SEPARATION AND RETIREMENT AGREEMENT
Exhibit 10.1
This
Separation and Retirement Agreement (“Agreement”) is made as of this 25th day of April,
2008, between Gibraltar Industries, Inc. (the “Company”), a Delaware corporation with offices at
0000 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 and Xxxxx X. Xxx, an individual residing at 000
Xxxxxxxxx Xxxx, Xxxxxxx Xxxx, Xxx Xxxx 00000 (“Xx. Xxx”).
RECITALS:
Xx. Xxx has been employed by the Company as its Executive Vice President, Chief Financial
Officer and Treasurer. Xx. Xxx desires to retire from his employment with the Company. The
Company and Xx. Xxx desire to set forth in writing the terms and conditions upon which Xx. Xxx will
retire from his employment with the Company.
CONSIDERATION:
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein,
the parties hereto hereby agree as follows:
1. Resignation. Xx. Xxx hereby confirms his resignation from his position as
Executive Vice President, Chief Financial Officer and Treasurer of the Company effective as of
March 17, 2008. Xx. Xxx hereby further confirms his resignation, effective as of March 17, 2008
from all positions or offices he held or may hold with the Company or any of the Company’s
Affiliates (as hereinafter defined), whether as an officer, Director, employee or member of any
committee, board or administrative body. Following the date hereof, Xx. Xxx agrees to execute and
deliver any documents or instruments which may reasonably be requested by the Company to formalize
his resignations provided for by this Section 1, effective as of March 17, 2008. For purposes of
this Agreement, the term “Affiliates” means each corporation, limited liability company or other
entity which is directly or indirectly controlled by the Company. For purposes of the preceding
sentence, the phrase “controlled by the Company” means that the Company possesses, directly or
indirectly, the power to direct or cause the direction of the management policies of such
corporation, limited liability company or other entity, whether through the ownership of
securities, the ownership of partnership or limited liability company interests, control over the
Board of Directors or other governing body of such corporation, limited liability company or other
entity, by contract or otherwise.
2. Vacation and Retirement. Xx. Xxx hereby affirms his intent to retire from his
employment with the Company effective as of April 28, 2008. During the period beginning March 17,
2008 and ending April 28, 2008, Xx. Xxx shall be available to provide transitional support to the
new Chief Financial Officer of the Company and shall continue to be entitled to participate in all
employee benefit plans and programs which are provided to salaried employees employed by the
Company at the Company’s offices at 0000 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 (such offices
being hereinafter the “Buffalo Office”). It is understood and agreed that Xx. Xxx has five (5)
weeks of paid vacation available to him and that, accordingly, Xx. Xxx shall not be required to
report to the offices of the Company during the period beginning March 18, 2008 and ending April
28, 2008. In connection with the foregoing, the Company shall pay Xx. Xxx his regular wages
through March 28, 2008 and shall pay Xx. Xxx for his accrued and unused vacation during the period
beginning March 29, 2008 through April 28, 2008. The
payments required to be made to Xx. Xxx pursuant to this Section 2 shall be made to Xx. Xxx in
accordance with the Company’s standard payroll practices for employees employed at the Buffalo
Office.
3. Separation Pay. (a) In consideration of the covenants of Xx. Xxx contained
in this Agreement, the Company shall pay to Xx. Xxx a separation payment equal to Three Hundred
Five Thousand Dollars ($305,000.00) (such amount being hereinafter the “Separation Payment”).
Except as provided by Section 3(e) below, the Separation Payment shall be paid to Xx. Xxx whether
or not Xx. Xxx is employed by, owns, operates or otherwise engages in any other business.
(b) In addition to the Separation Payment and except as provided by Section 3(e) below, on the
same date in 2009 that the Company pays bonuses to its executive officers under the Company’s
Management Incentive Compensation Plan (“MICP”) (which date will, in all events, be on or before
February 15, 2009), the Company will pay to Xx. Xxx, in one lump sum payment, less applicable
withholding taxes, a percentage of Xx. Xxx’x Target Bonus (as hereinafter defined) which is equal
to the percentage of the target bonus which is paid to the other executive officers of the Company
on such date. For purposes of this Section 3(b), under the MICP, each of the executive officers of
the Company is entitled to payment of annual incentive compensation upon achievement of targeted
performance measurements stated as a percentage of the executive officer’s annual base salary
(“Targeted MICP Bonus”) which, in Xx. Xxx’x case, is equal to sixty percent (60%) of his current
annual base salary of $305,000.00 (such $183,000.00 amount being hereinafter referred to as Xx.
Xxx’x “Target Bonus”). In connection with the foregoing and by way of example, if on February 15,
2009, the executive officers of the Company are paid seventy five percent (75%) of their respective
Targeted MICP Bonus payments for performance in 2008, on February 15, 2009 (or such earlier date on
which the executive officers of the Company are paid bonuses under the MICP), Xx. Xxx would be paid
seventy five percent (75%) of his Target Bonus or $137,250.00, reduced by applicable withholding
taxes.
