EXHIBIT 10.3
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This EMPLOYMENT AND NON-COMPETITION AGREEMENT, made and entered into this
2nd day of December, 1994 by and between De-Ro/Suncoast, Inc., a Delaware
corporation ("Newco") and Xxxxx Xxxxxxx (the "Employee"),
WITNESSETH:
WHEREAS, the parties hereto acknowledge and agree that this Agreement is
entered into pursuant to (i) that certain Share Purchase Agreement (the
"Suncoast Purchase Agreement") dated the date hereof among Xxxxxx International,
Inc., a Delaware corporation ("Xxxxxx"), Newco, Xxxx Xxxx Xxxxxxx ("Xxxxxxx"),
Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and the Employee, whereby Xxxxxxx, Xxxxxxxxx
and the Employee have agreed to sell all of their shares of capital stock in
Suncoast Postension Corp., a Texas corporation (the "Company"), to Newco, which
shares comprise all of the outstanding shares of capital stock in the Company,
and (ii) that certain Share Purchase Agreement (the "De-Ro Purchase Agreement")
dated the date hereof among Xxxxxx, Newco, Xxxxxxx and Xxxxxxxxx, whereby
Xxxxxxx and Xxxxxxxxx have agreed to sell all of their shares of capital stock
in De-Ro Products Co., a Texas corporation ("De-Ro"), to Newco, which shares
comprise all of the outstanding shares of capital stock in De-Ro; and
WHEREAS, Xxxxxx, as the owner of all of the outstanding principal stock of
Newco, will cause the merger of De-Ro and the Company with and into Newco; and
WHEREAS, as a consequence the consummation of the transaction described
above, Newco will engage in the businesses currently engaged in by De-Ro and the
Company; and
WHEREAS, the parties hereto acknowledge and agree that the parties to the
Suncoast Purchase Agreement and the De-Ro Purchase Agreement (collectively, the
"Purchase Agreements") would not have consummated such Purchase Agreements
without the parties hereto having entered into this Agreement; and
WHEREAS, Newco desires to engage the Employee to perform for Newco the
services set forth herein, and the Employee desires to perform such services for
Newco; and
WHEREAS, the Employee desires to assure Newco, and Newco desires to be
assured by the Employee, that the Employee will not engage in business
competitive with that of Newco during the term specified herein;
NOW, THEREFORE, in consideration of the mutual terms conditions and
covenants set forth herein, and intending to be legally bound, the parties
hereto agree as follows:
SECTION 1. EMPLOYMENT. Newco hereby employs Employee and the Employee
hereby accepts employment by Newco upon the terms and conditions of this
Agreement.
SECTION 2. POSITION, RESPONSIBILITIES AND PLACE OF SERVICE.
(a) During the period of his employment hereunder, Employee agrees
to serve Newco and Newco shall employ Employee in the capacity of a senior
executive manager. During the term of this Agreement, Employee agrees to
devote his full time and attention during normal business hours to the
business and affairs of Newco and, to the extent necessary to discharge
the responsibilities assigned to the Employee hereunder, to use the
Employee's best efforts to perform faithfully and efficiently such
responsibilities, provided, however, that the foregoing shall not be
deemed to prohibit Employee from making personal investments in such form
or manner as will neither require Employee's services in the operation or
affairs in the companies or enterprises in which such investments are made
nor violate the terms of Sections 6 and 7.
(b) In connection with Employee's employment by Newco hereunder,
Employee shall perform his duties and obligations hereunder from the
Company's offices located in the metropolitan Houston, Texas area, except
for reasonably required travel on the Company's business.
(c) Newco shall furnish Employee with an office, secretarial help an
such other facilities and services suitable to Employee's position and
adequate for the performance of Employee's duties hereunder.
SECTION 3. TERM. Except for the duties and obligations of the Employee set
forth in Section 5 hereof and for the obligations of Newco under Section 4(c),
the respective duties and obligations of the parties hereto shall commence on
the date hereof and shall continue for a term of five (5) years (the "Term")
unless earlier terminated in accordance with the terms hereof. The Employee's
obligations set forth in Section 5 shall commence on the date hereof and shall
continue until the second anniversary of the date Employee ceases to be employed
by Newco (the "Non-Competition Term"). In no event shall the continuation of the
Employee's employment with Newco beyond the Term be deemed to be a renewal or
extension of the Agreement, the Term (other than the Non-Competition Term) or
any aspect thereof.
