, entity, corporation, trust, association or
partnership. For the purposes hereof, the term "confidential information" shall
include, but not be limited to, all lists or the identity of any customers,
suppliers, creditors or contacts of Employer. It shall also include any and all
information pertaining to any formulas, business opportunities, processes,
techniques, plans, contracts, sales or other financial data of Employer.
(c) Notwithstanding anything to the contrary contained herein, in the
event that any court of equity determines that time period and/or scope of this
Restrictive Covenant is held be unenforceably long or broad, as the case may be,
then, and either such event, neither the enforceability nor the validity this
paragraph as a whole shall be affected. Rather, the time period and/or scope of
the restriction so affected shall be reduced to the maximum permitted by law.
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10. SEVERANCE
If at the end of the term of this Agreement, Employer and Employee
have not entered into a mutually satisfactory extension of this Employment
Agreement for a term of a least three (3) years, with at least a continuation of
the present compensation structure hereunder, Employer agrees to pay Employee,
as his severance payment, an amount equal to fifty (50%) percent of Employee's
prior year Base Compensation, which amount may be paid in equal weekly
installments over a six month period without interest. Such amount shall be paid
regardless of whether Employee obtains other employment during such time,
provided such employment does not violate Section 9 hereof.
11. VACATION
Employee shall be entitled to a vacation of no more than four (4)
weeks per fiscal year.
12. ARBITRATION
Any dispute between the parties hereunder shall be determined by
arbitration in accordance with the rules of the American Arbitration Association
in Philadelphia, Pennsylvania. The Award in any such arbitration shall be final
and binding, and any party may enter judgement thereon in any court having
jurisdiction.
13. ASSIGNMENT
The Employer has the right to assign this Agreement to any successors
and assigns or other parties to whom the Board of Directors of Employer consents
to such assignment. Assignment of this Agreement by the Employee shall be
absolutely prohibited. Employee shall further be restricted from the delegation
of the performance of his duties hereunder.
14. NOTICE
Any notice required or permitted to be given under this agreement
shall be sufficient, if in writing, and if sent by registered mail to Employee
or to Employer at Employer's principal place of business.
15. APPLICABLE LAW
This Employment Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania.
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16. ENTIRE AGREEMENT
This instrument contains the entire agreement of the parties. It may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
17. CHANGE IN CONTROL
If, at any time after a Change in Control, as hereinafter defined, (i)
Employer shall terminate Employee's employment in any manner, including, but not
limited to, pursuant to the provisions of Section 8(b), or (ii) the scope of the
Employee's employment, as described in Section 2, shall be changed in any
material manner, then, in either such event, Employee shall be immediately
entitled to a lump sum payment in cash equal to the sum of the payments (without
discount) to which he would be entitled through the end of the term of this
Agreement under the provisions of Section 3. "Change in Control" shall mean a
change in control of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended, as in effect on the date hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
ATTEST: XXXXXX HOLDINGS, LTD.
/s/ Xxxxxx X. Xxxxxxxxx BY: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxxx
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WITNESS Xxxxxxxx X. Xxxxxxxx
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