(c) Subject to the following provisions of this Section 3, the Separation Payment shall be
paid to Xx. Xxx in substantially equal installment payments equal to the amount of the installments
which would be paid to Xx. Xxx if the Separation Pay was paid to Xx. Xxx in twenty six (26)
substantially equal installments. Each installment of the Separation Pay shall be reduced by
applicable withholding taxes and, except as otherwise provided by the last sentence of this Section
3(c), shall be paid once every two (2) weeks (“Bi-weekly”) in accordance with the payroll practices
which are in effect for salaried employees of the Company who are employed at the Company’s Buffalo
Office. Subject to the following provisions of this Section 3, the Bi-weekly installment payments
of the Separation Pay shall be paid to Xx. Xxx on the same dates that the Company issues regular
paychecks to salaried employees who are employed at the Buffalo Office. The first installment of
the Separation Payment shall be paid to Xx. Xxx on May 2, 2008, or, if later, on the first date
that the Company (through its normal payroll practices in effect at the Buffalo Office) issues
paychecks to salaried employees employed by the Company at the Buffalo Office occurring after the
end of the seven (7) day period which begins on the first day following the date that this
Agreement is signed by Xx. Xxx. If the first date that the Company issues paychecks to salaried
employees employed by the Company at the Buffalo Office after the end of the seven (7) day period
described in the preceding sentence occurs later than May 2, 2008, the first installment of the Separation
Payment
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shall be equal to the sum of: (i) the regular Bi-weekly installment payment which Xx. Xxx
would be entitled to receive on such date; plus (ii) the amount of the regular Bi-weekly
installment payments of the Separation Payment which would have been paid to Xx. Xxx prior to such
date if the first regular Bi-weekly installment payment of the Separation Payment had been made to
Xx. Xxx on May 2, 2008. Except as otherwise provided by Section 10 hereof, on March 6, 2009, the
full amount of the Separation Pay which has not been paid to Xx. Xxx (or, if applicable, to the
personal representative of Xx. Xxx’x estate) as of such date, shall be paid to Xx. Xxx (or, if
applicable, to the personal representative of Xx. Xxx’x estate) in one lump sum payment, less
applicable withholding taxes.
(d) In the event that Xx. Xxx dies prior to receiving the entire amount of the Separation
Payment, the Company shall, notwithstanding such death continue to pay the Bi-weekly installments
of the Separation Payment to the personal representative of Xx. Xxx’x estate in the manner provided
for by Section 3(c) above until the sum of the Bi-weekly installment payments made to Xx. Xxx and
the personal representative of Xx. Xxx’x estate equals the amount of the Separation Payment. In
addition, if Xx. Xxx dies before receiving payment of the amount, if any, of the bonus provided for
by Section 3(b) above, the amount of the bonus which would have been payable to Xx. Xxx pursuant to
Section 3(b) above shall be paid to the personal representative of Xx. Xxx’x estate at the same
time and in the same manner as the bonus would have been paid to Xx. Xxx.
(e) Notwithstanding the foregoing but subject to the provisions of Section 10 hereof, in the
event that Xx. Xxx breaches any of the covenants contained in any of Sections 11, 12, 13 or 14
hereof, the Company shall have no further obligation to pay Xx. Xxx any additional Bi-weekly
installments of the Separation Payment occurring after any such breach and, if such breach occurs
before Xx. Xxx has been paid the amount of the bonus provided for by Section 3(b) above, the
Company shall have no obligation to pay Xx. Xxx the amount of the bonus provided for by Section
3(b) hereof.
4. Continuation of Medical Insurance. (a) Subject to the terms and conditions
of this Agreement, during the period beginning on April 29, 2008, or, if later, on the first day
following the end of the seven (7) day period which begins on the first day following the date this
Agreement is signed by Xx. Xxx, Xx. Xxx shall be eligible to participate in the group medical
insurance plan which is maintained by the Company for salaried employees employed at the Buffalo
Office and which, currently, includes prescription drug coverage (such group medical insurance
plan, as the same may hereafter be modified or amended for salaried employees employed at the
Buffalo Office being hereinafter the “Corporate Group Medical Plan”); provided that Xx. Xxx pays to
the Company the monthly amount which salaried employees employed at the Buffalo Office are, from
time to time hereafter, required to pay to the Company to participate in the Corporate Group
Medical Plan (such amount being hereinafter the “Employee Contribution”). Xx. Xxx’x right to
continue to participate in the Corporate Group Medical Plan pursuant to this Section 4(a) shall
continue until the end of the calendar month in which he attains age sixty five (65) or, if
earlier: (i) at such time that Xx. Xxx becomes employed by any person, firm, corporation, limited
liability company or other entity that provides group medical insurance coverage to its employees;
(ii) at the end of the first calendar month in which Xx. Xxx does not pay the Company the amount of
the Employee Contribution; or (iii) if applicable, but subject to the provisions of Section 10
hereof,
at the end of the calendar month in which Xx. Xxx breaches any of the covenants contained in
any of Sections 11, 12, 13 or 14
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hereof. The right of Xx. Xxx to participate in the Corporate
Group Medical Plan shall not include the right to participate in the group dental insurance plan
maintained by the Company for salaried employees employed at the Buffalo Office.
