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EXHIBIT 10.34
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made, effective as of the 1st day of September, 1999,
between WM. CAMERON & CO., a Georgia corporation dba XXXXXXX XXXXXX BUILDING
PRODUCTS (the "Company") and Xxxxxx X. Xxxxxx, a resident of the State of Texas
("Executive").
BACKGROUND
Executive has been employed by the Company as an executive employee
since December 1,1994. In recognition of Executive's prior service to the
Company and the Company's desire to retain the future services of Executive, the
Company desires to enter into a written agreement for the employment
relationship with Executive, and Executive desires to continue employment on the
terms and conditions set forth.
AGREEMENT
In consideration of the continued employment of Executive by the
Company, the premises, and the mutual agreements hereinafter set forth, the
parties agree:
1. Definitions. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business of
distribution of building materials.
(b) "Cause" means conduct amounting to fraud or dishonesty against
the Company; Executive's willful violation of Sections 2(a) or (b) hereof, or
any of the Company's work rules or policies or repeated absences from work
without a reasonable excuse, if the Board of Directors of the Parent notifies
Executive of such violation or absence in writing and Executive fails to cure
such violation or absenteeism within five (5) days after written notice has been
given, provided that written notice relating to such violation or absenteeism
shall only be given once as it relates to a particular manner of conduct;
intoxication with alcohol or drugs while on Company business during regular
business hours; a conviction or plea of guilty or nolo contendere to a felony or
a crime involving dishonesty against the Company; or Executive's failure to
observe the requirements of Sections 2(c), 5 or 6 hereof.
(c) "Disability" means (i) the inability of Executive to perform the
duties of Executive's employment due to physical or emotional incapacity or
illness, where such inability is expected to be a long-continued and indefinite
duration or (ii) Executive shall be entitled to (x) disability retirement
benefits under the federal Social Security Act or (y) recover benefits under any
long-term disability plan or policy maintained by the Company. In the event of a
dispute, the determination of Disability shall be made by the Board of Directors
of the Company and shall be supported by advice of a physician competent in the
area to which such Disability relates.
(d) "Effective Date" means the date set forth above.
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2. Terms of Engagement; Duties
(a) The Company hereby employs Executive, commencing on the
Effective Date, and Executive hereby accepts employment by the Company subject
to the terms and conditions hereof. Executive is engaged initially with the
title and functions of Vice President of Human Resources of the Company and of
the Company's parent company, Xxxxxxx Xxxxxx Building Products, Inc. ("Parent").
Executive shall perform the duties assigned by the Board of Directors of the
Company and the Parent from time to time, and as are provided in the Bylaws of
the Company and the Parent. Nothing herein shall preclude the Chairman and Chief
Executive Officer of the Company from changing the Employee's title and duties
if such officer has concluded in his reasonable judgment that such change is in
the Company's best interests.
(b) Throughout the term of this Agreement, Executive shall:
(i) devote all of Executive's business effort, time, energy,
and skill (reasonable vacations and reasonable absences due to illness
excepted) to the duties assigned by the Board of Directors of the
Company and the Parent;
(ii) faithfully, loyally, and industriously perform such
duties, subject to the control and supervision of the Board of
Directors of the Company and the Parent; and
(iii) diligently follow and implement all lawful management
policies and decisions of the Company and the Parent that are
communicated to Executive.
(c) During the term of this Agreement, Executive shall not be
engaged (whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage that is contrary to the provisions of Section
2(b)(i) above; provided, however, that this restriction shall not be construed
as preventing Executive from (i) investing his personal assets in businesses
which do not compete with the Company in such form or manner as will not require
any services on the part of Executive in the operation or the affairs of the
companies in which such investments are made and in which his participation is
solely that of an investor or (ii) purchasing securities in any corporation
whose securities are regularly traded provided that such purchase shall not
result in his collectively owning beneficially at any time five (5%) percent or
more of the equity securities of any corporation engaged in a business
competitive to that of the Company.
3. Compensation. In consideration of the services rendered by Executive
pursuant to this Agreement, the Company shall provide the following:
(a) A base salary of One Hundred Fifty Seven Thousand Five Hundred
Dollars ($157,500) per annum (the "Base Salary") which Base Salary will be
reviewed periodically and may be increased by the Company from time to time. The
Base Salary shall be paid in accordance with the Company's standard payroll
practices in effect from time to time, and shall be subject to such deductions
and withholdings as are required by law or by policies of the Company.
