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EXHIBIT 10.11
EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND XXXX X. XXXX
DATED JANUARY 1, 1998
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into,
with an effective date of January 1, 1998, by and between Atrium Companies,
Inc., a Delaware corporation (together with its successors and assigns
permitted hereunder, the "Company"), and Xxxx X. Xxxx (the "Employee").
RECITALS
A. The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to employ the Employee on the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the respective agreements and
covenants set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. EMPLOYMENT PERIOD. Subject to Section 3, the Company hereby agrees to
employ the Employee, and the Employee hereby agrees to be employed by the
Company in accordance with the terms and provisions of this Agreement, for a
period (the "Employment Period") commencing on the date herein and ending on
the third anniversary of such date. Neither party is under any obligation to
extend or renew this Agreement. Any new employment agreement shall only be
effective after having been reduced to writing and executed by both parties
hereto. In the event Employee continues to perform services after the
Employment Period, and pending execution of a new employment agreement, if any,
such services shall constitute employment for an unspecified term, terminable
at will, with or without cause or reason, with or without advance notice, and
with or without pay in lieu of advance notice.
2. TERMS OF EMPLOYMENT.
a. Position and Duties.
i. During the term of the Employee's employment, the
Employee shall serve as Chief Financial Officer of the Company, and,
in so doing, shall perform the normal duties and responsibilities
associated with such position, subject to the general direction,
approval and control of the President and Chief Executive Officer of
the Company.
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ii. During the term of the Employee's employment, and
excluding any periods of vacation and other leave to which the
Employee is entitled, the Employee agrees to devote his full business
time to the business and affairs of the Company and to use the
Employee's best efforts to perform faithfully, effectively and
efficiently his duties and responsibilities.
iii. During the term of the Employee's employment it shall
not be a violation of this Agreement for the Employee to serve on
corporate, civic or charitable boards or committees, deliver lectures
or fulfill speaking engagements and manage personal investments, so
long as such activities do not interfere with the performance of the
Employee's duties and responsibilities as an employee of the Company.
iv. Employee agrees to observe and comply with the
Company's rules and policies as adopted by the Company from time to
time.
a. Compensation.
i. Base Salary. During the term of the Employee's
employment, the Employee shall receive an annual base salary ("Annual
Base Salary"), which shall be paid in accordance with the customary
payroll practices of the Company, in an amount equal to $125,000. The
Board, in its discretion, may at any time increase the amount of the
Annual Base Salary to such greater amount as it may deem appropriate,
and the term "Annual Base Salary," as used in this Agreement, shall
refer to the Annual Base Salary as it may be so increased. It is
understood that the Company may, at any time, in the discretion of the
Board, increase, but not decrease, the amount of the Annual Base
Salary.
ii. Incentive Bonus. Subject to the other terms and
conditions of this Agreement and as further compensation for the
performance of his services hereunder, during the term of his
employment under this Agreement, the Employee shall be eligible to
receive an annual incentive bonus (the "Incentive Bonus") in
accordance with the Bonus Structure, attached hereto as Exhibit A.
(A) Targets. Prior to the end of each calendar
year, the Board's Compensation Committee shall approve the
performance targets (the "Targets") upon which the Employee's
Incentive Bonus for the following year will be based with
respect to each of the criteria described in the Bonus
Structure, except that the Targets for 1998 have been approved
by the Board's Compensation Committee as of the date hereof.
The Targets for 1998 are as described in Exhibit B, which is
hereby incorporated as part of this Agreement. The Targets
for each of such criteria in each subsequent calendar year
shall, after approval by the Board's Compensation Committee,
be attached hereto as Exhibit B as a substitute for the
previous years' Targets, and shall become a part of this
Agreement for such calendar year.
(B) Amount and Calculation. Should the Employee
achieve 100% of the Targets, the Incentive Bonus shall be
$35,000 (the "Base Incentive Bonus"). A lesser or greater
Incentive Bonus will result should the Employee achieve less
or more
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than 100% of the Targets, but in any event, the maximum
Incentive Bonus that the Employee shall be eligible to receive
is $39,375, such amount to be determined in accordance with
the terms of Exhibit A hereto. The Employee understands and
agrees that he is not guaranteed an Incentive Bonus and that
the amount of Incentive Bonus, if any, is dependent on his
achieving one or more of the Targets for the criteria set
forth in the Bonus Structure. In this regard, should the
Employee fail to achieve any of such Targets, the Employee
shall not be entitled to the Incentive Bonus for the
applicable period. "EBITDA," as used in this Agreement and
the Bonus Structure for any calendar year, shall mean the
earnings before income tax, depreciation and amortization for
such year, as determined in accordance with generally accepted
accounting principles by the certified public accountants
regularly engaged by the Company. The determination of the
Company's regularly engaged public accountants shall be final
and conclusive on the parties hereto.
