EXHIBIT 4.7
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
July 29, 2004 with effect from June 1, 2004 between Xxxxx Xxxxxxx ("Executive")
and Xxxxx Xxxxxx Building Products, Inc. and its affiliates (collectively "JH"),
and is effective by its terms as herein provided.
WHEREAS, Executive and JH desire to enter into this Agreement to establish
and set forth the terms and conditions of Executive's employment with JH.
WHEREAS, Executive and JH acknowledge that the terms of the Agreement
constitute good and valuable consideration, the adequacy and sufficiency of
which Executive and JH also acknowledge.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and as a result of the voluntary agreement of Executive and JH to execute and
abide by the terms of the Agreement, Executive and JH agree as follows:
1. POSITION, DUTIES AND RESPONSIBILITIES
(a) Position. The Executive hereby agrees to serve as a senior executive
of JH in the position of Chief Financial Officer subject to all JH policies and
procedures in effect from time to time as amended in the discretion of JH. The
failure of JH to continue to employ Executive in the foregoing position shall be
deemed a constructive termination of the Agreement by JH pursuant to Section
4(a). The Executive shall devote his best efforts and his full business time and
attention to the performance of services to JH in this capacity and in such
other senior executive capacity as may reasonably be requested by the Board of
Directors of the Company ("Board"). JH shall retain full direction and control
of the means and methods by which the Executive performs the above services.
(b) Place of Employment. During the term of this Agreement, the
Executive shall perform the services required by this Agreement at JH's present
principal place of business or at such other location(s) as may be mutually
agreed by JH and the Executive; provided, however, that JH may from time to time
require the Executive to travel temporarily to other locations throughout the
world on JH's business consistent with the business needs of JH.
(c) Other Activities. Except with the prior written approval of the
Board (which the Board may grant or withhold in its sole and absolute
discretion), the Executive, during the Employment Period, will not (i) accept
any other employment, (ii) serve on the board of directors or similar body of
any other business entity, or (iii) engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary advantage) that is or
may be competitive with, or that might place him in a competing position to,
that of JH.
2. TRADE SECRETS
(a) Executive acknowledges by executing the Agreement, the requirement
to adhere to all JH practices and policies including those concerning the
preservation of JH's
confidential information including but not limited to customer lists, pricing
practices and lists, marketing plans, manufacturing processes and techniques,
financial information including financial information set forth in internal
records, files and ledgers or incorporated in profit and loss statements,
financial reports and business plans, inventions, discoveries, devices,
algorithms, as well as computer hardware and software (including but not limited
to source code, object code, documentation, diagrams, flow charts, know how,
methods and techniques associated with the development of a use of any of the
foregoing computer software), all internal memoranda, legal opinions, any other
records of JH including electronic and data processing files and records and any
other information designated as a "Trade Secret" and/or constituting a trade
secret and any communication within the applicable attorney-client privilege
under any governing law and any other proprietary information not generally
available to the public that JH considers confidential information collectively
called "Confidential Information."
(b) Executive agrees as a consequence of the Agreement, that he will not
directly or indirectly use or disclose to any person, firm, or corporation any
Confidential Information during the term of this Agreement or after this
Agreement has expired by its terms, except in the normal course of business on
behalf of JH, with the prior written consent of JH or to the extent necessary to
comply with law or a valid order of a court of competent jurisdiction, in which
event Executive will provide notice, in writing to JH at least ten (10) days
prior to the date disclosure is sought to be made, or the amount of prior notice
that Executive received, whichever is greater. Executive will at all times use
his best efforts to prevent such prohibited use or disclosure of Confidential
Information by any other person, firm or corporation.
(c) Executive acknowledges his obligation to voluntarily execute
documents and written Agreements upon request by JH concerning the preservation
of and/or the nondisclosure of JH Confidential Information which both parties
acknowledge are effective, notwithstanding the Agreement, and shall remain in
effect in accordance with its terms and conditions and are intended to provide
independent protection to JH in addition to the Agreement concerning the
non-disclosure of Confidential Information simultaneously, as such documents
reflect Executive's continuing obligation concerning the protection of JH's
Confidential Information in the broadest manner possible consistent with
applicable law.