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(b) Executive shall be eligible to be considered for an annual
cash performance bonus, which may consist of an amount of up to sixty percent
(60%) of the Base Salary in the applicable year based on the attainment of
performance objectives established by the Board of Directors of the Company and
the Parent in good faith and Executive's contributions to the attainment of
those objectives, and shall be in such amount and payable in such manner and on
such terms as are determined by the Board of Directors of the Company and the
Parent in good faith. Nothing contained in this subsection (b) shall obligate
the Company to pay a bonus to Executive, unless the Board of Directors of the
Company and the Parent determines to award such a bonus to Executive.
(c) The right to participate in any insurance plans maintained
by the Company from time to time to the extent that Executive's position,
tenure, salary, age, health and other qualifications make him eligible to
participate, and such other fringe benefits as are provided to the other senior
management employees of the Company, provided that the Company shall not be
required to adopt or continue any insurance plans or fringe benefits.
(d) Reimbursement for all reasonable business expenses
incurred by Executive in connection with the Business of the Company (including
car allowance of $600.00 per month) subject to compliance with the expense
reimbursement policies established by the Company and in sufficient detail to
comply with Internal Revenue Service Regulations.
(e) The remuneration and benefits set forth in this Section 3
shall be the only compensation payable to Employee with respect to his
employment hereunder, and Employee shall not be entitled to receive any
compensation in addition to that set forth in this Section 3 for any services
rendered by him in any capacity to the Company or any affiliated corporation
unless agreed to in writing by the Company or such affiliated corporation.
4. Term and Termination of this Agreement. The term of employment of
Executive pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of five (5) years, or until sooner terminated as
provided herein.
(a) Executive's employment hereunder may be terminated:
(i) Upon the death or Disability of
Executive;
(ii) By the Company, immediately for Cause;
(iii) By Executive upon ninety (90) days
prior written notice to the Company;
(iv) By Company immediately upon written
notice to Executive; or
(v) By mutual agreement between Executive
and the Company.
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(b) Except as set forth below, upon termination of Executive's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Executive or his personal representative with respect to
remuneration due under this Agreement, except for Base Salary earned but unpaid
at date of termination, provided however, Executive's covenants in Sections 5
and 6 of this Agreement shall survive the termination of Executive's employment
hereunder. Upon termination of Executive's employment hereunder pursuant to
Section 4(a)(iv) above, Executive shall be entitled to receive severance pay
(the "Severance Amount") consisting of an amount equal to Executive's then
current annualized Base Salary paid over a twelve (12) month period in
accordance with the Company's standard payroll practices in effect at the time
of termination. Executive may also elect Company paid executive outplacement
services provided by Drake, Beam, Xxxxx (Dallas, Texas) for such period of
severance. If Executive elects to continue coverage on the Company's health plan
upon termination of employment pursuant to Section 4(a)(iv) above, the Company
will pay the monthly premiums for the first twelve months of the eligible
continuation period or until Executive obtains employment and has satisfied any
necessary waiting periods under the new employer's health plan, whichever is
sooner. It is understood that Executive's coverage under the Company's
disability, accidental death or dismemberment and group life insurance plans
cease as of the date of termination. If Executive fails to observe the
requirements of Sections 5 or 6 hereof, then the Company shall have no
obligation to pay any portion of the Severance Amount remaining unpaid to
Executive.
5. Ownership, Non-Disclosure, and Non-Use of Trade Secrets.
(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or
information that is a Trade Secret hereunder (1) that has been
voluntarily disclosed to the public by the Company or has become
generally known to the public (except where such public disclosure has
been made by or through the Executive or by a third person or entity
with the knowledge of the Executive without authorization by the
Company); (2) that has been independently developed and disclosed by
parties other than the Executive or the Company to the Executive or to
the public generally without a breach of any obligation of
confidentiality by any such person running directly or indirectly to
the Company; or (3) that otherwise enters the public domain through
lawful means.