(C) Time of Payment. The Incentive Bonus shall
be paid to the Employee on or before March 15 of the calendar
year immediately following the year with respect to which the
calculation of the Incentive Bonus is made. Payment of the
Incentive Bonus shall be accompanied by a copy of the
calculation on which the Incentive Bonus is based.
iii. Incentive, Savings, Stock Option and Retirement
Plans. During the term of the Employee's employment, the Employee
shall be entitled to participate in all incentive, savings, stock
option and retirement plans, practices, policies and programs
applicable generally to other employees of the Company ("Investment
Plans"), as amended from time to time.
iv. Welfare Benefit Plans. During the term of the
Employee's employment, the Employee and/or the Employee's family, as
the case may be, shall be eligible for participation in and shall
receive all benefits under the welfare benefit plans, practices,
policies and programs ("Welfare Plans") provided by the Company
(including medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), as amended from time to time,
to the extent applicable generally to other employees of the Company.
v. Perquisites. During the term of the Employee's
employment, the Employee shall be entitled to receive (in addition to
the benefits described above) such perquisites and fringe benefits
appertaining to his position in accordance with any policies,
practices and procedures established by the Board, as amended from
time to time.
vi. Expenses. During the term of the Employee's
employment, the Employee shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by the
Employee in accordance with the Company's policies, practices and
procedures, as amended from time to time.
vii. Automobile. The Company recognizes the Employee's
need for an automobile for business purposes. The Company shall
provide the Employee with an automobile allowance of $500 per month.
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viii. Vacation. During the term of the Employee's
employment, the Employee shall be entitled to four (4) weeks paid
vacation each calendar year. Any vacation shall be taken at the
reasonable and mutual convenience of the Company and the Employee.
Accrued vacation not taken in any calendar year will not be carried
forward or used in any subsequent calendar year and the Employee shall
not be entitled to receive pay in lieu of accrued but unused vacation
in any calendar year.
b. Key-Man Insurance. At any time during the Employment Period,
the Company shall have the right to insure the life of the Employee for the
Company's sole benefit, and to determine the amount of insurance and the type
of policy. The Employee shall cooperate with the Company in taking out such
insurance by submitting to physical examinations, by supplying all information
required by the insurance company, and by executing all necessary documents.
The Employee shall incur no financial obligation by executing any required
document, and shall have no interest in any such policy.
3. TERMINATION OF EMPLOYMENT.
a. Death or Disability. The Employee's employment shall
terminate automatically upon the Employee's death during the Employment Period.
If the Disability (as defined below) of the Employee has occurred during the
Employment Period, the Company may give to the Employee written notice in
accordance with Section 12(b) of its intention to terminate the Employee's
employment. In such event, the Employee's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Employee (the "Disability Effective Date"), if, within the 30 days after such
receipt, the Employee shall not have returned to perform, with or without
reasonable accommodation, the essential functions of his position. For
purposes of this Agreement, "Disability" shall mean the Employee's inability to
perform, with or without reasonable accommodations, the essential functions of
his position hereunder for a period of 120 days, consecutive or
non-consecutive, in any 12-month period due to mental or physical incapacity,
as determined by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative, such
agreement as to acceptability not to be unreasonably withheld or delayed. Any
refusal by Employee to submit to a medical examination for the purpose of
determining Disability under this Section 3(a) shall be deemed to constitute
conclusive evidence of Employee's Disability.