(d) Executive must not make, otherwise than for the benefit of JH, any
personal notes, memoranda, diary entries and the like relating to any matter
within the scope of the business of JH or concerning any of its dealings or
affairs nor shall Executive either during the term of the Agreement of after its
termination use or permit to be used any such personal note, memoranda or diary
entry otherwise than for the benefit of JH.
(e) Executive hereby assigns to JH all existing and future intellectual
property, including copyright, in all material created by Executive arising out
of employment or relating to any matter within the scope of the business of JH
or concerning its dealings or affairs. Executive acknowledges that by virtue of
this clause all such existing rights vest in JH and on their creation all such
future rights also vest in JH. Any document (including personal notes,
memoranda, or diary entries) created by Executive or relating to any matters
within the scope of the business of JH and/or concerning its dealings or affairs
will be the property of JH and must be left at its principle office or at such
other place JH may direct upon termination of your employment under Section 4 of
the Agreement.
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(f) Executive will immediately inform JH and provide it with full
details relating to any or all processes, inventions, improvements, innovations
and discoveries which Executive may make either alone or jointly with others in
relation to or arising during the course of your employment ("Discoveries")
whether or not the Discoveries are capable of being protected by patent,
copyright, registered design or otherwise.
(g) The Discoveries will be the sole and exclusive property of JH.
Executive assigns to JH all existing and future rights relating to or arising
from the Discoveries and on their creation all such rights vest in JH. Executive
will sign all documents and do all acts necessary to obtain intellectual
property protection for the Discoveries and to vest the ownership of such rights
to JH.
3. COMPENSATION RELATED MATTERS
(a) Salary. During the Employment Period, JH shall pay the Executive
annual salary of not less than USD$337,000, to be paid consistent with the
standard JH payroll practices (e.g., timing of payments and standard employee
deductions, such as income tax withholdings, social security, etc.) applicable
to similarly situated executives. The Executive's performance and salary shall
be subject to review and adjustment consistent with the standard practices of JH
in its discretion as approved by the Board.
(b) Business Expenses. JH shall reimburse the Executive in connection
with the conduct of the JH business upon presentation of sufficient evidence of
such expenditures consistent with JH policies as in place from time to time (and
subject to the limitations set forth herein).
(c) Other Benefits. The Executive shall be entitled to participate in or
receive health, welfare, life insurance, long-term disability insurance,
vacation, and similar benefits as JH provides generally from time to time to
similarly situated executives. The cost of all benefits described in the
preceding sentence shall be that amount charged to similarly situated executives
employed in the United States which shall be deducted from the Executive's
salary as specified in Section 3(a). JH will pay the Executive an annual sum of
$7,500 (net) on or around 1 July each year in respect of travel compensation as
agreed between the company in a letter dated June 5, 2001 - - for so long as
this arrangement remains in place for other executives at a similar level in the
company
(d) Annual Bonus. A cash bonus (the "Annual Bonus") to be paid each year
pursuant to the JH Economic Profit Bonus Plan ("Plan"), subject to the
achievement of goals established in accordance with the Plan, at the same time
bonuses are generally paid to similarly situated executives of JH for the
relevant fiscal year. Each year of the term of this Agreement, the Chief
Executive Officer (CEO) of JH shall approve goals, which shall be reduced to
writing and presented to the Executive. The targeted annual Bonus shall be 65%
percent of the Executive's Annual Base Salary, which target shall not constitute
a guarantee.
(e) Gross Amounts. The Annual Base Salary and Annual Bonus set forth in
this Section 3(a) and (d) shall be the gross amounts of such Annual Base Salary
and Annual Bonus. The Executive is responsible for paying any and all taxes due
on any amounts received
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by him as salary or annual bonus, including, but not limited to, any income tax,
social security tax, Medicare tax or capital gains tax.
