EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "EMPLOYMENT AGREEMENT") is effective
as of the 5th day of May, 2006 by and between Xxxx True Temper, Inc., a Delaware
corporation (the "COMPANY"), and Xxxxx X. Xxxx (the "EXECUTIVE").
WHEREAS, the Company and its subsidiaries are engaged in the business
of (i) manufacturing, marketing and distributing long-handled tools,
wheelbarrows, hose reels, striking tools, pruning implements, pots and planters,
snow tools, lawn carts, repair handles, garden hoses, and decorative accessories
for the lawn and garden, and (ii) conducting such other activities as are
undertaken from time to time by the Company and each of its Affiliates, as
defined in SECTION 9(f), as a result of future acquisitions, or otherwise; and
WHEREAS, the Company desires to employ Executive, and Executive
desires to be employed by the Company, as the Chief Financial Officer ("CFO") of
the Company, in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises in this Employment Agreement, the parties agree as
follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive as CFO of
the Company, and Executive hereby agrees to accept such employment and agrees to
act as CFO of the Company, all in accordance with the terms and conditions of
this Employment Agreement. Executive hereby represents and warrants that neither
Executive's entry into this Employment Agreement nor Executive's performance of
Executive's obligations hereunder will conflict with or result in a breach of
the terms, conditions or provisions of any other agreement or obligation of any
nature to which Executive is a party or by which Executive is bound, including,
without limitation, any development agreement, non-competition agreement or
confidentiality agreement entered into by Executive.
2. TERM OF EMPLOYMENT AND AUTOMATIC RENEWAL. The term of Executive's
employment under this Employment Agreement will commence on the date of this
Employment Agreement and will continue until the third (3rd) anniversary of the
date of this Employment Agreement (the "INITIAL EMPLOYMENT PERIOD"). THE INITIAL
EMPLOYMENT PERIOD AND ANY RENEWAL EMPLOYMENT PERIOD (AS DEFINED HEREIN) SHALL
AUTOMATICALLY BE RENEWED AND EXTENDED ON THE SAME TERMS AND CONDITIONS CONTAINED
HEREIN FOR CONSECUTIVE ONE-YEAR PERIODS (EACH, A "RENEWAL EMPLOYMENT PERIOD"),
UNLESS NOT LATER THAN SIXTY (60) DAYS PRIOR TO THE END OF THE INITIAL EMPLOYMENT
PERIOD OR ANY RENEWAL EMPLOYMENT PERIOD, AS THE CASE MAY BE, EITHER PARTY
SHALL GIVE WRITTEN NOTICE TO THE OTHER PARTY OF ITS ELECTION TO TERMINATE THIS
EMPLOYMENT AGREEMENT. The Initial Employment Period and the Renewal Employment
Periods are hereinafter referred to as the "EMPLOYMENT PERIOD." For purposes of
this Employment Agreement, any notice of termination electing not to renew this
Employment Agreement pursuant to this SECTION 2 shall be deemed: (i) a
termination without Due Cause pursuant to SECTION 9(d) if such notice is
delivered by the Company; or (ii) a voluntary resignation without Good Reason
pursuant to SECTION 9(e) if such
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notice is delivered by Executive. Notwithstanding anything to the contrary
contained herein, the Employment Period is subject to termination pursuant to
SECTION 9 below.
3. POSITION AND RESPONSIBILITIES. Executive shall report to and be
subject to the direction of the Chief Executive Officer of the Company.
Executive shall perform and discharge such duties and responsibilities for the
Company as the Chief Executive Officer may from time to time reasonably assign
Executive. Executive understands and acknowledges that such duties shall be
subject to revision and modification by the Chief Executive Officer and/or the
Board of Directors (the "Board") of CHATT Holdings LLC ("CHATT"), as
appropriate, upon reasonable notice to Executive. During the Employment Period,
Executive shall devote Executive's full business time, attention, skill and
efforts to the faithful performance of Executive's duties herein, and shall
perform the duties and carry out the responsibilities assigned to Executive, to
the best of Executive's ability, in a diligent, trustworthy and businesslike
manner for the purpose of advancing the Company. Executive acknowledges that
Executive's duties and responsibilities will require Executive's full-time
business efforts and agrees that during the Employment Period, Executive will
not engage in any outside business activities that conflict with the Executive's
obligations under this Employment Agreement.
4. COMPENSATION.
(a) Base Salary. During the Employment Period, the Company shall pay
to Executive a minimum base salary at the rate of $230,000 per year (the "BASE
SALARY"), less applicable tax withholding, subject to increase from time to
time, solely at the Company's discretion, payable at the Company's regular
employee payroll intervals. Executive's performance shall be reviewed annually
and the Base Salary may be increased, effective January 1 of each year, at the
Company's sole discretion.
