EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
(Xxxxxxx X. Xxxxxx)
THIS AGREEMENT is made and entered into as of July 8, 1998 between CENTURY
MAINTENANCE SUPPLY, INC., a Delaware corporation having its principal executive
office at 0000 Xxxxxxx, Xxxxxxx, Xxxxx 00000 (the "COMPANY"), and XXXXXXX X.
XXXXXX (the "EMPLOYEE").
RECITALS
The Company desires to employ the Employee in an executive capacity and the
Employee desires to enter the Company's employ.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Employee hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms have
-------------------
the meanings prescribed below:
AFFILIATE is used in this Agreement to define a relationship to a person or
entity and means a person or entity who, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, such person or entity.
ANNUAL BONUS shall have the meaning assigned thereto in SECTION 4.2 hereof.
BASE SALARY shall have the meaning assigned thereto in SECTION 4.1 hereof.
BENEFICIAL OWNER shall have the meaning assigned thereto in Rule 13(d)-3
under the Exchange Act; provided, however, and without limitation, that any
individual, corporation, partnership, group, association or other person or
entity that has the right to acquire any Voting Stock at any time in the future,
whether such right is (a) contingent or absolute or (b) exercisable presently or
at any time in the future, pursuant to any agreement or understanding or upon
the exercise or conversion of rights, options or warrants, or otherwise, shall
be the Beneficial Owner of such Voting Stock.
CAUSE shall have the meaning assigned thereto in SECTION 5.3 hereof.
CHANGE IN CONTROL of the Company shall be deemed to have occurred if (a)
the Company merges or consolidates with any other corporation (other than a
wholly-owned direct or indirect subsidiary of the Company) and is not the
surviving corporation (or survives as a subsidiary of another corporation) and,
after such merger or consolidation, the Company's shareholders immediately prior
to such merger or consolidation do not own Voting Stock representing a majority
of the outstanding shares of Voting Stock of the surviving corporation or do not
otherwise have the right to elect a majority of the board of directors of the
surviving corporation, (b) the Company sells, or agrees to sell, all or
substantially all of its assets to any other person or entity, (c) the Company
is dissolved, (d) any third person or entity (other than the Company's
shareholders on the Effective Date, a trustee or committee of any qualified
employee benefit plan of the Company) together with its Affiliates shall become
(by tender offer or otherwise), directly or indirectly, the Beneficial Owner of
at least 30% of the Voting Stock of the Company (unless at such time FS Equity
Partners IV, L.P. ("FSEP IV"), Employee and the other members of Company's
management collectively are, directly or indirectly, the Beneficial Owner of a
greater percentage of the outstanding Voting Stock of the Company than such
person or entity) or (e) the individuals who constitute the Board of Directors
of the Company as of the Effective Date (the "INCUMBENT BOARD") shall cease for
any reason to constitute at least a majority of the Board of Directors;
provided, that any person becoming a director whose election or nomination for
election was approved by a majority of the members of the Incumbent Board shall
be considered, for the purposes of this Agreement, a member of the Incumbent
Board.
CODE means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated by the Internal Revenue Service thereunder, all as in
effect from time to time during the Employment Period.
COMMON STOCK means the Company's common stock, par value $.001 per share.
COMPANY means Century Maintenance Supply, Inc., a Delaware corporation, the
principal executive office of which as of the date hereof is located at 0000
Xxxxxxx, Xxxxxxx, Xxxxx 00000.
CONFIDENTIAL INFORMATION shall have the meaning assigned thereto in SECTION
8.2 hereof.
DATE OF TERMINATION means the earliest to occur of (a) the date of the
Employee's death, (b) the date on which the Employee terminates his employment
with the Company for any reason other than Good Reason or (c) the date of
receipt of the Notice of Termination, or such later date as may be prescribed in
the Notice of Termination in accordance with SECTION 5.6 hereof.
DISABILITY means an illness or other disability which prevents the Employee
from discharging his responsibilities under this Agreement for a period of 180
consecutive calendar days, or an aggregate of 180 calendar days in any calendar
year, during the Employment Period, all as determined in good faith by the Board
of Directors of the Company (or a committee thereof).
EFFECTIVE DATE means the date of execution hereof.
