EXHIBIT 10.15
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EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
29th day of September, 2000, and effective as of the Effective Time (as defined
below), by and between WILMAR INDUSTRIES, INC. (the "Company") and XXXXXXX X.
XXXX ("Executive").
WITNESSETH:
WHEREAS, Executive has been employed by Xxxxxxx, Inc. ("Xxxxxxx") for a
number of years, and is currently the President and Chief Executive Officer of
Xxxxxxx; and
WHEREAS, Executive and Xxxxxxx entered into an Employment Agreement
dated March 8, 1996, effective as of January 1, 1996 (as amended or modified,
the "Original Agreement"), having an initial term of ten years which agreement
hereby terminates as of the date hereof; and
WHEREAS, the Company, Xxxxxxx and BW Acquisition, Inc. ("Merger Sub")
have entered into that certain Agreement and Plan of Merger dated as of July 10,
2000 (the "Merger Agreement"), pursuant to which Merger Sub will merge with and
into Xxxxxxx upon the terms and subject to the conditions set forth in the
Merger Agreement (the "Merger"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Company, its policies, records, personnel and business
relationships; and
WHEREAS, upon the consummation of the Merger, the Company desires to
employ Executive, and Executive is willing to be employed by the Company upon
the terms and subject to the conditions contained in this Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. Effective as of the Effective Time, the Company
employs Executive and Executive accepts employment with the Company for the Term
(as defined in Section 2 below) of this Agreement, in the position and with the
duties and responsibilities set forth in Section 3 below, and upon the other
terms and subject to the conditions hereinafter stated. For purposes of this
Agreement, the term "Effective Time" shall have the same meaning ascribed to
that term in the Merger Agreement. Prior to the Effective Time, or in the event
the Effective Time shall never occur, the Original Agreement shall remain in
full force and effect, and nothing herein shall be deemed to constitute an
amendment, modification or termination thereof. At the Effective Time, this
Agreement shall automatically become effective without any further action on the
part of Executive or the Company, and the Original Agreement shall cease and
have no further force or effect.
2. TERM. The initial term (the "Initial Term") of this Agreement
shall commence on the Effective Time and shall continue until the fifth
anniversary of the Effective Time (the "Initial Expiration Date"); provided,
however, that this Agreement at all times shall be subject to earlier
termination in accordance with the provisions hereof. On the Initial Expiration
Date and each anniversary of the Initial Expiration Date, the term of this
Agreement automatically shall be extended for an additional one-year term (the
"Extended Term") unless either party hereto shall have provided written notice
to the other party hereto of its, or his, intent not to extend this Agreement
not less than thirteen months prior to the end of the Initial Term or the
Extended Term, as the case may be. For purposes of this Agreement, "Term" means
the Initial Term and, if so extended, the Extended Term.
3. POSITION, DUTIES AND RESPONSIBILITIES.
3.1 POSITION, DUTIES AND RESPONSIBILITIES. During the
Term, Executive shall serve as the President of Xxxxxxx, and as Vice President
of the Company, and shall be responsible for the duties attendant to such
office, which duties will be generally consistent with his position and duties
as an executive officer of Xxxxxxx prior to the date hereof, and such other
managerial duties and responsibilities with Xxxxxxx, its affiliates,
subsidiaries or divisions as may be assigned by the Board of Directors of the
Company (the "Board") or the President and Chief Operating Officer of the
Company and agreed to by Executive. The Company and Xxxxxxx intend that
Executive will continue to serve as a member of the Board of Directors of
Xxxxxxx (the "Xxxxxxx Board") and shall also serve as a member of the Board.
Executive shall also serve as an officer and/or member of the Board of Directors
of any subsidiary of the Company, if the Board should so request. Executive's
duties shall be performed principally at Xxxxxxx'x executive offices which are
located in the Jacksonville Metropolitan Area (as defined below), and Executive
shall not be required to perform duties which would necessitate changing his
present residence, unless Executive otherwise agrees in writing. For purposes of
this Agreement, the term "Jacksonville Metropolitan Area" shall encompass the
City of Jacksonville and the territory within twenty (20) miles from that city
in any direction. The Company will promptly pay (or reimburse Executive for) all
reasonable moving expenses incurred by Executive relating to a change of
Executive's residences in connection with any such relocation to which Executive
has consented. In connection with any such change of residences, the Company
shall, at the request of Executive, purchase from Executive the residence which
he is required to vacate. The purchase price of such residence shall be the
average of the appraisals rendered by two appraisers retained by Xxxxxxx or the
Company, one of whom shall be selected by Executive. To the extent that any
Executive relocation benefit program maintained by the Company or Xxxxxxx, and
in which Executive is entitled to participate, is more favorable to Executive
than the provisions of this Agreement with respect to relocation, Executive
shall be entitled to such additional relocation benefits. Executive acknowledges
and agrees that, in connection with his employment hereunder, he may be required
to travel on behalf of the Company and/or Xxxxxxx.
