FIRST AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT - XXXXXXXX
This First Amendment (this "Amendment") to Amended and Restated Employment
and Noncompetition Agreement - Xxxxxxxx made and effective as of the 1st day of
November, 1998, by and between THERMOVIEW INDUSTRIES, INC., a Delaware
corporation (the "Company") and Xxxxxx X. Xxxxxxxx ("Employee").
WITNESSETH:
WHEREAS the Company and Employee entered into that certain Amended and
Restated Employment and Noncompetition Agreement - Xxxxxxxx, dated as of April
15, 1998 (the "Employment Agreement"), whereby Employee, among other things
agreed to serve as Vice President-Finance and Administration of the Company; and
WHEREAS under the Employment Agreement both the Company and Employee desire
to amend the Employment Agreement whereby (i) Employee will cease to serve as
Vice President-Finance and Administration and Secretary of the Company and
instead will serve as President of the Company in accordance with the terms of
the Employment Agreement, as amended; (ii) Employee's annual salary will be
increased from $125,000 to $150,000 and (iii) Employee will be awarded options
to purchase 200,000 shares of the Company's $.001 par value Common Stock.
NOW THEREFORE in consideration of the above recitals and the mutual
agreements herein contained and for other good and valuable consideration, the
parties hereby agree as follows:
1. Section 1 of the Employment Agreement is hereby amended to read in its
entirety as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, Company hereby agrees to employ Employee, and
Employee hereby accepts such employment as President. Employee shall serve the
Company during the Term (as defined in Section 2.1) of this Agreement, subject
to the direction of the Company's Board of Directors. As President and
Secretary, Employee shall devote his best efforts and such business time as may
be necessary or appropriate on behalf of the Company:
(i) To conduct general and active management of the business of the
Company subject to the direction of the Chief Executive Officer and the Board of
Directors.
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(ii) To assist the Company in evaluating potential corporate
opportunities, including merger and acquisition structuring, negotiation and
closing services.
(iii) To provide the Company with a variety of general business
analyses, marketing and management services.
(iv) To conduct such other duties as the Board of Directors may
prescribe from time to time.
2. Section 3 of the Employment Agreement is hereby amended to read in its
entirety as follows:
SECTION 3. COMPENSATION.
3.1. COMPENSATION. Employee agrees that as sole compensation under this
Agreement, Employee (1) shall receive an annual salary of $150,000 to be
reviewed annually for escalation and (ii) he shall be granted the stock options
referred to in Sction 3.2 below.
3.2. OPTIONS. Simultaneously upon execution of this Agreement, the
Company shall grant Employee incentive stock options to purchase 200,000 shares
of the Company's $.001 par value Common Stock (the "Employment Stock Options")
at an exercise price of $2.30 per share, pursuant to a Stock Option Agreement -
Xxxxxxxx dated as of November 1, 1998 (the "Employment Stock Option Agreement").
3.3. OPTION VESTING. The Employment Stock Options shall vest as follows:
(i) One-half of the Employment Stock Options, representing 100,000
shares of Common Stock, shall vest upon the execution of this Agreement.
(ii) One-half of the Employment Stock Options, representing 100,000
shares of Common Stock, shall vest on September 1, 1999.
3.4. OPTION EXERCISEABILITY/EXPIRATION. Once vested, the Employment Stock
Options shall be exercisable in whole or in part at an exercise price of $2.00
per share and shall expire on November 1, 2002.
3.5. TERMINATION OF OPTIONS. In the event Employee's employment is
terminated by the Company for "good cause" pursuant to Section 2.1(ii) or by
Employee pursuant to Section 2.1(iii), any and all Employee Stock Options which
have not vested as of the termination date shall immediately terminate and
Employee shall lose all rights to such options, subject to applicable law. Such
Employee Stock Option which have vested as of the termination date
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shall be exercisable in accordance with provisions of the Employee Option
Agreement.
3. Other than is set forth in this Amendment, all the terms, conditions,
rights, duties, responsibilities and obligations set forth in the Employment
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the Company has executed this Amendment by its duly
authorized corporate officer as of the date set forth above.
"Company"
THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chairman of the Board
and Chief Executive Officer
Accepted by:
"Employee"
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
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