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EXHIBIT 10.6
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is made as of July 26,
1999 between Kevco, Inc, a Texas corporation (the "Company"), and Xx. Xxxxxx X.
Xxxxxx (the "Consultant"). Capitalized terms used without definition herein
shall have the meanings assigned to such terms in the Securities Purchase
Agreement, dated as of July 14, 1999, between the Company and Xxxxxxx Partners
II, L.P. (the "Securities Purchase Agreement").
WHEREAS, prior to the date hereof, the Consultant has served as the
Chairman of the Board of Directors of the Company (the "Board") and President
and Chief Executive Officer of the Company and has contributed greatly to the
Company's growth and success;
WHEREAS, on the date hereof, in connection with certain business
transactions which the Company is completing and in consideration of the
Company's obligations hereunder, the Company and the Consultant have agreed to
terminate the Consultant's current Employment Agreement, dated as of October 1,
1996 (the "Existing Agreement"), and the Consultant is resigning from the
positions described above;
WHEREAS, the Company desires to ensure the availability to the Company
of the Consultant's expertise and experience;
WHEREAS, following the date hereof, the Consultant will continue to be
the beneficial owner of a substantial amount of the Company's outstanding voting
common stock;
WHEREAS, the Company wishes the Consultant to continue to serve as a
Director of the Company and to serve as the non-executive Vice Chairman of the
Board and the Consultant is willing to and desirous of serving in such
positions; and
WHEREAS, the Consultant is willing to provide such assistance and
assurance, all upon and subject to the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, the Company and the Consultant agree as
follows:
1. Term of Consultancy Engagement; Duties.
(a) Term. The Company hereby agrees to engage the Consultant as a
consultant, and the Consultant hereby agrees to serve in such capacity, for a
period of four years commencing on the date hereof (the "Term").
(b) Engagement. In his capacity as a consultant hereunder, the
Consultant periodically will make himself reasonably available to the Company to
advise with respect to issues that may arise from time to time concerning
aspects of the Company's businesses with which the Consultant has particular
expertise or experience. In performing his duties hereunder, the Consultant
shall coordinate and communicate his efforts with the Board. The Consultant
shall not be required to follow any formal schedule of duties or assignments and
shall perform the consultancy in a manner that the Consultant determines is
reasonable.
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2. Compensation; Benefits.
(a) Compensation. In consideration for the Consultant's consulting
undertakings as set forth in paragraph 1, the Company shall pay the Consultant
an annual fee of $210,000.00 per year, which amount shall be payable in equal
installments not less than once each month during the Term. The Company shall
reimburse the Consultant promptly after receipt of an invoice evidenced by
appropriate receipts, for all reasonable business expenses (including travel
expenses) incurred by the Consultant in connection with performing consulting
services for the Company hereunder.
(b) Medical and Dental Benefits. Until the death of the survivor of the
Consultant and the Consultant's Spouse (the "Coverage Term"), the Company shall
use its reasonable best efforts to include the Consultant and Consultant's
spouse in all present and future group health, medical, dental, hospitalization,
and similar programs offered by the Company and its subsidiaries to their
respective employees generally (collectively the "Insurance Coverage"), and the
Company shall not take any action, or fail to take any action, the effect or
result of which would be to exclude or otherwise disqualify the Consultant or
Consultant's spouse from inclusion in the Insurance Coverage. During the Term,
the Company shall bear all costs and expenses of the Insurance Coverage for the
Consultant and the Consultant's spouse but at all times thereafter during the
Coverage Term, the Consultant shall bear the premium costs and shall be
responsible for all co-payments, deductibles, and all other costs in the same
manner and to the same extent as the active employees of the Company with
respect to such Insurance Coverage. During the Term, if the Consultant or
Consultant's spouse cannot be included in or covered by the Insurance Coverage
or if there is no Insurance Coverage or to the extent there is no Insurance
Coverage, the Company shall obtain for Consultant or Consultant's spouse and
shall keep in full force and effect during the Term, comparable or additional
coverage for such persons; provided, however, if any such coverage is not
available or to the extent any of such coverage is not available, the Company
shall, at its sole cost and expense, pay or reimburse the Consultant and
Consultant's spouse for, all health, medical, dental, hospitalization,
deductibles, and other similar costs and expenses (collectively, the "Health
Costs") incurred or sustained by such persons during the Term not covered or
paid for by the Insurance Coverage or such other coverage, including the
insurance premiums for the Insurance Coverage or other coverage. In determining
whether coverage is "comparable coverage" the following factors, among others,
shall be considered relevant: quality of care, freedom to select facilities,
physicians, and other health care providers, relative financial responsibility
of insured and insurer to cover Health Costs, benefits and illnesses covered by
the applicable insurance, and each of obtaining health care provider services.