b. Cause or Without Cause. The Company may terminate the
Employee's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, "Cause" shall mean a breach by the Employee of
the Employee's obligations under Section 2(a) (other than as a result of
physical or mental incapacity) which constitutes a continued material
nonperformance by the Employee of his obligations and duties thereunder, as
determined by the Board, and which is not remedied within 30 days after receipt
of written notice from the Company specifying such breach; commission by the
Employee of an act of fraud, embezzlement, misappropriation, willful misconduct
or breach of fiduciary duty against the Company, as reasonably determined by a
majority of the members of the Board after a hearing by the Board following ten
days' notice to the Employee of such hearing; a material breach by the Employee
of Sections 7, 8, 9, 10 or 11; the Employee's conviction, plea of no contest or
nolo contendere, or unadjudicated probation for any felony or crime involving
moral turpitude; the failure of the Employee to carry out, or comply with, in
any material respect any lawful directive of the Board consistent with the terms
of this Agreement, which is not remedied
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within 30 days after receipt of written notice from the Company specifying such
failure; or (vi) the Employee's unlawful use (including being under the
influence) or possession of illegal drugs on the Company's premises or while
performing the Employee's duties and responsibilities under this Agreement. The
Company may suspend the Employee's title and authority pending the hearing
provided for in clause (ii) above, and such suspension shall not constitute
"Good Reason" as defined below. For purposes of this Agreement, "without Cause"
shall mean a termination by the Company of the Employee's employment during the
Employment Period for any reason other than a termination based upon Cause,
death, Disability or upon a Change of Control, as defined below.
c. Good Reason. The Employee's employment may be terminated
during the Employment Period by the Employee for Good Reason or without Good
Reason; provided, however, that the Employee agrees not to terminate his
employment for Good Reason unless (i) the Employee has given the Company at
least 30 days' prior written notice of his intent to terminate his employment
for Good Reason, which notice shall specify the facts and circumstances
constituting Good Reason, and (ii) the Company has not remedied such facts and
circumstances constituting Good Reason within such 30-day period. For purposes
of this Agreement, "Good Reason" shall mean:
i. any significant reduction, approved by the Board
without the Employee's consent, in the Employee's position, authority,
duties or responsibilities as contemplated in Section 2(a) or any
other action by the Company which results in a material diminution in
such position, authority, duties or responsibilities, excluding for
this purpose an inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of written notice
thereof given by the Employee.
ii. any termination or material reduction of a material
benefit under any Investment Plan or Welfare Plan in which the
Employee participates unless (A) there is substituted a comparable
benefit that is economically substantially equivalent to the
terminated or reduced benefit prior to such termination or reduction
or (B) benefits under such Investment Plan or Welfare Plan are
terminated or reduced with respect to all employees previously granted
benefits thereunder;
iii. any failure by the Company to comply with any of the
provisions of Section 2(b), other than an inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly
after receipt of written notice thereof given by the Employee;
iv. without limiting the generality of the foregoing, any
material breach by the Company or any of its subsidiaries or other
affiliates (as defined below) of (A) this Agreement or (B) any other
agreement between the Employee and the Company or any such subsidiary
or other affiliate; or
v. the Company's requirement that the Employee's ongoing
and regular duties and responsibilities be performed in a location
other than the Dallas/Fort Worth Metroplex area, except for travel
reasonably required in the performance of the Employee's duties and
responsibilities.
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As used in this Agreement, "affiliate" means, with respect to a
person, any other person controlling, controlled by or under common control
with the first person; the term "control," and correlative terms, means the
power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a person; and "person" means an individual,
partnership, corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
d. Change of Control. If a Change of Control occurs during the
Employment Period and the Board determines in good faith that it is in the
Company's best interest to terminate the Employee's employment with the
Company, within 90 days of such Change of Control the Company may terminate the
Employee's employment by giving the Employee written notice in accordance with
Section 12(b) of its intention to terminate the Employee's employment. Any
such termination by the Company as contemplated in this Section 3(d) is
referred to herein as a termination "upon a Change of Control." For purposes of
this Agreement, "Change of Control" shall have the meaning given to such term
in the Atrium Corporation 1996 Stock Option Plan, as such Plan may be amended
from time to time.
e. Notice of Termination. Any termination by the Company for
Cause or without Cause or upon a Change of Control, or by the Employee for Good
Reason or without Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 12(b). For purposes
of this Agreement, a "Notice of Termination" means a written notice which
indicates the specific termination provision in this Agreement relied upon, to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the
termination date (which date shall not be more than 15 days after the giving of
such notice). The failure by the Employee or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing
of Good Reason or Cause or a termination upon a Change of Control shall not
waive any right of the Employee or the Company hereunder or preclude the
Employee or the Company from asserting such fact or circumstance in enforcing
the Employee's or the Company's rights hereunder.
f. Date of Termination. "Date of Termination" means if the
Employee's employment is terminated by the Company for Cause or upon a Change
of Control, or by the Employee for Good Reason or without Good Reason, the date
of receipt of the Notice of Termination or any later date specified therein
pursuant to Section 3(e), as the case may be, if the Employee's employment is
terminated by the Company other than for Cause or upon a Change of Control, the
date on which the Company notifies the Employee of such termination and if the
Employee's employment is terminated by reason of death or Disability, the date
of death of the Employee or the Disability Effective Date, as the case may be.
