EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of November 17, 1995, by
and between XXXXXXX X. XXXXXXX (the "Employee"), whose address is 22920
Nottingham, Xxxxxxx Xxxxx, Xxxxxxxx 00000, and CAMBRIDGE INDUSTRIES, INC., a
Delaware corporation (the "Company"), whose address is 000 Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. The Employee has served as Chief Operating Officer of the
Company.
B. The Company wishes to have the Employee assume a more advisory
role for the Company and its parent, Cambridge Industries
Holdings, Inc. ("Holdings"), and the Employee desires to be
employed by the Company in such capacity.
C. The Company also desires to provide for a smooth transition to
a new Chief Operating Officer as the Employee assumes such an
advisory role.
D. The Company and the Employee desire to enter into this
Agreement upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual
understandings of the parties hereto, and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, it is hereby agreed as
follows:
1. Employment. Until this Agreement is terminated pursuant to the
terms hereof, the Company will employ the Employee to perform such services for
and on behalf of the Company as the Board of Directors or the President of the
Company may from time to time direct, which services shall include assisting the
Company in connection with a smooth transition in employing a new Chief
Operating Officer, and Employee hereby accepts such employment, upon the terms
and conditions set forth in this Agreement.
2. Term. The term of this Agreement shall commence as of the date
of this Agreement and shall continue for a period of two (2) years, unless this
Agreement is otherwise terminated pursuant to Paragraph 8 hereof.
3. Compensation. For all services to be rendered by him under
this Agreement, the Company shall pay the Employee an annual salary of $250,000
(the "Salary"), payable in equal bi-weekly installments during the employment of
Employee hereunder. If this Agreement is terminated on a day other than the last
day of a pay period, the Company shall be obligated to pay a pro rata portion of
the Salary for that abbreviated pay period.
4. Additional Benefits. In addition to the compensation set forth
in Paragraph 3, the Employee shall have the right to receive or participate in
those reasonable fringe benefits which he now receives from the Company
including, without limitation, group term life insurance, health insurance, and
participation in the Company retirement plan, subject to the provisions of any
such programs or plans, which programs or plans may be modified or eliminated at
the discretion of the Board of Directors of the Company at any time.
5. Reimbursement of Expenses. The Company shall reimburse the
Employee for all necessary and reasonable business expenses incurred by him in
the performance of his duties under this Agreement in accordance with practices
established from time to time by the Company, upon presentation by the Employee
of vouchers, receipts or other evidences of such expenditures, satisfactory to
the Company.
6. Services.
(a) The Employee shall perform his duties under this
Agreement faithfully, diligently and to the best of his ability. He
shall serve subject to the policies and instruction of the Board of
Directors or President of the Company, and shall devote his full
business time, attention, energies and loyalty to the Company.
(b) During the term of this Agreement, the Employee will not
engage in any activities in conflict with the best interests of the
Company or of any Affiliate. As used in this Agreement, the term
"Affiliate" shall mean (a) at any time each corporation or other
business entity directly or indirectly controlling, controlled by, or
under common control with the Company, including all corporations and
other business entities now or hereafter owned or acquired by the
controlling shareholders of the Company, and (b) at any time each
corporation or other business entity in which at least fifty (50%)
percent of the voting or non-voting stock or other interest therein is
owned beneficially and/or of record directly or indirectly by the
Company or its controlling shareholders.
(c) The Employee shall (i) act in an advisory capacity to
facilitate the training and assumption of responsibilities of a new
chief operating officer, or officers serving substantially in that
capacity, to be appointed by the Board of Directors; (ii) be available
for consultation with such operating officers, and (iii) have such
other responsibilities and duties as may be delegated to him from time
to time by the Company's Board of Directors or President.
7. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to be duly given when personally delivered,
telecopied, or deposited in the United States mail, certified or registered,
return receipt requested, postage prepaid, addressed to the parties at their
respective addresses set forth on the first page of this Agreement (or at such
other address as shall be given in writing to the parties hereto or their
successors or assigns) and, in the case of notices to the Company, with a
required copy to Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation, Xxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxxx,
Esq.
8. Termination.
(a) The Employee's employment under this Agreement may be
terminated:
(i) by the Employee on sixty (60) days' written
notice;
(ii) by the Company at any time for "cause" (as
defined below), without prior notice;
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(iii) by the Company if the Employee is unable to
perform his duties under this Agreement by reason of illness
or physical or mental incapacity for an aggregate period of
sixty (60) days within any period of 365 consecutive days,
upon thirty (30) days prior written notice; or
(iv) upon the Employee's death.
(b) For purposes hereof, for "cause" shall mean the breach
of any material provision of this Agreement by the Employee, and any
action of the Employee (or the Employee's failure to act), which, in
the reasonable determination of the Company's Board of Directors,
involves malfeasance, nonfeasance, fraud or moral turpitude, or which,
if generally known, would or might have a material adverse effect on
the Company and/or its reputation.