SECTION 4. COMPENSATION.
a. DEFINITIONS. For purposes hereof, the term "Before-Tax Income"
for any given fiscal year shall mean the earnings of Newco before all
federal income taxes, as reflected on the statements of income of the
Company prepared in connection with the audited annual consolidated
financial statements of Xxxxxx (the "Financial Statements"), which
Financial Statements shall deduct from Before-Tax Income any payments made
to Xxxxxx under the Management Contract (as defined in the Suncoast
Purchase Agreement). For purposes hereof, the term "Audit Date" shall mean
the date of completion of the audit of the consolidated financial
statements of Xxxxxx as of and for the fiscal year ending September 30,
1995 and for each subsequent fiscal year to and including September 30,
2002. In no event shall the Audit Date be later than 120 days after the
end of the applicable fiscal year.
2
b. BASE SALARY. For all services rendered by Employee in any
capacity during his employment under this Agreement, including, without
limitation, services as an executive, officer, director, or member of any
committee of Newco or of any subsidiary or division thereof, Newco shall
pay Employee as compensation a salary at the rate of not less than One
Hundred Fifty Thousand Dollars ($150,000) per annum. Such salary be
payable in accordance with the customary payroll practices of Newco, but
in no event less than semi-monthly, and shall be subject to applicable
withholding and other taxes. During the period of this Agreement,
Employee's salary shall be reviewed at least annually. Such review shall
be conducted by the board of directors of Newco, or a committee designated
by the board of directors, and such board or committee may (but is under
no obligation to) increase said salary, but shall not decrease said
salary.
c. EARNINGS BONUS. In addition to the consideration payable to the
Employee under clause (b) above, Employee shall be entitled to receive
annual bonuses based on the Before-Tax Income of Newco, which annual bonus
shall be calculated in the following manner:
(i) In the event Before-Tax Income for the partial fiscal year
of Newco beginning on the date hereof (the "Closing Date") and
ending on September 30, 1995 equals or exceeds an amount equal to
$2739.73 times the number of days elapsed from the Closing Date to
and including September 30, 1995, Newco shall pay to the Employee an
amount equal to 11.25% of the Before-Tax Income in excess of such
amount for such period, such payment to be made on or before the
tenth day after the Audit Date with respect to such fiscal year;
(ii) In the event Before-Tax Income for any of the fiscal years
of Newco ending on September 30 of 1996, 1997, 1998, 1999, 2000 or
2001 equals or exceeds $1,000,000, Newco shall with respect to any
such fiscal year pay to the Employee an amount equal to 11.25% of
the Before-Tax Income in excess of such amount, such payment to be
made on or before the tenth day after the Audit Date with respect to
each such fiscal year; and
(iii) In the event Before-Tax Income for the partial fiscal
year of Newco beginning on October 1, 2001 and ending on the seventh
anniversary of the Closing Date equals or exceeds an amount equal to
$2739.73 times the number of days elapsed from the October 1, 2001
to and including such seventh anniversary, Newco shall pay to the
Employee an amount equal to 11.25% of the Before-Tax Income in
excess of such amount for such period, such payment to be made on or
before the tenth day after the Audit Date with respect to such
fiscal year.
(iv) In no event shall the aggregate amount payable to the
Employee under this Section 4(c) exceed Three Hundred Seventy-Five
Thousand Dollars ($375,000).
