EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of November 17, 1995, by and
between XXXX X. XXXXX (the "Employee"), whose address is 0000 Xxxxxxxxxxx,
Xxxxxxxxx, 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 Financial 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 Financial 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 the earlier of (a) May 31, 1996, or (b) the date
a new Chief Financial Officer for the Company is appointed and begins service,
the Employee will continue to serve on a full time basis as the Chief Financial
Officer for the Company, in a manner consistent with the Employee's services as
such prior to the date of this Agreement. Thereafter, until this Agreement is
terminated pursuant to the terms hereof, the Employee will provide such
consulting services as the Company may from time to time reasonably request,
which services shall include assisting the Company in connection with a smooth
transition in employing a new Chief Financial Officer. 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 up to May 31, 1996, the Company shall pay the Employee a salary at the
annual rate of $250,000 (the "Salary"), payable in equal bi-weekly installments
during that period. If this period ends on a day other than the last day of a
pay period, the Company will pay a pro rata portion of the Salary for that
abbreviated pay period. Consulting services after May 31, 1996 will be
compensated at the rate of $120 per hour (pro rated for fractions of hours
worked).
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 during the period specified for
full time services in Section 1 devote his full business time,
attention, energies and loyalty to the Company.
(b) During the period specified for full time services in Section
1 of this Agreement, the Employee will not engage in any activities in
conflict with the best interests of the Company or of its parent or
subsidiaries. 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 financial officer, or officers serving substantially in that
capacity, to be appointed by the Board of Directors; (ii) be available
for consultation with such financial 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; all in a
manner consistent with Section 1, above.
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 all notices to either party, with a
required copy to each of Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation,
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxx X. Xxxxx,
Esq. and Miller, Canfield, Paddock and Stone, PLC, 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx xxxxx, Xxxxxxxx 00000-0000, Attn: Xxxx X. Xxxxxxx, Esq.
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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;
(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) During the period specified for full time
services in Section 1 of this Agreement, 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
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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 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 between Holdings 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
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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 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/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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CAMBRIDGE INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
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