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4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
a. For Cause; Without Good Reason; Other Than for Death,
Disability or Upon a Change of Control. If, during the Employment Period, the
Company shall terminate the Employee's employment for Cause or the Employee
shall terminate his employment without Good Reason, and the termination of the
Employee's employment in any case is not due to his death or Disability or upon
a Change of Control, the Employee shall forfeit all rights to the Incentive
Bonus otherwise due to him or to which he may be entitled, and the Company
shall have no further payment obligations to the Employee or his legal
representatives, other than for the payment of: (i) in a lump sum in cash
within ten (10) days after the Date of Termination the sum of the Employee's
Annual Base Salary through the Date of Termination to the extent not
theretofore paid, any compensation previously deferred by the Employee
(together with any accrued interest or earnings thereon) and any accrued
vacation pay (collectively, the "Accrued Obligations"); and (ii) any amount
arising from the Employee's participation in, or benefits under, any Investment
Plans (the "Accrued Investments"), which amounts shall be payable in accordance
with the terms and conditions of such Investment Plans.
i. Death. If the Employee's employment is terminated by
reason of the Employee's death during the Employment Period, the
Company shall have no further payment obligations to the Employee or
his legal representatives, other than for payment of: in a lump sum
in cash within ten (10) days after the Date of Termination the Accrued
Obligations; the Accrued Investments, which shall be payable in
accordance with the terms and conditions of the Investment Plans; and
the Incentive Bonus prorated from the first day of the Company's
then-current fiscal year to the Date of Termination (the "Prorated
Incentive Bonus"), to be paid in accordance with Section 2(b)(ii)(C).
ii. Disability. If the Employee's employment is
terminated by reason of the Employee's Disability during the
Employment Period, the Company shall have no further payment
obligations to the Employee or his legal representatives, other than
for payment of: in a lump sum in cash within ten (10) days after the
Date of Termination the Accrued Obligations; the Accrued Investments,
which shall be payable in accordance with the terms and conditions of
the Investment Plans; and the Prorated Incentive Bonus, to be paid in
accordance with Section 2(b)(ii)(C).
iii. Without Cause or for Good Reason. If the Employee's
employment is terminated by the Company without Cause or by the
Employee for Good Reason, the Company shall have no further payment
obligations to the Employee or his legal representatives, other than
for: (i) payment of, in a lump sum in cash within ten (10) days after
the Date of Termination, the Accrued Obligations; (ii) payment of the
Accrued Investments, which shall be payable in accordance with the
terms and conditions of the Investment Plans; (iii) payment of the
Prorated Incentive Bonus, to be paid in accordance with Section
2(b)(ii)(C); and (iv) payment of one-twelfth of the sum of the
Employee's Annual Base Salary on the Date of Termination and the
Annual Incentive Bonus for each month during a period of 12 months
following the Date of Termination (the "Severance Period"), in
accordance with the customary payroll practices of the Company.
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iv. Change of Control. If the Employee's employment is
terminated upon a Change of Control as contemplated in Section 3(d),
the Company shall have no further payment obligations to the Employee
or his legal representatives, other than for (i) payment of, in a lump
sum in cash within ten (10) days after the Date of Termination, the
Accrued Obligations; (ii) payment of the Accrued Investments, which
shall be payable in accordance with the terms and conditions of the
Investment Plans; (iii) payment of the Prorated Incentive Bonus, to be
paid in accordance with Section 2(b)(ii)(C); and (iv) payment of
one-twelfth of the sum of the Employee's Annual Base Salary on the
Date of Termination and the Annual Incentive Bonus for each month
during the Severance Period, in accordance with the customary payroll
practices of the Company; provided, however, that the payments
contemplated in (iii) and (iv) above shall not be made to the Employee
if, following such Change of Control, Xxxxxxx X. Xxxxxxxx continues to
act in the capacity of President and Chief Executive Officer of the
Company.