3
d. DISCRETIONARY BONUS. In addition to the consideration payable to
the Employee under clauses (b) and (c) above, the Employee shall from time
to time be eligible for bonuses as shall be determined by the board of
directors of Newco in its sole discretion.
e. BENEFITS. Until the termination of the Employee's employment
pursuant to this Agreement, the Employee shall be eligible for
participation in and to receive all benefits under welfare benefit plans,
practices, policies and programs of Newco (including, without limitation,
medical, disability, employee life, group life, accidental death and
travel accident insurance plans and programs), as may be in effect from
time to time for other employees of Newco, and under any stock purchase or
stock option plans that may be in effect from time to time for other
senior executives of Newco (unless a plan specific to the Employee is
implemented or already in place, and such plan provides benefits to the
Employee which are substantially similar to, or more generous than, the
general plan in effect) it being agreed that the foregoing shall not
require Newco to continue or to put into effect any plan, practice, policy
or program. Employee shall be entitled to vacations in accordance with
Newco's prevailing policy for its executives.
f. REIMBURSEMENT OF EXPENSES. Newco shall reimburse the Employee for
all reasonable and proper travel and out-of-pocket expenses incurred by
Employee in connection with the performance of his duties, all in
accordance with Newco's written policies as provided to Employee from time
to time, as to the allowable amount of such expenses and the provision of
itemized reports.
g. COMPANY CAR. For the term hereof, Newco shall, at its sole cost
and expense, maintain for the exclusive use of the Employee the Chevrolet
Suburban VIN # 0XXXX00X0XX000000 currently provided the Employee by the
Company, and shall replace such automobile with a substantially similar
automobile or automobiles as often as is reasonably necessary (as is
agreed by the Employee and Newco). Newco shall be responsible for all
costs of fuel, maintenance and repair with respect to any automobile
provided the Employee under this Section 4(g). Employee hereby
acknowledges and agrees that his personal use of the car hereunder is
compensation income as required by the Internal Revenue Code.
SECTION 5. AGREEMENT NOT TO COMPETE. The parties recognize that the
engagement of the Employee with Newco has been, and the engagement of the
Employee will be, special, unique and of an extraordinary character and that the
Employee has previously acquired, and will continue to acquire, special skill
and training. Newco recognizes that the Employee possesses a high degree of
skill in the industry, and the parties recognize that it is Newco's practice to
enforce agreements of this type. The parties also recognize that the covenants
of the Employee contained in this Agreement are an essential part of Employee's
engagement with Newco and that, but for the agreement of the Employee to comply
with such covenants, neither Newco nor Xxxxxx would have entered into the
Purchase Agreements, and Newco would not
4
have entered into this Agreement. The Employee accordingly agrees that, at any
time during the Non-Competition Term hereof, the Employee shall not:
a. directly or indirectly participate in the ownership, management,
operation or control of, or be connected as an officer, employee, partner,
director, or otherwise with, or have any financial interest in or aid or
assist anyone else in the conduct of any business within the
Non-Competition Area (as hereinafter defined) that either conducts a
business similar to that conducted by Newco or provides or sells a service
or product that is the same, substantially similar to, or otherwise
competitive with the products and services provided or sold by Newco (a
"Competitive Operation"); provided, however, that this provision shall not
preclude the Employee from owning not more that 5% of the equity
securities of any publicly held Competitive Operation;
b. directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor,
stockholder, partner, or in any other individual or representative
capacity whatsoever, either for his own benefit or for the benefit of any
other person or entity either (i) attempt to hire, contact or solicit with
respect to hiring any employee of Newco or (ii) induce or otherwise
counsel, advise or encourage any employee of Newco to leave the employment
of Newco;
c. directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor,
stockholder, partner, or in any other individual or representative
capacity whatsoever, either for his own benefit or for the benefit of any
other person or entity, call upon, solicit, divert or take away, any
customer or vendor of Newco with whom the Employee dealt, directly or
indirectly, during his engagement with Newco, in connection with a
Competitive Operation; provided, however, that the Employee may call upon
such customers and vendors for the purpose of promoting sales of Newco's
services and products to such customers and vendors, and for such other
purposes as are not reasonably intended to result in any reduction in the
Newco's sales or prospective sales to such customers and vendors.
d. for purposes of this Agreement, the "Non-Competition Area" shall
be:
(i) with respect to Newco's, the Company's or De-Ro's
multifamily and commercial business, anywhere within the United
States of America; and
(ii) with respect to all other business conducted by Newco,
De-Ro or the Company, within a 250 mile radius of the city limits of
Houston, Dallas, San Antonio, or any other cities in which Newco
operates during the term hereof.
