EXHIBIT 10.48
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AMENDED, RESTATED AND CONSOLIDATED EMPLOYMENT AGREEMENT
XXXXXXXXX X. XXXXXXXX
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
November 1, 2001, by and between JEH/EAGLE SUPPLY, INC. (formerly
JEH/ACQUISITION CORP.), a Delaware Corporation having a place of
business at 0000 X.X. 000, Xxxxxxxxx, Xxxxx ("JEH"), EAGLE SUPPLY,
INC., a Florida corporation having a place of business at 0000
Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx ("Eagle Supply"), EAGLE SUPPLY
GROUP, INC., a Delaware corporation having an office located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. ("ESG"), with JEH, Eagle Supply and
ESG referred to collectively hereinafter as the "Employer," and
XXXXXXXXX X. XXXXXXXX, an individual residing at 000 Xxxx Xxxxxx, Xxx
Xxxx, X.X. (the "Executive").
WHEREAS, JEH previously entered into a written employment
agreement with the Executive dated as of the 1st day of July, 1997 (the
"JEH Agreement"), which agreement is presently in full force and
effect; and
WHEREAS, the JEH Agreement was amended pursuant to a First
Amendment effective as of the 30th day of April, 1998 and pursuant to a
Second Amendment effective as of the 1st day of November, 1999; and
WHEREAS, the Executive previously entered into a written
employment agreement with Eagle Supply and ESG dated as of the 17th day
of March 1999 (the "Eagle Supply/ESG Agreement"), which agreement is
presently in full force and effect; and
WHEREAS, the Eagle Supply/ESG Agreement was amended pursuant to a
First Amendment effective as of the 1st day of November, 1999; and
WHEREAS, the parties hereto, consisting of all of the parties to
the aforesaid employment agreements, now desire to extend, restate and
amend the terms and conditions under which the Executive will continue
to be employed for an additional term as set forth herein and under
which the Executive will continue to be employed by ESG, Eagle Supply,
and JEH in the capacities of Executive Vice President, Treasurer, and
Secretary, and to render services to them as may be required,
consistent with his employment as hereinafter set forth; and
WHEREAS, Employer acknowledges that Executive is a party to an
employment agreement with TDA Industries, Inc. ("TDA") which has been
assumed by Pemberton Services Corp. ("PSC"); and
WHEREAS, Executive is willing to accept such employment by the
Employer, all in accordance with the conditions and other provisions
hereinafter set forth and the acknowledgment, approval and consent of
Exhibit 10.48 - Pg. 1
TDA and PSC as indicated by their acknowledgment, approval and consent
as set forth at the foot of this Agreement; and
WHEREAS, the parties hereto intend that this Agreement will
supersede the aforesaid JEH Agreement and Eagle Supply/ESG Agreement,
both as amended; and
WHEREAS, the parties acknowledge the accuracy of the foregoing
recitals and incorporate all of the same into this Agreement as terms
and conditions hereof.
NOW, THEREFORE, in consideration of the promises and mutual
representations, covenants, and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions.
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For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"Agreement" -- this Employment Agreement, including any Exhibits
hereto, as amended from time to time.
"Compensation" - Base Salary, Retirement Contribution, Basic Bonus and
Performance Bonus as set forth in Sections 4(A), 4(C), 4(D), 4(E) and
4(F).
"Benefits" -- as defined in Section 4(B).
"Board of Directors" -- the board of directors of ESG, unless the
context requires otherwise.
"Disability" -- as defined in Section 8(B).
"Effective Date" - July 1, 2001.
"Employment Period" -- the term of the Executive's employment under
this Agreement, as more fully described in Section 2.
"for Cause" -- as defined in Section 8(C).
"for Good Reason" -- as defined in Section 8(D).
"person" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
"Salary" -- as defined in Section 4(A).