9. Restrictive Covenants.
(a) The Employee acknowledges that the services which have
been and will be performed by him are unique, and, by reason of such
employment, the Employee has acquired and will continue to acquire
confidential information and trade secrets concerning the operations of
the Company and of one or more Affiliates concerning their respective
methods of doing business and future plans. Accordingly, the Employee
agrees that:
(i) The Employee will not at any time, for so
long as any Confidential Information (as defined below) shall
remain confidential or otherwise remain wholly or partially
protectable, either during the course of the Employee's
employment or thereafter, use or disclose, directly or
indirectly to any person outside of the Company any
Confidential Information;
(ii) Promptly upon the termination of the
Employee's employment for any reason, the Employee (or in the
event of the Employee's death, his personal representative)
shall return to the Company any and all copies (whether
prepared or copied by, or at the direction of, the Company or
the Employee) of all records, drawings, materials, memoranda
and other data constituting or pertaining to Confidential
Information; and
(iii) For a period commencing on the date of this
Agreement and ending upon the expiration of five years from
the termination for any reason of the Employee's employment
hereunder, the Employee shall not directly or indirectly
divert, or by aid to others, do anything which would tend to
divert, from the Company any trade or business with any
customer with whom the Employee had any contact or association
during the term of the Employee's employment with the Company
or with any party whose identity or potential as a customer
was confidential or learned by the Employee during his
employment by the Company;
As used in this Agreement, the term "Confidential Information" shall
mean all business information of any nature and in any form which at
the time or times concerned is not generally known to those persons
engaged in business similar to that conducted or contemplated by the
Company (other than by the act or acts of an employee not authorized by
the Company to
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disclose such information) and which relates to any one or more of the
aspects of the present or past business of the Company or any Affiliate
or any of their respective predecessors, including, without limitation,
patents and patent applications, inventions and improvements (whether
or not patentable), development projects, policies, processes,
formulas, techniques, know-how, and other facts relating to sales,
advertising, promotions, financial matters, customers, customer lists,
customer purchases or requirements, and other trade secrets.
(b) The Employee understands that the Company would not have
an adequate remedy at law for the breach or threatened breach by the
Employee of any one or more of the covenants set forth above, and
agrees that if there is any such breach or threatened breach the
Company may, in addition to the other legal or equitable remedies which
may be available to it, obtain an injunction or restraining order to
enjoin or restrain the Employee from the breach or threatened breach of
such covenants.
(c) The Employee acknowledges and agrees that he is bound by
the Covenant Not to Compete set forth Section 6.4 of that certain Stock
Purchase Agreement among R & C Xxxxxxx, L.L.C., Holdings, Xxxxxxxx
Investment Group L.L.C., and J & M Craft L.L.C. (the "Purchase
Agreement"), exactly as if such Covenant Not to Compete were contained
in this Agreement, and that breach of such Covenant shall be deemed to
be a breach of a material provision of this Agreement.
(d) The Employee acknowledges and agrees that the covenants
set forth above, including without limitation, those set forth in
Section 6.4 of the Purchase Agreement, are reasonable and valid in
geographical and temporal scope and in all other respects. If the
aforesaid covenants and warranties not to compete set forth in Section
6.4 of the Purchase Agreement are found by any court having
jurisdiction in the premises to be too broad in extent, either as to
the time period or geographical area designated, or otherwise, then and
in such case, the covenants and warranties not to compete shall
nevertheless remain effective, but shall be considered amended (as to
time or area or otherwise, as the case may be) to a point considered by
said court to be reasonable, and as so amended shall be fully
enforceable. The Employee and the Company intend to and hereby confer
jurisdiction to enforce the covenants upon the courts of any
jurisdiction within the geographical scope of such covenants. If the
courts of any one or more of such jurisdictions hold the covenants, or
any part of the covenants, unenforceable by reason of the breadth of
such scope or otherwise, it is the intention of the Employee and the
Company that such determination not bar or in any way affect the right
of the Company to the relief provided above in the courts of any other
jurisdiction within the geographical scope of such covenants as to
breaches of such covenants in such other respective jurisdictions. For
this purpose, such covenants as they relate to each jurisdiction shall
be severable into diverse and independent covenants. Notwithstanding
anything in the foregoing to the contrary, the parties agree that the
jurisdiction to enforce the covenants conferred on courts outside the
State of Michigan ("non-Michigan courts") shall be restricted to
jurisdiction over actions in respect of breaches of covenants relating
to the jurisdiction in which such non-Michigan court is located.
10. Miscellaneous.
(a) The terms and conditions of this Agreement shall be
binding upon and inure to
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the benefit of the parties hereto and their respective heirs,
successors and personal representatives.
(b) This Agreement has been executed in, and shall be
construed and enforced in accordance with, the laws of the State of
Michigan.
(c) This Agreement may not be modified except by written
instrument executed by each of the parties hereto.
(d) This Agreement sets forth the entire understanding and
agreement of the parties hereto with respect to its subject matter and
supersedes all prior understandings and agreements, whether written or
oral, in respect thereof, including, without limitation, that certain
employment agreement dated August 1, 1994 by and between the Employee
and the Company (the "Prior Agreement"), and all of the Company's
obligations under such prior agreement including the obligation to pay
the Employee any Performance or Cash Flow Bonus (as defined in the
Prior Agreement) for the Company's 1995 fiscal year, shall be
terminated as of the date of this Agreement.
(e) This Agreement is personal to Employee and may not be
assigned by him in any manner whatsoever.
(f) The headings and captions used herein are for
convenience of reference only and shall not be considered in construing
this Agreement.
(g) If any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid, illegal or
unenforceable, such provision shall be modified so as to be enforceable
to the fullest extent permitted by applicable law, and the validity,
legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby.
(h) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
CAMBRIDGE INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
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