5
It is expressly recognized and agreed that the covenants set forth in
Section 4 hereof are for the purpose of restricting the activities of the
Employee only to the extent necessary for the protection of the legitimate
business interests of Newco. The Employee hereby agrees that the limitations set
forth above on his rights to compete with Newco during the term of this
Agreement are reasonable and necessary for the protection of Newco. In this
regard, the Employee specifically agrees that such limitation as to the period
of time, geographic area and types and scopes of restriction on his activities
are reasonable and necessary to protect the good will and other business
interest of Newco and that such covenants do not and will not preclude the
Employee from engaging in activities sufficient for the purpose of earning a
living.
In the event that the Employee violates any non-competition covenant set
forth above in this Section 5, then, notwithstanding any provision herein to the
contrary, the time period specified above for which the non-competition
covenants are effective shall be extended day for day for the time period that
Employee is in violation of any such covenant.
SECTION 6. CONFIDENTIAL INFORMATION.
a. AGREEMENT TO HOLD CONFIDENTIAL. From the date hereof, the
Employee shall hold in secrecy for Newco all trade secrets and other
confidential information relating to the business and affairs of either the
Company, DE-RO or Newco that have come to his knowledge during his ownership of
the Company, including information concerning costs, profits, markets, sales,
business development plans, lists of clients or customers, and other information
of a similar nature (such categories of information being referred to herein as
"Confidential Information"), unless compelled to disclose any such Confidential
Information by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law. In addition, the Employee shall hold in
secrecy for Newco all trade secrets and other Confidential Information relating
to any of the Company's, DE-RO's or Newco's business and affairs that have come
or may have come to his attention during his employment with either the Company
or Newco or during the Term. Employee shall not use for his own benefit or
disclose to any person any Confidential Information unless such use or
disclosure has the prior written authorization of Newco.
b. DELIVERY OF MATERIALS. The Employee shall deliver to Newco, at
the earlier to occur of the expiration of the Term or the termination of the
Employee's engagement, all correspondence, memoranda, notes, records, plans,
customer lists, product compositions and other documents and all copies thereof,
whether in hard copy form or electronically or magnetically stored, made,
composed, or received by the Employee, solely or jointly with others, that are
in the Employee's possession, custody or control and that are related in any
manner to the past, present or anticipated business of Newco.
SECTION 7. TERMINATION.
a. DATE OF TERMINATION. Except as set forth in Section 7(b), this
Agreement (except for the provisions set forth in Sections 4(c), 5, 6, 8, 10, 11
and 12) will terminate upon
6
the earliest to occur of (i) the death or disability of the Employee, (ii)
immediately upon Newco's sending Employee written notice that it is terminating
Employee for cause, (iii) the expiration of five (5) days after Employee has
terminated his employment with Newco, or (iv) upon the expiration of its term,
and provided that Sections 4(c), 5, 6, 8, 10, 11 and 12 shall survive as set
forth therein. "Disability", as used in this Section 7, shall be defined to mean
the Employee's physical or mental inability to perform his duties hereunder for
a period of one hundred eighty days, due to accident, sickness or other
disability that prevents the Employee from satisfactorily performing the full
scope of his duties hereunder as such duties exist on the date immediately prior
to the date the Employee was first absent from work due to such disability.
Disability shall be determined by the board of directors of Newco based upon the
opinion of a licensed physician or physicians selected by the board of directors
of Newco. "Cause", as used in this Section 7, shall include the following:
(i) Any act of theft or other dishonesty, including, but not limited
to, any intentional misapplication of Newco's funds or other property;
(ii) Employee's gross neglect of his duties or Employee's gross
negligence in the performance of his duties that is not cured within
thirty (30) days after receiving written notice from Newco; or willful
disobedience of a lawful order or directive given to Employee by the
chairman and chief executive officer, president or the board of directors
of Newco and within the scope of Employee's duties that is not cured
within thirty (30) days after receiving written notice from Newco;
(iii) Employee's participation in an activity involving moral
turpitude that has a material adverse effect on Newco or in a criminal
activity;
(iv) Subject to Section 6(a), Employee's misappropriation or
disclosure to others in competition with Newco any Confidential
Information of the Company, DE-RO or Newco, including investment
prospects, analysis or advice, customer lists, plans or other property
interests of such party;
(v) Subject to the Employee's right to cure that is set forth in
Section 7(a)(ii) hereof, Employee's material breach any of the terms of
this Agreement; and
(vi) Subject to the Employee's right to cure that is set forth in
the Suncoast Purchase Agreement, Employee's material breach of any term of
the Suncoast Purchase Agreement or any document executed in connection
therewith, including but not limited to a material misrepresentation by
Employee in any such document.