(b) Bonus. Executive shall receive a one-time signing bonus of $30,000
(the "Signing Bonus") payable within thirty (30) days of the date of this
Employment Agreement. In the event Executive's employment with the Company is
terminated by Executive for any reason within one (1) year of the date of this
Employment Agreement, Executive shall return the amount of the Signing Bonus to
the Company within thirty (30) days of the termination date. During the
Employment Period, Executive shall be eligible to receive a cash bonus based
upon the achievement of certain budgeted performance goals pursuant to a program
approved by the Board. Executive shall also be eligible to receive additional
bonuses, in such amounts, if any, as determined by the Board in its sole
discretion based upon the achievement of performance goals and objectives
approved by the Board.
(c) Stock. Pursuant to those Subscription Agreements (the
"SUBSCRIPTION AGREEMENTS") entered into between CHATT and Executive as of May 5,
2006, Executive purchased certain units of CHATT, which units shall be subject
to certain vesting, repurchase and other obligations and restrictions set forth
in the Subscription Agreements and certain other applicable documents.
5. BENEFIT PLANS. During the Employment Period, Executive will be
entitled to receive traditional employment benefits comparable to those benefits
provided to other senior executive officers of the Company (subject to any
applicable waiting periods, eligibility requirements, or other restrictions),
which may include insurance (medical, dental, life, disability, directors and
officers, etc.), car allowance, retirement plans, and profit sharing plans.
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Notwithstanding the foregoing, the Company may, at any time or from time to
time, amend, modify, suspend or terminate any benefit plan or program
contemplated hereunder in this Section 5 for any reason and without the
Executive's prior written consent; provided that such amendment, modification,
suspension or termination does not disproportionately impact the Executive as
compared to the other participants under such plan or program.
6. BUSINESS EXPENSES; MOVING AND TEMPORARY LIVING EXPENSES. The
Company, in accordance with policies and practices established by the Board from
time to time, will pay or reimburse Executive for all expenses (including travel
and cell phone expenses) reasonably incurred by Executive during the Employment
Period in connection with the performance of Executive's duties under this
Employment Agreement, provided that Executive shall provide to the Company
documentation or evidence of expenses for which Executive seeks reimbursement in
accordance with the policies and procedures established by the Board or the
Company from time to time. In addition, the Company shall reimburse Executive
for (i) reasonable, documented expenses he incurs in taking up to three (3)
house hunting trips with his wife and moving his household goods in connection
with Executive's relocation to a new primary residence in the Harrisburg,
Pennsylvania area, (ii) up to 6% of the realtor's fee to sell Executive's
current primary residence, and (iii) closing costs on the sale of Executive's
current primary residence and the purchase of his new primary residence in the
Harrisburg, Pennsylvania area (0 points), provided, that Executive relocates to
a new primary residence in the Harrisburg, Pennsylvania area before November 5,
2006 and is employed by the Company at the time of such relocation. From the
date of this Employment Agreement to until November 5, 2006, the Company will
reimburse Executive for reasonable costs in connection with Executive's trips
from Harrisburg, Pennsylvania to his current primary residence every other week.
From the date of this Employment Agreement until the earlier of November 5, 2006
or the date on which Executive relocates to his new primary residence in the
Harrisburg, Pennsylvania area the Company will reimburse Executive with respect
to Executive's rent for a furnished apartment in Harrisburg, Pennsylvania, up to
a maximum of $3,000 per month.
7. VACATION. Executive shall be entitled to vacation at the rate of
four (4) weeks per calendar year in accordance with the Company's vacation
policy (pro-rated for partial years). Executive shall make good faith efforts to
schedule vacations so as to least conflict with the conduct of the Company's
business and will give the Company adequate advance notice of Executive's
planned absences. Up to half of Executive's unused vacation time may be carried
over to subsequent years; provided, however, that in no event shall Executive
be entitled to greater than six (6) weeks vacation per year.
8. CONFIDENTIALITY, INVENTIONS, NON-COMPETITION AND NON-SOLICITATION
AGREEMENT. As of the date hereof, Executive shall have entered into a
confidentiality, inventions, non-competition and non-solicitation agreement, in
the form of EXHIBIT A attached hereto and made a part hereof (the
"CONFIDENTIALITY, INVENTIONS, NON-COMPETITION AND NON-SOLICITATION AGREEMENT").
9. TERMINATION.
(a) Death. The Employment Period will terminate immediately upon the
death of Executive. If the Employment Period is terminated pursuant to this
SECTION 9(a), the Company shall have no further obligation to Executive (or the
Executive's estate) except for salary and benefits accrued through the date of
termination (the "Accrued Benefits").