3.2 SERVICES TO BE PROVIDED. During the Term, Executive
shall devote substantially all of his working time, attention and energies to
the affairs of the Company
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and its subsidiaries, affiliates and divisions; provided, however, that nothing
herein shall preclude Executive from (i) serving on the boards of directors of a
reasonable number of other corporations, trade associations or charitable
organizations, subject to the prior approval of the Board, which shall not
unreasonably be withheld (as of the date hereof, Executive does not serve as a
member of any such board of directors), (ii) engaging in charitable activities
and community affairs or (iii) managing his personal investments and affairs;
provided, however, that such activities do not interfere with the performance of
Executive's duties under this Agreement.
4. SALARY.
4.1 BASE SALARY. During the Term, Executive shall be paid
a base salary (the "Base Salary"), payable in equal installments at such
intervals as the other executive officers of the Company are paid but not less
often than bi-weekly, at an annual rate of four hundred fifty thousand dollars
($450,000) until the first anniversary of the Effective Time. For each
succeeding year during the Term, the annual rate of the Base Salary shall be
increased by an amount determined by the Board in its discretion, but in no
event shall such increase be less than an amount equal to four percent (4%) of
the Base Salary in effect for the preceding year.
4.2 BONUS/INCENTIVE COMPENSATION. During the Term,
Executive shall be eligible to receive an annual performance bonus of up to
$300,000. Fifty percent of such bonus opportunity shall be dependent upon the
achievement by the Company of certain earnings targets established by the Board
each year, and fifty percent of such opportunity shall be based on the Board's
discretion, taking into account such factors as it deems appropriate.
4.3 EQUITY OPPORTUNITY. As of the date hereof, Executive
is being awarded restricted shares of common stock of the Company in accordance
with the terms of the Company's 2000 Stock Award Plan. In addition, during the
Term, Executive may be eligible for additional restricted stock grants or stock
option grants and similar awards under plans or programs that may be adopted by
the Company.
5. EMPLOYEE BENEFITS.
5.1 BENEFIT PROGRAMS. During the Term, Executive shall
participate with other members of senior management of the Company and/or
Xxxxxxx in any pension, profit-sharing or similar plan or program of the Company
and/or Xxxxxxx or its affiliates now existing or established hereafter for the
benefit of its employees or senior executives of the Company and/or Xxxxxxx, to
the extent that he remains eligible under the general provisions thereof.
Executive shall also be entitled to participate in any group insurance,
hospitalization, medical, health and accident, disability or similar or
non-similar plan or program of the Company and/or Xxxxxxx or its affiliates now
existing or established hereafter for the benefit of its employees or senior
executives of the Company and/or Xxxxxxx or its affiliates, to the extent that
he is eligible under the general provisions thereof.
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5.2 AUTOMOBILE. During the Term, the Company and/or
Xxxxxxx shall provide Executive with an automobile (Mercedes Benz S420 series or
comparable automobile), such automobile to be not more than three years old, to
be used by him in connection with the Company's and/or Xxxxxxx'x business; and
shall be responsible for all reasonable costs of repairing, maintaining,
insuring and providing fuel for such automobile; PROVIDED that the aggregate
annual cost to the Company of the benefits set forth in this Section 5.2 and
Section 5.6 shall not exceed $50,000 per calendar year.
5.3 MEDICAL EXPENSE REIMBURSEMENT. During the Term, in
addition to the benefits to be provided to Executive pursuant to Section 5.1
hereof, Executive shall be entitled to reimbursement for expenses not reimbursed
by insurance or otherwise for "medical care" (as such term is defined in Section
213 of the Internal Revenue Code of 1986, as amended) for himself and his
immediate family; provided, however, that such reimbursement shall not exceed
$10,000 per annum.
