EXHIBIT 10.14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of the 7th day of
November, 2000, by and between Beazer Homes USA, Inc., a Delaware corporation
(the "Company") and C. Lowell Ball (the "Executive"), an individual resident in
the State of Georgia.
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive, and the Executive
wishes to accept employment with the Company, on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the Company and Executive hereby
agree as follows:
1. Employment.
1.1 EMPLOYMENT AND DUTIES. The Company hereby agrees to
employ Executive for the Term (as hereinafter defined) as its Senior Vice
President and General Counsel, subject to the direction of the Chief
Executive Officer of the Company (the "CEO") and, in connection therewith, to
perform such duties as he shall reasonably be directed by the CEO to perform.
In performing such duties hereunder, Executive shall comply with the policies
and procedures as adopted from time to time by the Board, shall give the
Company the benefit of his special knowledge, skills, contacts and business
experience, shall perform his duties and carry out his responsibilities
hereunder in a diligent manner, shall be just and faithful in the performance
of his duties and in carrying out his responsibilities and shall devote all
of his business time, attention, ability and energy exclusively to the
performance of his duties and responsibilities hereunder; PROVIDED, HOWEVER,
that Executive may continue to serve in an Of Counsel position with the law
firm described in the letter attached as Exhibit A hereto and, with the
approval of the Board or the CEO, from time to time, serve, or continue to
serve, on the board of directors of, and hold any other offices or positions
in, companies or organizations, which, in the Board's or CEO's judgment, will
not present any conflict of interest with the Company or any of its
affiliates or divisions, or adversely affect the performance of Executive's
duties pursuant to this Agreement. Executive hereby accepts such employment
and agrees to render such services.
1.2 LOCATION. The principal location for performance of
Executive's services hereunder shall be at the offices of Beazer Homes USA,
Inc. which are currently located in Atlanta, Georgia, subject to reasonable
travel requirements during the course of such performance. In the event
circumstances require a change in such location to another city, Executive
shall have not less than three (3) months advance notice of the effective
date of the relocation.
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2. EMPLOYMENT TERM.
2.1 TERM. The term of Executive's employment hereunder (the
"Term") shall commence effective as of the date hereof and shall end on
September 30, 2002 (the "Initial Term"), unless terminated or extended as
provided herein; PROVIDED, HOWEVER; that the Term shall be extended and this
Agreement shall be automatically renewed for successive one-year periods
unless: (i) this Agreement is terminated as otherwise provided herein; or
(ii) Executive or the Company provides written notice to the other of such
party's desire not to extend this Agreement at least sixty (60) days prior to
the expiration date of the Term of this Agreement pursuant to this Section
2.1. Upon receipt of notice of non-renewal from the Company pursuant to this
Section 2.1, Executive shall become entitled to the payments required by
Section 4.5 upon expiration of the then Term.
3. COMPENSATION AND BENEFITS.
3.1 CASH COMPENSATION.
(1) BASE SALARY. In consideration of Executive's
services hereunder the Company shall pay Executive an aggregate base salary
at an annualized rate, effective as of the date hereof (until adjusted as
provided below), of $175,000, payable, in each case, in such nearly equal
installments as may be customary for executive officers employed by the
Company (but not less frequently than monthly) or as may otherwise be agreed
to between the Company and Executive, in arrears (the "Base Salary"). The
Base Salary for each year shall be prorated according to the number of days
in such year during which this Agreement is in effect. Commencing October 1,
2001 and on each October 1 thereafter, the Base Salary may be adjusted
(upward or downward) by the Compensation Committee of the Board, taking into
consideration Executive's performance, general cost of living increases, the
salaries provided by comparable businesses, the financial condition of the
Company and other similar matters.
(2) BONUSES; STOCK INCENTIVE PLANS. Executive will
be eligible to participate in the Company's bonus and stock incentive plans
(including, without limitation, the Company's 1999 Stock Incentive Plan) at
the discretion of the Compensation Committee and the Stock Option and
Incentive Committee of the Board. The amount and terms of, and the targets,
conditions and restrictions applicable to each bonus or other incentive award
shall be subject to the provisions of any such plan and of the applicable
award letter duly executed and delivered by the Company.