If the Company desires to sell or otherwise transfer to a third party
all or substantially all of the assets or equity of the Company, the Company
covenants and agrees to and with the Consultant to cause such third party to
assume the obligations set forth in this paragraph 2(b), but any such assumption
shall not relieve the Company of its obligations hereunder. The obligations of
the Company under this paragraph 2(b) shall survive the expiration of the Term.
(c) Obligations Absolute. The Company's obligations in respect of the
compensation payments and medical and dental benefits provided herein shall be
an absolute obligation of the Company and shall be paid regardless of whether
the Consultant actually performs any consulting services during the Term and
such obligations shall not be subject to any claims or rights of set-off,
mitigation or otherwise.
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3. Directorship; Information; Indemnity for Certain Expenses.
(a) Directorship.
(i) For so long as the Consultant remains the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended) of at least twelve percent (12%) of the outstanding common
stock of the Company, the Company shall use its reasonable best efforts to
ensure that at all times the Consultant and one other person designated by the
Consultant and reasonably acceptable to the Company (such person or any
replacement designated by the Consultant, hereinafter the "Designee") shall be
directors of the Company and, to such end, the Company agrees to (acting through
the Board or otherwise) nominate the Consultant and the Designee to serve as
directors of the Company, to include the Consultant and the Designee in the
slate of nominees recommended by the Board to the Company's shareholders for
election as directors at such annual meetings (or special meetings) as
applicable and to use its reasonable best efforts to cause the election of the
Consultant and the Designee as directors of the Company, including by soliciting
proxies in favor of the election of the Consultant and the Designee.
(ii) For so long as the Consultant remains the "beneficial
owner" of at least five percent (5%) of the outstanding common stock of the
Company but less than twelve percent (12%) of the outstanding common stock of
the Company, the Company shall use its reasonable best efforts to ensure that at
all times the Consultant shall be a director of the Company and, to such end,
the Company agrees to (acting through the Board or otherwise) nominate the
Consultant to serve as a director of the Company, to include the Consultant in
the slate of nominees recommended by the Board to the Company's shareholders for
election as directors at such annual meetings (or special meetings) as
applicable and to use its reasonable best efforts to cause the election of the
Consultant as a director of the Company, including by soliciting proxies in
favor of the election of the Consultant.
(iii) At all times during which the Consultant serves as a
director of the Company, the Company agrees to (acting through the Board or
otherwise) appoint the Consultant to serve as the non-executive Vice Chairman of
the Board.
(b) Information. At any time during which the Consultant has the right
to be nominated as a director pursuant to Section 3(a) hereof, the Company will
make available to the Consultant such financial and other information concerning
the Company and its business and affairs as he may reasonably request in
connection with his status as a director of the Company.
(c) Reimbursement for Certain Expenses. The Company agrees that, in
addition to any rights the Consultant may have to indemnification or
reimbursement from the Company pursuant to the provisions of the Company's
charter, under applicable law or any applicable policy of insurance, in his
capacities as a present or former officer and/or director of the Company, the
Company will reimburse the Consultant for costs or expenses (including
reasonable attorney's fees and expenses) incurred in defending or responding to
any claim, action, suit, proceeding or investigation arising out of or
pertaining to this Agreement, the Securities Purchase Agreement or any of the
transactions contemplated hereby or thereby, provided the Consultant is
ultimately found not to be liable to the Company or its shareholders in any such
claim, action, suit, proceeding, or investigation.