5. RETENTION BONUS. Following a "Change of Control," as contemplated in
Section 3(d), if the Employee is employed by the Company in his current
position or in a more senior position, or by a subsidiary or other affiliate of
the Company in a position with authority, duties and responsibilities
substantially similar to or greater than those of his current position, on the
12-month anniversary of the Change of Control, the Company shall pay the
Employee a retention bonus in the amount of $75,000. Nothing in this Section 5
shall be deemed to give the Employee the right to be retained in the employ of
the Company or to restrict the right of the Company to terminate the Employee
at any time and for any reason, without Cause or for Cause or upon a Change of
Control. Nothing in this Section 5 shall be deemed to give the Company the
right to require the Employee to remain in the employ of the Company or to
restrict the Employee's right to terminate his employment at any time and for
any reason, without Good Reason or for Good Reason.
6. FULL SETTLEMENT, MITIGATION. In no event shall the Employee be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Employee under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not the
Employee obtains other employment. Neither the Employee nor the Company shall
be liable to the other party for any damages in addition to the amounts payable
under Section 4 arising out of the termination of the Employee's employment
prior to the end of the Employment Period; provided, however, that the Company
shall be entitled to seek damages from the Employee for any breach of Sections
7, 8, 9, 10, or 11 by the Employee or for the Employee's criminal misconduct.
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7. CONFIDENTIAL INFORMATION.
a. The Employee acknowledges that the Company and its affiliates
have trade, business and financial secrets and other confidential and
proprietary information (collectively, the "Confidential Information").
"Confidential Information" includes sales materials, technical information,
processes and compilations of information, records, specifications and
information concerning customers or venders, manuals relating to suppliers'
products, customer lists, information regarding methods of doing business, and
the identity of suppliers. "Confidential Information" shall not include
information that is generally known to other persons or entities who can obtain
economic value from its disclosure or use and information required to be
disclosed by the Employee pursuant to a subpoena or court order, or pursuant to
a requirement of a governmental agency or law of the United States of America
or a state thereof or any governmental or political subdivision thereof;
provided, however, that the Employee shall take all reasonable steps to
prohibit disclosure pursuant to subsection (ii) above.
b. During and following the Employee's employment by the Company,
the Employee shall hold in confidence and not directly or indirectly disclose
or use or copy or make lists of any Confidential Information or proprietary
data of the Company or its affiliates except to the extent authorized in
writing by the Board or required by any court or administrative agency, other
than to an employee of the Company or its affiliates or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Employee of his duties as an employee of the Company.
c. The Employee further agrees not to use any Confidential
Information for the benefit of any person or entity other than the Company or
its affiliates.
d. As used in this Section 7, "Company" shall include Atrium
Companies, Inc. and any of its subsidiaries.
8. SURRENDER OF MATERIALS UPON TERMINATION. All records, files,
documents and materials, or copies thereof, relating to the Company's and its
respective affiliates' business which the Employee shall prepare, or use, or
come into contact with, shall be and remain the sole property of the Company or
its affiliates, as the case may be, and shall be returned promptly by the
Employee to the owner upon termination of the Employee's employment with the
Company. As used in this Section 8, "Company" shall include Atrium Companies,
Inc. and any of its subsidiaries.
9. SUCCESSORS. The Company may assign its rights and obligations under
this Agreement to any successor to all or substantially all the assets of the
Company, by merger or otherwise, subject, however, to the Employee's right to
terminate this Agreement for Good Reason as provided in Section 3(c), and may
assign or encumber this Agreement and its rights hereunder as security for
indebtedness of the Company and its affiliates. The Company shall require that
any successor agree to assume in writing the obligations of the Company
pursuant to this Agreement and the failure to secure such assumption on or
prior to the closing of any merger or similar transaction shall constitute Good
Reason under Section 3(c); provided, however, that nothing set forth in this
Section 9 shall be deemed to limit or otherwise affect in any way the right of
the Company or such successor to terminate the Employee's employment upon a
Change in Control as contemplated in Section 3(d). The rights of the Employee
under this Agreement may not be
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assigned or encumbered by the Employee, voluntarily or involuntarily, during
his lifetime, and any such purported assignment shall be void. However, all
rights of the Employee under this Agreement shall inure to the benefit of and
be enforceable by the Employee's personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. All amounts payable to the
Employee hereunder shall be paid, in the event of the Employee's death, to the
Employee's estate, heirs and representatives.
