Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 29th
day of January, 2001, by PGT Industries, Inc., a Florida corporation (the
"Employer"), and Xxxxxx Xxxxxxxxxxx, an individual and resident of the State of
Florida (the "Employee").
RECITALS:
A. The Employee is currently employed by the Employer, pursuant to an
oral employment agreement (the "Prior Agreement").
B. Contemporaneous with the execution of this Agreement, PGT Holding
Company, a Delaware corporation ("Buyer") has purchased all of the outstanding
capital stock of the Employer, pursuant to a Stock Purchase Agreement of even
date herewith (the "Purchase Agreement").
C. A condition to the consummation of the transactions contemplated by
the Purchase Agreement is the termination of all rights and expectations under
the Prior Agreement and the execution and delivery of this Agreement by the
Employee and the Employer.
D. Employee acknowledges and agrees that he will financially benefit
from the transactions contemplated by the Purchase Agreement.
E. The Employer desires to employ Employee upon the terms and
conditions set forth herein and the Employee wishes to terminate the Prior
Agreement and to accept such employment upon the terms and conditions set forth
herein including, without limitation, the nondisclosure and noncompetition
covenants and agreements of the Employee set forth in Sections 7 and 8 hereof,
in order to cause Employer to provide Employee the Compensation (as defined
herein).
AGREEMENT
In consideration of the foregoing and the mutual promises and
covenants set forth herein, the parties, intending to be legally bound, agree as
follows:
1. Definitions.
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"AFFILIATE(S)" -- any Person, directly or indirectly controlled by, or
under common control with, the Employer or any other referenced Person.
"AGREEMENT" -- this Employment Agreement, as amended from time to
time.
"ANNUAL PERFORMANCE BONUS" -- as described in Section 3.2.
"BENEFITS" -- as described in Section 3.1(b).
"BOARD OF DIRECTORS" -- the board of directors of the Employer.
"CAUSE" -- means the occurrence of any of the following events during
the Employment Period: (a) conduct amounting to fraud or dishonesty against the
Employer or any subsidiary or affiliate of the Employer; (b) the Employee's
intentional misconduct, repeated refusal to follow the reasonable directions of
the Chairman or President of the Employer or a material breach of this
Agreement, provided an officer of the Employer, upon the direction of the
Chairman or President of the Employer, notifies the Employee of the acts deemed
to constitute such intentional misconduct, repeated refusal or material breach
in writing and the Employee fails to correct such acts (or begin such action
necessary to correct such acts and thereafter diligently pursues the completion
thereof) within five (5) business days after written notice is given; (c)
repeated intoxication with alcohol or drugs while on the Employer's business
during regular business hours; (d) a conviction or plea of guilty or nolo
contendere to a felony (other than one arising from the operation of a motor
vehicle or resulting from actions taken (or not taken) by the Employee in good
faith in his capacity as an employee or officer of the Employer); or (e) the
Employee's failure to observe and comply with the requirements in Sections 7 or
8 hereof.
"CLOSING DATE" -- as defined in the Purchase Agreement.
"COMPENSATION" -- Salary and Benefits.
"CONFIDENTIAL INFORMATION" -- any and all:
(a) trade secrets concerning the business and affairs of the
Employer or any Affiliate of the Employer, product or service specifications,
data, know-how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas, past, current, and
planned research and development, current and planned manufacturing, marketing
or distribution methods and processes, customer lists, prospective customer
lists, current and anticipated customer requirements, price lists, market
studies, business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), and any other information, however
documented, that is a "trade secret" either under common law or as such term is
defined by statute under the laws of any applicable jurisdiction;
(b) information concerning the business and affairs of the
Employer or its Affiliates (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer or Affiliates of the Employer,
containing or based, in whole or in part, on any information included in the
foregoing.
"DISABILITY" -- as defined in Section 6.3.
"EMPLOYEE INVENTION" -- any idea, invention, technique, modification,
process, or improvement (whether patentable or not), and any work of authorship
(whether or not copyright protection may be obtained for it) created, conceived,
or developed by the Employee, either solely or in conjunction with others,
during the Employment Period, or a period that includes a portion of the
Employment Period, that relates in any way to, or is useful in any manner in,
the business then
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being conducted or proposed to be conducted by the Employer, and any such item
created by the Employee, either solely or in conjunction with others, following
termination of the Employee's employment with the Employer, that is based upon
or uses Confidential Information; provided, however, that any item so created by
the Employee that is based upon or uses Confidential Information that the
Employee demonstrates was or became generally available to the public, other
than as a result of a disclosure by the Employee, will not be deemed to be an
Employee Invention for any purposes.