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4. Nondisclosure of Confidential Information. The Consultant acknowledges
that he may have access, during the course of service as a Consultant to the
Company, to certain confidential and proprietary information and products of the
Company (collectively referred to herein as the "Confidential Information").
Consultant agrees not to disclose any Confidential Information unless (i)
expressly authorized in writing by the Company, (ii) such Confidential
Information is publicly available or (iii) disclosure is required by any
governmental authority or in response to any valid legal process.
5. Demand Registration.
(a) Upon receipt by the Company at any time following the second
anniversary of the Closing Date of a written request from the Consultant for
registration of the resale of any Registrable Shares (as defined herein), the
Company shall use its commercially reasonable efforts to cause a registration
statement to be filed under the Securities Act, and any other applicable Laws,
within 60 days after the receipt of such request. The Company shall use all
commercially reasonable efforts to cause any such registration statement to
become effective and to maintain the effectiveness of such registration
statement until (x) the date all Registrable Shares have been sold pursuant
thereto or (y) 180 days after the effective date of such registration statement.
The term "registration statement" means a registration statement filed under the
Securities Act, or any similar disclosure document, filing, or listing
particulars utilized in connection with a Public Equity Offering. "Registrable
Shares" means shares of Stock owned by Consultant and his Affiliates on the date
of this Agreement and all other shares of Stock acquired from time to time by
the Consultant or his Affiliates and any securities issued or issuable with
respect to any such shares of Stock by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, share exchange,
merger, consolidation, reorganization, Business Combination, or otherwise. As to
any particular Registrable Shares, such securities shall cease to be Registrable
Shares when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act (or under the
applicable Laws of the relevant jurisdiction) and such securities shall have
been disposed of in accordance with the plan of distribution set forth in such
registration statement, (ii) such securities shall have been distributed in
accordance with Rule 144 of the Securities Act, or (iii) such securities shall
have been otherwise transferred, new certificates therefor not bearing a legend
restricting further transfer shall have been delivered in exchange therefor by
the Company and subsequent disposition of such shares shall not require
registration or qualification under the Securities Act or any other applicable
Law.
(b) The Consultant shall be permitted to make two requests pursuant to
the provisions of Section 5(a), provided that no request will be (i) allowed
unless the Company and the security offering shall at that time satisfy the
eligibility requirements for use of Form S-1 or any successor form and (ii)
counted against this limit unless, it has become effective and remained
effective for a period of at least 30 days; provided, however, that if, within
180 days after it has become effective, an offering of Registrable Shares
pursuant to a registration is interfered with by any stop order, injunction, or
other order or requirement of the Securities and Exchange Commission (the
"Commission") or other Governmental Body, such registration will be deemed not
to have been effected and will not count as a Demand Registration. A
registration that is undertaken by the Company in response to a valid request
made by the Consultant pursuant to this Section 5 shall be referred to herein as
a "Demand Registration." Notwithstanding the foregoing provisions of this
Section 5(b), the Company shall not be required to register any Registrable
Shares pursuant this Section 5(b) at any time (i) within 120 days of the
effective date
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of any registration statement filed as a result of the exercise of any demand
registration rights by the Consultant or any other shareholder of the Company,
or (ii) in the event that the Company has registered shares of any class of its
capital stock pursuant to any demand registration rights on more than two
occasions in the preceding 12 months.
(c) The Company shall pay all registration expenses incurred with
respect to Section 5(a) (other than customary underwriting and broker
commissions), including, without limitation, the reasonable fees and
disbursements of one (but only one) legal firm or counsel to represent Purchaser
and the Consultant in the case of a Demand Registration.