10. NON-COMPETITION.
a. The term of Non-Competition (herein so called) shall be for a
term beginning on the date hereof and continuing until (i) the first
anniversary of the Date of Termination if the Employee's employment is
terminated by the Company for Cause or due to Disability or by the Employee
without Good Reason, (ii) the Date of Termination if the Employee's employment
is terminated by the Company without Cause (and not due to Disability) or by
the Company for Good Reason or (iii) the first anniversary of the last date of
the Severance Period if the Employee's employment is terminated upon a Change
of Control.
b. During the term of Non-Competition, the Employee will not
(other than for the benefit of the Company or its affiliates pursuant to this
Agreement) directly or indirectly, individually or as an officer, director,
employee, shareholder, consultant, contractor, partner, joint venturer, agent,
equity owner or in any capacity whatsoever engage in the business of
manufacturing, marketing or distributing windows or doors or in any other
business activity that the Company is conducting on the Date of Termination or
has notified the Employee that it proposes to conduct in the United States (a
"Competing Business"), hire, attempt to hire, or contact or solicit with
respect to hiring any officer, employee or consultant of the Company or its
affiliates, or divert or take away any customers or suppliers of the Company
or its affiliates. Notwithstanding the foregoing, the Company agrees that the
Employee may own less than five percent of the outstanding voting securities of
any publicly traded company that is a Competing Business so long as the
Employee does not otherwise participate in such competing business in any way
prohibited by the preceding clause.
c. The Employee acknowledges that the geographic boundaries,
scope of prohibited activities, and time duration of the preceding paragraphs
are reasonable in nature and are no broader than are necessary to maintain the
goodwill of the Company and its affiliates and the confidentiality of their
Confidential Information, and to protect the other legitimate business
interests of the Company and its affiliates.
d. If any court determines that any portion of this Section 10 is
invalid or unenforceable, the remainder of this Section 10 shall not thereby be
affected and shall be given full effect without regard to the invalid
provisions. If any court construes any of the provisions of this Section 10,
or any part thereof, to be unreasonable because of the duration or scope of
such provision, such court shall have the power to reduce the duration or scope
of such provision and to enforce such provision as so reduced.
e. As used in this Section 10, "Company" shall include Atrium
Companies, Inc. and any of its subsidiaries.
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11. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
improvements and innovations (including all data and records pertaining
thereto) related to the Company's business, whether or not patentable,
copyrightable, registrable as a trademark, or reduced to writing, that the
Employee may discover, invent or originate during the Employment Period, and
for a period of twelve (12) months thereafter, either alone or with others and
whether or not during working hours or by the use of the facilities of the
Company ("Inventions"), shall be the exclusive property of the Company. The
Employee shall promptly disclose all Inventions to the Company, shall execute
at the request of the Company any assignments or other documents the Company
may deem necessary to protect or perfect its rights therein, and shall assist
the Company, at the Company's expense, in obtaining, defending and enforcing
the Company's rights therein. The Employee hereby appoints the Company as his
attorney-in-fact to execute on his behalf any assignments or other documents
deemed necessary by the Company to protect or perfect its rights to any
Inventions. As used in this Section 11, "Company" shall include Atrium
Companies, Inc. and any of its subsidiaries.
12. MISCELLANEOUS.
a. Construction. This Agreement shall be deemed drafted equally
by both the parties. Its language shall be construed as a whole and according
to its fair meaning. Any presumption or principle that the language is to be
construed against any party shall not apply. The headings in this Agreement
are only for convenience and are not intended to affect construction or
interpretation. Any references to paragraphs, subparagraphs, sections or
subsections are to those parts of this Agreement, unless the context clearly
indicates to the contrary. Also, unless the context clearly indicates to the
contrary, (a) the plural includes the singular and the singular includes the
plural; (b) "and" and "or" are each used both conjunctively and disjunctively;
(c) "any," "all," "each," or "every" means "any and all", and "each and every";
(d) "includes" and "including" are each "without limitation"; (e) "herein,"
"hereof," "hereunder" and other similar compounds of the word "here" refer to
the entire Agreement and not to any particular paragraph, subparagraph, section
or subsection; and (f) all pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the identity
of the entities or persons referred to may require.
b. Notices. All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Employee: Xxxx X. Xxxx
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
If to the Company: Atrium Companies, Inc.