EMPLOYEE means Xxxxxxx X. Xxxxxx, an individual residing at 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000.
EMPLOYMENT PERIOD shall have the meaning assigned thereto in SECTION 3
hereof.
2
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
GOOD REASON shall have the meaning assigned thereto in SECTION 5.5 hereof.
MERGER AGREEMENT shall mean that certain Agreement and Plan of Merger made
and entered into as of May 5, 1998 by and among the Company, Century Acquisition
Corporation, Xxxxxx X. Xxxxxxx and the other shareholders that Company listed
therein.
NOTICE OF TERMINATION shall have the meaning assigned thereto in SECTION
5.6 hereof.
VACATION TIME shall have the meaning assigned thereto in SECTION 4.3
hereof.
VOTING STOCK means all outstanding shares of capital stock of the Company
entitled to vote generally in an election of directors; provided, however, that
if the Company has shares of Voting Stock entitled to more or less than one vote
per share, each reference to a proportion of the issued and outstanding shares
of Voting Stock shall be deemed to refer to the proportion of the aggregate
votes entitled to be cast by the issued and outstanding shares of Voting Stock.
WITHOUT CAUSE shall have the meaning assigned thereto in SECTION 5.4
hereof.
2. General Duties of Company and Employee.
--------------------------------------
2.1 The Company agrees to employ the Employee, and the Employee agrees to
accept employment by the Company and to serve the Company as Vice President and
Chief Financial Officer. The authority, duties and responsibilities of the
Employee shall include those described in this Agreement, and such other or
additional duties as may from time to time be assigned to the Employee by the
Board of Directors (or a committee thereof). While employed hereunder, the
Employee shall devote substantially all of his business time and attention to
the affairs of the Company and use his best efforts to perform faithfully and
efficiently his duties and responsibilities. The Employee may (a) serve on
corporate, civic or charitable boards or committees, (b) deliver lectures or
fulfill speaking engagements and (c) manage personal investments, so long as
such activities do not interfere with the performance of the Employee's duties
and responsibilities.
2.2 The Employee agrees and acknowledges that he owes a duty of loyalty,
fidelity and allegiance to act at all times in the best interests of the Company
and to not knowingly do any act or knowingly make any statement, oral or
written, which would injure the Company's business, its interests or its
reputation unless required to do so in any legal proceeding by a competent court
with proper jurisdiction.
2.3 The Employee agrees to comply at all times during the Employment
Period with all applicable policies, rules and regulations of the Company,
including, without limitation, the
3
Company's Code of Ethics and the Company's policy regarding trading in the
Common Stock, as each is in effect from time to time during the Employment
Period.
3. Term. Unless sooner terminated pursuant to other provisions hereof, the
----
Employee's period of employment under this Agreement shall be a period of five
years beginning on the Effective Date (the "EMPLOYMENT PERIOD").
4. Compensation and Benefits.
-------------------------
4.1 Base Salary. As compensation for services to the Company, the Company
-----------
shall pay to the Employee until the Date of Termination an annual base salary of
$115,000 (the "BASE SALARY"). The Board of Directors (or a committee thereof),
in its discretion, may increase the Base Salary based upon relevant
circumstances. The Base Salary shall be payable in equal semi-monthly
installments or in accordance with the Company's established policy, subject
only to such payroll and withholding deductions as may be required by law and
other deductions, as directed by the Employee, applied generally to employees of
the Company for insurance and other employee benefit plans.
4.2 Bonus. In addition to the Base Salary, the Employee may be awarded,
-----
for each fiscal year until the Date of Termination, an annual bonus (either
pursuant to a bonus or incentive plan or program of the Company or otherwise) in
an amount to be determined by the Board of Directors (or a committee thereof),
in its sole discretion (the "ANNUAL BONUS"). Each such Annual Bonus would be
payable at a time to be determined by the Board of Directors (or a committee
thereof) in its sole discretion.
4.3 Vacation. Until the Date of Termination, the Employee shall be
--------
entitled to FOUR (4) weeks paid vacation during each one year period commencing
on the Effective Date (the "VACATION TIME"). Any Vacation Time not taken during
the applicable one year period will accrue and cumulate, or at the option of
Executive, shall be paid to the extent unused in any one year period. In the
event of termination of this Agreement, if any Vacation Time has accumulated,
the Employee shall have the right to receive payment in cash for the pro rata
amount on an annual basis for such accumulation.