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(b) Due Cause. The Company may terminate the Employment Period
immediately upon written notice to Executive for a material breach of this
Employment Agreement by Executive. The following events constitute the exclusive
list of events that will be deemed a material breach of this Employment
Agreement (each of which shall constitute "DUE CAUSE"):
(i) Executive's material breach of any of Executive's
obligations under the Confidentiality, Inventions,
Non-Competition and Non-Solicitation Agreement; this
Employment Agreement; the Subscription Agreements; the
Amended and Restated Unitholders Agreement of CHATT, dated
as of June 28, 2004, as in effect from time to time (the
"Unitholders Agreement"); the Limited Liability Company
Agreement of CHATT, dated as of June 28, 2004, by and among
the parties thereto, as in effect from time to time (the
"LLC Agreement") or the Registration Rights Agreement of
CHATT, dated as of June 28, 2004, by and among the parties
thereto, as in effect from time to time (the "Registration
Rights Agreement"); or
(ii) Executive's continued and deliberate neglect of, willful
misconduct in connection with the performance of, or refusal
to perform Executive's duties in accordance with SECTION 3
of this Employment Agreement, which, in the rase of neglect
or failure to perform, has not been cured within thirty (30)
days after Executive has been provided notice of the same;
or
(iii) Executive's engagement in any conduct which injures the
integrity, character, financial position or financial
performance of the business or reputation of the Company or
which impugns Executive's own integrity, character or
reputation so as to cause Executive to be unfit to act in
the capacity of CFO of the Company; or
(iv) the Board's good faith determination that Executive has
committed an act or acts constituting a felony, or other act
involving dishonesty, disloyalty or fraud against the
Company.
If the Employment Period is terminated pursuant to this SECTION 9(b),
the Company shall have no further obligation to Executive except for the Accrued
Benefits.
(c) Permanent Disability. The Company may terminate the Employment
Period upon the Permanent Disability (as defined below) of the Executive. If the
Employment Period is terminated pursuant to this SECTION 9(c), then Executive
will be entitled to receive the Accrued Benefits, and such benefits, if any, as
may be provided Executive pursuant to the Company's disability insurance policy.
Except as set forth in the immediately preceding sentence and as otherwise
described in the Subscription Agreements, if the Employment Period is terminated
pursuant to this SECTION 9(c), the Company shall have no further obligation to
Executive. For purposes of this Employment Agreement, the term "PERMANENT
DISABILITY" shall mean that Executive is unable to perform, with or without
reasonable accommodation, by reason of physical or mental incapacity, the
essential functions of the Executive's position for ninety
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(90) or more days in any one hundred twenty (120) day period. The Board shall
determine, according to the facts then available, whether and when a Permanent
Disability has occurred. Such determination shall not be arbitrary or
unreasonable.
(d) Termination by the Company without Due Cause. The Company may
terminate the Employment Period without Due Cause upon thirty (30) days' prior
written notice. If the Employment Period is terminated pursuant to this SECTION
9(d), then Executive will be entitled to receive (i) the Accrued Benefits and
(ii) the Executive's Base Salary plus benefits (at the same cost to the
Executive as in effect immediately prior to such termination of employment) for
a period of twelve (12) months, payable at the Company's regular payroll
intervals. Notwithstanding the above, Executive shall receive such severance
payment only if Executive is not in material breach of any of the provisions of
the Confidentiality, Inventions, Non-Competition and Non-Solicitation Agreement.
Except as set forth in this SECTION 9(d) and as otherwise described in the
Subscription Agreements, if the Employment Period is terminated pursuant to this
SECTION 9(d), the Company shall have no further obligation to Executive.
(e). Voluntary Resignation by Executive. Executive may terminate the
Employment Period at any time for any reason upon thirty (30) days' prior
written notice. If the Employment Period is terminated pursuant to this SECTION
9(e), the Company shall have no further obligation to Executive except for the
Accrued Benefits; provided, however, that if Executive is terminating the
Employment Period for Good Reason (as defined below), then Executive will also
be entitled to receive as severance pay the Executive's Base Salary plus
benefits (at the same cost to the Executive as in effect immediately prior to
such termination of employment) for a period of twelve (12) months, payable at
the Company's regular payroll intervals. Notwithstanding the above, Executive
shall receive such amounts only if Executive is not in material breach of any of
the provisions of the Confidentiality, Inventions, Non-Competition and
Non-Solicitation Agreement. The following events will be deemed "GOOD REASON"
for which Executive may terminate the Employment Period and receive the
severance payments set forth in this SECTION 9(e):
(i) a material diminution of the Executive's responsibilities
after notice to the Company and a thirty (30) day
opportunity to cure; or
(ii) any material breach of this Employment Agreement on the part
of the Company (including, but not limited to, any decrease
in the Base Salary without the consent of the Executive or
relocation of Executive's place of employment to a location
that is greater than fifty (50) miles from the Harrisburg,
Pennsylvania metropolitan area), after notice to the Board,
and a thirty (30) day opportunity to cure; provided,
however, that Executive is not in material breach of any of
the terms of this Employment Agreement.
(f) General Release. The receipt of any severance payment as set forth
in this SECTIONS 9 above shall be contingent upon Executive's execution of a
general release of all claims against the Company and its Affiliates (as defined
below), substantially in the form attached hereto as EXHIBIT B. For purposes of
this Employment Agreement, the term "AFFILIATES" means all persons or entities
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the Company, all companies or
entities in which the Company owns an equity interest, and all predecessors,
successors and assigns of such affiliates.