Exhibit 10.48 - Pg. 2
2. Term. Subject to and conditioned upon TDA's and PSC's
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acknowledgment, approval and consent to Executive's entering into this
Agreement and TDA's and PSC's acknowledgement and agreement that this
Agreement shall not be deemed to be a violation of any of the terms
and conditions of Executive's agreements with TDA and PSC, the term of
this Agreement shall be for a period of five (5) years commencing on
the Effective Date and ending on June 30, 2006.
3. Employment.
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(A) Subject to the terms and conditions and for the
Compensation and Benefits hereinafter set forth, the Employer hereby
agrees to employ Executive for and during the term of this Agreement.
Executive is hereby employed by the Employer as the Executive Vice
President, Treasurer, and Secretary of each of ESG, Eagle Supply and
JEH. The Executive's powers and duties shall be those of an executive
nature which are appropriate for an Executive Vice President,
Treasurer, and Secretary in accordance with the bylaws of the
Employer; and Executive does hereby accept such employment or greater
employment as may be mutually agreed upon by the parties hereto and
agrees to devote as much time to the affairs of the Employer as
Executive deems necessary to discharge his duties to the Employer
during the term of this Agreement. Executive shall report to the Board
of Directors of ESG. The Employer shall not require Executive to be
employed in any location other than in proximity to his residence
unless he consents in writing to such location.
(B) During the term of this Agreement, Executive shall be
furnished with office space and facilities commensurate with his
position and adequate for the performance of his duties; he shall be
provided with the prerequisites customarily associated with the
positions of Executive Vice President, Treasurer, and Secretary of
each of ESG, Eagle Supply and JEH.
(C) During the term of this Agreement, Employer shall be
responsible (i) to pay to Executive the Compensation and Benefits set
forth in Section 4; (ii) reimburse Executive for expenses as provided
in Section 5; and (iii) provide Executive with the benefits and
vacation set forth in Section 6.
(D) Executive agrees to submit to any medical
examination(s) and provide any information and documents reasonably
necessary for the Employer to obtain any insurance required by this
Agreement and "Key Man" life insurance on the Executive's life.
4. Compensation and Benefits.
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(A) Base Salary. Commencing on the Effective Date and during the
Employment Period, the Executive will be paid an annual base salary of
$400,000., subject to adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the
Employer's customary payroll practices, but no less frequently than
Exhibit 10.48 - Pg. 3
monthly. The Salary will be reviewed by the Board of Directors not
less frequently than annually and may be adjusted upward or downward
in the sole discretion of the Boards of Directors, but in no event
will the Salary be less than $400,000. per year.
(B) Benefits. The Executive will, during the Employment Period,
be permitted to participate in such pension, profit sharing, bonus,
life insurance, hospitalization, major medical, and other employee
benefit plans of the Employer that may be in effect from time to time,
to the extent the Executive is eligible under the terms of those plans
(collectively, the "Benefits"). As additional Benefits, the Executive
shall be entitled to (i) an annual allowance toward the maintenance of
an automobile, which allowance shall be approximately $10,000.
annually; and (ii) an annual allowance of $50,000. toward the payment
of premiums on a policy or policies of life insurance on the life of
the Executive, the ownership and beneficiaries of which shall be
designated by the Executive.
(C) Annual Retirement Contribution. Commencing on the Effective
Date and during the Employment Period, the Executive will be entitled
to receive a Retirement Contribution in the amount of $150,000. per
annum, to be paid periodically with the Executive's Salary
("Retirement Contribution").
(D) Annual Basic Bonus. During the Employment Period, the
Executive shall be paid a Basic Bonus (the "Basic Bonus") equal to
thirty-five (35%) percent of the total of his Salary plus Retirement
Contribution in the event that the defined EBIT (earnings before
interest expense, taxes and intercompany fees, charges and expenses,
all as defined in a certain Executive Compensation Recommendations
Report by CFS Consulting, Inc. dated September 20, 2001) (the "defined
EBIT") of ESG's operating subsidiaries (excluding extraordinary items)
reaches $6.5 million for each fiscal year. The aforesaid Executive
Compensation Recommendations Report of CFS Consulting, Inc. excludes
amortization of goodwill and financing charges in arriving at the
defined EBIT and both of such items are also to be excluded in making
the computation required by this subparagraph. The bonus required by
this subparagraph shall be paid not later than ninety (90) days after
the annual financial statements of ESG are completed.