(ii) "Trade Secrets" means information which
derives economic value, actual or potential, from not being generally
known and not being readily ascertainable to other persons who can
obtain economic value from its disclosure or use and which is the
subject of efforts that are reasonable under the circumstances to
maintain its secrecy or confidentiality. Trade Secrets may include
either technical or non-technical data, including without limitation,
(1) any useful process, machine, chemical formula, composition of
matter, or other device which (A) is new or which Executive has a
reasonable basis to believe may be new, (B) is being used or studied by
the Company and is not described in a printed patent or in any
literature already published and distributed externally by the Company,
and
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(C) is not readily ascertainable from inspection of a product of the
Company; (2) any engineering, technical, or product specifications
including those of features used in any current product of the Company
or to be used, or the use of which is contemplated, in a future product
of the Company; (3) any application, operating system, communication
system, or other computer software (whether in source or object code)
and all flow charts, algorithms, coding sheets, routines, subroutines,
compilers, assemblers, design concepts, test data, documentation, or
manuals related thereto, whether or not copyrighted, patented or
patentable, related to or used in the Business of the Company; or (4)
information concerning the customers, suppliers, products, pricing
strategies of the Company, personnel assignments and policies of the
Company, or matters concerning the financial affairs and management of
the Company or any parent, subsidiary, or affiliate of the Company;
provided however, that Trade Secrets shall not include any Excluded
Information.
(b) Executive acknowledges and agrees that all Trade Secrets,
and all physical embodiments thereof, are confidential to and shall be and
remain the sole and exclusive property of the Company and that any Trade Secrets
produced by the Executive during the period of Executive's employment by the
Company shall be considered "work for hire" as such term is defined in 17 U.S.C.
Section 101, the ownership and copyright of which shall be vested solely in the
Company. Executive agrees (i) immediately to disclose to the Company all Trade
Secrets developed in whole or part by Executive during the term of Executive's's
employment by the Company, and (ii) at the request and expense of the Company,
to do all things and sign all documents or instruments reasonably necessary in
the opinion of the Company to eliminate any ambiguity as to the rights of the
Company in such Trade Secrets including, without limitation, providing to the
Company Executive's full cooperation in any litigation or other proceeding to
establish, protect, or obtain such rights. Upon request by the Company, and in
any event upon termination of Executive's employment by the Company for any
reason, Executive shall promptly deliver to the Company all property belonging
to the Company including, without limitation, all Trade Secrets (and all
embodiments thereof) then in Executive's custody, control or possession.
(c) Executive agrees that all Trade Secrets of the Company
received or developed by Executive as a result of Executive's employment with
the Company will be held in trust and strictest confidence, that Executive will
protect such Trade Secrets from disclosure, and that Executive will make no use
of such Trade Secrets, except in connection with Executive's employment
hereunder, without the Company's prior written consent. The obligations of
confidentiality contained in this Agreement will apply during Executive's
employment by the Company and (i) with respect to all Trade Secrets consisting
of scientific or technical data, at any and all times after expiration or
termination (for whatever reason) of such employment; and (ii) with respect to
all other Trade Secrets, for a period of two (2) years after such expiration or
termination, unless a longer period of protection is provided by law.
6. Noncompete; Nonsolicitation Covenants.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
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(i) "Affiliate" means any person or entity
directly or indirectly controlling, controlled by, or under common
control with Executive. As used herein, the word "control" means the
power to direct the management and affairs of a person.
(ii) "Area" means all of North America.
(iii) "Competing Enterprise" means any
person or any business organization of whatever form, engaged directly
or indirectly within the Area in the Business of the Company.
(b) Executive covenants that Executive shall, during the term
of this Agreement and for a period of one (1) year following the termination,
for whatever reason, of Executive's employment by the Company, observe the
following separate and independent covenants:
(i) Neither Executive nor any Affiliate
will, without the prior written consent of the Company, within the
Area, either directly or indirectly, (A) become financially interested
in a Competing Enterprise (other than as a holder of less than five
percent of the outstanding voting securities of any entity whose voting
securities are listed on a national securities exchange or quoted by
the National Association of Securities Dealers, Inc. automated
quotation system), or (B) engage in or be employed by any Competing
Enterprise as a consultant, officer, director, or executive or
managerial employee.
