EXHIBIT 10.8.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of the 1st day of September, 1996,
between ASHLEY ALUMINUM, INC., a Georgia corporation dba XXXXXXX XXXXXX
BUILDING PRODUCTS (the "Company") and XXXXXX X. XXXXXXXX, a resident of the
State of Florida ("Executive").
BACKGROUND
Executive has been employed by the Company pursuant to an Employment and
Confidentiality Agreement dated October 18, 1991 (the "Prior Agreement") as
an executive employee. The Company desires to extend the employment
relationship with Executive, and Executive desires to continue employment on
the terms and conditions set forth below. This Agreement is intended to
replace and supersede the Prior Agreement.
AGREEMENT
In consideration of the continued employment of Executive by the Company,
the premises, and the mutual agreements hereinafter set forth, the parties
agree:
1. DEFINITIONS. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business of
distributing patio and screen enclosure products, vinyl and aluminum building
products, windows, fascia, soffit, fasteners, and other exterior building
products and roll forming aluminum building products.
(b) "Cause" means conduct amounting to fraud or dishonesty against
the Company; Executive's willful violation of Sections 2(a) or (b) hereof, or
any of the Company's work rules or policies or repeated absences from work
without a reasonable excuse, if the Board of Directors of the Parent notifies
Executive of such violation or absence in writing and Executive fails to cure
such violation or absenteeism within five (5) days after written notice has
been given, provided that written notice relating to such violation or
absenteeism shall only be given once as it relates to a particular manner of
conduct; intoxication with alcohol or drugs while on Company business during
regular business hours; a conviction or plea of guilty or NOLO CONTENDERE to
a felony or a crime involving dishonesty against the Company; or Executive's
failure to observe the requirements of Sections 2(c), 5 or 6 hereof.
(c) "Disability" means (i) the inability of Executive to perform
the duties of Executive's employment due to physical or emotional incapacity
or illness, where such inability is expected to be a long-continued and
indefinite duration or (ii) Executive shall be entitled to (x) disability
retirement benefits under the federal Social Security Act or (y) recover
benefits under any long-term disability plan or policy maintained by the
Company. In the event of a dispute, the determination of Disability shall be
made by the Board of Directors of the Company and shall be supported by
advice of a physician competent in the area to which such Disability relates.
(d) "Effective Date" means the date set forth above.
2. TERMS OF ENGAGEMENT; DUTIES
(a) The Company hereby employs Executive, commencing on the
Effective Date, and Executive hereby accepts employment by the Company
subject to the terms and conditions hereof. Executive is engaged initially
with the title and functions of President and Chief Executive Officer of the
Company and President of the parent company, Xxxxxxx Xxxxxx Building
Products, Inc. ("Parent"). Executive shall report to and shall perform the
duties assigned by the Board of Directors of the Company and the Parent from
time to time, and as are provided in the Bylaws of the Company and the
Parent. At all times during the term of this Agreement, the Executive shall
be employed as a senior executive of the Company with appropriate and
commensurate title, rank and status and Executive shall retain the president
position of any division or unit of the Company or the Parent in the future
that contains substantially all of the assets of the Company as are held by
the Company on the Effective Date.
(b) Throughout the term of this Agreement, Executive shall:
(i) devote all of Executive's business effort, time,
energy, and skill (reasonable vacations and reasonable absences due to
illness excepted) to the duties assigned by the Board of Directors of
the Company and the Parent;
(ii) faithfully, loyally, and industriously perform such
duties, subject to the control and supervision of the Board of Directors
of the Company and the Parent; and
(iii) diligently follow and implement all management
policies and decisions of the Company and the Parent that are
communicated to Executive.
(c) During the term of this Agreement, Executive shall not be
engaged (whether or not during normal business hours) in any other business
or professional activity, whether or not such activity is pursued for gain,
profit or other pecuniary advantage that is contrary to the provisions of
Section 2(b)(i) above; provided, however, that this restriction shall not be
construed as preventing Executive from (i) investing his personal assets in
businesses which do not compete with the Company in such form or manner as
will not require any services on the part of Executive in the operation or
the affairs of the companies in which such investments are made and in which
his participation is solely that of an investor or (ii) purchasing securities
in any corporation whose
-2-
securities are regularly traded provided that such purchase shall not result
in his collectively owning beneficially at any time five (5%) percent or more
of the equity securities of any corporation engaged in a business competitive
to that of the Company.