(E) Annual Performance Bonus. During the Employment Period, the
Executive shall be paid a Performance Bonus (the "Performance Bonus")
equal to eight and one-third (8 1/3 %) percent of the defined EBIT of
ESG's operating subsidiaries (excluding extraordinary items) in excess
of $6.5 million for each fiscal year. The aforesaid Executive
Compensation Recommendations Report of CFS Consulting, Inc. excludes
amortization of goodwill and financing charges in arriving at the
defined EBIT and both of such items are also to be excluded in making
the computation required by this subparagraph. The bonus required by
this subparagraph shall be paid not later than ninety (90) days after
the annual financial statements of ESG are completed.
Exhibit 10.48 - Pg. 4
(F) Limitations on Compensation. In no event shall annual cash
compensation payable with respect to any single fiscal year during the
Employment Period, consisting of the total of Salary, Retirement
Contribution, Basic Bonus and Performance Bonus, exceed $825,000. In
the event, however, that application of the formulae for computation
of Basic Bonus and Performance Bonus would result in annual
compensation in excess of $825,000., then cash compensation shall be
limited to $825,000., but all amounts earned in excess thereof shall
be credited to a non-qualified deferred compensation account and be
paid, without interest or other earnings thereon, at the Executive's
retirement, death, disability or upon a sale of all or substantially
all of ESG's assets or stock, provided further that the total of all
such compensation consisting of Salary, Retirement Contribution, Basic
Bonus and Performance Bonus, including amounts required to be credited
toward the above mentioned deferred compensation account shall not
exceed $1,250,000. for any fiscal year during the Employment Period.
The payment of any deferred compensation required by this subparagraph
shall be paid not later than ninety (90) days after the earliest date
on which the event occurs which requires the payment of the deferred
compensation account to the Executive.
(G) Necessity to be Employed at End of Fiscal Year. In order to
be entitled to the payment of Basic Bonus and/or Performance Bonus for
any given fiscal year, the Executive shall be required to be employed
by the Employer at the end of each such fiscal year and, if not, there
shall be no pro rating of any such payment for any such fiscal year at
the end of which the Executive is not employed by the Employer.
(H) Auditors' Computations Binding. The computations of the
regular auditors of ESG shall be deemed accurate and binding, creating
a presumption of accuracy and regularity, which presumption may be
overcome only by a showing of fraud, impropriety, arithmetical error
or obvious irregularity. The defined EBIT is to be determined for each
fiscal year in a manner consistent with the illustrations set forth
and the method utilized in the aforesaid Executive Compensation
Recommendations Report of CFS Consulting, Inc. dated September 20,
2001, which illustrations and method are hereby incorporated herein by
reference as if fully set forth at length hereat.
5. Expenses. The Employer shall reimburse Executive for all
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reasonable and actual business expenses incurred by him in connection
with his service to the Employer upon submission by him of appropriate
vouchers and expense account reports.
6. Other Benefits.
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(A) Insurance. In addition to the Compensation and
Benefits to be paid to Executive, as set forth in Section 4 hereunder,
the Employer shall maintain family medical and dental insurance and
long term disability insurance providing monthly disability benefits
to Executive of not less than Five Thousand Dollars ($5,000).
Executive and his dependents shall be entitled to participate in such
other benefits as are extended to active executive employees of the
Employer and their dependents including but not limited to pension,
Exhibit 10.48 - Pg. 5
retirement, profit-sharing, 401(k), stock option, bonus and incentive
plans, group insurance, hospitalization, medical or other benefits
made available by the Employer to its employees generally.
(B) Vacation. Executive shall be entitled to take up to
four (4) weeks of paid vacation annually at a time mutually convenient
to the Employer and Executive.