5.4 INSURANCE. During the Term, the Company, at its sole
expense, shall purchase and maintain a life insurance policy on the life of
Executive in the amount of $100,000, the beneficiary or beneficiaries of which
shall be designated by Executive. In addition, the Company shall pay all
premiums with respect to a split-dollar life insurance policy in the amount of
$3 million of which Executive will be the named insured. Additional requirements
regarding such insurance are the subject of a separate Split Dollar Agreement,
Collateral Assignment for Split Dollar Plan, and Money Purchase Deferred
Compensation Agreement between the parties, in substantially the form attached
hereto at XXXXXXXX "X,", "X," AND "C," respectively.
5.5 VACATION; PERSONAL DAYS. During the Term, Executive
shall be entitled to four (4) weeks annual vacation with pay during each year of
his employment hereunder provided that the vacation days taken do not interfere
with the operations of the Company and/or Xxxxxxx. Such vacation may be taken,
in Executive's discretion, at such time or times as are not inconsistent with
the reasonable business needs of the Company and/or Xxxxxxx. Executive shall
also be entitled to all paid holidays given by the Company and/or Xxxxxxx to its
executives.
5.6 OTHER PERQUISITES. During the Term, the Xxxxxxx shall
pay (i) the dues and other membership costs incurred by Executive for his
continuing membership in the Sawgrass Country Club, together with the cost of
all food service and related service charges incurred at Sawgrass Country Club;
(ii) the dues and other membership costs incurred by Executive for his
continuing membership in the University Club, together with the cost of all food
service and related service charges incurred at the University Club, and the
cost of Executive's personal trainer at the University Club; (iii) the dues and
other membership costs incurred by Executive for his continuing membership in
the River Club, together with the cost of all food service and related service
charges incurred at the River Club. In addition, Executive shall be allocated
six tickets in Xxxxxxx'x skybox suite at Alltel Stadium for each Jaguars home
game and for each other event held at Alltel Stadium for which Xxxxxxx reserves
use of such suite; PROVIDED that the aggregate annual cost to Xxxxxxx of the
benefits set forth in Section 5.2 and this Section 5.6 shall not exceed $50,000
per year.
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6. EXPENSES. The Company shall reimburse Executive upon
presentation of appropriate vouchers or receipts and in accordance with the
Company's expense reimbursement policies, for all reasonable travel,
entertainment and other expenses incurred by Executive in connection with the
performance of his duties under this Agreement.
7. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
7.1 DEATH. In the event of the death of Executive during
the Term, Executive's employment hereunder shall be terminated as of the date of
his death and Executive's designated beneficiary, or, in the absence of such
designation, the estate or other legal representative of Executive
(collectively, the "Estate"), shall be paid within thirty (30) days of
Executive's death, an amount equal to the sum of Executive's unpaid Base Salary
through the month in which Executive's death occurred.
7.2 DISABILITY. In the event Executive shall be unable to
render the services or perform his duties hereunder by reason of illness, injury
or incapacity (whether physical, mental, emotional or psychological) for a
period of either (i) one hundred eighty (180) consecutive days or (ii) two
hundred seventy (270) days in any consecutive three hundred sixty-five (365) day
period (either of such events shall constitute a "Disability" for purposes of
this Agreement), the Company shall have the right to terminate this Agreement by
giving ten (10) days prior written notice to Executive. If Executive's
employment hereunder is so terminated, (i) Executive shall be paid within thirty
(30) days of Executive's termination (x) any unpaid Base Salary through the
later of (a) the month in which the termination occurred and (b) the date upon
which Executive commences receiving payments of disability benefits under the
disability benefit programs maintained by the Company and/or Xxxxxxx and (y) an
amount equal to the product of (1) the bonus, if any, paid to Executive pursuant
to Section 4.2 hereof with respect to the fiscal year immediately preceding the
year in which Executive's employment is terminated pursuant to this Section 7.1
and (2) a fraction, the numerator of which is the number of days during which
Executive rendered services and performed his duties hereunder during the fiscal
year in which his employment hereunder is terminated and the denominator of
which is 365 and (ii) the Company and/or Xxxxxxx shall continue to provide to,
or for the benefit of, Executive, during the twelve consecutive months period
commencing on the date of termination of Executive's employment hereunder, the
benefits provided to Executive pursuant to Sections 5.1, 5.2, 5.3 and 5.4
hereof. The amount of Base Salary provided for above shall be reduced by any
disability benefits received by Executive under disability benefits maintained
by the Company and/or Xxxxxxx with respect to the period prior to his
termination.