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(g) Mitigation. Notwithstanding anything herein to the contrary, to
the extent Executive obtains employment at any time during the entire twelve
(12) months of the severance period, the Company's severance obligations under
this Employment Agreement, including, without limitation, the continuation of
Executive's benefits hereunder, shall be reduced by the amount of any
compensation or benefits received (or accrued) by the Executive, including
without limitation any equity or other incentive compensation and any bonus,
under such new employment arrangement. Executive agrees that if Executive
accepts other employment at any time during the entire twelve (12) months of the
severance period, Executive shall notify the Company in writing within two (2)
business days of such acceptance. Executive acknowledges that the Executive's
failure to abide by this provision shall entitle the Company to recoup all
severance pay previously paid to Executive pursuant to this Employment
Agreement.
(h) Survival. Termination of the Employment Period in accordance with
this SECTION 9, or expiration of the Employment Period, will not affect the
provisions of this Employment Agreement that survive such termination, including
without limitation, the provisions in the Confidentiality, Inventions,
Non-Competition and Non-Solicitation Agreement and will not limit either party's
ability to pursue remedies at law or equity.
10. ATTORNEY'S FEES. If either party prevails in a legal action to
enforce or protect its rights under this Employment Agreement, then that party
shall be entitled to recover reasonable attorneys' fees, costs, and expenses, in
addition to all other relief, including but not limited to damages and
injunctive relief.
11. EXECUTIVE ASSISTANCE. Both during the Employment Period and for
two (2) years after the end of the Employment Period, Executive shall, upon
reasonable notice, furnish the Company with such information as may be in
Executive's possession or control, and cooperate with the Company, as the
Company may reasonably request (with due consideration to Executive's business
activities and obligations after the Employment Period), in connection with any
litigation, claim, or other dispute in which the Company or any of its
Affiliates is or may become a party. The Company shall reimburse Executive for
all reasonable out-of-pocket expenses incurred by Executive in fulfilling
Executive's obligations under this SECTION 11. In addition, to the extent that
the Executive provides such assistance at any time after six months from the
date that Executive's employment with the Company has terminated, and Executive
is required to be absent from employment for one or more days in order to
provide such assistance, the Company shall pay the Executive for each such day
an amount equal to the daily rate of the Executive's Base Salary as in effect as
of the date of termination.
12. EFFECT OF PRIOR AGREEMENTS. This Employment Agreement, the
Subscription Agreement, the Confidentiality, Inventions, Non-Competition and
Non-Solicitation Agreement, the Unitholders Agreement, the Registration Rights
Agreement and the LLC Agreement contain the entire understanding among the
Company, CHATT and Executive relating to the subject matter hereof and supersede
any prior agreements, arrangements, and understandings between Executive, CHATT,
ATT Holding Co., and the Company relating to the subject matter hereof.
13. MODIFICATION AND WAIVER. This Employment Agreement may not be
modified or amended, nor may any provisions of this Employment Agreement be
waived, except by an instrument in writing signed by the parties. No written
waiver will be deemed to be a continuing waiver unless specifically stated
therein, and each such waiver will operate only as to the specific
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term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
14. SEVERABILITY. If, for any reason, any provision of this Employment
Agreement is held invalid, such invalidity will not affect any other provision
of this Employment Agreement, and each provision will to the full extent
consistent with law continue in full force and effect. If any provision of this
Employment Agreement is held invalid in part, such invalidity will in no way
affect the rest of such provision, and the rest of such provision, together with
all other provisions of this Employment Agreement, will, to the full extent
consistent with law, continue in full force and effect.
15. NOTICES. Any notice, consent, waiver and other communications
required or permitted pursuant to the provisions of this Employment Agreement
must be in writing and will be deemed to have been properly given (a) when
delivered by hand; (b) when sent by telecopier (with acknowledgment of complete
transmission), provided that a copy is mailed by U.S. certified mail, return
receipt requested; (c) three (3) days after sent by certified mail, return
receipt requested; or (d) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case to the appropriate addresses and
telecopier numbers set forth below:
If to the Company:
Xxxx True Temper, Inc.
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attu.: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
To the address set forth in the personnel records of
the Company.
Each party will be entitled to specify a different address for the
receipt of subsequent notices by giving written notice thereof to the other
party in accordance with this SECTION 15.
16. THIRD PARTY BENEFICIARIES. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or entity,
other than the parties to this Employment Agreement and their respective
permitted successors and assigns, any rights or
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remedies under or by reason of this Employment Agreement.
17. HEADINGS. The headings and other captions in this Employment
Agreement are included solely for convenience of reference and will not control
the meaning and interpretation of any provision of this Employment Agreement.
18. GOVERNING LAW; ARBITRATION. This Employment Agreement has been
executed in the State of Pennsylvania, and its validity, interpretation,
performance, and enforcement will be governed by the laws of such state, except
with respect to conflicts of laws principles. Except for disputes arising out of
an alleged violation of the covenants set forth in the Confidentiality,
Inventions, Non-Competition and Non-Solicitation Agreement, any controversy or
claim arising out of or relating to any provision of this Employment Agreement
or any other document or agreement referred to herein shall be resoived by
arbitration. The arbitration process shall be instigated by either party giving
written notice to the other of the desire for arbitration and the factual
allegations underlying the basis for the dispute. The arbitration shall be
conducted by such alternative dispute resolution service as is agreed to by
the parties, or, failing such agreement within thirty (30) days after such
dispute arises, by arbitrators selected as described below in accordance with
the rules and procedures established by the American Arbitration Association.