(b) As required by the provisions of Section 4980B of the Internal Revenue Code of 1986, as
amended (the “Code”) and the provisions of Title I, Subtitle B, Part 6 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), Xx. Xxx shall have the right, beginning April
29, 2008, to continue to receive group dental insurance coverage under the terms of the group
dental insurance plan maintained by the Company for salaried employees employed at the Buffalo
Office (the group dental insurance coverage which the Company is required to provide to Xx. Xxx
pursuant to the provisions of the Code and ERISA being hereinafter referred to as the “Dental
Continuation Coverage”) and, in connection with such right, the Company shall provide Xx. Xxx with
the notice and election forms which are required to be provided under the Code and ERISA in order
to enable Xx. Xxx to elect to receive Dental Continuation Coverage. Xx. Xxx shall also have the
right, beginning April 29, 2008, to continue to receive group medical insurance coverage under the
Corporate Group Medical Plan (the group medical insurance coverage which the Company is required to
provide to Xx. Xxx pursuant to the provisions of the Code and ERISA being hereinafter referred to
as “Continuation Coverage”) and, in connection with such right, the Company shall provide Xx. Xxx
with the notice and election forms which are required to be provided under the Code and ERISA, in
order to enable Xx. Xxx to elect to receive Continuation Coverage.
(c) During the period that Xx. Xxx is being paid the Bi-weekly installments of the Separation
Payment, Xx. Xxx may pay the Employee Contribution by authorizing the Company to withhold the
amount of the Employee Contribution from the Bi-weekly installment payments of the Separation Pay
which are being paid to Xx. Xxx. After March 6, 2009, if and to the extent that Xx. Xxx is still
participating in the Corporate Group Medical Plan, the Company shall invoice Xx. Xxx for the
Employee Contribution on a monthly basis.
(d) If and to the extent that the terms and conditions upon which the group medical insurance
coverage provided for by the Corporate Group Medical Plan is modified or amended during the period
that Xx. Xxx is entitled to receive coverage under the Corporate Group Medical Plan, the terms and
conditions upon which Xx. Xxx is entitled to receive group medical insurance coverage under the
Corporate Group Medical Plan shall be the same as the terms and conditions of the group medical
insurance coverage provided to all other salaried employees employed at the Buffalo Office.
5. Return of Property; Termination of Compensation and Certain Benefits. (a)
Xx. Xxx and the Company acknowledge and agree that Xx. Xxx has previously returned to the Company
all property of the Company which was in his possession.
(b) Xx. Xxx understands that his group life insurance coverage shall terminate on April 28,
2008 because of the termination of his employment. Prior to April 28, 2008, Xx. Xxx will be
provided information relating to the conversion of his group life insurance coverage to an
individual life insurance policy. The Company shall have no obligation to pay any costs or
expenses payable in connection with the conversion of Xx. Xxx’x group life insurance coverage to an
individual life insurance policy.
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(c) Xx. Xxx shall be provided the opportunity to purchase the Company vehicle which he has
been provided at a price equal to $22,850.00 plus any applicable sales taxes.
(d) Except for the payments and benefits required to be made and provided to Xx. Xxx by the
provisions of Sections 2, 3, 4, this Section 5 and Sections 6 and 7 below, Xx. Xxx agrees that he
is not entitled to any other compensation (including, but not limited to, salary or bonuses) or
benefits of any kind or description from the Company or any of its Affiliates, or from or under any
employee benefit plan or fringe benefit plan sponsored by the Company or any of its Affiliates.
6. Non-Qualified Plan Benefits. (a) Xx. Xxx has been awarded restricted stock
units under the terms of the Gibraltar Industries, Inc. 2005 Equity Incentive Plan, as amended (the
“Omnibus Plan”), in connection with the Company’s long term incentive plan and in connection with
his participation in the Management Stock Purchase Plan which is an integral part of the Omnibus
Plan. Subject to the provisions of Section 10 hereof, Xx. Xxx shall be entitled to have shares of
common stock of the Company issued to him in connection with the long term incentive compensation
awards he has received for the 2005, 2006, 2007 and 2008 calendar years (hereinafter the “LTIP
Awards”) and shall be entitled to receive payment for Matching Units (as defined in the Management
Stock Purchase Plan) allocated to his account in the Management Stock Purchase Plan for each of the
2005, 2006 and 2007 calendar years (it being understood that the Matching Units to be allocated to
Xx. Xxx’x account under the Management Stock Purchase Plan for the 2007 calendar year were
allocated on March 3, 2008). Subject to the provisions of Section 10 hereof, issuance to Xx. Xxx
of shares of common stock of the Company pursuant to the LTIP Awards shall be made at the time and
in the amount provided for by the terms of the LTIP Awards and payment to Xx. Xxx for Matching
Units (and Bonus Deferral Units) allocated to his account as provided for by the Management Stock
Purchase Plan shall be paid to Xx. Xxx at the time and in the amount provided for by the Management
Stock Purchase Plan. Xx. Xxx shall also be entitled to receive payment of amounts accrued for his
benefit under the Gibraltar 401(k) Restoration Plan at the time and in the amount provided for by
the Gibraltar 401(k) Restoration Plan.