7. Restrictive Covenants.
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(A) Except in the ordinary course of his duties as
Executive Vice President, Treasurer, and Secretary, or in the
furtherance of the business of the Employer, during the period from
the date of this Agreement until sixty (60) days following the date on
which his employment with the Employer is lawfully and properly
terminated, Executive will not, directly or indirectly:
(i) persuade or attempt to persuade any person or entity
which is or was a customer, client or supplier of the
Employer on the date on which Executive's employment with
the Employer is terminated to cease doing business with the
Employer or to reduce the amount of business it does with
the Employer;
(ii) solicit for himself or any other person or entity
other than the Employer the business of any person or
entity which is a customer or client of the Employer, or
was a customer or client within six (6) months prior to the
termination of Executive's employment by the Employer, with
respect to the distribution of roofing supplies and related
products; or
(iii) persuade or attempt to persuade any employee of the
Employer, or any individual who was an employee of the
Employer during the six (6) month period prior to the
lawful and proper termination of this Agreement, to leave
the Employer's employ or to become employed by any person
or entity other than the Employer.
(B) Executive acknowledges that the restrictive covenants
(the "Restrictive Covenants") contained in this Section 7 are a
condition of his employment and are reasonable and valid in
geographical and temporal scope and in all other respects. If any
court determines that any of the Restrictive Covenants or any part of
any of the Restrictive Covenants is invalid or unenforceable, the
remainder of the Restrictive Covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to
the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or
unenforceable because of the geographic or temporal scope of such
provision, such court shall have the power to reduce the geographic or
temporal scope of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
Exhibit 10.48 - Pg. 6
(C) If Executive breaches, or threatens to breach, any of
the Restrictive Covenants, the Employer, in addition to and not in
lieu of any other rights and remedies it may have at law or in equity,
shall have the right to injunctive relief; it being acknowledged and
agreed to by Executive that any such breach or threatened breach would
cause irreparable and continuing injury to the Employer and that money
damages would not provide an adequate remedy to the Employer.
8. Termination.
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Events of Termination. The Employment Period, the
Executive's Compensation, and any and all other rights of the
Executive under this Agreement or otherwise as an employee of the
Employer will terminate (except as otherwise provided in this Section
8):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section
8(B) below), immediately upon notice;
(c) for cause (as defined in Section 8(C) below), at the option
of the Employer, immediately upon notice from the Employer to the
Executive, or at such later time as such notice may specify;
(d) for Good Reason (as defined in Section 8(D) below) upon not
less than thirty days prior notice from the Executive to the Employer;
or
(e) upon the closing of a sale of substantially all of the assets
or stock of ESG to any nonaffiliated purchaser or purchasers in an
arm's length transaction.
(A) Death. In the event of Executive's death ("Death")
during the term of his employment, Executive's designated
beneficiary(ies), or in the absence of such beneficiary designation,
his estate shall be entitled to payment of Executive's Salary from
date of Death to the expiration of one (1) year thereafter. In
addition, Executive's beneficiary(ies) and/or dependents shall be
entitled, for the same one year period, to continuation, at the
Employer's expense, of such benefits as are then being provided to
them under Section 6(A) hereof, and any additional benefits as may be
provided to dependents of the Employer's executive officers in
accordance with the terms of the Employer's policies and practices. In
addition, any options granted to Executive which have not, by the
terms of the options, vested shall be deemed to have vested as of the
date of his Death and shall thereafter be exercisable by Executive's
beneficiary(ies) or estate for the maximum period of time allowed for
exercise thereof under the terms of such options.
(B) Disability.