Only a person who is a practicing lawyer admitted to a state bar may serve as an
arbitrator. Each party shall select one arbitrator, and those arbitrators shall
choose a third arbitrator; these arbitrators shall constitute the panel. The
American Arbitration Association rules for employment arbitration shall control
any discovery conducted in connection with the arbitration. The expenses of
arbitration (other than attorneys' fees) shall be shared as determined by
arbitration. Each side to the claim or controversy shall pay their own
attorneys' fees. Any result reached by the panel shall be binding on all parties
to the arbitration, and no appeal may be taken. It is agreed that any party to
any award rendered in such arbitration proceeding may seek a judgment upon the
award and that judgment may be entered thereon by any court having jurisdiction.
The arbitration shall be conducted in the State of Pennsylvania.
19. NON-ASSIGNABILITY/BINDING EFFECT. This Employment Agreement shall
not be assignable by either party without the prior written consent of the other
party. This Employment Agreement will be binding upon and inure to the benefit
of Executive, the Company, and their respective successors and permitted
assigns.
20. NO STRICT CONSTRUCTION. The language used in this Employment
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied against
any person.
21. CONFORMANCE WITH CODE SECTION 409A. The parties hereto agree to
negotiate in good faith should any amendment to this Employment Agreement be
required in order to comply with Section 409A of the Internal Revenue Code.
[Remainder of Page Intentionally Blank; Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has caused this Employment Agreement
to be executed by its duly authorized officer and Executive has signed this
Employment Agreement, as of May 5, 2006.
XXXX TRUE TEMPER, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Its: President and CEO
EXECUTIVE
/s/ Xxxxx X. Xxxx 5/16/06
------------------------------------
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EXHIBIT A
CONFIDENTIALITY, INVENTIONS,
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Confidentiality, Inventions, Non-Competition and Non-Solicitation
Agreement (the "Agreement") is entered into this [___] day of [_______________],
2006 by and between CHATT Holdings LLC, its successors or assigns (the
"Company") and [_______________________] (the "Executive"). This Agreement sets
forth the entire agreement between the parties hereto concerning the subject
matter hereof and supersedes all prior agreements and understandings concerning
the subject matter hereof. In consideration of employment by the Company and/or
its Affiliates (as defined in Section 2(b) below) of Executive, which Executive
acknowledges to be good and valuable consideration for the Executive's
obigations hereunder, the Company and Executive agree as follows:
1. The Business.
Executive acknowledges that the Company and its Affiliates
are engaged in the business of (i) manufacturing, marketing
and distributing long-handled tools, wheelbarrows, hose
reels, striking tools, pruning implements, pots and
planters, snow tools, lawn carts, repair handles, garden
hoses, and decorative accessories for the lawn and garden,
and (ii) conducting such other activities as are undertaken
(or are proposed or contemplated to be undertaken) from time
to time by the Company and each of its Affiliates as a
result of future acquisitions or otherwise (collectively,
the "Business").
2. Confidential Information.
(a) Executive acknowledges that the Confidential Information (as
defined below) constitutes a protectible business interest
of the Company and its Affiliates, and covenants and agrees
that at all times during the period of Executive's
employment, and at all times after termination of such
employment, Executive will not, directly or indirectly,
disclose, furnish, make available or utilize any
Confidential Information other than in the course of
performing duties as an employee of the Company and/or its
Affiliates. Executive will abide by Company policies and
rules as may be established from time to time by it for the
protection of its Confidential Information. Executive agrees
that in the course of employment with the Company, Executive
will not bring to the Company's offices or use, disclose to
the Company, or induce the Company to use, any confidential
information or documents belonging to others. Executive's
obligations under this Section 2(a) with respect to
Confidential Information will survive termination of
Executive's employment with the Company, and will
terminate only at such time (if any) as the Confidential
Information in question becomes generally known to the
public other than through a breach of Executive's
obligations under this Agreement.
A-1
(b) As used in this Agreement, the term "Confidential
Information" means any and all confidential, proprietary or
trade secret information, whether disclosed, directly or
indirectly, verbally, in writing or by any other means in
tangible or intangible form, including that which is
conceived or developed by Executive, applicable to or in any
way related to: (i) the present or future business of the
Company or any of its Affiliates (as defined below); (ii)
the research and development of the Company or any of its
Affiliates; or (iii) the business of any client, vendor,
supplier or distributor of the Company or any of its
Affiliates. Such Confidential Information includes the
following property or information of the Company and its
Affiliates, by way of example and without limitation, trade
secrets, processes, formulas, data, program documentation,
customer lists, designs, drawings, algorithms, source code,
object code, know-how, improvements, inventions, licenses,
techniques, all plans or strategies for marketing,
development and pricing, business plans, financial
statements, profit margins and all information concerning
existing or potential clients, suppliers or vendors.