"EMPLOYER" -- as defined on the first page of this Agreement and its
successors and assigns.
"EMPLOYMENT PERIOD" -- the term of the Employee's employment under
this Agreement.
"GOOD REASON" -- means the occurrence of any of the following events
during the Employment Period: (a) any materially adverse change with respect to
the diminution of the duties or responsibilities of the Employee to which the
Employee has not agreed to in writing; (b) the assignment of the Employee to a
location outside of a fifty (50) mile radius from the Employer's current
headquarters; or (c) conduct on the part of the Employer amounting to fraud
against the Employee.
"NONCOMPETITION AGREEMENT" -- the agreements and covenants of the
Employee found in Section 8.2.
"NONCOMPETITION PERIOD" -- for a period of time equal to the longer of
(a) the Employment Period plus two (2) years; or (b) a period of five (5) years
from the date of this Agreement.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"PURCHASE AGREEMENT" -- as defined in Recital B.
"PROPRIETARY ITEMS" -- as defined in Section 7.2(a)(iv).
"RELATED AGREEMENTS" -- as defined in Section 9.
"SALARY" -- as defined in Section 3.1(a).
2. Employment Term and Duties.
2.1 Employment. The Employer hereby employs the Employee, effective as
of the date hereof, and the Employee shall accept employment by the Employer,
effective as of the date hereof, upon the terms and conditions set forth in this
Agreement.
2.2 Term. Subject to the provisions of Section 6, the term of the
Employee's employment under this Agreement shall commence on the date hereof and
continue for three (3)
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years (the "Initial Term") and shall automatically renew thereafter for
successive one-year periods (each a "Renewal Term" and, together with the
Initial Term, collectively referred to as the "Term").
2.3 Duties. The Employee will initially serve as the Vice President of
Manufacturing of the Employer, with duties and responsibilities associated with
and related to such position and as otherwise reasonably requested in good faith
by the Chairman or President of the Employer consistent with such position. The
Employee will (a) devote the Employee's business effort, time, energy and skill
(vacations and reasonable absences due to illness excepted) as is necessary to
fulfill the duties of his position and those assigned by the Chairman or
President of the Employer, (b) use his best efforts to promote the success of
the such business, and (c) cooperate fully with the reasonable requests of the
President and the Board of Directors, as the case may be, in the advancement of
the best interests of the Employer and its Affiliates. During the Employment
Period, the Employee shall not be engaged in or provide services to any other
business or enterprise (whether engaged in for profit or not), which interferes
with the Employee's obligations under this Agreement.
3. Compensation.
3.1 Basic Compensation.
(a) Salary. The Employer shall pay to the Employee an annualized
salary at a rate of $107,000 per year, subject to the provisions of Section 6
and increased (but not decreased) as provided below (the "Salary"), which Salary
will be payable in equal periodic installments in accordance with the Employer's
customary payroll practices. The Salary will be reviewed by the Board of
Directors or President, as the case may be, at least once each year and may be
increased by the Employer following such review. Any such increase in the Salary
shall be made by, and at the sole discretion and approval of, the Board of
Directors or President, as the case may be, and, as increased, shall become the
Employee's new "Salary" hereunder for the remainder of the Term (unless and
until further increased).
(b) Benefits. The Employee will, during the Employment Period, be
entitled to participate in such deferred compensation, profit sharing, bonus,
life insurance, hospitalization and medical plans or insurance coverage,
disability, and other employee benefit plans, programs and policies of the
Employer in effect from time to time (collectively, the "Plans"), vacation and
holidays (as further provided in Section 5 below), and any other plan which may
be made available by the Employer to its key management employees from time to
time in the future, if, and to the extent that, the Employee is eligible under
the terms of such Plans. All of the plans, agreements, and undertakings of
Employer set forth above shall be called, collectively, the "Benefits." Any
Benefits hereunder shall be subject to such local, state or federal tax
reporting requirements as may be in effect at any time during the Employment
Period.