b. OBLIGATIONS UPON TERMINATION. In the event the Employee's
employment with Newco is terminated by Newco without cause, Newco shall be
obligated to continue to pay to the Employee all amounts owing Employee under
Section 4 for the balance of the term
7
hereof. Absent a designation of beneficiaries by the Employee, any amounts owing
under Section 4 hereof on account of the Employee's death shall be payable
directly to the Employee's surviving spouse if she is then living or, if not,
then to the Employee's estate. In the event the Employee's employment with Newco
is terminated for cause by Newco, or as a result of Employee's death or
disability, or for any reason by Employee, Newco, shall not be obligated to pay
to the Employee the amounts payable under Sections 4(b) and 4(d) hereof, except
any such amounts due as of the date of such termination and not subject to
Newco's rights of set-off under Section 9 hereof.
c. STOCK PURCHASE.
(i) In the event (1) the Employee's employment with Newco is
terminated by Newco without cause, (2) the Employee terminates his
employment with Newco as a result of a material breach by Newco of its
obligations hereunder (it being understood that the exercise of Newco's or
Xxxxxx' rights to set off against the payment of any funds hereunder
pursuant to Section 13.1 of the Suncoast Purchase Agreement, Section 13.1
of the De-Ro Purchase Agreement or any other document executed in
connection therewith shall not be deemed a breach hereof), or (3) that
this Agreement expires and is not renewed, and in the event that no Public
Offering (as defined in the Suncoast Purchase Agreement) has occurred as
of the last date of Employee's employment hereunder, then Employee shall
have the option to sell to Buyer (as hereinafter defined), and Buyer
shall, upon the exercise of such option, purchase from Employee the lesser
of (A) all of the shares of Xxxxxx Stock (as defined in the Suncoast
Purchase Agreement) issued to the Employee under the terms of the Suncoast
Purchase Agreement, if such shares are equal in value to or less in value
than Four Hundred Thousand Dollars ($400,000), or (B) the number of shares
of Xxxxxx Stock issued to the Employee under the terms of the Suncoast
Purchase Agreement which are equal in value to Four Hundred Thousand
Dollars ($400,000) (the "Purchase Shares"). For purposes of this Section
3(c) "Buyer" shall mean either Newco or Xxxxxx as determined by Newco and
Xxxxxx in their sole discretion, PROVIDED, HOWEVER, that so long as the
Credit Agreement (as defined in the Suncoast Purchase Agreement) remains
in effect, "Buyer" shall mean Xxxxxx.
(ii) The consideration paid for the purchased shares hereunder
shall be payable in eight (8) equal quarterly installments, beginning on
the last day of the quarter (based upon the fiscal year of Newco)
immediately following receipt by Newco of the appraisal described below
(the "Payment Start Date), and ending on the second anniversary of the
Payment Start Date.
(iii) If Employee elects to sell the Purchase Shares to Buyer
hereunder, he must deliver notice of his election to Xxxxxx and Newco
within thirty (30) days of the termination of his employment under the
circumstances set forth above. Employee's failure to give such notice
within the specified time period, or the delivery to Buyer of a notice
that the Employee declines to sell the Purchase Shares hereunder, shall
have the effect of terminating Employee's option to sell the Purchase
Shares under this Section
8
7(c), and the rights granted employee under this Section 7(c) shall be of
no further force and effect.
(iv) Notwithstanding the provisions of clause (iii) above, if,
as of the effective date of the Employee's termination under the
circumstances set forth above, Xxxxxx has filed a form S-1 Registration
Statement, but the offering to which such registrations statement applies
has not yet become effective, the period during which Employee may
exercise his option to sell the Purchase Shares under this Section 7(c)
shall be extended until the date that is 180 days after the effective date
of the Employee's termination under the circumstances set forth above.