7.3 TERMINATION OF EMPLOYMENT OF EXECUTIVE BY THE COMPANY
FOR CAUSE. In the event Executive is terminated for Cause (as defined below),
Executive shall be paid his Base Salary and benefits in accordance with the
Company's plans through the date of termination. The term "Cause," as used
herein, shall mean (a) Executive's willful misconduct or gross neglect in the
performance of his duties hereunder which in either case has resulted, or is
likely to result, in material economic damage to the Company, (b) the material
breach of this Agreement by Executive which
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has resulted, or is likely to result in material economic damage to the Company,
if not cured within ten (10) days of the date written notice thereof is given by
the Company to Executive where the breach is curable, or (c) the Executive's
plea of no contest or guilty or conviction of Executive of a felony or other
criminal act which constitutes a crime of moral turpitude. For purposes of
Section 7.3(a), no act, or failure to act, on Executive's part, will be
considered "willful" unless done or omitted to be done by him not in good faith
and without a reasonable belief that his action or omission was in furtherance
of the Company's business. The Company acknowledges that as of the date of this
Agreement, Executive has engaged in a consensual relationship with an employee
of the Company as identified in the disclosure letter executed by the Executive
on the date hereof, and agrees that the existence of such relationship or any
claim by such employee arising out of such relationship shall not constitute
"Cause" for purposes of this Agreement.
Termination of employment of Executive pursuant to this
Section 7.3 shall be made by delivery to Executive of a letter from the Board or
the Chairman of the Board generally setting forth a description of the
particulars of the conduct which provides the basis for a termination of
employment of Executive for Cause. Within ten days of Executive's receipt of
such letter, Executive shall be provided an opportunity, together with his
counsel, to present and discuss the matter with the Board. Following such
proceeding, the Board may, by majority vote of the full Board (without counting
Executive) terminate the employment of Executive for Cause.
7.4 TERMINATION OF EMPLOYMENT BY COMPANY WITHOUT CAUSE OR
BY EXECUTIVE FOR GOOD REASON. In the event that the Company terminates
Executive's employment hereunder without Cause or Executive terminates his
employment hereunder for Good Reason (as defined below), Executive shall receive
in a lump sum payment an amount equal to the sum of (i) his Base Salary (as such
Base Salary would have been adjusted (assuming increase at the rate of four
percent per annum) pursuant to Section 4.1 hereof during the remainder of the
Term), for a period equal to the greater of (w) the remainder of the Term of
this Agreement or (x) one year, and (ii) the product of (y) the average of the
bonus compensation paid to Executive with respect to the three years preceding
the year in which Executive terminates his employment for a Good Reason, whether
or not such years are part of the Term, multiplied by (z) the greater of (A) the
number of years (and portions thereof calculated to the nearest tenth) remaining
in the term of this Agreement, and (B) one year, all of which shall be reduced
to present value based on the applicable federal rate (as defined in Section
1274 of the Internal Revenue Code) that would apply to a debt obligation with a
term equal to the greater of (A) or (B) above. In addition, if the receipt of
the lump sum pursuant to the foregoing sentence would cause Executive to pay
federal income tax for the year of receipt at a higher marginal rate than
Executive would have paid for such year had Executive's employment not been
terminated (the "Original Marginal Amount"), Executive shall receive an
additional amount such that the amount retained by Executive after the payment
of federal income taxes on such lump sum shall be the same as if such lump sum
had been taxed at the Original Marginal Rate. Executive shall not be required to
mitigate the amount of compensation payable to Executive hereunder, by securing
other employment or otherwise, nor will such compensation be reduced by reason
of Executive securing other employment or for any other reason.
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The term "Good Reason" for purposes of this Section 7.4 only
shall mean (i) the Company shall have materially breached the provisions of this
Agreement which breach shall continue for at least 10 days after receipt of
notice thereof to the Company from Executive (except that the termination of
Executive's employment by the Company pursuant to Sections 7.1 and 7.3 shall not
be deemed a breach of this Agreement provided that the Company shall otherwise
be in compliance with the terms of this Agreement), (ii) the assignment to
Executive by the Board of duties materially inconsistent with Executive's
position (including status, corporate office, title or reporting
responsibility), authority, duties or responsibilities as contemplated by
Section 3 of this Agreement, or any action by the Board which results in a
material diminution of the position, authority, duties or responsibilities of
Executive as contemplated by Section 3 of this Agreement or (iii) the Company
shall have materially reduced the benefits and/or perquisites provided to
Executive pursuant to Section 5.1 hereof, unless all members of senior
management of the Company are similarly affected.