3. COMPENSATION. In consideration of the services rendered by
Executive pursuant to this Agreement, the Company shall provide the following:
(a) A base salary of Two Hundred Twenty-Five Thousand Dollars
($225,000) per annum (the "Base Salary") which Base Salary will be reviewed
periodically and may be increased by the Company from time to time. The Base
Salary shall be paid in accordance with the Company's standard payroll
practices in effect from time to time, and shall be subject to such
deductions and withholdings as are required by law or by policies of the
Company.
(b) Executive shall be eligible to be considered for an annual cash
performance bonus, which may consist of an amount of up to one hundred
percent (100%) of the Base Salary in the applicable year based on the
attainment of performance objectives established by the Board of Directors of
the Company and the Parent in good faith and Executive's contributions to the
attainment of those objectives, and shall be in such amount and payable in
such manner and on such terms as are determined by the Board of Directors of
the Company and the Parent. Nothing contained in this subsection (b) shall
obligate the Company to pay a bonus to Executive, unless the Board of
Directors of the Company and the Parent determines to award such a bonus to
Executive.
(c) The right to participate in any insurance plans maintained by
the Company from time to time to the extent that Executive's position,
tenure, salary, age, health and other qualifications make him eligible to
participate, and such other fringe benefits as are provided to the other
senior management employees of the Company, provided that the Company shall
not be required to adopt or continue any insurance plans or fringe benefits.
(d) Reimbursement for all business reasonable expenses authorized
by the Company and incurred by Executive in connection with the Business of
the Company (including car allowance) subject to compliance with the expense
reimbursement policies established by the Company and in sufficient detail to
comply with Internal Revenue Service Regulations.
(e) A grant, as of the Effective Date, of 100,000 options to
purchase Common Stock of the Parent issued under the existing Stock Incentive
Plans of the Parent. The exercise price of such options shall be $12.25, the
Fair Market Value as of the date hereof. Such options will have a term of ten
years and will vest in one-fifth increments over five years from the date of
grant.
(f) Executive shall be eligible for an additional grant of options
to purchase Common Stock of the Parent as of the end of the term hereof in
such amount as shall be determined by the Board of Directors of the Parent.
-3-
(g) The remuneration and benefits set forth in this Section 3 shall
be the only compensation payable to Executive with respect to his employment
hereunder, and Executive shall not be entitled to receive any compensation in
addition to that set forth in this Section 3 for any services rendered by him
in any capacity to the Company or any affiliated corporation unless agreed to
in writing by the Company or such affiliated corporation.
4. TERM AND TERMINATION OF THIS AGREEMENT. The term of employment of
Executive pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of three (3) years, or until sooner terminated as
provided herein.
(a) Executive's employment hereunder may be terminated:
(i) Upon the death or Disability of Executive;
(ii) By the Company, immediately for Cause;
(iii) By Executive upon ninety (90) days prior written
notice to the Company;
(iv) By Company immediately upon written notice to
Executive; or
(v) By mutual agreement between Executive and the Company.
(b) Except as set forth below, upon termination of Executive's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Executive or his personal representative with respect
to remuneration due under this Agreement, except for Base Salary earned but
unpaid at date of termination, provided however, Executive's covenants in
Sections 5 and 6 of this Agreement shall survive the termination of
Executive's employment hereunder. Upon termination of Executive's employment
hereunder pursuant to Section 4(a)(iv) above, Executive shall be entitled to
receive severance pay (the "Severance Amount") consisting of an amount equal
to (i) the then current annualized Base Salary plus (ii) the average of the
annual bonus actually paid to or accrued for Executive hereunder for the two
(2) most recent fiscal years of the Company ending prior to the date of
termination, paid together over a period of twelve (12) months in accordance
with the Company's standard payroll practices in effect at the time of
termination. If Executive elects to continue coverage on the Company's
health plan upon termination of employment pursuant to Section 4(a)(iv)
above, the Company will pay the monthly premiums for the first twelve months
of the eligible continuation period or until Executive obtains employment and
has satisfied any necessary waiting periods under the new employer's health
plan, whichever is sooner. It is understood that Executive's coverage under
the Company's disability, accidental death or dismemberment and group life
insurance plans cease as of the date of termination. If Executive fails to
observe the requirements of Sections 5 or 6 hereof, then the Company shall
have no obligation to pay any portion of the Severance Amount remaining
unpaid to Executive.