(d) The offering of Registrable Shares pursuant to a Demand
Registration shall be in the form of a "firm commitment" underwritten offering.
The Board of Directors shall select the investment banking firm or firms to
manage the underwritten offering; provided, however, that such selection shall
be subject to the consent of the Consultant, which consent shall not be
unreasonably withheld or delayed.
6. Incidental or "Piggyback" Registration Rights.
(a) If the Company or any holder of shares of Stock proposes to sell
shares of Stock in a Public Equity Offering, the Company shall give written
notice, at least 15 days prior to the filing of a registration statement related
to such Public Equity Offering (other than a registration statement relating
solely to employee benefit plans or to effect any acquisition or combination
with another Person), of such proposed Public Equity Offering to the Consultant
which notice shall offer to the Consultant and his Affiliates the opportunity to
include in such Public Equity Offering such number of Registrable Shares as the
Consultant and his Affiliates may request. Within 20 days after receipt of such
notice, the Consultant and his Affiliates shall, subject to the following
sentence, have the right by notifying the Company in writing to require the
Company to include in the registration statement relating to such Public Equity
Offering such number of Registrable Shares as the Consultant or his Affiliates
may request. Notwithstanding the foregoing, (x) if at any time the managing
underwriter or underwriters of such Public Equity Offering (the "Managing
Underwriter") shall advise the Company in writing that, in its opinion, the
total number of shares proposed to be sold in such Public Equity Offering
(including the total number of Registrable Shares that the Consultant and his
Affiliates have requested to be sold in such Public Equity Offering and the
total number of shares of Stock requested to be included by any other selling
shareholder entitled to sell shares in such Public Equity Offering) exceeds the
maximum number of shares which the Managing Underwriter believes may be sold
without materially adversely affecting the price, timing, or distribution of the
Public Equity Offering, then the Company will be required to include in such
Public Equity Offering only that number of shares which the Managing Underwriter
believes may be sold without causing such adverse effect in the following order:
(i) all the shares that the Company proposes to sell in such Public Equity
Offering, (ii) all the shares that are proposed to be sold by any shareholder of
the Company who is exercising a demand registration right, if such Public Equity
Offering is being made pursuant to such demand, and (iii) shares of the
Consultant and his Affiliates and all other shares that are proposed to be sold
by any shareholder of the Company exercising a so-called "piggyback"
registration right on a pro rata basis in an aggregate number which is equal to
the difference between the maximum number of shares that may be distributed in
such Public Equity Offering as determined by the Managing Underwriter and the
number of shares to be sold in such Public Equity Offering pursuant to clauses
(i) and (ii) above, and (iv) any other shares of Stock requested to be included
in such Public Equity Offering.
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(b) The Company will have the right to postpone or withdraw any
registration statement relating to a Public Equity Offering described under this
Section 6 prior to the effective date of such registration statement without
obligation to the Consultant or his Affiliates. Purchaser shall, and shall cause
its Affiliates to, use their respective commercially reasonable efforts to cause
all registration expenses of the Consultant and his Affiliates (other than
customary underwriting and broker commissions) to be paid by the Company in the
case of any and all registrations governed by this Section 6.
7. Suspension. In connection with any proposed registration of Registrable
Shares pursuant to Section 5 or 6, during any consecutive 365-day period, the
Company shall be entitled to postpone the filing of or to suspend availability
of a registration statement for up to two 60-consecutive-day periods if (i) at
the time the Company receives a request for a Demand Registration, the Company
or any Subsidiary is engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such registration
statement (but would not be required if such registration statement were not
filed), and the Board of Directors determines in good faith that such disclosure
would be materially detrimental to the Company and its shareholders or would
have a material adverse effect on any such confidential negotiations or other
confidential business activities, (ii) prior to receiving such request, the
Board of Directors were to have determined to effect a Public Equity Offering
for the Company's account and the Company had taken substantial steps
(including, but not limited to, selecting a managing underwriter for such
offering) and is proceeding with reasonable diligence to effect such offering,
or (iii) the Company shall furnish to Purchaser a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company and its shareholders
for such registration to be pursued at such time; provided, however, that any
suspension under clause (iii) shall not exceed 60 days.