3.2 Annual Performance Bonus.
As additional incentive compensation for the services to be rendered
by the Employee pursuant to this Agreement, the Employee shall be eligible, each
calendar year during the Term, to receive a bonus (the "Annual Performance
Bonus"). The Annual Performance Bonus, if any, shall be determined by the
President of the Employer and the Board of Directors, in their discretion.
Notwithstanding anything to the contrary herein, in order to receive any Annual
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Performance Bonus with respect to a given calendar year, the Employee must be
employed at the time such bonus is awarded and paid by the Employer. Employee
shall first be eligible to receive an Annual Performance Bonus with respect to
calendar year 2001. Any Annual Performance Bonus that is due to the Employee
hereunder shall be paid as soon as practicable following completion of the
Employer's audited financial statements of the year following the year to which
the Annual Performance Bonus relates.
4. Facilities and Expenses.
The Employer will furnish the Employee with office space, equipment,
supplies, computer and facsimile equipment, telephones (including cellular
telephone), automobile or automobile allowance and such other facilities,
support staff and personnel as the Employer deems necessary or appropriate for
the performance of the Employee's duties under this Agreement. The Employer will
reimburse the Employee for reasonable business expenses incurred by him on
behalf of the Employer in the performance of his duties; provided, that Employee
furnishes to Employer documentation of such expenses as is required by the
Internal Revenue Service, as well as such other documentation as the Employer
may reasonably request. In addition, the Employer shall reimburse the Employee
or otherwise provide and pay for all approved professional affiliation expenses
incurred by the Employee. The Employee must file authorization requests, to the
extent required by the Employer's employment policies and, in all instances,
expense reports with respect to such expenses in accordance with the Employer's
policies.
5. Vacations and Holidays.
Beginning in 2001, the Employee will be entitled to four (4) weeks
paid vacation each year during the Employment Period or as provided in the
Employer's written vacation policy, if greater. Such vacation shall be taken in
accordance with the vacation policies of the Employer in effect for its
executive officers from time to time. Vacation must be taken by the Employee at
such time or times as mutually agreed by the Employee and the Employer. The
Employee will also be entitled to the paid holidays as set forth in the
Employer's policies. Vacation days and holidays during any calendar year that
are not used by the Employee during such calendar year may not be used in any
subsequent calendar year, nor will the Employee be paid for unused vacation or
holidays.
6. Termination.
6.1 Events of Termination.
(a) Death; Disability. In the event of the Employee's death or
Disability, his employment with the Employer shall be deemed terminated as of
the end of the month in which such death occurs or such Disability is
determined, and all rights, duties and obligations of the parties hereunder
shall thereupon cease, except for the Employee's obligations under Section 7 and
Section 8 hereof (in the case of a termination due to Disability), and the
Employer's obligations under Sections 6.2(a) and 6.2(b) hereof, as the case may
be.
(b) By The Employer for Cause. The Employee's employment with the
Employer may be terminated at the option of and by written notice from the
Employer if the Board of Directors in good faith finds Cause. Upon any such
termination, all rights, obligations and duties
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of the parties hereunder shall immediately cease (including, but not limited to,
the payment by the Employer of all Compensation), except for the Employee's
obligations under Section 7 and Section 8 hereof.
(c) By The Employer Without Cause. The Employer may also
terminate the Employee's employment at any time upon not less than thirty (30)
days advance written notice without Cause. Upon expiration of such notice period
all rights, obligations and duties of the parties hereunder shall immediately
cease, except for the Employee's obligations under Section 7 and Section 8
hereof and the Employer's obligations under Section 6.2(c). The Employer may
accelerate the effective date of such termination if, in lieu of such notice,
and in addition to the payments required by Section 6.2(c) below, Employer
continues to pay Salary to Employee for a number of days equal to the number of
days by Which Employer accelerated the effective date of Employee's termination.
(d) Voluntary Termination without Good Reason By Employee. The
Employee may terminate his employment with the Employer without Good Reason upon
not less than thirty (30) days advance written notice to the Employer; provided,
however, that after the receipt of such notice, the Employer may, in its
discretion accelerate the effective date of such termination at any time by
written notice to the Employee. Upon the effective date of any such termination,
all rights, obligations and duties of the parties hereunder shall immediately
cease, except for the Employee's obligations under Section 7 and Section 8
hereof and the Employer's obligations under Section 6.2(d).
