EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into as of January 1, 2002, by and among Atrium Corporation (f/k/a D
and W Holdings, Inc.), a Delaware corporation (together with its successors and
assigns permitted hereunder, the "Company"), Atrium Companies, Inc., a Delaware
corporation ("ACI"), and Xxxxx Xxxxx (the "Employee").
RECITALS
A. The Board of Directors of the Company (the "Board") determined that
it is in the best interest of the Company and its stockholders to employ the
Employee on the terms and conditions set forth herein.
B. ACI and its subsidiaries will benefit from the services to be
provided by the Employee hereunder.
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 commencing on the date hereof and ending on the second anniversary of
such date (the "Employment Period"). None of the parties hereto 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 all the
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 President of X. X. Xxxxx Company and Total Trim, Inc.
("Xxxxx") and, in so doing, shall perform normal duties and responsibilities
associated with such position, subject to the general direction, approval and
control of the Chief Executive Officer of the Company or equivalent position and
the Board of Directors.
(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 substantially all his 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 (1) serve on
industry trade, civic or charitable boards or committees, (2) deliver lectures
or fulfill speaking engagements or (3) 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.
(b) Compensation.
(i) Base Salary. During the Employment Period, 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
amount equal to $225,000 per annum. 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. On the first
anniversary date of this Agreement, the Employee's base salary will be adjusted
by 5% to $236,250 per annum.
(ii) Incentive Bonus. Employee shall be entitled to
an Incentive Bonus as set forth on Schedule A hereto. The Incentive Bonus, if
any, shall be paid to the Employee on or before April 1st of the calendar year
immediately following the year with respect to which the calculation of the
Incentive Bonus is made.
(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.
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(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 or a monthly allowance, at the Company's
discretion.
(viii) Vacation. During the term of the Employee's
employment, the Employee shall be entitled to four 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. Vacation will be deemed to accrue
monthly for purposes of the payments described in Sections 4 and 5 hereof.
(ix) Stock Options. Upon the effective date of this
Agreement, the Employee will be entitled to the stock options described on
Schedule B hereto.
(c) 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 13(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.
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(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 (i) 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 in good faith by the Board, and which is not remedied within 30 days
after receipt of written notice from the Company specifying such breach, (ii)
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; (iii) a
material breach by the Employee of Sections 8, 9, 11 or 12; (iv) the Employee's
conviction, plea of no contest or nolo contendere, or unadjudicated probation
for any felony or crime involving moral turpitude; or (v) 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. 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. 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.
(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; or
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(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.
(v) The Company's requirement that the Employee
re-locate outside a 50 mile radius of the Florence, Alabama area.
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 (as defined
below) 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 one year of such Change of Control the
Company may terminate the Employee's employment by giving the Employee written
notice in accordance with Section 14(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."
As used in this Agreement, "Change of Control" means
the first to occur of: (i) any sale, lease, exchange or other transfer of all or
substantially all of the assets of the Company (including capital stock or
assets of operating subsidiaries) to any person or group of persons, (ii) a
majority of the Board of Directors of the Company shall consist of persons who
are not nominated collectively by Ardshiel, Inc. and its affiliates and GE
Investment Private Placement Partners II, a Limited Partnership or (iii) the
acquisition by any person or group (other than Ardshiel, Inc., GE Investment
Private Placement Partners II, a Limited Partnership and their affiliates) of
the power to vote or direct the voting of securities having more than 50% of the
ordinary voting power for the election of directors of the Company.
(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 14(b). For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
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 (iii) 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.
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(f) Date of Termination. "Date of Termination" means (i) 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, (ii) 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 (iii) 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.
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"); (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, and (iii) any amount due the Employee under
any unexercised stock options held by the Employee or as a result of the
Employee owning restricted stock.
(b) Death. If the Employee's employment is terminated by
reason of the Employee's death during the Employment Period, all unexercised
stock options held by Employee shall immediately vest (in his legal
representatives) and become exercisable for a period of ninety (90) days from
the Date of Termination. Immediately following such period, all unexercised
stock options shall lapse and expire. In addition, in such case, the Employee
(or his beneficiaries, heirs or designees) shall continue to hold his restricted
stock and such stock shall be transferable only upon the occurrence of a Value
Event (defined below). The Company shall have no further payment obligations to
the Employee or his legal representatives, other than for payment of: (i) in a
lump sum in cash within ten (10) days after the Date of Termination the Accrued
Obligations; (ii) the Accrued Investments, which shall be payable in accordance
with the terms and conditions of the Investment Plans; and (iii) the Incentive
Bonus calculated in accordance with Schedule A hereto prorated from the first
day of the Company's then current fiscal year to the Date of Termination (the
"Prorated Incentive Bonus"), payable following calculation of the Incentive
Bonus in accordance with Section 2(b)(ii) hereof. For purposes hereof, a Value
Event shall be deemed to have occurred at such time as (i) the Corporation sells
common stock in an offering registered with the Securities and Exchange
Commission which results in a Change of Control; (ii) the Corporation is merged
or consolidated with another corporation in a merger in which the surviving
corporation has freely tradeable common stock;
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or (iii) substantially all of the assets of the Corporation and its
subsidiaries, if any, taken as a whole, are sold or otherwise transferred.