3.2 PARTICIPATION IN BENEFIT PLANS. The payments provided
in Section 3 hereof are in addition to any benefits to which Executive may
be, or may become, entitled under any benefit plan or program of the Company
for which key executives are or shall become eligible, including, without
limitation, pension, if any, 401(k), life and disability insurance benefits
and/or plans. Further, Executive shall be eligible to receive during the
period of his employment under this Agreement, all benefits and emoluments
for which key executives are eligible under every such plan or program to the
extent permissible under the
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general terms and provisions of such plans or programs and in accordance with
the provisions thereof.
3.3 VACATION. Executive shall be entitled to twenty (20)
working days of compensated vacation in each fiscal year, to be taken at
times which do not unreasonably interfere with the performance of Executive's
duties hereunder. Any unused vacation time from any fiscal year shall be
subject to accumulation or forfeiture in accordance with Company policy as in
effect from time to time.
3.4 EXPENSES. The Company will pay or reimburse Executive
for all reasonable and necessary out-of-pocket expenses incurred by him in
the performance of his duties under this Agreement. Executive shall keep
detailed and accurate records of expenses incurred in connection with the
performance of his duties hereunder and reimbursement therefor shall be in
accordance with policies and procedures to be established from time to time
by the Board.
4. TERMINATION.
4.1 GENERAL. In addition to the right of either party to
terminate this Agreement pursuant to Section 2 hereof, the Company shall have
right to terminate the employment of Executive as set forth in this Section 4.
4.2 TERMINATION FOR CAUSE. In addition to any other
remedies which the Company may have at law or in equity, the CEO may
immediately terminate Executive's employment under this Agreement by giving
Executive written notice of such termination upon or at any time following
the occurrence of any of the following events, and each such termination
shall constitute a termination for "cause":
(1) Any act or failure to act (or series or
combination thereof) by Executive done with
the intent to harm in any material respect
the interests of the Company or any
affiliate thereof;
(2) The commission by Executive of a felony;
(3) The perpetration by Executive of a dishonest
act or common law fraud against the Company
or any affiliate thereof;
(4) A grossly negligent act or failure to act
(or series or combination thereof) by
Executive detrimental in any material
respect to the interests of the Company or
any affiliate thereof;
(5) The material breach by Executive of his
agreements or obligations under this
Agreement; or
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(6) The continued refusal to follow the
directives of the CEO which are consistent
with Executive's duties and responsibilities
identified in Section 1.1 hereof.
Upon the early termination of Executive's employment under this Agreement by
the Company for "cause" the Company shall pay to Executive (i) an amount
equal to Executive's Base Salary accrued through the effective date of
termination at the rate in effect at the time notice of termination is given,
payable at the time such payment is due; and (ii) at the time such payments
are due, all other amounts to which Executive is entitled hereunder
(including expense reimbursement amounts accrued to the effective date of
termination or amounts under any benefit plan of the Company, but expressly
excluding any bonus or other incentive payment (or portion thereof) in
respect of the fiscal year in which this Agreement is so terminated or any
fiscal year of the Company thereafter), and, upon payment of such amounts,
the Company shall have no further obligation to Executive under this
Agreement.
4.3 DISABILITY OF EXECUTIVE. Subject to applicable law, if
Executive shall become ill or be injured or otherwise become disabled or
incapacitated such that, in the opinion of the Board, he cannot fully carry
out and perform his duties hereunder, and such disability or incapacity shall
continue for a period of forty-five (45) consecutive days, the Board may, at
any time thereafter, by giving Executive prior written notice, fully and
finally terminate his employment under this Agreement. Termination under this
Section 4.3 shall be effective as of the date provided in such notice, which
date shall not be fewer than ninety (90) days after such notice is delivered
to Executive or his representative, and the Company shall pay Executive his
Base Salary accrued to the effective date of termination at the rate in
effect at the time of such notice, payable at the time such payment is due.