(e) Termination with Good Reason by the Employee. During the
Term, the Employee may terminate his employment with the Employer with Good
Reason upon advance written notice to the Employer; provided, however, that
after the receipt of such notice, the Employer may, in its discretion accelerate
the effective date of such termination at any time by written notice to the
Employee. Upon the effective date of any such termination, all rights,
obligations and duties of the parties hereunder shall immediately cease, except
for the Employee's obligations under Section 7 and Section 8 hereof and the
Employer's obligations under Section 6.2(e).
6.2 Termination Pay. Effective upon the termination of the Employment
Period, the Employer will be obligated to pay the Employee (or, in the event of
his death, his designated beneficiary) only such compensation as is provided in
this Section 6.2 or as otherwise required by law. For purposes of this Section
6.2, the Employee's designated beneficiary will be such individual beneficiary
or trust, located at such address, as the Employee may designate by notice to
the Employer from time to time or, if the Employee fails to give notice to the
Employer of such a beneficiary, the Employee's estate.
(a) Termination by Death. If the Employment Period is terminated
because of the Employee's death, in addition to the Benefits otherwise due the
Employee and as otherwise required by law, the Employer will, in accordance with
normal payroll practice, pay to the Employee's designated beneficiary the
Employee's Salary for a period of six (6) months.
(b) Termination upon Disability. If this Agreement is terminated
by either party as a result of the Employee's Disability, as determined under
Section 6.3, in addition to the Benefits otherwise due the Employee and as
otherwise required by law, the Employer will, in
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accordance with normal payroll practice, continue to pay to the Employee his
Salary for a period of six (6) months following the effective date of the
termination of this Agreement.
(c) Termination by the Employer Without Cause. If the Employer
terminates the Employee's employment without Cause, in addition to the Benefits
otherwise due the Employee and as otherwise required by law, the Employer will
continue to pay to Employee his Salary, in accordance with normal payroll
practice, for a period of twelve (12) months.
(d) Termination by the Employee without Good Reason. If the
Employee terminates his employment other than with Good Reason, the Employer
shall continue to pay to the Employee his Salary for the shorter of: (i) thirty
(30) days; or (ii) the notice period provided by the Employee with respect to
his termination.
(e) Termination by the Employee with Good Reason. If the Employee
terminates the Employee's employment with Good Reason, in addition to the
Benefits otherwise due the Employee and as otherwise required by law, the
Employer will continue to pay to Employee his Salary, in accordance with normal
payroll practice, for a period of twelve (12) months.
6.3 Definition of Disability. For purposes of this Agreement, the
Employee will be deemed to have a "disability" if (a) the Employee is unable to
perform the essential duties of the Employee's employment due to physical or
emotional incapacity or illness, where such inability is reasonably expected to
be of long-continued and indefinite duration (i.e., for at least twelve (12)
months); or (b) the Employee is entitled to (i) disability retirement benefits
under the federal Social Security Act or (ii) recover benefits under any
long-term disability plan or policy maintained by the Employer. In the event of
a dispute, the determination of a Disability shall be made reasonably by the
Board of Directors and shall be supported by advice of a physician competent in
the area to which such Disability relates. The Employee must submit to a
reasonable number of examinations by the physician making the determination of
disability under this Section 6.3, and the Employee hereby authorizes the
disclosure and release to the Employer of such determination and all supporting
medical records. If the Employee is not legally competent, the Employee's legal
guardian or duly authorized attorney-in-fact will act in the Employee's stead,
for the purposes of submitting the Employee to the examinations, and providing
the authorization of disclosure as required under this Section 6.3.
7. Non-Disclosure Covenant; Employee Inventions.
7.1 Acknowledgments by the Employee. The Employee acknowledges that
(a) during the Employment Period and as a part of his employment, the Employee
will be afforded access to Confidential Information; (b) public disclosure of
such Confidential Information could have an adverse effect on the Employer and
its business; (c) since the Employee possesses substantial expertise and skill
with respect to the Employer's business, the Employer desires to obtain
exclusive ownership of each Employee Invention, and the Employer will be at a
substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Employee Invention; (d) the Compensation provided to Employee hereunder,
together with the consideration provided to the Employee under the Related
Agreements, constitute good and sufficient consideration for the Employee's
agreements and covenants in this Section 7; and (e) the provisions of this
Section 7 are reasonable and necessary to prevent the improper use or disclosure
of Confidential Information and to provide the Employer with exclusive ownership
of all Employee Inventions.