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
12
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
c. Enforcement. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a portion of this Agreement; and
the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
d. Withholding. The Company shall be entitled to withhold from
any amounts payable under this Agreement any federal, state, local or foreign
withholding or other taxes or charges which it is from time to time required to
withhold. The Company shall be entitled to rely on an opinion of counsel if
any questions as to the amount or requirement of such withholding shall arise.
e. No Waiver No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at any time.
f. Equitable Relief. The Employee acknowledges that money
damages would be both incalculable and an insufficient remedy for a breach of
Section 7, 8, 9, 10 or 11 by the Employee and that any such breach would cause
the Company irreparable harm. Accordingly, the Company, in addition to any
other remedies at law or in equity it may have, shall be entitled, without the
requirement of posting of bond or other security, to equitable relief,
including injunctive relief and specific performance, in connection with a
breach of Section 7, 8, 9, 10 or 11 by the Employee.
g. Complete Agreement. The provisions of this Agreement
constitute the entire and complete understanding and agreement between the
parties with respect to the subject matter hereof, and supersedes all prior and
contemporaneous oral and written agreements, representations and understandings
between the Employee and the Company, or its affiliates and subsidiaries, which
are hereby terminated. Other than expressly set forth herein, the Employee and
the Company acknowledge and represent that there are no other promises, terms,
conditions or representations (oral or written) regarding any matter relevant
hereto. This Agreement may be
13
executed in two or more counterparts. Notwithstanding any other provision set
forth in this Agreement, the Employee hereby acknowledges and agrees that
Atrium Corporation, the Company's sole stockholder, and each of the Company's
subsidiaries are intended third party beneficiaries of this Section 12(g), and
each of them shall be entitled to rely on the acknowledgments and agreements of
the Employee made in this Section 12(g) to the same extent as if they were
parties to this Agreement.
h. Arbitration. The Company and the Employee agree to the
resolution by binding arbitration of all claims, demands, causes of action,
disputes, controversies or other matters in question ("claims"), whether or not
arising out of this Agreement or the Employee's employment (or its
termination), whether sounding in contract, tort or otherwise and whether
provided by statute or common law, that the Company may have against the
Employee or that the Employee may have against the Company or its parents,
subsidiaries and affiliates, and each of the foregoing entities' respective
officers, directors, employees or agents in their capacity as such or
otherwise; except that this agreement to arbitrate shall not limit the
Company's right to seek equitable relief, including injunctive relief and
specific performance, and damages in a court of competent jurisdiction for an
alleged breach of Sections 7, 8, 9, 10 or 11 of this Agreement. Claims covered
by this agreement to arbitrate also include claims by the Employee for breach
of this Agreement, wrongful termination, discrimination (based on age, race,
sex, disability, national origin or any other factor) and retaliation. In the
event of any breach of this Agreement by the Company, it is expressly agreed
that notwithstanding any other provision of this Agreement, the only damages to
which Employee shall be entitled is lost compensation and benefits in
accordance with Section 2(b) or 4. The Company and the Employee agree that any
arbitration shall be in accordance with the Federal Arbitration Act ("FAA")
and, to the extent an issue is not addressed by the FAA, with the then-current
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA"). If a party refuses to honor its obligations
under this agreement to arbitrate, the other party may compel arbitration in
either federal or state court. The arbitrator shall apply the substantive law
of the State of Texas (excluding Texas choice-of-law principles that might call
for the application of some other state's law), or federal law, or both as
applicable to the claims asserted. The arbitrator shall have exclusive
authority to resolve any dispute relating to the interpretation, applicability,
enforceability or formation of this agreement to arbitrate, including any claim
that all or part of this Agreement is void or voidable and any claim that an
issue is not subject to arbitration. The parties agree that venue for
arbitration will be in Dallas, Texas, and that any arbitration commenced in any
other venue will be transferred to Dallas, Texas, upon the written request of
any party to this Agreement. In the event that an arbitration is actually
conducted pursuant to this Section 12(h), the party in whose favor the
Arbitrator renders the award shall be entitled to have and recover from the
other party all costs and expenses incurred including reasonable attorneys'
fees, expert witness fees, and costs actually incurred. Any and all of the
arbitrator's orders, decisions and awards may be enforceable in, and judgment
upon any award rendered by the arbitrator may be confirmed and entered by, any
federal or state court having jurisdiction. All proceedings conducted pursuant
to this agreement to arbitrate, including any order, decision or award of the
arbitrator, shall be kept confidential by all parties.
i. Survival. Sections 7, 8, 9, 10, 11, and 12 of this Agreement
shall survive the termination of this Agreement.