Confidential Information also means all similar information
disclosed to the Company or any Affiliate by third parties
which is subject to confidentiality obligations. The term
"Affiliates" means (i) all persons or entities controlling,
controlled by or under common control with the Company, (ii)
all companies or entities in which the Company owns an
equity interest and (iii) all predecessors, successors and
assigns of the those Affiliates identified in (i) and (ii).
3. Return of Materials.
Upon termination of employment with the Company, and
regardless of the reason for such termination, Executive
will leave with, or promptly return to, the Company all
documents, records, notebooks, magnetic tapes, disks or
other materials, including all copies, in Executive's
possession or control which contain Confidential Information
or any other information concerning the Company, any of its
Affiliates or any of their respective products, services or
clients, whether prepared by the Executive or others.
Notwithstanding the foregoing, Executive shall be entitled
to retain the Executive's personal effects provided any
Confidential Information is removed therefrom.
4. Inventions as Sole Property of the Company.
(a) Executive covenants and agrees that all Inventions (as
defined below) shall be the sole and exclusive property of
the Company.
(b) As used in this Agreement, the term "Inventions" means any
and all inventions, developments, discoveries, improvements,
works of authorship, concepts or ideas, or expressions
thereof, whether or not subject to patents, copyright,
trademark, trade secret protection or other intellectual
property right protection (in the United States or
elsewhere), and whether or not reduced to practice,
conceived or developed by Executive while employed with the
Company and/or any Affiliate of the Company or within one
(1) year following termination of such employment which
relate to or result from the actual or anticipated business,
work, research or
A-2
investigation of the Company or any of its Affiliates or
which are suggested by or result from any task assigned to
or performed by Executive for the Company or any of its
Affiliates.
(c) Executive acknowledges that all original works of authorship
which are made by the Executive (solely or jointly) are
works made for hire under the United States Copyright Act
(17 U.S.C., et seq.).
(d) Executive agrees to promptly disclose to the Company all
Inventions, all original works of authorship and all work
product relating thereto. This disclosure will include
complete and accurate copies of all source code, object code
or machine-readable copies, documentation, work notes,
flow-charts, diagrams, test data, reports, samples and other
tangible evidence or results (collectively, "Tangible
Embodiments") of such Inventions, works of authorship and
work product. All Tangible Embodiments of any Invention,
work of authorship or work product related thereto will be
deemed to have been assigned to the Company as a result of
the act of expressing any Invention or work of authorship
therein.
(e) Executive hereby assigns to the Company (together with the
right to prosecute or xxx for infringements or other
violations of the same) the entire worldwide right, title
and interest to any such Inventions or works made for hire,
and Executive agrees to perform, during and after
employment, all acts deemed necessary or desirable by the
Company to permit and assist it, at the Company's expense,
in registering, recording, obtaining, maintaining,
defending, enforcing and assigning Inventions or works made
for hire in any and all countries. Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive's agents and
attorneys-in-fact to act for and on Executive's behalf and
instead of Executive, to execute and file any documents and
to do all other lawfully permitted acts to further the above
purposes with the same legal force and effect as if
executed by Executive; this designation and appointment
constitutes an irrevocabie power of attorney and is coupled
with an interest.
(f) Without limiting the generality of any other provision of
this Section 4, Executive hereby authorizes the Company and
each of its Affiliates (and their respective successors) to
make any desired changes to any part of any Invention, to
combine it with other materials in any manner desired, and
to withhold Executive's identity in connection with any
distribution or use thereof alone or in combination with
other materials.
(g) This Agreement does not apply to any invention for which no
equipment, supplies, facility or trade secret information
of the Company or any Affiliate was used and which was
developed entirely on Executive's own time, unless (1)
the invention relates (a) to the business of the Company or
any Affiliate or (b) to the Company's or any Affiliate's
actual demonstrably anticipated research or development; or
(2) the invention results from any work performed by
Executive for the Company or any Affiliate.
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(h) The obligations of Executive set forth in this Section 4
(including, but not limited to, the assignment obligations)
will continue beyond. the termination of Executive's
employment with respect to Inventions conceived or made by
Executive alone or in concert with others during Executive's
employment with the Company and during the one (1) year
thereafter, whether pursuant to this Agreement or otherwise.
These obligations will be binding upon Executive and
Executive's executors, administrators and other
representatives.
5. List of Prior Inventions.
All Inventions which Executive has made prior to employment
by the Company or any Affiliate (including without limitation
Xxxx True Temper, Inc.) are excluded from the scope of this
Agreement. As a matter of record, Executive has set forth on
Annex I hereto a complete list of those Inventions which
might relate to the Company's Business and which have been
made by Executive prior to employment with the Company.
Executive represents that such list is complete. If no list
is attached. Executive represents that there are no prior
Inventions.