4.4 Automobile Allowance. Until the Date of Termination, the Company
--------------------
shall provide the Employee an automobile acceptable to the Employee and shall
also reimburse the Employee for all expenses relating to the operation and the
maintenance of the automobile on a monthly basis (the "AUTOMOBILE ALLOWANCE").
The Company shall be responsible for any and all insurance obligations relating
to the said automobile.
4.5 Incentive, Savings and Retirement Plans. Until the Date of
---------------------------------------
Termination, the Employee shall be eligible to participate in and shall receive
all benefits under all executive incentive, savings and retirement plans
(including 401(k) plans) and programs currently maintained or hereinafter
established by the Company for the benefit of its executive officers and/or
employees.
4
4.6 Welfare Benefit Plan. Until the Date of Termination, the Employee
--------------------
and/or the Employee's family, as the case may be, shall be eligible to
participate in and shall receive all benefits under each welfare benefit plan of
the Company currently maintained or hereinafter established by the Company for
the benefit of its employees. Such welfare benefit plans may include, without
limitation, medical, dental, disability, group life, accidental death and travel
accident insurance plans and programs established with commercially reasonable
companies.
4.7 Reimbursement of Expenses. The Employee may from time to time until
-------------------------
the Date of Termination incur various business expenses customarily incurred by
persons holding positions of like responsibility at companies of comparable
size, including, without limitation, travel, entertainment and similar expenses
incurred for the benefit of the Company, and will receive a Company credit card
for use for such expenses. Subject to the Company's policy regarding the
reimbursement of such expenses as in effect from time to time during the
Employment Period, the Company shall reimburse the Employee for such expenses
from time to time, at the Employee's request upon presentation of expense
statements and such other supporting information as the Company may customarily
require of its executives.
4.8 Life Insurance. The Company shall provide to the Employee, at the
--------------
Company's cost, life insurance on terms that are mutually agreeable to the
Company and the Employee.
5. Termination.
-----------
5.1 Death. This Agreement shall terminate automatically upon the death of
-----
the Employee.
5.2 Disability. The Company may terminate this Agreement, upon written
----------
notice to the Employee delivered in accordance with SECTIONS 5.6 and 9.1 hereof,
upon the Disability of the Employee.
5.3 Cause. The Company may terminate this Agreement, upon written notice
-----
to the Employee delivered in accordance with SECTIONS 5.6 and 9.1 hereof, for
Cause. For purposes of this Agreement, "CAUSE" means (a) the conviction of the
Employee of a felony or other serious crime, (b) the Employee's grossly
negligent or willful refusal to perform his duties and responsibilities as
contemplated in this Agreement or (c) the Employee's grossly negligent of
willful engaging in activities which would (A) constitute a material breach of
any term of this Agreement, the Company's Code of Ethics, the Company's policies
regarding trading in the Common Stock or reimbursement of business expenses or
any other applicable policies, rules or regulations of the Company, or (B)
result in a material injury to the business, condition (financial or otherwise),
results of operations or prospects of the Company or its Affiliates (as
determined in good faith by the Board of Directors of the Company or a committee
thereof), (d) Employee's engaging in fraud or other illegal conduct to the
detriment of the Company, (e) Employee's material breach of the confidentiality
provisions contained in SECTION 8 of this Agreement, or (f) the Company's
determination that Employee has entered into a conflict of interest pursuant to
the terms of SECTION 7 of this Agreement., or (g)
5
Employee's material breach of the terms and provisions of the option agreements
that Employee and the Company will enter into (the "OPTION AGREEMENTS").
5.4 Without Cause. The Company may terminate this Agreement Without
-------------
Cause, upon written notice to the Employee delivered in accordance with SECTIONS
5.6 and 9.1 hereof. For purposes of this Agreement, the Employee will be deemed
to have been terminated "WITHOUT CAUSE" if the Employee is terminated by the
Company for any reason other than Cause, Disability or death.