Upon payment of (i) such accrued Base Salary; and (ii) all other amounts to
which Executive may be entitled hereunder, including, without limitation, (A)
subject to the terms of any such bonus or incentive award, any bonus or
incentive payment to which the Executive would have been entitled pursuant to
Section 3.1(b) hereof (prorated for the period up to the effective date of
termination), provided the targets and other conditions applicable thereto
are met, (B) any expense reimbursement amounts accrued to the effective date
of termination, and (C) any amounts under any other benefit plan of the
Company, in any case at the time such payments would otherwise have become
due and payable in the absence of such termination, and the Company shall
have no further obligation to Executive under this Agreement.
4.4 DEATH OF EXECUTIVE. This Agreement shall automatically
terminate upon the death of Executive. Upon the early termination of this
Agreement as a result of death, the Company shall pay Executive's estate: (i)
an amount equal to Executive's Base Salary accrued through the effective date
of termination at the rate in effect at the effective date of termination,
payable at the time such payment is due; and (ii) all other amounts to which
Executive is entitled hereunder, including, without limitation, (A) subject
to the terms of any such bonus or incentive award, any bonus or incentive
payment to which the Executive would have been entitled pursuant to Section
3.1(b) hereof (prorated for the period up to the effective date of
termination), provided the targets and other conditions applicable
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thereto are met, (B) any expense reimbursement amounts accrued to the
effective date of termination, and (C) any amounts under any other benefit
plan of the Company, in each case at the time such payments would otherwise
have become due any payable in the absence of such termination, and the
Company shall have no further obligations to Executive under this Agreement.
4.5 TERMINATION NOT OTHERWISE PROVIDED FOR. This Section
4.5 governs all terminations of Executive's employment hereunder which are
not otherwise provided for in this Section 4 and expressly contemplates a
termination of Executive without "cause", a termination of Executive by the
Company by reason of retirement or termination by the Company by written
notice of non-renewal of the Term pursuant to Section 2.1 hereof. Except as
otherwise provided in Section 2.1, 4.2, 4.3 or 4.4, Executive's employment
under this Agreement may be terminated by giving Executive written notice
thereof, effective as of the date provided in such notice. Upon such
termination of the employment of Executive, the Company shall pay to
Executive: (i) an amount equal to Executive's Base Salary payable for the
remainder of the Term at the time such payments would otherwise have become
due and payable in the absence of such termination at the rate in effect on
the date of termination or, if terminated by the Company pursuant to Section
2.1, at such rate for 180 days following the end of the Term; and (ii) all
other amounts to which Executive is entitled, including (A) subject to the
prior approval of the Compensation Committee of the Board of Directors of the
Company (which approval shall not be unreasonably withheld) and subject to
the terms of any such bonus or incentive award, any bonus or incentive
payment to which the Executive would have been entitled pursuant to Section
3.1(2) hereof (prorated for the period up to the effective date of
termination), provided the targets and other conditions applicable thereto
are met, (B) any expense reimbursement amounts accrued to the effective date
of termination, and (C) any amounts under any other benefit plan of the
Company, in each case at the time such payments would otherwise have become
due and payable in the absence of such termination, and the Company shall
have no further obligations to Executive under this Agreement.
4.6 TERMINATION BY EXECUTIVE. Executive may, with or
without cause, terminate his employment under this Agreement by giving the
Company at least sixty (60) days' prior written notice of such termination
(which may be waived by the Company), and after the effective date of such
termination, the Company shall have no further obligation to Executive under
this Agreement, including, without limitation, no obligation to pay any
pro-rata amount of any bonus or incentive payment in respect of the period up
to the date of termination; provided that if Executive terminates his
employment after the end of a fiscal year but before payment of any bonus for
such fiscal year, such bonus will be deemed earned as of the last day of such
fiscal year and shall be paid in full following termination, within a
reasonable period of time after the amount of such bonus has been finally
determined.
5. EMPLOYMENT COVENANTS.
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5.1 COVENANT NOT TO SOLICIT OR EMPLOY. Executive recognizes
and acknowledges that the Company is placing its confidence and trust in
Executive. Executive, therefore, covenants and agrees Executive shall not,
either directly or indirectly, solicit for employment or employ any person
employed by the Company at any time during the twelve (12)-month period
immediately preceding such solicitation or employment, without the prior
written consent of the Board.