(f) Car Allowance. JH will either lease an automobile for business and
personal use by the Executive, or, in the alternative, the Executive will be
entitled to an automobile lease allowance not to exceed USD$750 per month during
the term of the Agreement. JH shall be responsible for all costs relating
thereto, including gasoline, repairs, maintenance and insurance. All automobile
insurance policies for such automobile shall name JH and the Executive as
co-insureds. Personal taxation costs arising from the Executive's personal use
of such automobile shall be the Executive's sole responsibility.
(g) Annual Australia Trip and Taxation Advice . JH will provide one (1)
annual trip for Executive and his immediate family. Costs to be compensated will
be for round trip (Coach) airfare Los Angeles to Sydney. JH will also meet the
reasonable costs of personal taxation advice and return preparation (Australia
and United States) for the Executive and his wife during the term of this
agreement and for the tax year (Australia and United States) following
termination or separation.
(i) Stock Incentive Plans. The Executive will participate in any and all
stock or option compensation plans in place within the JH group at a level
commensurate with the Executive's past participation and then current
responsibilities and the decisions and policies of the board of Xxxxx Xxxxxx
Industries NV as made and in place from time to time.
4. TERMINATION
(a) The Agreement and the employment of Executive as provided herein,
shall terminate upon the written resignation by Executive upon thirty (30) days
written notice to JH and/or may be terminated by JH in its discretion upon
thirty (30) days written notice, by the delivery to Executive of a written
notice terminating the Agreement effective as of the date specified in such
notice; however, Executive and JH specifically agree that Sections 2, 5, 6 and 7
shall survive the termination of this Agreement. Upon the termination of the
Agreement as provided above, the obligation of JH to compensate Executive as set
forth in Section 3 shall cease, except Executive may be entitled to compensation
under any applicable incentive compensation plans described in 3(d) and/or
welfare benefit plans described in 3(c) pursuant to the terms of the applicable
plan not already paid Executive as of the date specified in the written
resignation by Executive, or the written notice issued by JH, and/or as provided
by applicable law.
(b) JH expressly reserves the right to provide thirty (30) days' notice
as provided above although not to assign any duties to Executive during that
thirty (30) day period, provided Executive receives monthly compensation during
the notice period.
5. SEVERANCE
(a) Should JH exercise its discretion to terminate Executive's
employment pursuant to Xxxxxxx 0, XX will provide one payment of Annual Salary
and target Annual Bonus to Executive in the amount set forth in Section 3(a) and
3(d) less applicable deductions together
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with a proportion of the Annual Bonus represented by the months actually served
by the Executive in the bonus year, at the target rate, the latter too be paid
following the end of the year and finalization of accounts. For the purposes of
this Section 5, a reduction by the Company in the Executive's Annual Base Salary
to less than (a) $337,000 or (b) the Executive's Annual Base Salary at the time
of such reduction constitutes termination of the Executive's employment unless
done so with the written agreement of the Executive.
(b) Payment to Executive pursuant to (a) above constitutes severance pay
and shall be payable only upon the return to JH of a General Release and
Covenant Not To Xxx ("Release") in the form set forth in the Exhibit to the
Agreement, executed by Executive in accordance with the provisions of the
Release.
(c) Executive agrees that the opportunity and/or the actual receipt of
severance pay described in (a) or (b) above in any amount, is sufficient
consideration for the provisions set forth in the Agreement as well as the
Release.
(d) For the period of twelve (12) months after his last day of
employment as set forth in Section 4 subject to (c) above, Executive will be
paid the amount charged by JH in accordance with applicable law for continued
coverage under the applicable JH medical welfare benefit plan available to
Executive as of his last day of employment within which he was a participant
under the same terms, while JH simultaneously complies with Consolidated Omnibus
Budget Reconciliation Act, as amended ("COBRA"), thereafter the payment of the
entire premium being the sole responsibility of Executive for the remainder of
the COBRA period.