(ii) Neither Executive nor any Affiliate
will, without the prior written consent of the Company, either directly
or indirectly, on Executive's own behalf or in the service or on behalf
of others, solicit, divert, or appropriate, or attempt to solicit,
divert, or appropriate, to any Competing Enterprise within the Area, or
make any disparaging comment about the Company to, any person or entity
whose account with the Company was serviced by or under Executive's
direction or supervision during the term of this Agreement.
(iii) Neither Executive nor any Affiliate
will, without the Company's prior written consent, either directly or
indirectly, on Executive's own behalf or in the service or on behalf of
others, solicit, divert, or hire away, or attempt to solicit, divert,
or hire away, or make any disparaging comment about the Company to, any
person employed by the Company, whether or not such employee is a
full-time or a temporary employee of the Company and whether or not
such employment is pursuant to written agreement and whether or not
such employment is at will.
7. Remedies. Executive acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that by
virtue of the training, duties, and responsibilities attendant with Executive's
employment by the Company and the special knowledge of the business and
operations of the Company that Executive will have as a consequence of
Executive's employment by the Company, great loss and irreparable damage would
be suffered by the Company if the Executive should breach or violate any of the
terms or provisions of the covenants and agreements set forth herein. Executive
further acknowledges and agrees that each such covenant and agreement is
reasonably necessary to protect and preserve the interest of the
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Company. Therefore, in addition to all the remedies provided at law or in
equity, Executive agrees and consents that the Company shall be entitled to a
temporary restraining order and a permanent injunction to prevent a breach or
contemplated breach of any of the covenants or agreements of Executive contained
herein. The existence of any claim, demand, action or cause of action of
Executive against the Company shall not constitute a defense to the enforcement
by the Company of any of the covenants or agreements herein whether predicated
upon this Agreement or otherwise, and shall not constitute a defense to the
enforcement by the Company of any of its rights hereunder.
8. General Provisions.
(a) In the event that any one or more of the provisions, or
parts of any provisions, contained in the Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed and
shall be construed as a separate and independent covenant and should any part or
provision of any of such covenants be held or declared invalid by any court of
competent jurisdiction, such invalidity shall in no way render invalid or
unenforceable any other part or provision thereof or any other covenant of the
parties not held or declared invalid.
(b) This Agreement and the rights and obligations of the
Company hereunder may be assigned by the Company to any subsidiary of or
successor to the Company, and shall inure to the benefit of, shall be binding
upon, and shall be enforceable by any such assignee, provided that any such
assignee shall agree to assume and be bound by this Agreement. This Agreement
and the rights and obligations of Executive hereunder may not be assigned by
Executive.
(c) The waiver by the Company of any breach of this Agreement
by Executive shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Texas. The parties agree that any appropriate state court located in Dallas
County, Texas or any Federal Court located in Dallas, Texas shall have exclusive
jurisdiction of any case or controversy arising under or in connection with this
Agreement and shall be a proper forum in which to adjudicate such case or
controversy. The parties consent to the jurisdiction of such courts.
(e) This Agreement embodies the entire agreement of the
parties relating to the employment of Executive by the Company. No amendment or
modification of this Agreement shall be valid or binding upon the Company or
Executive unless made in writing and signed by the parties. All prior
understandings and agreements relating to the employment of Executive by the
Company (including the Prior Agreement) are hereby expressly terminated and
superseded.
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(f) Any notice, request, demand, or other communication
required to be given hereunder shall be made in writing and shall be deemed to
have been fully given if personally delivered or if mailed by United States
Mail, certified or registered, postage prepaid, to the parties at the following
addresses (or at such other addresses as shall be given in writing by any party
to the other party hereto):
If to Executive:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
If to the Company:
Wm. Cameron & Co. dba Xxxxxxx Xxxxxx Building
Products
00000 Xxxxx Xxxx
Xxxxxx, XX 00000
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and it shall not
be necessary for the same counterpart of this agreement be signed by all of the
undersigned in order for the agreements set forth herein to be binding upon all
of the undersigned in accordance with the terms hereof.
IN WITNESS WHEREOF, the Company and Executive have each
executed and delivered this Agreement as of the date first above written.
COMPANY:
WM. CAMERON & CO. dba
Xxxxxxx Xxxxxx Building Products
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chairman & CEO
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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