Exhibit 10.91
EMPLOYMENT
AGREEMENT
This Employment Agreement
(this "Agreement"), dated April 1, 2004, is entered into between
Building Materials Holding Corporation (the "Company"), and the
undersigned employee, William M. Smartt ("Employee").
RECITALS
A. Employee
has been elected to the position of Senior Vice President and Chief
Financial Officer of the Company.
B. The
Company desires to obtain the benefit of the services of
Employee.
C. Employee
desires to provide his service to the Company as provided for in
this Agreement.
In consideration of the
compensation paid or to be paid to the Employee and for other good
and valuable consideration, the Company and the Employee agree as
follows:
1.
Effective Date. This Agreement shall become
effective on April 1, 2004 (the "Effective Date").
2.
Terms of Employment. Subject to Section 7
hereof, the Company hereby employs the Employee under the terms of
this Agreement, and the Employee hereby accepts continued
employment with the Company under the terms of this Agreement, for
a period commencing on the Effective Date and ending on April 1,
2006 (the "Term"), which may be extended for a one year extension
upon mutual agreement by Employee and Company. The one year
extension, if exercised, must be mutually agreed upon by the
parties prior to April 1, 2006.
3.
Duties . The Employee shall serve as the Senior
Vice President and Chief Financial Officer of the
Company.
4.
Compensation and Benefits .
(a)
Base Salary. During the Term, in exchange for
the services to be rendered by the Employee and the covenants of
the Employee in this Agreement, the Company shall compensate the
Employee with a minimum base salary at the rate of $275,000 per
year, subject to review and evaluation in accordance with the
Company's past practice and payable in accordance with the
Company's compensation practices in effect from time to time during
the Term. The Employee will continue to be eligible to participate
in the Company's deferred compensation program and will have an
annual opportunity to elect to defer his salary in accordance with
the terms of such program. Such right to participate in the
deferral of salary will end on the expiration of the
Term.
(b)
Bonus . During the Term, the Employee will
participate in the Company's regular officers' bonus plan and the
Equity Bonus set forth in Section 5. Payment of the regular
officers' bonus plan will be pro-rated at the end of the Term for
2006.
(c)
Employee Benefits. During the Term and the
extension as provided for herein, Employee shall be entitled to
participate in the Company's benefit plans generally available to
its officers, employees and their dependents from time to time in
accordance with the terms thereof. Thereafter, Employee may
participate in the Company's health care plan both individually and
with dependant spouse with payment of the premium equal to one-half
of the respective COBRA benefit cost (single, two party or family).
However, after retirement, when the dependent reaches age 65, the
Company health care plan will be secondary to
Medicare. The Company will either recognize prior
service in the industry so that Employee is eligible to participate
in the Company's Retirement Health Care Plan if tax regulations
permit, or reimburse Employee's participation in another health
care plan up to the amount that the Company would have otherwise
contributed for Employee's participation in the BMHC Retirement
Health Care Plan. Employee shall be eligible to participate in the
Company's Long Term Incentive Plan to the same extent as similar
employees of the Company through 2006 and the extension of the
Term, and the parties acknowledge that such plan currently provides
payouts based on the Company's operating performance on three year
cycles. Partially completed cycles will be paid out on a pro-rated
basis at the end of the term of each cycle. Employee will also be
entitled to the Company's PTO Plan (minimum of 4 weeks per year),
to be taken at a time acceptable to the Company with regard to its
operations.
(d)
Expenses. The Company shall promptly reimburse
Employee for any reasonable business expense incurred by Employee
in connection with the business of the Company if (1) it is of a
nature qualifying it as a proper deduction on the federal and state
income tax return of the Company for the relevant period; (2)
Employee furnishes to the Company adequate records and other
documentary evidence required by federal and state statutes and
regulations issued by the appropriate taxing authorities for the
substantiation of each such expenditure as an income tax deduction;
and (3) such reimbursement is in accord with the internal policies
and procedures of the Company.
5.
Equity Bonus. To secure the benefits of
Employee's services during the Term, Company agrees to provide to
Employee an Equity Bonus which grants to Employee 30,000 units
valued at a minimum of $15 per unit. At the end of the Term on
April 1, 2006, Employee will be paid a cash bonus equal to the
greater of (1) 30,000 multiplied times the average price of the
Company's stock on the 5 business days immediately preceding the
end of the Term, or (2) $450,000 which is equal to $15 per unit.
The Equity Bonus shall be paid within 30 days following then end of
the Term. Employee must be employed by the Company at the end of
the Term in order to receive payment of the Equity Bonus, and the
Equity Bonus shall be forfeited in its entirety if Employee
voluntarily or involuntarily terminates employment prior to the
completion of the Term. If employment is terminated as a result of
death or disability of Employee, the Equity Bonus will be
calculated as described above as of the date of death or disability
and a prorated amount paid (bonus amount multiplied by fraction of
portion of Term completed divided by 2 years) within 30 days of
such date.
To encourage the Employee to
continue with the Company through the one-year extension, Company
agrees to provide to Employee an Equity Bonus, which grants to
Employee 10,000 units at the beginning of the one-year extension
thereafter valued at $15 per unit. At the end of each one-year
extension, Employee will be paid a cash bonus equal to the greater
of (1) 10,000 multiplied times the average price of the Company's
stock on the 5 business days immediately preceding the end of the
one-year extension of the Term, or (2) $150,000, which is equal to
$15 per unit. If Employee leaves the Company voluntarily or is
terminated for cause (as described within Paragraph 8(a)) before
the end of the one year extension of the Term, Employee forfeits
the right to any equity bonus under this paragraph. In the event
that Employee is terminated without cause (as described within
Paragraph 8(b)), the equity bonus shall be redeemed on the date of
termination and calculated by the price of the Company's stock on
the date of termination.
Notwithstanding the
foregoing, if there is a Change of Control of the Company, the
Equity Bonus will immediately vest in full upon such Change of
Control; valued in accordance with Section 5 with the market value
being the closing stock price on the 5 business days immediately
preceding the Change of Control, and paid within 30 days of the
Change of Control. A "Change of Control" shall be deemed to have
occurred if: (i) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the continuing
or surviving corporation or pursuant to which shares of the
Company's Common Stock would be converted into cash, securities or
other property, other than a merger of the Company in which the
holders of the Company's Common Stock immediately prior to the
merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the transaction or (y) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all the
assets of the Company; or (ii) the stockholders of the Company
approve a plan or proposal for the liquidation or dissolution of
the Company; or (iii) any 'person' (as defined in Section 13(d) or
14(d) of the Exchange Act, shall become the 'beneficial owner' (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended directly or indirectly of 50% or more of the Company's
outstanding Common Stock.
|
|
|
Confidential
Information.
|
6.1
Definition of Confidential Information. Company
is in the business of providing building material services and has
built up an established and extensive trade and reputation in the
industry. Company has developed and continues to develop
commercially valuable technical and non-technical information
("Confident