-4-
5. OWNERSHIP, NON-DISCLOSURE, AND NON-USE OF TRADE SECRETS.
(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or information
that is a Trade Secret hereunder (1) that has been voluntarily
disclosed to the public by the Company or has become generally known
to the public (except where such public disclosure has been made by
or through the Executive or by a third person or entity with the
knowledge of the Executive without authorization by the Company);
(2) that has been independently developed and disclosed by parties
other than the Executive or the Company to the Executive or to the
public generally without a breach of any obligation of confidentiality
by any such person running directly or indirectly to the Company; or
(3) that otherwise enters the public domain through lawful means.
(ii) "Trade Secrets" means information which derives
economic value, actual or potential, from not being generally known
and not being readily ascertainable to other persons who can obtain
economic value from its disclosure or use and which is the subject of
efforts that are reasonable under the circumstances to maintain its
secrecy or confidentiality. Trade Secrets may include either
technical or non-technical data, including without limitation,
(1) any useful process, machine, chemical formula, composition of
matter, or other device which (A) is new or which Executive has a
reasonable basis to believe may be new, (B) is being used or studied
by the Company and is not described in a printed patent or in any
literature already published and distributed externally by the
Company, and (C) is not readily ascertainable from inspection of a
product of the Company; (2) any engineering, technical, or product
specifications including those of features used in any current product
of the Company or to be used, or the use of which is contemplated, in
a future product of the Company; (3) any application, operating
system, communication system, or other computer software (whether in
source or object code) and all flow charts, algorithms, coding sheets,
routines, subroutines, compilers, assemblers, design concepts, test
data, documentation, or manuals related thereto, whether or not
copyrighted, patented or patentable, related to or used in the
Business of the Company; or (4) information concerning the customers,
suppliers, products, pricing strategies of the Company, personnel
assignments and policies of the Company, or matters concerning the
financial affairs and management of the Company or any parent,
subsidiary, or affiliate of the Company; provided however, that
Trade Secrets shall not include any Excluded Information.
(b) Executive acknowledges and agrees that all Trade Secrets, and
all physical embodiments thereof, are confidential to and shall be and remain
the sole and exclusive property of the Company and that any Trade Secrets
produced by the Executive during the period of Executive's employment by the
Company shall be considered "work for hire" as such term is defined in 17
U.S.C. Section 101, the ownership and copyright of which shall be vested
solely in the Company. Executive agrees (i) immediately to disclose to the
Company all Trade Secrets developed in whole or part by Executive during the
term of Executive's's employment by the Company, and (ii) at the request and
-5-
expense of the Company, to do all things and sign all documents or
instruments reasonably necessary in the opinion of the Company to eliminate
any ambiguity as to the rights of the Company in such Trade Secrets
including, without limitation, providing to the Company Executive's full
cooperation in any litigation or other proceeding to establish, protect, or
obtain such rights. Upon request by the Company, and in any event upon
termination of Executive's employment by the Company for any reason,
Executive shall promptly deliver to the Company all property belonging to the
Company including, without limitation, all Trade Secrets (and all embodiments
thereof) then in Executive's custody, control or possession.
(c) Executive agrees that all Trade Secrets of the Company received
or developed by Executive as a result of Executive's employment with the
Company will be held in trust and strictest confidence, that Executive will
protect such Trade Secrets from disclosure, and that Executive will make no
use of such Trade Secrets, except in connection with Executive's employment
hereunder, without the Company's prior written consent. The obligations of
confidentiality contained in this Agreement will apply during Executive's
employment by the Company and (i) with respect to all Trade Secrets
consisting of scientific or technical data, at any and all times after
expiration or termination (for whatever reason) of such employment; and (ii)
with respect to all other Trade Secrets, for a period of two (2) years after
such expiration or termination, unless a longer period of protection is
provided by law.
6. NONCOMPETE; NONSOLICITATION COVENANTS.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
(i) "Affiliate" means any person or entity directly or
indirectly controlling, controlled by, or under common control with
Executive. As used herein, the word "control" means the power to direct
the management and affairs of a person.
(ii) "Area" means all of North America.
(iii) "Competing Enterprise" means any person or any
business organization of whatever form, engaged directly or indirectly
within the Area in the Business of the Company.
(b) Executive covenants that Executive shall, during the term of
this Agreement and for a period of one (1) year following the termination,
for whatever reason, of Executive's employment by the Company, observe the
following separate and independent covenants:
(i) Neither Executive nor any Affiliate will, without the
prior written consent of the Company, within the Area, either directly or
indirectly, (A) become financially interested in a Competing Enterprise
(other than as a holder of less than five percent of the outstanding voting
securities of any entity whose voting securities are listed on a national
securities exchange or quoted by the National Association of Securities
Dealers, Inc. automated quotation system), or (B) engage in or be employed
by any Competing
-6-
Enterprise as a consultant, officer, director, or executive or managerial
employee.