7.5 TERMINATION OF EMPLOYMENT BY EXECUTIVE OTHER THAN FOR
GOOD REASON. Executive's employment hereunder also may be terminated at the
election of Executive other than for Good Reason, in which case Executive shall
be limited to the same rights and benefits as provided herein in connection with
a termination of this Agreement by the Company for Cause.
7.6 PAYMENTS AND BENEFITS. Any payments or benefits
payable to Executive hereunder in respect of any year during which Executive is
employed by the Company for less than the entire such year, unless otherwise
provided in the applicable plan or arrangement or this Agreement, shall be
prorated in accordance with the number of days in such year during which he is
so employed.
8. CONFIDENTIAL INFORMATION.
8.1 Executive hereby acknowledges that, in the course of
his employment by the Company, he has had and will have access to secret and
confidential information which relates to or affects all aspects of the business
and affairs of the Company and its subsidiaries, and which are not available to
the general public ("Confidential Information"). Without limiting the generality
of the foregoing, Confidential Information shall include information relating to
inventions, developments, specifications, technical and engineering data,
information concerning the filing or pendency of patent applications, business
ideas, trade secrets, products under development, production methods and
processes, sources of supply, marketing plans, and the names of any customers or
prospective customers or of any persons who have or shall have traded or dealt
with the Company and its subsidiaries. Accordingly, Executive agrees that,
except as required by the performance of his duties hereunder, he will not at
any time, directly or indirectly, disclose or furnish, or knowingly permit to be
disclosed or furnished, any Confidential Information to any person, firm,
corporation or other entity without the express prior written consent of the
Company.
8.2 Executive hereby acknowledges and agrees that any and
all models, prototypes, notes, memoranda, notebooks, drawings, records, plans,
documents
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or other material, whether or not electronically or digitally stored or created,
which contain or embody Confidential Information and/or information relating to
the business and affairs of the Company or its subsidiaries, and/or the
substance thereof, whether created or prepared by Executive or by others
("Confidential Materials"), which are in Executive's possession or under his
control, are the sole property of the Company. Accordingly, Executive hereby
agrees that, upon the termination of his employment with the Company, whether
pursuant to this Agreement or otherwise, or at the Company's earlier request,
Executive shall return to the Company all Confidential Materials and all copies
thereof, whether or not electronically or digitally stored or created, in his
possession or under his control and shall not retain any copies of Confidential
Materials.
9. NON-COMPETITION.
9.1 The Company shall make a one time payment of $70,000
as of the Effective Time, in partial consideration for the Executive's agreement
as follows: (i) that he shall not, so long as he shall be employed by the
Company in any capacity (whether pursuant to this Agreement or otherwise)
directly or indirectly, own, manage, operate, control or participate in the
ownership, management, operation or control or be employed by or connected in
any manner with, any business, firm, corporation or entity which is or may be in
competition, directly or indirectly, with the business of the Company or its
subsidiaries without the express written consent of the Company;
(ii) that for a period (the "Non-Competition Period")
commencing on the effective date of the termination of his employment with the
Company (for any reason whatsoever) and concluding twenty-four (24) months after
such termination date, Executive shall not directly or indirectly (x) own,
manage, operate, control or participate in the ownership, management, operation
and control, or be employed, engaged or connected in any manner with, any
business, firm, corporation or other entity which is engaged in any business
activity competitive, directly or indirectly, with the business of the Company
as constituted on the effective date of the termination of Executive's
employment with the Company, without the express prior written consent of the
Company, (y) proselytize, attempt to proselytize, recruit, solicit for
employment, hire, or otherwise interfere with the employment relationship
existing between the Company and any other employees of the Company at the time
of termination of Executive's employment or within one (1) year prior thereto,
or (z) interfere or attempt to interfere with the Company's relationships with
customers, suppliers or other parties with whom the Company enjoys commercial
relationships.
9.2 Anything to the contrary herein notwithstanding, the
provisions of this Section 9 shall not be deemed violated by the purchase and/or
ownership by Executive of shares of any class of equity securities (or options,
warrants or rights to acquire such securities, or any securities convertible
into or exchangeable or exercisable for such securities) (x) of the Company, or
(y) representing (together with any securities which would be acquired upon the
exercise of any such options, warrants or rights or upon the conversion of any
other security convertible into or exchangeable or exercisable for such
securities) five percent (5%) or less of the outstanding shares of any such
class of equity securities of any issuer whose securities are traded on a
national securities
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exchange or listed by NASDAQ, the National Quotation Bureau Incorporated or any
similar organization; provided, however, that Executive shall not be otherwise
connected with or active in the business of the issuers described in this
Section 9.2.