(c) Disability. If the Employee's employment is terminated by
reason of the Employee's Disability during the Employment Period, all
unexercised stock options held by Employee shall immediately vest and become
exercisable for a period of ninety (90) days from the Date of Termination.
Immediately following such period, all unexercised stock options shall lapse and
expire. In addition, in such case, the Employee (or his beneficiaries, heirs or
designees) shall continue to hold his restricted stock and such stock shall be
transferable only upon the occurrence of a Value Event. The Company shall have
no further payment obligations to the Employee or his legal representatives,
other than for payment of: (i) in a lump sum in cash within ten (10) days after
the Date of Termination the Accrued Obligations; (ii) the Accrued Investments,
which shall be payable in accordance with the terms and conditions of the
Investment Plans; and (iii) the Prorated Incentive Bonus, payable following
calculation of the Incentive Bonus in accordance with Section 2(b) (ii) hereof.
(d) 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, all unvested stock options held by the Employee shall immediately
vest and become exercisable for a period of thirty (30) days from the Date of
Termination. Immediately following such period, all unexercised stock options
shall lapse and expire. In addition, in such case, the Employee (or his
beneficiaries, heirs or designees) shall continue to hold his restricted stock
and such stock shall be transferable only upon the occurrence of a Value Event.
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 shall be payable in accordance with the
terms and conditions of the Investment Plans; (iii) payment of the Prorated
Incentive Bonus, payable following calculation of the Incentive Bonus in
accordance with Section 2(b)(ii) hereof; and (iv) payment for each month during
a period of six months following the Date of Termination (the "Severance
Period") of one-twelfth of the sum of the Employee's Annual Base Salary on the
Date of Termination, in accordance with the customary payroll practices of the
Company.
5. Change of Control. If the Employee's employment is terminated upon a
Change of Control as contemplated in Section 3(d), all unexercised stock options
held by Employee shall immediately vest and become exercisable for a period of
30 days from the Date of Termination. Immediately following such period all
unexercised stock options shall lapse and expire. In addition, in such case, the
Employee (or his beneficiaries, heirs or designees) shall continue to hold his
restricted stock and such stock shall be transferable only upon the occurrence
of a Value Event. 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; and (iv) payment for each month during the
Severance Period of one-twelfth of the sum of the Employee's Annual Base Salary
on the Date of Termination, in accordance with the customary payroll practices
of the Company.
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6. Controlling Provisions, Notice Obligations, and Option Valuation.
The provisions of this Agreement shall control in the event of any conflict with
any other agreement among the Employee, the Company, ACI and/or any of its
affiliates. Notwithstanding the time lines for the exercise of unexercised
options or put rights set forth in this Agreement or any other agreement among
the parties, the time will not run until the Company has specifically put the
Employee or his estate on notice in accordance with Section 14(b) of the rights
then available to the Employee or his estate. The time shall begin to run when
the notice is deemed received under Section 14(b).
Notwithstanding the foregoing, the Employee will be entitled
to the value in any unexercised option and in the restricted stock at the
termination of this Agreement. The value of the Company and all of its
affiliates shall be established by the method set forth in the Buy-Sell
Agreement. The expenses of this determination shall be paid by the Company. The
Employee or his estate shall be paid any computed equity in the unexercised
options within thirty days of the determination of value.
7. 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 8, 9, 11,
or 12 by the Employee and either party shall be entitled to seek damages for
criminal misconduct.
8. 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 vendors, manuals relating to suppliers'
products, customer lists, information regarding methods of doing business, and
the identity of suppliers. "Confidential Information" shall not include (i)
information that is generally known to other persons or entities who can obtain
economic value from its disclosure or use and (ii) 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; 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
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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 8, "Company" shall include Atrium
Corporation and any of its direct or indirect subsidiaries.
9. Responsibilities Upon Termination. Upon the termination of his
employment by the Company for whatever reason and irrespective of whether or not
such termination is voluntary on his part:
(a) The Employee shall advise the Company of the identity of
his new employer within ten (10) days after accepting new employment and further
agrees to keep the Company so advised of any change in employment during the
term of Non-Competition set forth in Section 11 hereof;
(b) The Company in its sole discretion may notify any new
employer of the Employee that he has an obligation not to compete with the
Company during such term;
(c) The Employee shall deliver to the Company any and all
records, forms, contracts, memoranda, work papers, customer data and any other
documents which have come into his possession by reason of his employment with
the Company (including Atrium Corporation and its direct and indirect
subsidiaries), irrespective of whether or not any of said documents were
prepared for him, and he shall not retain memoranda in respect of or copies of
any of said documents; and
(d) The Employee shall participate in an exit interview with
the Company.