(e) Within 7 day's of the Executive's last day of employment as
described in Section 4, Executive shall, relinquish and/or surrender possession,
custody and control of any automobile or other vehicle or device provided by JH
to Executive during the period of his employment pursuant to Section 3(f) or
otherwise as a consequence of Executive's employment, which Executive
acknowledges is the property of JH.
(f) The rights of Executive in any JH plan that JH has voluntarily
designated Executive as a participant concerning stock options shall vest in
accordance with the terms of the plan, as amended or modified by JH in its
discretion from time to time.
6. CONFIDENTIALITY
Executive and his representatives, if any, agree that they will keep
strictly confidential the terms and conditions of the Agreement and the
consideration provided hereunder. The sole exceptions of confidentiality are for
communications to Executive's personal attorneys (and attorney's employees,
personal tax advisor, attorney and/or accountant) or as required by law.
Executive further agrees to take all steps necessary to ensure that
confidentiality is maintained by all the individuals or entities to whom
authorized disclosure is or was made, including but not limited to informing
them that the terms and execution of the Agreement are strictly confidential and
are not to be disclosed to any person or entity.
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7. MISCELLANEOUS
(a) Other than pursuant to a valid subpoena or order commanding
attendance or testimony, Executive will not instigate the commencement of or
participate or assist in any judicial or administrative proceeding or matter
that may in any way involve the subject matter of the Agreement, his employment
and/or former employment, and/or any allegations that Executive could have
raised against JH in any forum on behalf of himself or other persons against JH
and (b) Executive will not instigate the commencement of, or participate or
assist in any judicial or administrative proceeding or matter brought on behalf
of any current or former employees and/or current or former supplier or vendor
against JH. In the event that Executive is commanded to attend any proceedings
or provide testimony within the meaning of this Section, Executive agrees to
provide in writing to JH at least ten (10) days prior notice of such attendance
or testimony, or the amount of prior notice of such attendance or testimony that
he received, whichever is greater.
(b) Executive warrants that he will return to JH as of his last day of
employment described in Section 4 all Confidential Information, including but
not limited to documents, software, equipment (including, but not limited to,
computers and computer related items), and all other property and materials
belonging to JH including, but not limited to, computers and computer related
items), and all other property and materials belonging to JH including, but not
limited to, identification cards, keys, and the like, correspondence, notes and
notebooks, drawings, prints, photographs, tape recorders, other written, typed,
printed or recorded materials to which Executive had access or which Executive
developed during the course of his employment with JH wherever such items may be
located, and together with all copies (in whatever form thereof) of all
materials relating to Executive's employment or obtained or created in the
course of Executive's employment with JH.
(c) Executive represents that other than those materials that he must
return to JH pursuant to Section 7(b) above, he has not copied or caused to be
copied, printed out or caused to be printed out, any Confidential Information,
software or documents other than those documents generally available to the
public, or retained any other materials originating or belonging to JH.
Executive warrants that he has not and will not retain in his possession any
such Confidential Information, software, documents or other materials in machine
or human readable form.
(d) If any of the provisions, terms, clauses or waivers, or releases of
claims or rights contained in the Agreement are declared illegal, void, invalid,
unenforceable, or ineffective in a court of competent jurisdiction, all
remaining provisions, terms, clauses or waivers and releases of claims contained
in the Agreement shall remain valid and binding upon both Executive and JH, and
the provisions declared illegal, invalid, unenforceable or ineffective shall be
modified to the extent necessary to allow it to be enforceable against either
Executive or JH.
(e) Executive and JH acknowledge that they have retained counsel or have
had the opportunity to retain counsel concerning this Agreement, that they have
read and fully understand the terms of the Agreement or have had it analyzed by
their counsel, with sufficient
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time that they are fully aware of its contents and of its legal effect.