(b) Notwithstanding the provisions of Section 6(a) above or anything to the contrary contained
in the Omnibus Plan or the Management Stock Purchase Plan but subject to the provisions of Section
10 hereof, if prior to the date that the Company has paid to Xx. Xxx the entire amount which he is
entitled receive under the provisions of the Management Stock Purchase Plan, the closing of a
transaction between the Company and any other party which constitutes a change in ownership or
effective control of a corporation, or a change in the ownership of a substantial portion of the
assets of a corporation within the meaning of U.S. Treasury Regulation Section 1.409A-3(i)(5) or
any successor provision of the U.S. Treasury Regulations occurs (any such transaction being
hereinafter a “Change in Control”), on the date the closing of the Change in Control occurs, the
Company shall pay to Xx. Xxx, in one lump sum payment less applicable withholding taxes, the full
amount of the unpaid balance of the payments required to be made to Xx. Xxx under the terms of the
Management Stock Purchase Plan.
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7. Retirement Plan Benefits. Xx. Xxx is a participant in the Gibraltar 401(k)
Plan (the “401(k) Plan”) and shall be entitled to payment of the benefits which he has accrued
under terms of the 401(k) Plan at the time and in the manner provided for by the 401(k) Plan.
8. Waiver and Complete Release. (a) Xx. Xxx, for himself and his heirs,
successors and assigns, in consideration of the sums and benefits described in Sections 3, 4, 5, 6
and 7 of this Agreement, does hereby forever discharge and release the Company and each of its
Affiliates and each of their respective agents, officers, shareholders, directors, employees,
successors and assigns, from any and all claims, demands, causes of action, damages, complaints,
expenses and compensation which he now has or may in the future have, or which any person or entity
may have on his behalf, on account of or arising out of any matter or thing which has happened,
developed or occurred before the date hereof, including, without limitation, all claims, demands,
causes of action, damages, complaints, expenses and compensation arising from: (i) Xx. Xxx’x
employment with the Company; or (ii) any and all officerships, positions and authorities held by
Xx. Xxx with the Company and any of its Affiliates; or (iii) the termination of Xx. Xxx’x
employment with the Company; or (iv) the termination of any officerships, positions and authorities
held by Xx. Xxx with the Company and any of its Affiliates. Xx. Xxx hereby waives any and all such
claims, causes of action, demands, damages, complaints, expenses and compensation of any type or
description that he has or might have against the Company and each of its Affiliates and each of
their respective agents, officers, shareholders, directors, employees, successors and assigns.
This release, discharge and waiver includes, but is not limited to, any claims, demands, causes of
action, damages, complaints, expenses and compensation (collectively called “claims”) arising out
of or under the following:
(i) The Federal Age Discrimination in Employment Act of 1967, as amended, which, among other
things, prohibits discrimination in employment on account of a person’s age.
(ii) The Federal Title VII of the Civil Rights Act of 1964, as amended, which, among other
things, prohibits discrimination in employment on account of a person’s race, color, religion, sex,
or national origin.
(iii) The Federal Employee Retirement Income Security Act of 1974, as amended, which, among
other things, regulates pension and welfare plans and, which, among other things, prohibits
interference with individual rights protected under the statute.
(iv) The Americans With Disabilities Act, as amended, which, among other things, prohibits
discrimination relating to employment on account of a person’s handicap or disability.
(v) The Rehabilitation Act of 1973, as amended (applicable to Federal Government contractors
and subcontractors), which, among other things, requires affirmative action for and prohibits
discrimination against individuals by reason of handicap.
(vi) The New York State Human Rights Law, as amended, which, among other things, prohibits
discrimination in employment on account of a person’s age,
race, creed, color, religion, national origin, sex, disability, arrest record, marital status,
status as an ex-offender, genetic predisposition or carrier status.
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(vii) Section 201-d of the New York State Labor Law, as amended, which, among other things,
prohibits discrimination on account of a person’s political activities outside of working hours, a
person’s legal use of consumable products, an individual’s legal recreational activities outside of
working hours and an individual’s membership in a labor organization or exercise of rights under
the National Labor Relations Act, as amended.
(viii) Section 740 of the New York State Labor Law, as amended, which, among other things,
prohibits retaliatory action against an employee because of whistle-blower activity.
(ix) Any Federal, State or local law or rule, regulation, executive order or guideline,
including, but not limited to, those laws specifically described above.