(ii) Neither Executive nor any Affiliate will, without the
prior written consent of the Company, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others, solicit,
divert, or appropriate, or attempt to solicit, divert, or appropriate, to
any Competing Enterprise within the Area, any person or entity whose
account with the Company was serviced by or under Executive's direction
or supervision during the term of this Agreement.
(iii) Neither Executive nor any Affiliate will, without
the Company's prior written consent, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others, solicit,
divert, or hire away, or attempt to solicit, divert, or hire away, to any
Competing Enterprise, any person employed by the Company, whether or not
such employee is a full-time or a temporary employee of the Company and
whether or not such employment is pursuant to written agreement and
whether or not such employment is at will.
7. REMEDIES. Executive acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that
by virtue of the training, duties, and responsibilities attendant with
Executive's employment by the Company and the special knowledge of the
business and operations of the Company that Executive will have as a
consequence of Executive's employment by the Company, great loss and
irreparable damage would be suffered by the Company if the Executive should
breach or violate any of the terms or provisions of the covenants and
agreements set forth herein. Executive further acknowledges and agrees that
each such covenant and agreement is reasonably necessary to protect and
preserve the interest of the Company. Therefore, in addition to all the
remedies provided at law or in equity, Executive agrees and consents that the
Company shall be entitled to a temporary restraining order and a permanent
injunction to prevent a breach or contemplated breach of any of the covenants
or agreements of Executive contained herein. The existence of any claim,
demand, action or cause of action of Executive against the Company shall not
constitute a defense to the enforcement by the Company of any of the
covenants or agreements herein whether predicated upon this Agreement or
otherwise, and shall not constitute a defense to the enforcement by the
Company of any of its rights hereunder.
8. GENERAL PROVISIONS.
(a) In the event that any one or more of the provisions, or parts
of any provisions, contained in the Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed
and shall be construed as a separate and independent covenant and should any
part or provision of any of such covenants be held or declared invalid by any
court of competent jurisdiction, such invalidity shall in no way render
invalid or unenforceable any other part or provision thereof or any other
covenant of the parties not held or declared invalid.
-7-
(b) This Agreement and the rights and obligations of the Company
hereunder may be assigned by the Company to any subsidiary of or successor to
the Company, and shall inure to the benefit of, shall be binding upon, and
shall be enforceable by any such assignee, provided that any such assignee
shall agree to assume and be bound by this Agreement. This Agreement and the
rights and obligations of Executive hereunder may not be assigned by
Executive.
(c) The waiver by the Company of any breach of this Agreement by
Executive shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of
Florida. The parties agree that any appropriate state court located in
Hillsborough County, Florida or any Federal Court located in Tampa, Florida
shall have exclusive jurisdiction of any case or controversy arising under or
in connection with this Agreement and shall be a proper forum in which to
adjudicate such case or controversy. The parties consent to the jurisdiction
of such courts.
(e) This Agreement embodies the entire agreement of the parties
relating to the employment of Executive by the Company. No amendment or
modification of this Agreement shall be valid or binding upon the Company or
Executive unless made in writing and signed by the parties. All prior
understandings and agreements relating to the employment of Executive by the
Company (including the Prior Agreement) are hereby expressly terminated and
superseded.
(f) Any notice, request, demand, or other communication required to
be given hereunder shall be made in writing and shall be deemed to have been
fully given if personally delivered or if mailed by United States Mail,
certified or registered, postage prepaid, to the parties at the following
addresses (or at such other addresses as shall be given in writing by any
party to the other party hereto):
If to Executive:
Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
If to Company:
Ashley Aluminum, Inc. dba Xxxxxxx Xxxxxx Building Products
0000 X. Xxxxxxx
Xxxxx, XX 00000
(g) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and it shall not be
necessary for the same counterpart of this agreement be signed by all of the
undersigned in order for the agreements set forth herein to be binding upon
all of the undersigned in accordance with the terms hereof.
-8-
IN WITNESS WHEREOF, the Company and Executive have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
ASHLEY ALUMINUM, INC. dba
Xxxxxxx Xxxxxx Building Products
By: /s/ XXXXXX X. XXXX
------------------------------
Xxxxxx X. Xxxx, Director
EXECUTIVE:
/s/ XXXXXX X. XXXXXXXX
------------------------------
Xxxxxx X. Xxxxxxxx
-9-