8. Preparation and Filing.
(a) Whenever the Company seeks to effect the registration of any
Registrable Shares in accordance with the provisions of Section 5 or 6, the
Company shall:
(i) prepare and file with the Commission or other applicable
Governmental Body a registration statement with respect to such
Registrable Shares and use its commercially reasonable efforts to cause
such registration statement to promptly become and, subject to Section
7, remain effective for the period set forth in subsection (ii) below
and promptly notify the Consultant (x) when such registration statement
becomes effective, (y) when any amendment to such registration
statement becomes effective and (z) of any request by the Commission or
other applicable Governmental Body for any amendment or supplement to
such registration statement or any prospectus relating thereto or for
additional information;
(ii) prepare and file with the Commission or other applicable
Governmental Body such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act, and any other applicable
Laws, with respect to the sale or other disposition of all securities
covered by such registration statement for a period of not less than
180 days after the effective date of such registration statement (or
such shorter period to the extent necessary to permit the completion of
the sale or distribution of such securities within such period);
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(iii) furnish to the Consultant, prior to filing a
registration statement, copies of such registration statement as
proposed to be filed and thereafter, such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and financial statements, reports, and proxy
statements mailed to shareholders of the Company as the Consultant may
reasonably request in order to facilitate the disposition of the
Registrable Shares being sold;
(iv) use its commercially reasonable efforts to register or
qualify, not later than the effective date of any filed registration
statement, the Registrable Shares covered by such registration
statement under the securities or "blue sky" laws of such jurisdictions
as the Consultant reasonably requests; provided, however, that the
Company will not be required to (A) qualify to do business as a foreign
corporation or as a dealer in any jurisdiction where it is not so
qualified, (B) subject itself to taxation in any jurisdiction where it
is not subject to taxation, (C) consent to general service of process
in any jurisdiction where it is not subject to general service of
process, or (D) take any action that would subject it to service of
process in suits other than those arising out of the offer or sale of
the Registrable Shares covered by the registration statement;
(v) make available, upon reasonable notice and during business
hours, for inspection by the managing underwriter(s) for the
Registrable Shares (and one counsel representing such managing
underwriter(s)) (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents, agreements, and
properties of the Company and its Subsidiaries and Affiliates as shall
be reasonably necessary to enable them to exercise their due diligence
responsibilities ("Records") and cause the Company's officers,
directors, and employees to supply all information reasonably requested
by any such Inspectors in connection with the registration statement;
provided, however, that, unless the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, the Company shall not be required to provide any
information under this subparagraph (v) if (A) the Company believes,
after consultation with counsel for the Company, that to do so would
cause the Company to forfeit an attorney-client privilege that was
applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment
of such information contained in any filing with the Commission or
documents provided supplementally or otherwise or (2) the Company
reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing
any such information with respect to (A) or (B) such holder of
Registrable Shares requesting such information agrees to enter into a
confidentiality agreement in a form reasonably acceptable to the
Company; and, provided, further, that each holder of Registrable Shares
agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give prompt notice to the
Company and allow the Company, at its expense, to undertake appropriate
action and to prevent disclosure of the Records deemed confidential;
(vi) obtain a comfort letter from the Company's independent
public accountants dated within five business days prior to the
effective date of the registration statement (and as of such other
dates as the managing underwriter(s) for the Registrable Shares may
reasonably request) in customary form and covering such matters of the
type
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customarily covered by such comfort letters as such managing
underwriter(s) reasonably request;
(vii) opinion of counsel dated the effective date of the
registration statement (and as of such other dates as the managing
underwriter(s) for the Registrable Shares may reasonably request) in
customary form and covering such matters of the type customarily
covered by such opinions as counsel designated by such managing
underwriter(s) reasonably request;
(viii) during the period when the registration statement is
required to be effective, notify the Consultant of the happening of any
event as a result of which the prospectus included in the registration
statement contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Company will
forthwith prepare a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such Registrable Shares,
such prospectus will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(ix) in the case of an underwritten offering, enter into an
underwriting agreement containing customary terms, including such
indemnity and contribution provisions as the managing underwriter(s)
customarily require or may reasonably require;
(x) cause such Registrable Shares to be listed for trading on
the primary securities exchange or quotation system upon which the
Stock is then listed or traded; and
(xi) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
other applicable Governmental Bodies, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three months
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Consultant shall timely furnish to the Company such information
(including affidavits) regarding the distribution of such Registrable Shares as
the Company may from time to time reasonably request. The Company may exclude
from such registration the securities of the Consultant or his Affiliates if he
or they fail to furnish such information within 10 days after such request;
provided, however, that the Company's registration statement relating to such
offering is effective within 60 days after the expiration of such 10-day period.