(x) All constitutional violations, defamation, wrongful discharge, attorney fees, costs,
breach of contract, breach of implied contract, negligence of any kind, including, but not limited
to, negligent performance of contractual obligations, breach of the covenant of good faith and fair
dealing, tortious interference with business and/or contractual relationship (or prospective
relationship), violation of the penal statutes, retaliatory discharge, whistle-blower’s claims,
estoppel of any kind, loss of consortium, exemplary damages, negligent and/or intentional
infliction of mental or emotional distress, discrimination, harassment and/or retaliation or
wrongful action which has been or could have been alleged under the common law, any civil rights or
equal opportunity employment law, or any other federal, state or local statute, ordinance,
regulation or rule.
(xi) Any oral or written contract of employment or other engagement or authority with or on
behalf of the Company or any of its Affiliates, express or implied, or any oral or written
agreement, express or implied, purporting to establish terms and conditions of employment or other
engagement or authority or addressing termination of same.
(b) Xx. Xxx specifically understands and agrees that the termination of his employment and all
positions and authorities with or on behalf of the Company and its Affiliates does not violate or
disregard any oral or written promise or agreement, of any nature whatsoever, express or implied.
If any contracts or agreements exist concerning the employment of Xx. Xxx by the Company,
concerning other positions or authorities held by Xx. Xxx with or on behalf of the Company or
concerning the terms and conditions of such employment or other positions or authorities or the
termination of same, whether oral or written, express or implied, such contracts or agreements are
hereby terminated and are null and void, effective as of the date hereof.
(c) The waiver and release contained in this Section 8 includes, but is not limited to, a
waiver, discharge and release by Xx. Xxx of each of the Company, the Company’s Affiliates and each
of their respective agents, officers, shareholders, directors, employees, successors and assigns,
from any damages or relief of whatever nature or description, including, but not limited to,
compensatory and punitive damages and equitable forms of relief, as well as
any claim for attorneys fees or costs, which may arise from any of the claims waived,
discharged or released.
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(d) Xx. Xxx agrees that the waiver and release contained in this Section 8 may be enforced in
any federal, state or local court and before any federal, state or local administrative agency or
body.
(e) Subject to the provisions of Section 9 hereof, Xx. Xxx agrees not to commence or continue
any action or proceeding in any federal, state or local court, concerning his employment with the
Company or officerships, positions or authorities held with the Company or Xx. Xxx’x separation
from such employment, officerships, positions or authorities, or anything else included in the
waiver and release contained in this Section 8.
9. Preservation of Certain Rights. (a) Notwithstanding the provisions of Section
8 above, nothing in this Agreement shall be deemed or construed to constitute a waiver by Xx. Xxx
of any rights to indemnification he has as provided under the Certificate of Incorporation of the
Company and under applicable law as in effect as of March 17, 2008. In addition, the Company
agrees that, during the period beginning on the date hereof and ending on April 28, 2011, the
Company shall continue in full force and effect, directors and officers insurance coverage (“D & O
Coverage”) for Xx. Xxx in an amount which is not less than the amount of the D & O Coverage which
was provided to Xx. Xxx under the Company’s directors and officers insurance policy as in effect on
March 17, 2008.
(b) Notwithstanding the provisions of Section 8(e) above, Xx. Xxx shall not be prohibited from
filing a charge or complaint against the Company or any of its Affiliates with the U.S. Equal
Employment Opportunity Commission (the “EEOC”) or from participating in any investigation or
proceeding which may be brought by the EEOC or any other governmental agency or authority against
the Company or any of its Affiliates; provided that Xx. Xxx shall not be permitted to participate
in or receive any monetary damages or assessments made by the EEOC or any other such governmental
agency or authority against the Company or any of its Affiliates. Finally, the provisions of
Section 8(e) above shall not prohibit Xx. Xxx from challenging the validity of the waiver and
release of claims Xx. Xxx may have under Section 8(a)(i) above.
10. Breach of Agreement. (a) In the event that Xx. Xxx fails to cooperate with
the Company as required by Section 14 hereof, the Company may, at its option, provide Xx. Xxx
written notice that he has failed to cooperate with the Company as required by Section 14 hereof,
which notice shall: (i) state with reasonable particularity the basis of the Company’s opinion that
Xx. Xxx has failed to cooperate with the Company as required by Section 14 hereof; and (ii)
identify, with reasonable particularity, the conduct or other action which Xx. Xxx is expected to
engage in or perform in order to comply with his obligation to cooperate with the Company as
required by Section 14 hereof. In the event that the Company delivers to Xx. Xxx the written
notice provided for by the preceding sentence and Xx. Xxx fails to engage in the conduct or action
identified in the written notice provided for by the preceding sentence within ten (10) days
following the receipt by Xx. Xxx of such notice, the Company shall have the right, subject to the
provisions of Section 10(f) below, to payment of liquidated damages from Xx. Xxx, the right to
cease making any further payments to Xx. Xxx and the right to cease providing any further
benefits to Xx. Xxx as otherwise required by this Agreement, effective immediately upon the
delivery by the Company of a written notice to Xx. Xxx that Xx. Xxx has failed to cure his breach
of his obligation to cooperate with the Company as contained in Section 14 hereof.