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7.2 Agreements of the Employee. In consideration of the Compensation
to be paid or provided to the Employee by the Employer under this Agreement, the
Employee covenants as follows:
(a) Confidentiality.
(i) During and at all times following the Employment Period,
the Employee will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written consent of the
Employer or except as otherwise expressly permitted by the terms of this
Agreement.
(ii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits under applicable trade secret laws. If any
information that the Employer deems to be a trade secret is found by a court of
competent jurisdiction not to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Employee hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post a bond
or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Employee
demonstrates was or became generally available to the public other than as a
result of a disclosure by the Employee.
(iv) The Employee will not remove from the Employer's (or
any Affiliate's) premises (except to the extent such removal is for purposes of
the performance of the Employee's duties at home or while traveling, or except
as otherwise specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary Items").
The Employee recognizes that, as between the Employer and the Employee, all of
the Proprietary Items, whether or not developed by the-Employee, are the
exclusive property of the Employer. Upon termination of this Agreement by either
party, the Employee will return to the Employer all of the Proprietary Items in
the Employee's possession or subject to the Employee's control, and the Employee
shall not retain any copies, abstracts, sketches, or other physical embodiment
of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Employee acknowledges that all of the
Employee's writing, works of authorship, and other Employee Inventions are works
made for hire and the property of the Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the Employee hereby
assigns to the Employer all of the Employee's right, title, and interest,
including all rights of copyright, patent, and other intellectual property
rights, to or in such Employee Inventions. The Employee covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional compensation, all of
the Employee's right to the Employee Invention for the United States and all
foreign jurisdictions;
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(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order to apply
for and obtain patents or other registrations with respect to any Employee
Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance at
Employer's expense, in support of the Employer's rights to any Employee
Invention.
7.3 Disputes or Controversies. The Employee recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Employee, and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by written agreement among them.
8. Non-Competition and Non-Interference.
8.1 Acknowledgments By the Employee. The Employee acknowledges that:
the services to be performed by him under this Agreement are of a special,
unique and unusual character; and (b) the Compensation provided to the Employee
hereunder, together with the consideration provided to the Employee under the
Related Agreements, constitute good and sufficient consideration for the
Employee's agreements and covenants in this Section 8; and (c) the provisions of
this Section 8 are reasonable and necessary to protect the Employer's business.
8.2 Covenants of the Employee. In consideration of the acknowledgments
by the Employee, and in consideration of the Compensation to be paid or provided
to the Employee by the Employer, the Employee covenants that he will not,
directly or indirectly:
(a) during the Noncompetition Period, (i) solicit business from,
or compete with the Employer for the business of, any customer of the Employer
in the same or similar business as the business conducted by the Employer; (ii)
own, operate, control, finance, manage, advise, be employed or engaged by,
perform any services for, invest in or otherwise become associated in any
capacity with, any business, company, partnership, organization, proprietorship,
or other entity, whose activities compete in whole or in part with the
activities of the Employer or any of its Affiliates in any geographical area in
which the Employer or any of its Affiliates conducted or conducts its business
(a "Competitive Business"); or (iii) engage in any practice the purpose or
effect of which is to intentionally evade the provisions of this covenant;
provided, however, that the Employee may purchase or otherwise acquire up to
(but not more than) three percent (3%) of any class of securities of any
Competitive Business (but without otherwise participating in the activities of
such Competitive Business) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934; or
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(b) whether for the Employee's own account or the account of any
other person (i) solicit or induce, directly or indirectly, whether or not for
consideration, any employee or agent of the Employer to terminate his or her
relationship with the Employer; or (ii) induce or attempt to induce any supplier
or contractor of the Employer to terminate or adversely change its relationship
with the Employer or otherwise interfere with any relationship between the
Employer and any of its suppliers or contractors.