(v) For purposes of the share purchase under this Section 7(c),
the value of the Purchase Shares shall be determined as of the date of
Employee's termination under the circumstances set forth above, by an
appraiser chosen in good faith by Newco in its sole discretion, PROVIDED,
HOWEVER, that such appraiser must be an investment banking firm or an
appraiser with experience in the appraisal of the value of the securities
of non-public, closely held companies. The appraisal shall be completed
within sixty days of Employee's delivery to Buyer of notice that Employee
desires to exercise his option to sell the Purchase Shares under this
Section 7(c). If the appraisal valuation would result in the purchase by
Newco of a fraction of a Purchase Share, the number of shares of Xxxxxx
Stock subject to purchase hereunder shall be rounded up to the nearest
share. All fees, costs and expenses of the appraiser shall be allocated
equally between Buyer and the Employee.
d. SURVIVAL OF SECTIONS 5 AND 6. No termination of this Agreement or
termination of Employee's employment with Newco shall release Employee from the
covenants, conditions and obligations set out in Sections 5 and 6 of this
Agreement, which covenants, conditions and obligations shall remain in full
force and effect.
e. SURVIVAL OF SECTION 4(c). No termination of Employee's employment
by Newco shall release Newco from the covenants, conditions and obligations set
forth in Section 4(c) of this Agreement, which covenants, conditions and
obligations shall remain in full force and effect for the period of time
specified therein, PROVIDED, HOWEVER, that, in the case of a termination of the
Employee's employment hereunder as a result of Employee's intentional
misapplication of Newco's funds or other property that gives rise to Newco's
right of termination under Section 7(a)(i) above, Newco shall have a right to
set-off against any or all of the amounts payable under Section 4(c) of this
Agreement, all in accordance with Section 9 hereof.
SECTION 8. LIMITATION OF SCOPE. Should any portion of this Agreement be
deemed unenforceable because of the scope, duration or territory encompassed by
the undertakings of the Employee hereunder, and only in such event, then the
parties consent and agree to such limitation on scope, duration or territory as
may be finally adjudicated as enforceable by a court of competent jurisdiction
after the exhaustion of all appeals.
9
SECTION 9. REMEDIES. With respect to each and every breach of violation or
threatened breach or violation by the Employee of this Agreement, Newco, in
addition to all other remedies available at law or in equity including specific
performance of the provisions hereof, shall be entitled to enjoin the
commencement or continuance thereof and may, without notice to the Employee,
apply to any court of competent jurisdiction for entry of an immediate
restraining order or injunction; provided, however, that the Employee shall have
the right to cure within thirty (30) days' notice from Newco any breach or
violation of Section 7(a)(ii) or Section 7(a)(v) hereof or any immaterial breach
or immaterial violation of the terms and provisions of Section 5 hereof. Newco
may set-off and apply against any and all amounts owing to the Employee by Newco
(except for any amounts owing to the Employee under Section 4(b) above) any
damages incurred by Newco in connection with any breach or violation by Employee
of this Agreement, or of the Suncoast Purchase Agreement (subject to Section
13.1 thereof), whether such obligations arise on, before or after the date
hereof; provided, however, that Newco shall not offset any such amounts until
any rights that Employee has to cure any breach or violation of this Agreement
(which rights are set forth in Section 7(a)(ii) and Section 7(a)(v) of this
Agreement), or of the Suncoast Purchase Agreement have expired. Newco may pursue
any of the remedies described herein concurrently or consecutively in any order
as to any breach or violation, and the pursuit of one of such remedies at any
time will not be deemed an election of remedies or a waiver of the right to
pursue any of the other of such remedies.
In the event that Newco fails to make any payment under this Agreement,
and after the expiration of a period of thirty (30) days, during which Newco has
not cured such material default, and provided that no material default of the
Employee under this Agreement exists, Employee's obligations under Section 5
hereunder shall terminate and shall be of no further force or effect (it being
understood that the exercise of Newco's or Xxxxxx' rights to set off against the
payment of any funds hereunder pursuant to Section 13.1 of the Suncoast Purchase
Agreement, Section 13.1 of the De-Ro Purchase Agreement or any other document
executed in connection therewith shall not be deemed a default in payment
thereof).