Exhibit 10.48 - Pg. 7
(i) In the event Executive, by reason of physical or
mental incapacity, shall be disabled ("Disability") for a period of at
least one (1) year, the Employer shall have the option at any time
thereafter to terminate Executive's employment hereunder for
Disability. Such termination will be effective thirty (30) days after
the Board of Directors of ESG gives written notice of such termination
to Executive, unless Executive shall have returned to the performance
of his duties prior to the effective date of the notice. Other than
as expressly set forth herein, all obligations of the Employer
hereunder shall cease upon the effectiveness of such termination,
provided that such termination shall not affect or impair any rights
Executive may have under any policy of long-term disability insurance
or benefits then maintained on his behalf by the Employer and,
provided further, that for a period of one (1) year following
termination of Executive's employment for Disability, Executive and
his dependents, as the case may be, shall continue to receive the
benefits set forth under Sections 4(A) and 6(A) hereof, as well as
such benefits as are extended to the Employer's active executive
employees and their dependents during such period. In addition,
Executive will be entitled to receive any amounts credited to his
deferred compensation account as set forth in Section 4(F) which has
accrued to the date of termination and any other benefits to which he
or his dependents may be entitled to by operation of law. Any options
granted to the Executive which have not, by the terms of the options,
vested shall be deemed to have vested at the termination and shall
thereafter be exercisable by the Executive, his beneficiary(ies),
conservator or estate, as applicable, for the maximum period of time
allowed for exercise thereof under the terms of such options.
(ii) "Incapacity" as used herein shall mean the inability
of the Executive due to physical or mental illness, injury or disease
to perform his normal duties as Executive Vice President, Treasurer,
and Secretary. Executive's Salary and other benefits as provided for
in Sections 3(A) and 6(A) hereunder shall continue to be paid during
any period of incapacity prior to and including the date on which
Executive's employment is terminated for Disability and for one (1)
year following termination for Disability in accordance with Section
8(B)(i).
(C) By the Employer For Cause.
(i) The Employer shall have the right, before the
expiration of the term of this Agreement, to terminate this Agreement
and to discharge Executive for cause (hereinafter "Cause"), and all
Compensation to Executive shall cease to accrue upon discharge of
Executive for Cause. For the purposes of this Agreement, the term
"Cause" shall mean (i) Executive's conviction, after the date hereof,
of a felony; (ii) the alcoholism or drug addiction of Executive; (iii)
gross negligence or willful misconduct of Executive in connection with
his duties hereunder; or (iv) the determination by any regulatory or
judicial authority (including any securities self-regulatory
organization) that Executive knowingly and directly violated during
the period beginning ten (10) years before or after the date hereof
any federal or state securities law, or any rule or regulation adopted
thereunder.
Exhibit 10.48 - Pg. 8
(ii) If the Employer elects to terminate Executive's
employment for Cause under Section 8(C)(i) above, such termination
shall be effective fifteen (15) days after the Employer gives written
notice of such termination to Executive. In the event of a
termination of Executive's employment for Cause in accordance with the
provisions of Section 8(C)(i), the Employer shall have no further
obligation to the Executive, except for the payment of all
Compensation and other vested benefits and the Executive's deferred
compensation account as set forth in Section 4(F) which have accrued
through the date of such termination and not been paid and any other
benefits to which he or his dependents may be entitled by law.
(D) By Executive for Good Reason. Executive shall have the
right to terminate his employment at any time for reason (herein
designated and referred to as "Good Reason"). The term Good Reason
shall mean (i) the failure to elect or appoint, or re-elect or re-
appoint, Executive to, or removal or attempted removal of Executive
from, his positions as Executive Vice President, Treasurer, and
Secretary of the Employer, except in connection with the proper
termination of Executive's employment by reason of Cause, Death or
Disability; (ii) a reduction in Executive's overall Compensation and
benefits as set forth in Sections 4 and 6 or an adverse change in the
nature or scope of the authorities, powers, functions or duties
normally attached to the Executive's position with the Employer; (iii)
the Employer's failure or refusal to perform any obligation required
to be performed in accordance with this Agreement after a reasonable
notice and an opportunity to cure same; or (iv) a Change in Control of
the Employer, as defined herein.
(E) Severance.