10. Successors. The Company may assign its rights and obligations under
this Agreement without the consent of the Employee 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.
All representations, warranties, covenants, terms, conditions and provisions of
this Agreement shall be binding upon and inure to the benefit of, and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the Company and the Employee. Neither this Agreement nor
any rights, interests or obligations hereunder may be assigned by the Employee
without the prior written consent of the Company.
11. Non-Competition.
(a) The term of Non-Competition (herein so called) shall be
for a term beginning on the effective date hereof and continuing until (i) for
six months from the Date of Termination if the Employee's employment is
terminated by the Company for Cause or by the Employee without Good Reason, or
(ii) the last day of the Severance Period if the Employee's employment
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is terminated by the Company without Cause (and not due to Disability) or upon a
Change of Control or by the Employee for Good Reason.
(b) During the term of Non-Competition, the Employee shall not
(other than for the benefit of the Company or its affiliates pursuant to this
Agreement) directly or indirectly, render services to, assist, participate in
the affairs of, or otherwise be connected with, any person or enterprise (other
than the Company), which person or enterprise is engaged in, or is planning to
engage in, and shall not personally engage in, any business that is in any
respect competitive with the business of the Company, with respect to any
products of the Company that were within the Employee's management
responsibility at any time within the twelve-month period immediately prior to
the termination of the Employee's employment with the Company, in any capacity
which would (i) utilize the Employee's services with respect to such business
within any state of the United States, or any substantially comparable political
subdivision of any other country, wherein the Company sold or actively attempted
to sell, such products within the twelve-month period immediately prior to the
termination of the Employee's employment with the Company; or (ii) utilize the
Employee's services in selling any products similar to such products of the
Company to any person or entity to which the Company sold or actively attempted
to sell such products within the twelve-month period immediately prior to the
termination of the Employee's employment with the Company (a "Competing
Business"). 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) During the term of Non-Competition, Employee will not, and
will not permit any of his affiliates to, directly or indirectly, recruit or
otherwise solicit or induce any employee, customer, subscriber or supplier of
the Company to terminate its employment or arrangement with the Company,
otherwise change its relationship with the Company or establish any relationship
with the Employee or any of his affiliates for any business purpose deemed
competitive with the business of the Company.
(d) 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.
(e) If any court determines that any portion of this Section
11 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.
(f) As used in this Section 11, "Company" shall include Atrium
Corporation and any of its direct or indirect subsidiaries.
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12. 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, 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.
13. ACI. At any time during the Employment Period, any of the
obligations of the Company to make payments hereunder, including the obligation
to pay any compensation to Employee under Section 2(b), may, at the sole
discretion of the Company, be discharged and satisfied by ACI.
14. 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: Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
If to the Company: Atrium Companies, Inc.
Attn: Xxxx X. Xxxx
11
0000 X. Xxxxxxxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
(000) 000-0000
Atrium Corporation
c/o Ardshiel, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000)000-0000
with a copy to:
Xxxx X. Xxxxx
Xxxxx Xxxxxxxxxx
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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 8, 9, 11 or 12 by the
12
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 8, 9, 11 or 12 by the
Employee.
(g) Complete Agreement. The provisions of this Agreement
constitute the entire and complete understanding and agreement among 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 executed in two or more counterparts.
(h) Mediation; Arbitration. (i) The Company and the Employee
shall mediate any claim or controversy arising out of or relating to this
Agreement or any breach thereof if either of them requests mediation and gives
written notice to the other (the "Mediation Notice"). Any notice given pursuant
to the preceding sentence shall include a brief statement of the claim or
controversy. If the Company and the Employee do not resolve the claim or
controversy within five (5) days after the date of the Mediation Notice, the
Company and the Employee shall then use reasonable efforts to agree upon an
independent mediator. If the Company and the Employee do not agree upon an
independent mediator within ten (10) days after the date of the Mediation
Notice, either party may request that JAMS/Endispute ("JAMS"), or a similar
mediation service of a similar national scope if JAMS no longer then exists,
appoint an independent mediator. The Company and the Employee shall share the
costs of mediation equally and shall pay such costs in advance upon the request
of the mediator or any party. Within ten (10) days after selection of the
mediator, the mediator shall set the mediation. If the Company and the Employee
do not resolve the dispute within thirty (30) days after the date of the
Mediation Notice, the dispute shall be decided by arbitration as set forth
below.