6. Non-Competition.
(a) Executive acknowledges that: (i) the Company and its
Affiliates are and will be engaged in the Business during
the term of the Executive's employment and thereafter; (ii)
the Company and its Affiliates are and will be actively
engaged in the Business throughout the world; (iii)
Executive is one of a limited number of persons who will be
developing the Business; (iv) Executive has and will
continue to occupy a position of trust and confidence with
the Company after the date hereof and during the term of the
Executive's employment Executive will become familiar with
the Company's (and its Affiliates') trade secrets and with
other proprietary and confidential information concerning
the Company (and its Affiliates) and the Business; (v) the
agreements and covenants contained in this Agreement are
essential to protect the Company, its Affiliates and the
goodwill of the Business and are a condition precedent to
the sale by the Company to Executive of certain Common
Units, pursuant to the Subscription Agreement between the
parties, dated at of the date hereof, and pursuant to the
Strip Subscription Agreement between the parties, dated as
of the date hereof; (vi) Executive's employment with the
Company and/or its Affiliates has special, unique and
extraordinary value to the Company and its Affiliates and
the Company would be irreparably damaged if Executive were
to provide services to any person or entity in violation of
the provisions of this Section 6; and (vii) Executive has
means to support Executive and Executive's dependents other
than by engaging in the Business, and the provisions of this
Section 6 will not impair such ability.
(b) Executive wil1 not, during the Restricted Period (as defined
below), anywhere in the world (the "Restricted Territory"),
directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee, independent
contractor, consultant, or otherwise) own, operate, manage,
control, invest in, perform
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services for, or engage or participate in any manner in, or
render services to (alone or in association with any person
or entity) or otherwise assist any person or entity that
engages in, or owns, invests in, operates, manages or
controls any venture or enterprise that engages in, the
Business. The term "Restricted Period" means the period
of time from the date hereof until two (2) years after the
termination for any reason of Executive's employment
relationship with the Company and/or any Affiliate or any
successor thereto (including any termination based on
non-renewal of any employment agreement or arrangement). The
Restricted Period shall be extended for a period equal to
any time period that Executive is in violation of this
Section 6. Nothing contained in this Section 6 shall be
construed to prevent Executive from investing in the stock
of any competing corporation listed on a national securities
exchange or traded in the over-the-counter market, but only
if Executive is not involved in the business of said
corporation and if Executive and Executive's associates (as
such term is defined in Regulation 14(A) promulgated under
the Securities Exchange Act of 1934, as in effect on the
date hereof), collectively, do not own more than an
aggregate of one percent (1%) of the stock of such
corporation.
(c) Scope/Severability. The parties acknowledge that the
business of the Company and its Affiliates is and will be
national and international in scope and thus the covenants
in this Section 6 would be ineffective if the covenants were
to be limited to a particular geographic area. If any court
of competent jurisdiction at any time deems the Restricted
Period unreasonably lengthy, or the Restricted Territory
unreasonably extensive, or any of the covenants set forth
in this Section 6 not fully enforceable, the other
provisions of this Section 6, and this Agreement in general,
will nevertheless stand and, to the full extent consistent
with law, continue in full force and effect, and it is the
intention and desire of the parties that the court treat any
provisions of this Agreement which are not fully enforceable
as having been modified to the extent deemed necessary by
the court to render them reasonable and enforceable and that
the court enforce them to such extent (for example, that the
Restricted Period be deemed to be the longest period
permissible by law, but not in excess of the length provided
for in Section 6(b), and the Restricted Territory be deemed
to comprise the largest territory permissible by law under
the circumstances but not in excess of the territory
provided for in Section 6(b)).
7. Non-Solicitation.
(a) Executive will not, during the Restricted Period, directly
or indirectly (whether as an owner, partner, shareholder,
agent, officer, director, employee, independent contractor,
consultant, or otherwise) with or through any individual
or entity:
i. employ, engage or explicitly solicit for
employment any individual who is, or was at any time during
the twelve-month period immediately prior to the termination
of Executive's employment with the Company and/or any
Affiliate for any reason, an employee of the Company or any
of its Affiliates or
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otherwise seek to adversely influence or alter such
individual's relationship with the Company or any of its
Affiliates; or
ii. solicit or encourage any individual or entity
that is, or was during the twelve-month period immediately
prior to the termination of Executive's employment with
the Company or any Affiliate for any reason, a customer,
supplier or vendor of the Company or any Affiliate to
terminate or otherwise alter his, her or its relationship
with the Company or any Affiliate.
(b) The Restricted Period shall be extended for a period equal
to any time period that Executive is in violation of this
Section 7.
8. Equitable Remedies.
Executive acknowledges and agrees that the agreements
and covenants set forth in this Agreement are reasonable
and necessary for the protection of the Company's and its
Affiliates' business interests, that irreparable injury will
result to the Company and its Affiliates if Executive
breaches any of the terms of said covenants, and that in
the event of Executive's actual or threatened breach of any
such covenants, the Company and its Affiliates will have
no adequate remedy at law. Executive accordingly agrees
that, in the event of any actual or threatened breach by
Executive of any of said covenants, the Company and its
Affiliates will be entitled to immediate injunctive and
other equitable relief, without posting bond or other
security and without the necessity of showing actual
monetary damages. Nothing in this Section 8 will be
construed as prohibiting the Company or any Affiliate from
pursuing any other remedies available to them for such
breach or threatened breach, including the recovery of any
damages that they are able to prove.