This covenant shall apply for: (a) unless and until the Executive's
employment under this Agreement is terminated prior to the scheduled end of
the Term, the period beginning on November 7, 2000 and ending on the date
which is 180 days after the scheduled end of the Term (as such Term may be
extended from time to time pursuant to Section 2.1 hereof); (b) if the
Executive's employment under this Agreement is terminated pursuant to Section
4.2, Section 4.3 or Section 4.6 hereof or for any other reason (other than as
set forth in clause (c) below), the period beginning on November 7, 2000 and
ending on the date which is 180 days after scheduled end of the Term (as such
Term may be extended from time to time pursuant to Section 2.1 hereof); (c)
if the Executive's employment under this Agreement is terminated without
"cause" pursuant to Section 4.5 hereof, the period beginning on November 7,
2000 and ending on the date of the scheduled end of the Term (as such Term
may be extended from time to time pursuant to Section 2.1 hereof); (d) if on
or prior to the date of the scheduled end of the Term (as such Term may be
extended from time to time pursuant to Section 2.1 hereof), the Executive
rejects an offer by the Company to extend this Agreement pursuant to Section
2.1 hereof on reasonable terms, the period beginning on November 7, 2000 and
ending on the date which is 180 days after the scheduled end of the Term (as
such Term may be extended from time to time pursuant to Section 2.1 hereof);
and (e) if the Company elects not to extend this Agreement pursuant to
Section 2.1 hereof, the period beginning on November 7, 2000 and ending on
the date which is 180 days after the scheduled end of the Term (as such Term
may be extended from time to time pursuant to Section 2.1 hereof).
5.2 TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive
recognizes and acknowledges that certain information including, without
limitation, information pertaining to the financial condition of the Company,
its systems, methods of doing business, agreements with customers or
suppliers or other aspects of the Business of the Company or which is
sufficiently secret to derive economic value from not being disclosed
("Confidential Information") may be made available or otherwise come into the
possession of Executive by reason of his employment with the Company.
Accordingly, Executive agrees that he will not (either during or after the
term of his employment with the Company) disclose any Confidential
Information to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever or make use to his personal advantage or to
the advantage of any third party, of any Confidential Information, without
the prior written consent of the Board. Executive shall, upon termination of
employment, return to the Company all documents, diskettes, electronic or
digital storage devices or any other items which reflect Confidential
Information (including copies thereof). Notwithstanding anything heretofore
stated in this Section 5.2, Executive's obligations under this Section 5.2
shall not, after
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termination of Executive's employment with the Company, apply to information
which has become generally available to the public without any action or
omission of Executive (except that any Confidential Information which is
disclosed to any third party by an employee or representative of the Company
who is not authorized to make such disclosure shall be deemed to remain
confidential and protectable by Executive under this Section 5.2).
5.3 RECORDS. All files, records, memoranda, documents,
diskettes, electronic or digital storage devices or any other items regarding
former, existing or prospective customers of the Company or relating in any
manner whatsoever to Confidential Information or the Business of the Company
(collectively, "Records"), whether prepared by Executive or otherwise coming
into his possession, shall be the exclusive property of the Company. All
Records shall be immediately placed in the physical possession of the Company
upon the termination of Executive's employment with the Company, or at any
other time specified by the Board. The retention and use by Executive of
duplicates in any form of Records is prohibited after the Executive's
employment with the Company. However, Executive may retain copies of general
form documents created or generated by him or at his direction during his
employment hereunder so long as they do not contain or reflect any
Confidential Information or proprietary data, systems, processes or other
information of the Company; provided that upon request, the Company may
review and approve any copies of general form documents Executive intends to
retain.
5.4 BREACH. Executive hereby recognizes and acknowledges
that irreparable injury or damage shall result to the Company in the event of
a breach or threatened breach by Executive of any of the terms or provisions
of this Section 5, and Executive therefore agrees that the Company shall be
entitled to an injunction restraining Executive from engaging in any activity
constituting such breach or threatened breach. Nothing contained herein shall
be construed as prohibiting the Company from pursuing any other remedies
available to the Company at law or in equity for such breach or threatened
breach, including but not limited to, the recovery of damages from Executive
and, if Executive is an employee of the Company, the termination of his
employment with the Company in accordance with the terms and provisions of
this Agreement.