14
j. Choice of Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Texas without reference to principles of conflicts of law of Texas or
any other jurisdiction, and, where applicable, the laws of the United States.
k. Amendment. This Agreement may not be amended or modified at
any time except by a written instrument approved by the Board and executed by
the Company and the Employee.
l. Employee Acknowledgment. Employee acknowledges that he has
read and understands this Agreement, is fully aware of its legal effect, has
not acted in reliance upon any representations or promises made by the Company
other than those contained in writing herein, and has entered into this
Agreement freely based on his own judgment.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from the Board, the Company has caused this
Agreement to be executed in its name on its behalf, on this 1st day of January,
1998, to be effective as of the day and year first above written.
EMPLOYEE
/s/ XXXX X. XXXX
-------------------------------
Xxxx X. Xxxx
ATRIUM COMPANIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------
Xxxxxxx X. Xxxxxxxx
President
15
EXHIBIT A
Fifty percent (50%) of the Employee's Incentive Bonus ("EBITDA Bonus")
shall be payable based upon achievement of the following targets:
o If Atrium Companies, Inc. achieves 80% of its budgeted EBITDA, the
Employee shall receive 50% of the EBITDA Bonus.
o If Atrium Companies, Inc. achieves 90% of its budgeted EBITDA, the
Employee shall receive 75% of the EBITDA Bonus.
o If Atrium Companies, Inc. achieves 100% of its budgeted EBITDA, the
Employee shall receive 100% of the EBITDA Bonus.
o If Atrium Companies, Inc. achieves 110% of its budgeted EBITDA, the
Employee shall receive 125% of the EBITDA Bonus.
The EBITDA Bonus will be paid on a sliding scale and on a pro rata
basis. For example, if 95% of the budgeted EBITDA is achieved, the
Employee is entitled to 87.5% of the EBITDA Bonus. No EBITDA Bonus
will be paid if Atrium Companies, Inc. achieves less than 80% of the
budgeted EBITDA.
Thirty-five percent (35%) of the Employee's Incentive Bonus shall be
payable based upon achievement of the following targets:
o If Atrium Companies, Inc. meets its performance targets with respect
to Bad Debts/Collections, then the Employee shall be entitled to
receive 10% of the Employee's Incentive Bonus.
o If Atrium Companies, Inc. meets its performance targets with respect
to Accounts Receivable Days, then the Employee shall be entitled to
receive 15% of the Employee's Incentive Bonus.
o If Atrium Companies, Inc. meets its performance targets with respect
to Month End Closings, then the Employee shall be entitled to receive
10% of the Employee's Incentive Bonus.
o If Atrium Companies, Inc. meets its performance targets with
respect to the filing of tax returns and of various reports, then the
Employee shall be entitled to receive 10% of the Employee's Incentive
Bonus.
o These parts of the Employee's Incentive Bonus shall not be paid on a
sliding scale or pro rata basis.
The remaining fifteen percent (15%) of the Employee's Incentive Bonus shall
be based upon achievement of objective standards, to be determined by the
Company.
16
EXHIBIT B
CRITERIA 1998 TARGETS 1997 ACTUAL
-------- ------------ -----------
Budgeted EBITDA $29,393,153 $26,595,640
Amount of Bad Debt Write-off $1,250,000 (or less) $ 1,368,191
Average Number of Days Accounts
Receivable are Outstanding 49.0 days (or less) 51.1 days
Average Number of Days into Subsequent
Month for Closing of Month-end
Financial Statements 17 days (or less) 19 days
Other Criteria: Complete Installation of
Management Information System at Targeted
Number of Divisions 3 divisions (or more) 2 divisions
Timely filing of
Tax Returns 90 days after year-end 90 days after year-end
SEC Reporting 90 days after year end 90 days after year end
45 days after quarter-end 45 days after quarter-end
Bank Reporting 30 days after month-end 30 days after month-end
Board Reporting 30 days after month-end 30 days after month-end
APPROVED:
/s/ XXXX X. XXXX January 1, 1998
------------------------------- -----------------
Xxxx X. Xxxx Date
/s/ XXXXXXX X. XXXXXXXX January 1, 1998
------------------------------- -----------------
Xxxxxxx X. Xxxxxxxx Date