5.5 Good Reason. The Employee may terminate this Agreement for Good
-----------
Reason, upon written notice to the Company delivered in accordance with SECTIONS
5.6 and 9.1 hereof. For purposes of this Agreement, "GOOD REASON" means (a) the
assignment to the Employee of any substantial ongoing duties inconsistent in any
material adverse respect with the Employee's duties or responsibilities as
contemplated in this Agreement, (b) any other action by the Company which
results in a material adverse diminishment in the Employee's position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities, (c) any material breach by the Company of any of the
provisions of this Agreement, the Option Agreements, (d) requiring the Employee
to relocate permanently to any office or location other than Houston, Texas
without his consent, or (e) any reduction, or attempted reduction, at any time
during the Employment Period, of the Base Salary or other material benefits
granted herein of the Employee.
5.6 Notice of Termination. Any termination of this Agreement by the
---------------------
Company for Cause, Without Cause or as a result of the Employee's Disability, or
by the Employee for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with this Agreement. For purposes
of this Agreement, a "NOTICE OF TERMINATION" means a written notice which (a)
indicates the specific termination provision in this Agreement relied upon, (b)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment under the provision so
indicated and (c) specifies the termination date, if such date is other than the
date of receipt of such notice (which termination date shall not be more than 15
days after the giving of such notice).
6. Obligations of Company upon Termination.
---------------------------------------
6.1 Cause; Other Than Good Reason. If this Agreement shall be terminated
-----------------------------
either by the Company for Cause or by the Employee for any reason other than
Good Reason, the Company shall pay to the Employee, in a lump sum in cash within
30 days after the Date of Termination, the aggregate of the Employee's Base
Salary (as in effect on the Date of Termination) through the Date of
Termination, if not theretofore paid, and, in the case of compensation
previously deferred by the Employee, all amounts of such compensation previously
deferred and not yet paid by the Company.
6.2 Death or Disability.
-------------------
(a) Subject to the provisions of this SECTION 6.2, if this Agreement
is terminated as a result of the Employee's death or Disability, the
Company shall pay to the Employee or
6
his estate, in a lump sum in cash within 30 days of the Date of
Termination, the greater of (i) that portion of the Employee's Base Salary
(as in effect on the Date of Termination) owing in respect of the balance
of the Employment Period or (ii) the Employee's Base Salary (as in effect
on the Date of Termination). The Company may purchase insurance to cover
all or any part of the obligation contemplated in the foregoing sentence,
and the Employee agrees to submit to a physical examination to facilitate
the procurement of such insurance.
(b) Whenever compensation is payable to the Employee hereunder during
a period in which he is partially or totally disabled, and such Disability
would (except for the provisions hereof) entitle the Employee to Disability
income or salary continuation payments from the Company according to the
terms of any plan or program presently maintained or hereafter established
by the Company, the Disability income or salary continuation paid to the
Employee pursuant to any such plan or program shall be considered a portion
of the payment to be made to the Employee pursuant to this SECTION 6.2 and
shall not be in addition hereto. If Disability income is payable directly
to the Employee by an insurance company under the terms of an insurance
policy paid for by the Company, the amounts paid to the Employee by such
insurance company shall be considered a portion of the payment to be made
to the Employee pursuant to this SECTION 6.2 and shall not be in addition
hereto. If life insurance proceeds under a policy, for which the Company
pays the premiums but of which the Company (or an affiliate of the Company)
is not the beneficiary, are paid to Employee's estate or to the beneficiary
designated by Employee, such proceeds shall be considered a portion of the
payment to be made to or for the benefit of Employee pursuant to this
SECTION 6.2 and shall not be in addition hereto.