(c) The Consultant agrees that upon the receipt of any notice from the
Company of the happening of any event of the kind described in paragraph
(a)(viii) above, it will forthwith discontinue disposition of Registrable Shares
pursuant to the registration statement covering such Registrable Shares until
the Consultant's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (a)(viii) above. If the Company gives any such notice,
the Company shall keep any such registration statement pursuant to a Demand
Registration effective for that number of additional days equal to the number of
days during the period from and including the date of the giving of such notice
pursuant to paragraph (a)(viii) above to and including the date on which copies
of such supplemented or amended prospectus are made available to the Consultant.
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(d) Indemnification. In connection with the filing of a registration
statement providing for the registration of any Registrable Shares pursuant to
Section 5 or 6, the Company shall indemnify and hold harmless the Consultant and
his Affiliates, to the extent customary and reasonable, pursuant to
indemnification and contribution provisions to be entered into by the Company at
the time of filing of such registration statement. The Consultant and his
Affiliates shall indemnify the Company and its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act or the
Exchange Act) against any and all Losses resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is made in reliance upon and in strict
conformity with information furnished in writing to the Company by Consultant
for use in such registration statement; provided, however, that the obligation
to indemnify will be several and not joint and several, among such sellers of
Registrable Shares, and the liability of each such seller of Registrable Shares
will be in proportion to, and provided further that such liability will be
limited to, the net amount received by such seller from the sale of Registrable
Shares pursuant to such registration statement; further provided, that such
seller of Registrable Shares shall not be liable in any such case to the extent
that prior to the filing of any such registration statement or prospectus or
amendment thereof or supplement thereto, such seller has furnished in writing to
the Company information expressly for use in such registration statement or
prospectus or amendment thereof or supplement thereto which corrected or made
not misleading information previously furnished to the Company.
9. Miscellaneous.
(a) Entire Agreement. This Agreement contains, and is intended as, a
complete statement of all of the terms and the arrangements between the parties
hereto with respect to the matters provided for herein, and supersedes any
previous agreements and understandings between the Company and the Consultant,
including the Existing Agreement.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE IN
AND TO BE WHOLLY PERFORMED IN SUCH STATE.
(c) Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or by
overnight mail, or four days after being mailed by registered mail, return
receipt requested, to a party at the following address:
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If to the Consultant, to:
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to the Company, to:
Kevco, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
(d) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, each of which shall remain in full force and
effect.
(e) Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either party without the prior written consent of
the other party.
(f) Amendments. This Agreement may be amended, supplemented or
modified, and any provision hereof may be waived, only pursuant to a written
instrument making specific reference to this Agreement signed by each of the
parties hereto.
(g) Independent Contractor. The Consultant shall be an independent
contractor and the Company shall not withhold any income or other taxes from the
payments hereunder.
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IN WITNESS WHEREOF, the Company and the Consultant have executed this
Agreement as of the day and year first above written.
KEVCO, INC.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Executive Vice President and COO
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/s/ XXXXX X. XXXXXX
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XXXXXX X. XXXXXX