It is expressly recognized and agreed that the covenants set forth herein
are for the purpose of restricting the activities of the Employee only to the
extent necessary for the protection of the legitimate business interests of
Newco, and Newco and Employee agree that said covenants are reasonable for that
purpose and that such covenants do not and will not preclude Employee from
engaging in activities sufficient for the purpose of earning a living.
SECTION 10. SEVERABILITY. The provisions of the Agreement are severable
and any judicial determination that one or more of such provisions, or any
portion thereof, is invalid or unenforceable shall not affect the validity or
enforceability of any other provisions, or portions thereof, but rather shall
cause this Agreement to first be construed in all respect as if such invalid or
unenforceable provisions, or portions thereof, were modified to terms that are
valid and enforceable and provide the greatest protection to Newco's business
and interests; provided, however, that if necessary to render this Agreement
enforceable, it shall be construed as if such invalid or unenforceable
provisions, or portions thereof, were omitted.
10
SECTION 11. SUCCESSORS. This Agreement is personal to the Employee and may
not be assigned by the Employee. This Agreement shall inure to the benefit of
and be binding upon Newco and its successors and assigns. This Agreement shall
not confer any rights or remedies upon any person other than the parties hereto
and their respective successors and permitted assigns.
SECTION 12. MISCELLANEOUS.
a. GOVERNING LAWS; HEADINGS; AMENDMENT; CONFLICTS. THIS AGREEMENT
SHALL BE CONSTRUED AND INTERPRETED AND THE RIGHTS OF THE PARTIES CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS. THE HEADINGS IN THIS AGREEMENT
ARE INSERTED FOR CONVENIENCE ONLY AND ARE NOT INTENDED TO BE PART OF OR TO
AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT. THIS AGREEMENT, TOGETHER
WITH THE SUNCOAST PURCHASE AGREEMENT, THE ESCROW AGREEMENT, THE BUYER NOTE (AS
DEFINED IN THE SUNCOAST PURCHASE AGREEMENT) EXECUTED IN RESPECT OF THE EMPLOYEE,
AND THE OTHER AGREEMENTS CONTEMPLATED BY THE PURCHASE AGREEMENT TO WHICH NEWCO
AND THE EMPLOYEE ARE PARTY, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
CONCERNING THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR COMMITMENTS AND
UNDERSTANDINGS BETWEEN THE PARTIES RELATING TO SUCH SUBJECT MATTER. THIS
AGREEMENT MAY NOT BE AMENDED OR MODIFIED OTHER THAN BY A WRITTEN AGREEMENT
EXECUTED BY THE PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS AND LEGAL
REPRESENTATIVES. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE
SUNCOAST PURCHASE AGREEMENT, THE TERMS OF THE SUNCOAST PURCHASE AGREEMENT SHALL
GOVERN.
b. NOTICES. All notice or other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxx Xxxxxxx
15910 Xxxxxxx
Xxxxxx, Xxxxx 00000
If to Newco: De-Ro/Suncoast, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Chairman and Chief Executive Officer
SECTION 13. NO INCONSISTENT OBLIGATIONS. The Employee represents and
warrants that he has not previously assumed any obligations inconsistent with
the obligations of the Employee pursuant to this Agreement.
11
IN WITNESS WHEREOF, the Employee has hereunto set his hand and Newco has
caused this Agreement to be executed in its name on its behalf, all as of the
day hereinabove first written.
"EMPLOYEE"
___________________________________
Xxxxx Xxxxxxx
"NEWCO"
De-Ro/Suncoast, Inc.
By: _______________________________
Xxxxx Xxxxxxx
Title: President
JOINDER
Xxxxxx hereby joins in the foregoing Employment and Non-Competition
Agreement for the purpose of affirming its obligations under Section 7(c) only.
XXXXXX INTERNATIONAL, INC.
By: _______________________________
Xxxxx Xxxxxxx
Title: President
12