6.3 Good Reason; Without Cause. If this Agreement shall be terminated
--------------------------
either by the Employee for Good Reason or by the Company Without Cause:
(a) the Company shall pay to the Employee, in a lump sum in cash
within 30 days after the Date of Termination, the aggregate of the
following amounts:
(1) if not theretofore paid, the Employee's Base Salary (as in
effect on the Date of Termination) through the Date of Termination;
(2) the product of (x) the Annual Bonus paid to the Employee for
the last full fiscal year preceding the Date of Termination and (y) the
fraction obtained by dividing (i) the number of days between the Date of
Termination and the last day of the last full fiscal year preceding the
Date of Termination and (ii) 365; and
(3) in the case of compensation previously deferred by the
Employee, all amounts of such compensation previously deferred and not yet
paid by the Company;
(b) the Company shall, promptly upon submission by the Employee of
supporting documentation, pay or reimburse to the Employee any costs and
expenses paid or incurred
7
by the Employee which would have been payable under SECTION 4.7 of this
Agreement if the Employee's employment had not terminated; and
(c) until the expiration of the 24-month period commencing on the Date
of Termination, the Company shall (i) continue benefits to the Employee
and/or the Employee's family at least equal to those which would have been
provided to them under SECTION 4.6 if the Employee's employment had not
been terminated (provided that to the extent such benefits cannot be
continued for any reason during such period (e.g., disability insurance
that may not be portable), then the Company will pay to Employee during
such period, on a monthly basis, the dollar equivalent that the Company had
spent to keep such insurance in place under the Company's plans during the
period that Employee was employed by the Company); and (ii) pay to the
Employee, in equal semi-monthly installments the Employee's Base Salary (as
in effect on the Date of Termination).
6.4 Change in Control. If (a) this Agreement shall be terminated either
-----------------
by the Employee for Good Reason or by the Company Without Cause and (b) a Change
in Control of the Company has occurred within the two-year period preceding the
Date of Termination, then, in addition to the obligations of the Company set
forth in SECTION 6.3(a),(b) and (c)(i) hereof, but in lieu of the obligations of
the Company set forth in SECTION 6.3(c)(ii), the Company shall pay to the
Employee, in a lump sum in cash within 30 days after the Date of Termination,
two times the sum of (x) the Employee's Base Salary (as in effect on the Date of
Termination or such higher rate as may have been in effect at any time during
the 90-day period preceding the Date of Termination) and (y) the Annual Bonus
paid to the Employee for the last full fiscal year.
6.5 Notwithstanding anything contained in this Agreement to the contrary,
the aggregate amount payable to and benefits received or to be received by
Employee under this Agreement and under all other existing or future agreements
or arrangements that would be considered "parachute payments" under Section 280G
of the Internal Revenue Code of 1986, as amended (the "CODE"), shall in no event
exceed one dollar less than the amount that would trigger the application of the
excise tax imposed by Section 4999 of the Code on such payments for benefits.
7. Employee's Obligation to Avoid Conflicts of Interest.
----------------------------------------------------
7.1 In keeping with the Employee's duties to the Company, the Employee
agrees that he shall not knowingly become involved in a conflict of interest
with the Company, or upon discovery thereof, allow such a conflict to continue.
The Employee further agrees to disclose to the Company, promptly after
discovery, any facts or circumstances which might involve a conflict of interest
with the Company.
7.2 The Company and the Employee recognize that it is impossible to
provide an exhaustive list of actions or interests which constitute a "CONFLICT
OF INTEREST." Moreover, the Company and the Employee recognize that there are
many borderline situations. In some instances, full disclosure of facts by the
Employee to the Company is all that is necessary to enable the Company
8
to protect its interests. In others, if no improper motivation appears to exist
and the Company's interests have not suffered, prompt elimination of the outside
interest will suffice. In still others, it may be necessary for the Company to
terminate the employment relationship. The Company and the Employee agree that
the Company's determination as to whether or not a conflict of interest exists
shall be conclusive. The Company reserves the right to take such action as, in
its judgment, will end the conflict of interest.
7.3 In this connection, it is agreed that any direct or indirect interest
in, connection with or benefit from any outside activities, particularly
commercial activities, which interest might in any way adversely affect the
Company or its Affiliates, involves a possible conflict of interest.
8. Employee's Confidentiality Obligation.
-------------------------------------
8.1 The Employee hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated and
protected as such in accordance with this SECTION 8. The Employee acknowledges
that all such Confidential Information is in the nature of a trade secret.
8.2 For purposes of this Agreement, "Confidential Information" means
information, which is used in the business of the Company or its Affiliates and
(a) is proprietary to, about or created by the Company or its Affiliates, (b)
gives the Company or its Affiliates some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Affiliates, (c) is designated
as Confidential Information by the Company or its Affiliates, is known by the
Employee to be considered confidential by the Company or its Affiliates, or from
all the relevant circumstances should reasonably be assumed by the Employee to
be confidential and proprietary to the Company or its Affiliates, or (d) is not
generally known by non-Company personnel.