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(b) In the event that Xx. Xxx breaches or otherwise violates any of the covenants made by Xx.
Xxx in Sections 11, 12 or 13 hereof, the Company may, at its option, provide Xx. Xxx written notice
that he has breached or otherwise violated any of the covenants made by Xx. Xxx in Sections 11, 12
or 13 hereof, which notice shall: (i) identify, with reasonable particularity, the covenant or
covenants which are contained in Sections 11, 12 and 13 hereof which Xx. Xxx has breached or
otherwise violated together with the basis for the Company’s opinion that Xx. Xxx has violated any
such covenants; and (ii) state that the Company will cease making any further payments to Xx. Xxx
and cease providing any further benefits to Xx. Xxx as otherwise required by this Agreement,
effective at the end of the fifteen (15) day period beginning on the day immediately following the
date such written notice is delivered to Xx. Xxx. In the event that the Company delivers to Xx.
Xxx the written notice provided for by the preceding sentence, the Company shall have the right,
subject to the provisions of Section 10(f) below, to cease making any further payments to Xx. Xxx
and to cease providing any further benefits to Xx. Xxx as otherwise required by this Agreement,
effective at the end of the fifteen (15) day period beginning on the day immediately following the
date such written notice is delivered to Xx. Xxx.
(c) Xx. Xxx agrees that: (i) if he fails to cure his breach of his obligation to cooperate
with the Company as contained in Section 14 hereof; then (ii) effective upon delivery to Xx. Xxx of
the written notice that he has failed to cure his breach of his obligation to cooperate with the
Company as contained in Section 14 hereof: (A) the Company shall be entitled to payment from Xx.
Xxx as liquidated damages and not as a penalty, of an amount equal to $305,000.00, reduced by the
amount, if any, of the unpaid Separation Pay determined as of the date that the Company delivers
the written notice to Xx. Xxx that he has failed to cure his breach of his obligation to cooperate
with the Company as contained in Section 14 hereof; and (B) if, on the date that the Company
delivers the written notice to Xx. Xxx that he has failed to cure his breach of his obligation to
cooperate with the Company as contained in Section 14 hereof, the Company has any continuing
obligation to pay or provide any amount or benefit to Xx. Xxx (other than retirement benefits under
the 401(k) Plan), including, but not limited to, payment of additional Separation Pay, payment of
any bonus, payment of any amount due under the terms of the Management Stock Purchase Plan,
issuance of any shares of common stock of the Company pursuant to the LTIP Awards or provision of
group medical insurance coverage to Xx. Xxx, the Company shall have no further obligation
whatsoever to make any additional payments to Xx. Xxx or provide any additional benefits to Xx. Xxx
(other than retirement benefits under the 401(k) Plan and the maintenance of D & O Coverage under
the Company’s directors and officers liability insurance coverage).
(d) Xx. Xxx agrees that: (i) if he breaches or otherwise violates any of the covenants
contained in Sections 11, 12 or 13 hereof; then (ii) effective at the end of the fifteen (15) day
period beginning on the day immediately following the date that the Company delivers the written
notice identified in Section 10(b) above to Xx. Xxx: (A) the Company shall be entitled to payment
from Xx. Xxx as liquidated damages and not as a penalty, of an amount equal to $305,000.00, reduced
by the amount, if any, of the unpaid Separation Pay determined as
of the end of the fifteen (15) day period beginning on the day immediately following the date
that the Company delivers the written notice identified in Section 10(b) above to Xx. Xxx; and (B)
if, as of the end of the fifteen (15) day period beginning on the day immediately following the
date that the Company delivers the written notice identified in Section 10(b) above to Xx. Xxx, the
Company has any continuing obligation to pay or provide any amount or benefit to Mr.
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Xxx (other
than retirement benefits under the 401(k) Plan), including, but not limited to, payment of
additional Separation Pay, payment of any bonus, payment of any amount due under the terms of the
Management Stock Purchase Plan, issuance of any shares of common stock of the Company pursuant to
the LTIP Awards or provision of group medical insurance coverage to Xx. Xxx, the Company shall have
no further obligation whatsoever to make any additional payments to Xx. Xxx or provide any
additional benefits to Xx. Xxx (other than retirement benefits under the 401(k) Plan and the
maintenance of D & O Coverage under the Company’s directors and officers liability insurance
coverage).
(e) The remedies provided to the Company by Sections 10(c) and 10(d) above shall be in
addition to any other remedy that the Company may have in law or in equity in connection with a
breach by Xx. Xxx of any of his obligations under this Agreement. In addition, the enforcement by
the Company of its rights under this Section 10 shall not affect the validity and enforceability of
Xx. Xxx’x obligations under this Agreement, including the waiver and release contained in Section 8
hereof.