Executive and JH enter the Agreement freely and voluntarily and with a full
understanding of its terms.
(f) As part of the consideration for the benefits of the Agreement as
well as the acceptance of obligations set forth in the Agreement, Executive
expressly guarantees and has represented and does hereby express, warrant and
represent to JH that:
(a) he is legally competent and duly authorized to execute this
Agreement and it has been read and explained to him in a language and a
manner fully understandable to him; and
(b) he has not assigned, pledged, or otherwise in any manner sold,
hypothesized, or otherwise transferred or pledged either by instrument in
writing or otherwise, any right, title, interest, or claim which he has or
may have by reason of any claims, damages or otherwise sustained as of the
effective date of the Agreement.
(g) Executive agrees that damages may not be an adequate remedy for the
breach of the covenants contained in Sections 2, 5, 6 and 7 above as Executive
recognizes that such conduct constitutes irreparable harm to JH, therefore JH
shall be entitled to immediate injunctive relief without notice against
Executive and to receive from Executive all legal fees and other costs in
incurred by JH to enforce such covenants, as well as any other remedy as
provided by law.
8. ENTIRE AGREEMENT: NO AMENDMENT
Other than confidentiality, IP assignment, non-compete and indemnity
agreements, no agreements or representations, oral or otherwise, express or
implied, have been made by either party with respect to Executive's employment
by JH that are not set forth expressly in the Agreement, and there are no
agreements or understandings whether express or implied, written or oral,
between Executive and JH (other than as may exist in relation to express
indemnities and D & O insurance) except the Agreement. Executive acknowledges
that unless a written document is executed by the Chief Executive Officer (CEO)
of JH amending the terms of the Agreement, he may not reasonably rely on
representations of any officer and/or representative of JH to vary, modify
and/or change the terms of the Agreement.
9. GOVERNING LAW
The Agreement is to be construed and implemented under the laws of the
State of California, without regard to principles of conflict of law or
decisional authority in this regard, of the state or jurisdiction within which
the Agreement is being enforced..
10. COUNTERPARTS
The parties agree that this Agreement may be executed in counterparts,
each of which shall be deemed to constitute an executed original.
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11. AMBIGUITY
In the event that it shall be determined that there is any ambiguity
contained in the Agreement, said ambiguity shall not be construed against either
JH or Executive as a result of such party's preparation of the Agreement, which
shall be construed in favor of or against either Executive or JH in light of all
the facts, circumstances and intentions of the parties at the time this
Agreement is effective.
12. ASSIGNMENT
Executive may not assign any right (other than the right to receive
income, if any) under the Agreement without the prior written consent of JH. If
JH, or any entity resulting from any merger or consolidation with or into JH, is
merged with or consolidated into, or with any other entity or entities, or if
substantially all the assets of the aforementioned entities are sold or
otherwise transferred (including through liquidation) to another entity, then
the Agreement may be assigned without the consent of Executive and the
provisions of the Agreement shall be binding upon and shall inure to the benefit
of, a surviving benefit of, a surviving entity in, or the entity resulting from,
such merger or consolidation, or the entity to which such assets are sold or
transferred.
13. EFFECTIVE DATE
Executive acknowledges that he has been advised to consult with counsel,
and agrees that the Agreement shall only be effective if he voluntarily executes
the Agreement and returns it to Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx Building Products,
Inc., 00000 Xx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 within twenty-one
(21) days from the date Executive received the Agreement. Executive acknowledges
that if he signs the Agreement, he will have seven (7) days after the executes
it voluntarily to revoke it and the Agreement will not become effective until
seven (7) days has expired, without Executive's revocation, from the date
Executive voluntarily chooses to execute it.
TO WITNESS WHEREOF, Executive and JH have caused the Agreement to be
executed this twenty ninth day of July, 2004.
Date: 29 July 04 /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Date:29 July 04 /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Xxxxx Xxxxxx Building Products, Inc.
Date: _____________________ __________________________
Witness
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