8.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company and
its Affiliates. In view of the foregoing and of the consideration to be
provided to the Employee, the Employee agrees that it is reasonable and
necessary that the Employee make each of the following covenants:
(a) At any time during the Employment Period and thereafter, the
Employee shall not disclose Confidential Information to any person or
entity, either inside or outside of the Company, other than as necessary in
carrying out his duties and responsibilities as set forth in SECTION 2
hereof, without first obtaining the Company's prior written consent (unless
such disclosure is compelled pursuant to court orders or subpoena, and at
which time the Employee shall give notice of such proceedings to the
Company and provide the Company with an opportunity to resolve such
disclosure in a manner reasonably acceptable to the Company).
9
(b) At any time during the Employment Period and thereafter, the
Employee shall not use, copy or transfer Confidential Information other
than as necessary in carrying out his duties and responsibilities as set
forth in SECTION 2 hereof, without first obtaining the Company's prior
written consent.
(c) On the Date of Termination, the Employee shall promptly deliver to
the Company (or its designee) all written materials, records and documents
made by the Employee or which came into his possession prior to or during
the Employment Period concerning the business or affairs of the Company or
its Affiliates, including, without limitation, all materials containing
Confidential Information.
9. Miscellaneous.
-------------
9.1 Notices. All notices and other communications required or permitted
-------
hereunder or necessary or convenient in connection herewith shall be in writing
and, if given by telegram, telecopy or telex, shall be deemed to have been
validly served, given or delivered when sent, if given by personal delivery,
shall be deemed to have been validly served, given or delivered upon actual
delivery and, if mailed, shall be deemed to have been validly served, given or
delivered three business days after deposit in the United States mail, as
registered or certified mail, with proper postage prepaid and addressed to the
party or parties to be notified, at the following addresses:
If to the Company to:
Century Maintenance Supply, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: President
Telephone No. (000) 000-0000
Fax No.: (000) 000-0000
If to the Employee to:
Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone No. (000) 000-0000
Fax No.: (000) 000-0000
or to such other names, addresses, telephone and fax numbers as the Company or
the Employee, as the case may be, shall designate by notice to the other party
hereto in the manner specified in this SECTION 9.1.
10
9.2 Waiver of Breach. The waiver by any party hereto of a breach of any
----------------
provision of this Agreement shall neither operate nor be construed as a waiver
of the breach of any other provision or of any subsequent breach by any party.
9.3 Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the Company, its successors, legal representatives and assigns, and
upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, the Employee agrees that his rights and obligations
hereunder are personal to him and may not be assigned without the express
written consent of the Company.
9.4 Entire Agreement; No Oral Amendments. This Agreement constitutes the
------------------------------------
entire agreement between the Employee and the Company with respect to the
subject matter of this Agreement. This Agreement may not be modified in any
respect by any oral statement, representation or agreement made by any employee,
officer, or representative of the Company or by any written agreement unless
signed by an officer of the Company who is expressly authorized by the Company
to execute such document.
9.5 Enforceability. If any provision of this Agreement or application
--------------
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
9.6 Jurisdiction; Arbitration. The laws of the State of Texas shall
-------------------------
govern the interpretation, validity and effect of this Agreement without regard
to the place of execution or the place for performance thereof. Any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration located in Houston, Texas administered by the
American Arbitration Association in accordance with its applicable arbitration
rules, and the judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof, which judgment shall be
binding upon the parties hereto.
9.7 Injunctive Relief. The Company and the Employee agree that a breach
-----------------
of any term of this Agreement by the Employee would cause irreparable damage to
the Company and that, in the event of such breach, the Company shall have, in
addition to any and all remedies of law, the right to any injunction, specific
performance and other equitable relief to prevent or to redress the violation of
the Employee's duties or responsibilities hereunder.
9.8 Employee's Representation. Employee shall be, and he represents that
-------------------------
he is, free to enter into this Agreement and not under any contractual restraint
which would prohibit his satisfactorily performing his duties to the Company
hereunder.
9.9 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and both of which
together shall be deemed one Agreement.
11
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
CENTURY MAINTENANCE SUPPLY, INC.
By: /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
---------------
Title Vice President
---------------
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
12