10. REMEDY FOR BREACH. Executive hereby acknowledges that in the
event of any breach or threatened breach by him of any of the provisions of
Section 9 of this Agreement, the Company and its affiliates would have no
adequate remedy at law and could suffer substantial and irreparable damage.
Accordingly, Executive hereby agrees that, in such event, the Company and its
affiliates shall be entitled, and notwithstanding any election by the Company
and such affiliates to claim damages, to obtain a temporary and/or permanent
injunction (without proving a breach therefor) to restrain any such breach or
threatened breach or to obtain specific performance of any such provisions, all
without prejudice to any and all other remedies which the Company and its
affiliates may have at law or in equity.
11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered personally or
sent by registered or certified mail (return receipt requested), postage
prepaid, or by telecopy (immediately followed by telephone confirmation of
delivery of such telecopy with the intended recipient of such notice and by
notice in writing sent promptly by registered or certified mail as provided
above) to the parties to this Agreement at the following addresses or at such
other address for a party as shall be specified by like notice:
To the Company: Wilmar Industries, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Executive Vice President and
Chief Executive Officer
Telephone: 000-000-0000
To Executive: Xxxxxxx X. Xxxx
000 X. Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: 904/000-0000
With a copy to: Xxxxxxx X. Xxxx
0000 Xxxxxx Xxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
All such notices and communications shall be deemed to have been received on the
date of personal delivery, on the date that the telecopy is confirmed as having
been received or on the third business day after the mailing thereof, as the
case may be.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the employment matters contemplated
herein and supersedes all prior agreements or understandings among the parties
related to such employment matters.
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13. BINDING EFFECT; THIRD PARTY BENEFICIARIES. Except as otherwise
provided herein, this Agreement shall be binding upon and inure to the benefit
of the Company and its successors and assigns and upon Executive. "Successors
and assigns" shall mean, in the case of the Company, any successor pursuant to a
merger, consolidation, or sale, or other transfer of all or substantially all of
the assets of the Company.
14. NO ASSIGNMENT. Except as contemplated by Section 13 above,
this Agreement shall not be assignable or otherwise transferable by either
party.
15. AMENDMENT OR MODIFICATION; WAIVER. No provision of this
Agreement may be amended or waived unless such amendment or waiver is agreed to
in writing, signed by Executive and by an officer of the Company thereunto duly
authorized. Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or at any prior or subsequent time.
16. FEES AND EXPENSES. The parties acknowledge that counsel to
Executive in connection with the negotiation and preparation of this Agreement,
Xxxxx & Xxxxxxx, has performed services for the Company and/or Xxxxxxx that are
entirely unrelated to this Agreement and consent to Xxxxx & Lardner's
representation of Executive, and not the Company and/or Xxxxxxx, in connection
with the negotiation and preparation of this Agreement. The Company and/or
Xxxxxxx shall be responsible for the reasonable attorney's fees incurred by
Executive in connection with the negotiation and preparation of this Agreement.
If either party institutes any action or proceedings to enforce any rights the
party has under this Agreement, or for damages by reason of any alleged breach
of any provision of this Agreement, or for a declaration of each party's rights
or obligations hereunder or to set aside any provision hereof, or for any other
arbitral or judicial remedy, each party shall be responsible for its own costs
and expenses incurred thereby, including but not limited to, attorneys' fees and
disbursements.
17. GOVERNING LAW; ARBITRATION. The validity, interpretation,
construction, performance and enforcement of this Agreement shall be governed by
the internal laws of the State of Florida, without regard to its conflicts of
law rules. Any controversy or claim arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon such award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitration shall be held in Jacksonville or such other place as may be agreed
upon at the time by the parties to the arbitration.
18. TITLES. Titles to the Sections and subsections in this
Agreement are intended solely for convenience and no provision of this Agreement
is to be construed by reference to the title of any Section.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which together shall constitute one agreement. It shall not be
necessary for
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each party to sign each counterpart so long as each party has signed at least
one counterpart.
20. EFFECTIVENESS. The payment and benefits provided by this
Agreement are contingent upon the approval of the shareholders of the Company in
a manner intended to comply with the shareholder approval requirements of
Section 280G of the Internal Revenue Code of 1986, as amended.
21. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms and
provisions of this Agreement in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
WILMAR INDUSTRIES, INC.
/s/ Xxxxxxx Xxxxxxx
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By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx X. Xxxx
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XXXXXXX X. XXXX
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