(f) Nothing in this Section 10 shall be deemed to limit or restrict the amount of the damages
which a court of competent jurisdiction may determine that Xx. Xxx is entitled to receive in
connection with or as a result of a breach by the Company of its obligations under this Agreement.
(g) In the event that either of the parties hereto (hereinafter a “Complaining Party”)
commences legal proceedings in a court of competent jurisdiction against the other party
(hereinafter the “Breaching Party”) in connection with any alleged breach by the Breaching Party of
any of its obligations under this Agreement, the party which prevails in any such legal proceedings
(such party being the “Prevailing Party”) shall, in addition to any damages or other legal or
equitable relief which may be awarded to the Prevailing Party, be entitled to recover the
reasonable attorneys fees and expenses incurred by the Prevailing Party in connection with such
legal proceedings.
11. Confidentiality. Xx. Xxx shall preserve the confidentiality of, and not use
for his benefit or the benefit of any other party, all information pertaining to the business of
the Company and its Affiliates, whether or not in documentary form, which is known to Xx. Xxx. This
includes, but is not limited to, technical information concerning the products and future products
of the Company and its Affiliates; all legal matters, including, but not limited to, litigation
matters, settlement amounts and proposals, contract negotiations and Company structure; plans,
strategies and policies with respect to business development and marketing; financial performance,
budgets and projections; profit and pricing structures and policies; special arrangements with
customers and suppliers; identities of customers, their personnel, and product needs and
preferences; and all other information relating to the Company and its Affiliates which is
accessible to Xx. Xxx. Notwithstanding the foregoing, the obligation of Xx. Xxx described in the
first sentence of this Section 11 shall not apply to information pertaining to the Company and its
Affiliates which is or
becomes generally available to the public other than as a result of disclosure of such
information by Xx. Xxx. In addition, the obligation of Xx. Xxx described in the first sentence of
this Section 11 shall not apply to information which Xx. Xxx, in the opinion of his attorney, is
required to disclose by law, regulation, regulatory authority or other applicable judicial or
governmental order; provided that, prior to the disclosure by Xx. Xxx of any such information and
as soon as practicable following the date that Xx. Xxx becomes aware of an
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obligation to disclose
or is otherwise requested or ordered to disclose such information, Xx. Xxx provides written notice
to the Company that he is obligated to or has been requested or ordered to disclose any such
information.
12. Non-Solicitation. During the period beginning on the date this Agreement is
provided to Xx. Xxx and ending April 30, 2010, Xx. Xxx will not, directly or indirectly, on his own
behalf or on behalf of any person, firm, corporation, limited liability company or other entity
that Xx. Xxx may be employed by or provide any services to, employ or seek to employ any individual
that is currently employed by the Company or any of its Affiliates and will not encourage any such
individual to terminate their employment with the Company or any of its Affiliates.
13. Non-Disparagement. Xx. Xxx shall not disparage the Company or any of its
Affiliates, their products or services, or their shareholders, officers, directors or employees, in
any way orally or in writing and the Executive Officers of the Company shall not disparage Xx. Xxx
in any way, orally or in writing.
14. Cooperation After Separation. (a) For a period of two (2) years following the
date hereof, Xx. Xxx agrees to assist, advise and cooperate with the Company and its Affiliates if
the Company so requests on issues that arose or were in any way developing during his employment
with the Company. In addition to the foregoing, for a period of five (5) years following the
date hereof, Xx. Xxx shall provide the Company advice, assistance and cooperation with respect to
legal proceedings involving third parties (including any governmental agency or authority) and
financial audits relating to matters or events which occurred during Xx. Xxx’x employment by the
Company and as to which Xx. Xxx’x knowledge or testimony may be important. The cooperation and
assistance to be provided by Xx. Xxx as described above shall be furnished to the Company in a
timely manner as reasonably requested by the Company and as is within Xx. Xxx’x capability.
(b) In connection with Xx. Xxx’x cooperation, the Company shall reimburse Xx. Xxx for the
reasonable out of pocket expenses incurred by Xx. Xxx upon submission of appropriate documentation
of such expenses. In addition, Xx. Xxx shall not be required to travel outside the Buffalo, New
York metropolitan area in connection with the provision by Xx. Xxx of cooperative services in
connection with this Section 14. If the number of hours that Xx. Xxx is required to expend in the
provision of cooperative services to the Company exceeds, in the aggregate, fifty (50) hours, the
Company shall pay Xx. Xxx reasonable compensation for each hour that he provides cooperative
services to the Company after he has provided fifty (50) hours at an hourly rate to be mutually
agreeable to Xx. Xxx and the Company. Finally, the Company shall use its reasonable best efforts
to schedule the time for the provision by Xx. Xxx of any cooperative services in a manner which
will not conflict with any obligations Xx. Xxx may have in connection with any business venture or
employment relationship which Xx. Xxx may enter
into following his retirement with the Company. In this regard, Xx. Xxx agrees to use his
reasonable best efforts to perform any cooperative services requested by the Company as soon as
practicable following the receipt by Xx. Xxx of a request from the Company for the provision of
such services.