(i) Any claim or controversy arising out of or relating to
this Agreement or any breach thereof shall be settled by arbitration if such
claim or controversy is not settled pursuant to mediation as set forth above.
The venue for any such arbitration shall be Dallas, Texas, or such other
location as the parties may mutually agree. Except as expressly set forth
herein, all arbitration proceedings under this Section 14(h)(ii) shall be
undertaken in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA") then in force. Only individuals who are (i)
lawyers engaged full-time in the practice of law and (ii) on the AAA register of
arbitrators shall be selected as an arbitrator. There shall be one arbitrator
who shall be chosen in accordance with the rules of the AAA. Within twenty (20)
days of the conclusion of the arbitration hearing, the arbitrator shall prepare
written findings of fact and conclusions of law. Judgment on the written award
may be entered and enforced in any court of competent jurisdiction. It is
mutually agreed that the written decision of the arbitrator shall be valid,
binding, final and non-appealable; provided however, that the parties hereto
agree that the arbitrator shall not be empowered to award punitive damages
against any party to such arbitration. The arbitrator shall require the
non-prevailing party to pay the arbitrator's full fees and expenses or, if in
the arbitrator's opinion there is no prevailing party, the arbitrator's fees and
13
expenses will be borne equally by the parties thereto. In the event action is
brought to enforce the provisions of this Agreement pursuant to this Section
14(h)(ii), the non-prevailing parties shall be required to pay the reasonable
attorneys' fees and expenses of the prevailing parties, except that if in the
opinion of the court or arbitrator deciding such action there is no prevailing
party, each party shall pay its own attorneys' fees and expenses.
(i) Survival. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of
this Agreement shall survive the termination of this Agreement.
(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.
(m) Hiring of X. X. Xxxxx. The Company acknowledges that X. X.
Xxxxx has been hired as an employee for the sum of $15,000 per year plus
benefits. These benefits include family health insurance and participation in
any qualified plan maintained by the Company. X. X. Xxxxx'x term of employment
will run conterminously with the Employee's term of employment with the Company.
This arrangement will not affect the terms or conditions of any other agreements
that have been executed between X. X. Xxxxx and the Company or one of its
affiliates. This provision has been inserted in this Employment Agreement
because of the relationship between the Employee and X. X. Xxxxx. The Employee
wanted to confirm that this hiring had been specifically approved and
acknowledged by the Company.
14
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, as of the
1st day of January, 2002.
EMPLOYEE
--------------------------------------
Xxxxx Xxxxx
ATRIUM CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ATRIUM COMPANIES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
15
SCHEDULE A
TO EMPLOYMENT AGREEMENT
Employee shall be entitled to an annual bonus (the "Incentive Bonus")
for the period ending on December 31, 2002 until the end of the Employment
Period as follows:
If Xxxxx earns less than $5,000,000 in EBITDA, no bonus
If Xxxxx earns $5,000,000 in EBITDA, but less than $5,100,000, bonus of
$75,000
If Xxxxx earns $5,100,000 in EBITDA, but less than $5,200,000, bonus of
$80,000
If Xxxxx earns $5,200,000 in EBITDA, but less than $5,300,000, bonus of
$85,000
If Xxxxx earns $5,300,000 in EBITDA, but less than $5,400,000, bonus of
$90,000
If Xxxxx earns $5,400,000 in EBITDA, but less than $5,500,000, bonus of
$95,000
If Xxxxx earns $5,500,000 in EBITDA, bonus of $120,000
For each dollar of EBITDA in excess of $5,500,000, up to $7,000,000 of
EBITDA, Employee will receive 5% of such excess dollars, plus the
$120,000
For every dollar of EBITDA in excess of $7,000,000, Employee will
receive 10% of such excess dollars, plus the $195,000
As used herein, EBITDA means earnings from operations before interest,
taxes, depreciation, amortization, corporate service charges and extraordinary
gains or losses.
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SCHEDULE B
Stock Options:
Effective as of October 2, 1998, the Employee has been granted options to
purchase the following shares of common stock pursuant to the D and W Holdings,
Inc. 1998 Stock Option Plan:
466,101 shares with a fixed strike price of $1.00 per share
277,438 shares with a variable strike price of $1.09 per share
554,876 shares with a variable strike price of $1.40 per share
As of January 1, 2002, the 554,876 shares will have the strike price reduced
from $1.40 per share to a fixed price of $1.30 per share and the 277,438 shares
will remain at a fixed price of $1.09 per share.
Except as expressly set forth in this Agreement, the above options are issued
subject to the provisions of the Buy-Sell Agreement dated October 2, 1998,
between the Company and the Employee, the D and W Holdings, Inc. 1998 Stock
Option Plan, the Management Contribution and Subscription Agreement between the
Company and the Employee and all other previously executed Non-Qualified Stock
Option Agreements for Key Employees.
1