5.5 SURVIVAL. Notwithstanding the termination of the
employment of Executive or the termination of this Agreement, the provisions
of this Section 5 shall survive and be binding upon Executive unless a
written agreement which specifically refers to the termination of the
obligations and covenants of this Section 5 is executed by the Company.
6. SUCCESSORS; ASSIGNS.
6.1 This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
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6.2 The Company shall have the right to assign this
Agreement and to delegate all of its rights, duties and obligations hereunder
to any entity which controls the Company, which the Company controls or which
may be the result of the merger, consolidation, acquisition or reorganization
of the Company and another entity. This Agreement shall inure to the benefit
of and be binding upon the Company and its successors and assigns.
7. MISCELLANEOUS.
7.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
7.2 Any notices to be given hereunder by either party to
the other may be effected by personal delivery in writing, via facsimile
transmission or by mail, registered or certified, postage prepaid with return
receipt requested. Notices shall be addressed to the parties as follows:
If to the Company: Beazer Homes USA, Inc.
5775 Peachtree Dunwoody Road
Suite B-200
Atlanta, Georgia 30342
Attn: President
Facsimile: 404-250-3428
If to the Executive: C. Lowell Ball
878 Birds Mill
Marietta, Georgia 30067
Any party may change his or its address by written notice in accordance with
this Section 7.2. Notices delivered personally shall be deemed communicated
as of actual receipt; notices sent via facsimile transmission shall be deemed
communicated as of receipt by the sender of written confirmation of
transmission thereof; mailed notices shall be deemed communicated as of three
(3) days after proper mailing.
7.3 This Agreement supersedes any and all other prior or
contemporaneous agreements, either oral or in writing, between the parties
hereto with respect to the subject matter hereof and this Agreement contains
all of the covenants and agreements between the parties with respect to
employment of Executive by the Company.
7.4 The failure of the Executive or the Company to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or
right of this Agreement.
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7.5 Except as otherwise provided in Section 7.6 hereof, no
amendment or modification of this Agreement shall be deemed effective unless
and until executed in writing by each party hereto.
7.6 All agreements and covenants contained herein are
severable and in the event any of them shall be held to be invalid by any
competent court, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein. Should any court or other
legally constituted authority determine that for any such agreement or
covenant to be effective that it must be modified to limit its duration or
scope, the parties hereto shall consider such agreement or covenant to be
amended or modified with respect to duration and/or scope so as to comply
with the orders of any such court or other legally constituted authority, and
as to all other portions of such agreement or covenants they shall remain in
full force and effect as originally written.
7.7 All headings set forth in this Agreement are intended
for convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions hereof.
7.8 All controversies which may arise between the parties
hereto including, but not limited to, those arising out of or related to this
Agreement shall be determined by binding arbitration applying the laws of the
State of Delaware as set forth in Section 7.1 hereof. Any arbitration
pursuant to this Agreement shall be conducted in New York City before the
American Arbitration Association in accordance with its arbitration rules.
The arbitration shall be final and binding upon all the parties (so long as
the award was not produced by corruption, fraud or undue means) and the
arbitrator's award shall not be required to include factual findings or legal
reasoning. Nothing in this Section 7.8 will prevent either party from
resorting to judicial proceedings if interim injunctive relief under the laws
of the State of New York from a court is necessary to prevent serious and
irreparable injury to one of the parties.
7.9 This Agreement may be executed via facsimile
transmission signature and in counterparts, each of which shall be deemed to
be an original but all of which together will constitute one and the same
instrument.
7.10 All matters to be determined by the Board pursuant to
the terms of this Agreement shall be determined by the members of the Board
or any duly authorized committee thereof.
7.11 The Company may withhold from any amounts payable
under this Agreement such federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
[signature page follows]
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS EMPLOYMENT
AGREEMENT AS OF THE 7TH DAY OF NOVEMBER, 2000.
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C. Lowell Ball
BEAZER HOMES USA, INC.
By:
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Name:
Title:
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