15. No Disability. Xx. Xxx acknowledges that, to the best of his knowledge, he has
not sustained any disabling personal injury and/or occupational disease which has resulted in a
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loss of wage earning capacity during his employment with the Company or due to the separation from
that employment and that he has no personal injury and/or occupational disease which has been
contributed to, or aggravated or accelerated in a significant manner by his employment with the
Company and/or the separation from that employment.
16. Advice of Counsel. Xx. Xxx represents and warrants that the Company has
encouraged and advised Xx. Xxx, prior to signing this Agreement, to consult with an attorney of Xx.
Xxx’x choosing concerning all of the terms of this Agreement and Xx. Xxx’x separation from
employment with the Company.
17. Employee Review and Delivery of Agreement. (a) Xx. Xxx represents and
warrants that the Company has given Xx. Xxx a reasonable period of time, of at least twenty-one
(21) days, for Xx. Xxx to consider all the terms of this Agreement and for the purpose of
consulting with an attorney if Xx. Xxx so chose. A copy of this Agreement was presented to Xx.
Xxx, in person on March 17, 2008. If this Agreement has been executed by Xx. Xxx prior to the end
of the twenty-one (21) day period beginning on March 18, 2008, Xx. Xxx represents that he has
freely and willingly elected to do so.
(b) Xx. Xxx represents and warrants that he has carefully read each and every provision of
this Agreement and that he fully understands all of the terms and conditions of this Agreement.
(c) Xx. Xxx represents and warrants that he enters into this Agreement voluntarily, of his own
free will, without any pressure or coercion from any person or entity, including, but not limited
to, the Company, any of the Company’s Affiliates or any of their representatives.
18. Employee Revocation Rights. This Agreement may be revoked by Xx. Xxx within seven
(7) calendar days after the date this Agreement is signed by Xx. Xxx, by giving written notice of
revocation to Xxxx X. Xxxxxx, Senior Vice-President of Human Resources of the Company. This
Agreement shall not become effective or enforceable until the revocation period has expired and
none of the payments or benefits described in Sections 3, 4, 5, 6 or 7 of this Agreement shall be
made or provided until after the revocation period has expired with no revocation. Notwithstanding
the foregoing, even though Xx. Xxx may revoke this Agreement, upon termination of Xx. Xxx’x
employment with the Company, Xx. Xxx shall be entitled to receive group medical insurance coverage
under the applicable provisions of the Code and ERISA.
19. Interpretation. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement. In case any one or more
of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby and this Agreement shall be interpreted as if
such invalid, illegal or unenforceable provision was not contained herein.
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20. Acknowledgments. XX. XXX HEREBY EXPRESSLY WARRANTS AND REPRESENTS THAT, BEFORE
ENTERING INTO THIS AGREEMENT, HE HAS RECEIVED A REASONABLE PERIOD OF TIME WITHIN WHICH TO CONSIDER
ALL OF THE PROVISIONS CONTAINED IN THIS AGREEMENT, THAT HE HAS FULLY READ, INFORMED HIMSELF OF AND
UNDERSTANDS ALL THE TERMS, CONTENTS, CONDITIONS AND EFFECTS OF ALL PROVISIONS OF THIS AGREEMENT,
AND THAT HE CONSIDERS ALL SUCH PROVISIONS TO BE SATISFACTORY.
XX. XXX FURTHER EXPRESSLY WARRANTS AND REPRESENTS THAT NO PROMISE OR REPRESENTATION OF ANY
KIND HAS BEEN MADE, EXCEPT THOSE EXPRESSLY STATED IN THIS AGREEMENT.
XX. XXX FURTHER EXPRESSLY WARRANTS AND REPRESENTS THAT HE ENTERS INTO THIS AGREEMENT KNOWINGLY
AND VOLUNTARILY.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the personal representatives and successors in interest of Xx. Xxx and shall be binding upon and
inure to the benefit of any successors in interest of the Company.
22. Applicable Law. This Agreement shall be governed and construed in accordance
with the internal laws of the State of New York without reference to its conflicts of laws
principles.
23. Notices. All notices and other communications given pursuant to this Agreement
shall be deemed to have been properly given or delivered and received, when delivered if delivered
by hand in person, or, if mailed, five (5) business days following the deposit of any such notice
in the U.S. mail system by certified mail or registered mail postage prepaid, addressed to Xx. Xxx
at the address first above written, or if to the Company, to the attention of the Company’s Chief
Executive Officer at the address of the Company first above written. From time to time, any party
hereto may designate by written notice any other address or party to which such notice or
communication or copies thereof shall be sent.
24. Headings. The headings of the Sections of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this agreement on and as of the date first set
forth above.
| GIBRALTAR INDUSTRIES, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| /s/ Xxxxx X. Xxx | ||||||
| XXXXX X. XXX | ||||||
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