(i) In the event Executive's employment hereunder shall be
terminated by the Executive for Good Reason or by the Employer for
other than Cause, Death or Disability: (a) the Executive shall
thereupon receive as severance pay in a lump sum the amount of Salary
and Retirement Contribution which the Executive would have received
for the remaining term of this Agreement had there been no
termination, provided however, that in no event shall such lump sum
payment be less than two years' Salary and Retirement Contribution;
and (b) the Executive's (and his dependents') participation in any and
all life, disability, medical and dental insurance plans shall be
continued, or equivalent benefits provided to him or them by the
Employer, at no cost to him or them, for a period of two years from
such termination; and (c) any options granted to Executive which have
not, by the terms of the options, vested shall be deemed to have
vested at the termination and shall thereafter be exercisable for the
maximum period of time allowed for exercise thereof under the terms of
such options; and (d) the Executive shall receive the amount credited
to the Executive's non-qualified deferred compensation account as set
forth in Section 4(F) hereof.
(ii) An election by Executive to terminate his employment
under the provisions of this Section 8 shall not be deemed a voluntary
termination of employment of Executive for the purpose of interpreting
the provisions of any of the Employer's employment benefit plans,
programs or policies.
Exhibit 10.48 - Pg. 9
(iii) In the event of a sale of substantially all of the
assets or stock of ESG to any nonaffiliated purchaser or purchasers in
an arm's length transaction, the Executive shall be entitled to
receive as severance pay in a lump sum six months' Salary and the
amount credited to the Executive's non-qualified, non-interest bearing
and non-income earning deferred compensation account, as set forth in
Section 4(F) hereof.
(F) Resignation. In the even Executive resigns without Good
Reason prior to the expiration hereof, he shall receive any unpaid
fixed salary through such resignation date, his deferred compensation
account as set forth in Section 4(F), and such benefits to which he is
entitled by law.
(G) Extension of Benefits. Any extension of benefits
following the termination of employment provided for herein shall be
deemed to be in addition to, and not in lieu of, any period for the
continuation of benefits provided for by law, either at the
Employer's, Executive's, or his dependents' expense.
(H) Change in Control. For purposes hereof, a Change in
Control shall be deemed to have occurred (i) if there has occurred a
"change in control" as such term is used in Item 1 (a) of Form 8-K
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or (ii) if there has occurred a change in control as
the term "control" is defined in Rule 12 b-2 promulgated under the
Exchange Act.
9. Indemnification. The Employer hereby indemnifies and holds
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Executive harmless to the extent of any and all claims, suits,
proceedings, damages, losses or liabilities incurred by Executive and
arising out of any acts or decisions done or made or allegedly done or
made in the authorized scope of his employment hereunder. The Employer
hereby agrees to pay all expenses, including reasonable attorney's
fees, actually incurred by Executive in connection with the
investigation of any such matter, the defense of any such action, suit
or proceeding and in connection with any appeal thereon including the
costs of settlements. Nothing contained herein shall (i) entitle
Executive to indemnification by the Employer in excess of that
permitted under applicable law nor (ii) limit any other provisions,
including, without limitation, Employer's certificate of
incorporation, charter, by-laws, directors' or shareholders'
resolutions, etc., which provide indemnification to the Executive.
10. Waiver. No delay or omission to exercise any right, power
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or remedy accruing to any party hereto shall impair any such right,
power or remedy or shall be construed to be a waiver of or an
acquiescence to any breach hereof. No waiver of any breach hereof
shall be deemed to be a waiver of any other breach hereof theretofore
or thereafter occurring. Any waiver of any provision hereof shall be
effective only to the extent specifically set forth in an applicable
writing. All remedies afforded to any party under this Agreement, by
law or otherwise, shall be cumulative and not alternative and shall
not preclude assertion by such party of any other rights or the
seeking of any other rights or remedies against any other party.