8.3 Enforceability; Notice. If any covenant in Section 8.2 is held to
be unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against the
Employee. The period of time applicable to any covenant in Section 8.2 will be
extended by the duration of any violation by the Employee of such covenant. The
Employee will, while the covenant under Section 8.2 is in effect, give notice to
the Employer, within ten (10) days after accepting any other employment, of the
identity of the Employee's employer. Employer may notify such employer that the
Employee is bound by this Agreement and, at the Employer's election, furnish
such employer with a copy of this Agreement or relevant portions thereof.
9. Related Agreements. The Employer and the Employee acknowledge and agree
that as a material inducement to enter into this Agreement and fulfill their
respective obligations and covenants hereunder, they shall simultaneously
execute and deliver (i) a Subscription Agreement, pursuant to which, among other
things, the Employee shall purchase certain shares of capital stock of Buyer,
and (ii) a Security Holder's Agreement, among Buyer and certain stockholders of
Buyer. Such Subscription Agreement and Security Holder's Agreement, together
with the Purchase Agreement, shall be referred to collectively as the "Related
Agreements."
10. General Provisions.
10.1 Injunctive Relief and Additional Remedy. The Employee
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of
Section 7 and Section 8) would be irreparable and that an award of monetary
damages to the Employer for such a breach would be an inadequate remedy.
Consequently, the Employer will have the right, in addition to any other rights
it may have, at Employer's cost, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief.
10.2 Covenants of Sections 7 and 8 are Essential and Independent. The
covenants by the Employee in Section 7 and Section 8 are essential elements of
this Agreement, and without the Employee's agreement to comply with such
covenants, the Employer would not have entered into this Agreement, offered
employment to the Employee or offered the Employee the Salary and Benefits and
other consideration provided hereunder. The Employee's covenants in Section 7
and Section 8 are independent covenants and the existence of any claim by the
Employee against the Employer under this Agreement or otherwise, or against any
affiliate of Employer, will not excuse the Employee's breach of any covenant in
Section 7 or Section 8. If the Employee's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
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necessary or appropriate to enforce the covenants and agreements of the Employee
in Section 7 and Section 8.
10.3 Representations and Warranties by the Employee. The Employee
represents and warrants to the Employer that the execution and delivery by the
Employee of this Agreement do not, and the performance by the Employee of the
Employee's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: (a) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Employee; or (b) conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to which the
Employee is a party or by which the Employee is or may be bound.
10.4 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
10.5 Binding Effect; Delegation of Employee's Duties Prohibited. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any Affiliate to which Employer may assign this
Agreement or any entity with which the Employer may merge or consolidate or to
which all or substantially all of its assets may be transferred. The duties and
covenants of the Employee under this Agreement, being personal, may not be
delegated or assigned.
10.6 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered to the address(es) below, or (b) one business day after
deposit with a nationally recognized overnight delivery service (receipt and
next day delivery requested), in each case to the appropriate addresses set
forth below (or to such other addresses as a party may designate by notice to
the other parties):
If to Employer: PGT Industries
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
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With a copy to: PGT Holding Company
c/o Linsalata Capital Partners Fund IV, L.P.
Landerbrook Corporate Center One
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to Employee: Xxxxxx Xxxxxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
10.7 Entire Agreement; Amendments. This Agreement, as it may be
amended from time to time, contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior employment
arrangements (as the same may have been amended from time to time) and other
agreements or understandings, oral or written, between the parties hereto with
respect to the subject "matter hereof, including but not limited to the Prior
Agreement. This Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
10.8 Governing Law; Venue and Jurisdiction. This Agreement shall be
governed by and construed under Ohio law, without regard to conflict of laws
principles. The parties agree that any lawsuit between them arising under this
Agreement shall be filed in any state or federal court located in Cuyahoga
County, Ohio, and each of the parties hereby agrees, acknowledges and submits
itself to the exclusive jurisdiction and venue of such courts for the purposes
of such lawsuit and agrees to accept service of process in accordance with the
provisions for delivery of notice set forth in Section 10.6 hereof.
10.9 Section Headings; Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
10.10 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in foil force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
10.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Employment Agreement as of the date first written above.
PGT INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, President
("Employer")
/s/ Xxxxxx Xxxxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxx
("Employee")
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