Exhibit 10.48 - Xx. 00
00. Governing Law. The validity of this Agreement or of any of
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the provisions hereof shall be determined under and according to the
laws of the State of New York, and this Agreement and its provisions
shall be construed according to the laws of the State of New York,
without regard to the principles of conflicts of law and the actual
domiciles of the parties hereto.
12. Notices. All notices, demands or other communications
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required or permitted to be given in connection with this Agreement
shall be given in writing, shall be transmitted to the appropriate
party by hand delivery, by certified mail, return receipt requested,
postage prepaid, or by overnight courier and shall be addressed to a
party at the address given below. A party may designate by written
notice given to the other party a new address to which any notice,
demand or other communication hereunder shall thereafter be given.
Each notice, demand or other communication transmitted in the manner
described in this Section 12 shall be deemed to have been given and
received for all purposes at the time it shall have been (i) delivered
to the addresses as indicated by the return receipt (if transmitted by
mail) or the affidavit of the messenger (if transmitted by hand
delivery or overnight courier), or (ii) presented for delivery during
normal business hours, if such delivery shall not have been accepted
for any reason.
If to Executive: Xxxxxxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
If to Employer: Eagle Supply Group, Inc.
c/o TDA Industries, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
13. Assignments. This Agreement shall be binding upon and inure
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to the benefit of the parties and each of their respective successors,
assigns, heirs and legal representatives; provided, however, that
Executive may not assign or delegate his obligations, responsibilities
and duties hereunder except as permitted by the Employer's bylaws,
custom, practice, policies or the Board of Directors. The Employer may
not assign this Agreement without the prior written consent of the
Executive.
14. Miscellaneous. This Agreement contains the entire
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understanding between the parties hereto and supersedes all other oral
and written agreements or understandings among them with respect to
the subject matter hereof. No modification or addition hereto or
waiver or cancellation of any provision shall be valid except by a
writing signed by the party to be charged therewith.
15. Obligations of a Continuing Nature. It is expressly
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understood and agreed that the covenants, agreements and restrictions
undertaken by or imposed upon Executive and the Employer hereunder,
which are stated to exist or continue after termination of Executive's
employment with the Employer, shall exist and continue irrespective of
Exhibit 10.48 - Pg. 11
the method or circumstances of such termination for the respective
periods of time set forth herein.
16. Severability. The parties agree that if any of the
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covenants, agreements or restrictions contained herein are held to be
invalid by any court of competent jurisdiction, the remainder of the
other covenants, agreements, restrictions and parts thereof herein
contained shall be severable so as not to invalidate any others, and
such other covenants, agreements, restrictions and parts thereof shall
be given full effect without regard to the invalid covenant,
agreement, restriction or part thereof.
17. Venue and Jurisdiction. The Employer and the Executive
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hereby agree that any action, proceeding or claim against any of them
arising out of or relating in any way to this Agreement shall be
brought and enforced in any of the courts of the State of New York in
New York County, New York, or the United States District Court for the
Southern District of New York, and irrevocably submit to such
jurisdiction. The Employer and the Executive hereby waive any
objection to such jurisdiction and that such courts represent an
inconvenient forum. The Employer and the Executive hereby waive the
right to a trial by jury in any action, proceeding or claim against
either of them arising out of or relating in any way to this
Agreement. Any process or summons to be served upon the Employer or
the Executive may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage
prepaid, addressed to its or his respective address set forth in
Section 12 of this Agreement or such other address as a party may so
notify the other party hereto in the manner provided by Section 12
hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Employer and the Executive in any action,
proceedings or claim.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
JEH/EAGLE SUPPLY, INC.
By: _______________________
EAGLE SUPPLY, INC.
By:_______________________
Exhibit 10.48 - Pg. 12
EAGLE SUPPLY GROUP, INC.
By: _______________________
___________________________
XXXXXXXXX X. XXXXXXXX
APPROVED AND CONSENTED TO: PEMBERTON SERVICES CORP.
By:________________________
APPROVED AND CONSENTED TO: TDA INDUSTRIES, INC.
By:________________________
Exhibit 10.48 - Pg. 13