9. Breach.
(a) Executive's breach of any of the Executive's obligations
under this Agreement will be deemed a material breach of any
employment agreement or arrangement Executive has with the
Company or any of its Affiliates and will constitute cause
or due cause or the like for termination by the Company
and/or its Affiliates, as appropriate.
(b) In the event that the Company and/or its Affiliates, as
appropriate, terminates Executive without cause or due
cause or the like or Executive voluntarily resigns,
Executive will receive severance payments, to the extent
entitled under any employment agreement or arrangement,
only if Executive is not in breach of any of the provisions
in this Agreement.
10. No Right to Employment.
No provision of this Agreement shall give Executive any
right to continue in the employ of the Company or any of its
Affiliates, create any inference as to the
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length of employment of Executive, affect the right of the
Company or its Affiliates to terminate the employment of
Executive, with or without cause, or give Executive any
right to participate in any welfare or benefit plan or other
program of the Company or any of its Affiliates.
11. Modification and Waiver.
This Agreement may not be modified or amended or terminated
except by an instrument in writing signed by the parties.
No term or condition of this Agreement will be deemed to
have been waived, except by written instrument of the party
charged with such waiver. No such written waiver will be
deemed to be a continuing waiver unless specifically stated
therein, and each such waiver will operate only as to the
specific term or condition waived and shall not constitute
a waiver of such term or condition for the future or as to
any act other than that specifically waived.
12. Severability.
Executive acknowledges that the agreements and covenants
contained in this Agreement are essential to protect the
Company and its Affiliates and their goodwill. Each of the
covenants in this Agreement wi1l be construed as independent
of any other covenants or other provision of this
Agreement. It is the intention and desire of the parties
that the court treat any provisions of this Agreement which
are not fully enforceable as having been modified to the
extent deemed necessary by the court to render them
reasonable and enforceable and that the court enforce them
to such extent.
13. Notices.
Any notice, consent, waiver and other communications required
or permitted pursuant to the provisions of this Agreement
must be in writing and will be deemed to have been properly
given (a) when delivered by hand; (b) when sent by
telecopier (with acknowledgment of complete transmission),
provided that a copy is mailed by U.S. certified mail,
return receipt requested; {c) three (3) days after sent by
certified mail, return receipt requested; or (d) one (1)
day after deposit with a nationally recognized overnight
delivery service, in each case to the appropriate addresses
and telecopier numbers set forth below:
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If to the Company:
CHATT Holdings LLC
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Each party will be entitled to specify a different address for
the receipt of subsequent notices by giving written notice
thereof to the other party in accordance with this Section 13.
14. Headings.
The headings and other captions in this Agreement are included
solely for convenience of reference and will not control the
meaning and interpretation of any provision of this
Agreement.
15. Governing Law.
This Agreement has been executed in the State of
Pennsylvania, and its validity, interpretation performance,
and enforcement will be governed by the laws of such state,
except with respect to conflicts of laws principles.
16. Binding Effect.
This Agreement will be binding, upon and inure to the benefit
of Executive, the Company, and their respective successors and
permitted assigns; provided, however, that Executive may not
assign this Agreemert or any part hereof.
17. Survival
The provisions in this Agreement shall survive the
termination of Executive's employment with the Company.
18. Compliance.
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In order to monitor compliance with the terms of this
Agreement, Executive agrees to give written notice, including
a pertinent description, to the Company of each position of
emp1oyment, ownership of more than one percent (1%) of the
stock of any corporation, participation with another entity
or organization (except for religious institutions or
charitable organizations not related to the Business) which
Executive obtains during the Restricted Period.
19. No Strict Construction.
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any
person.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has signed this Agreement,
as of the date written below.
EXECUTIVE:
DATE:
CHATT HOLDINGS LLC
BY:
ITS:
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EXHIBIT B
SEPARATION AGREEMENT AND GENERAL RELEASE
XXXX TRUE TEMPER, INC. ("COMPANY"), and ________ ("Executive"), agree
that this Separation Agreement and General Release ("AGREEMENT") sets forth
their complete agreement and understanding regarding the termination of
Executive's employment with Company.
1. Separation Date. Executive's employment with Company will terminate
effective (the "SEPARATION DATE"). Executive agrees to return all Company
property to Company no later than the Separation Date. Except as specifica11y
provided below, Executive shall not be entitled to receive any benefits of
employment following the Separation Date.
2. Consideration of Company. In consideration for the releases
and covenants by Executive in this Agreement, Company will provide
Executive with the following: INSERT CONSIDERATION AS SET FORTH IN EMPLOYMENT
AGREEMENT
3. Executive Release of Rights. Executive (defined for the purpose of
this Paragraph 3 as Executive and Executive's agents, representatives,
attorneys, assigns, heirs, executors, and administrators) irrevocably, fully,
and unconditionally releases the Released Parties (defined as the Company, ATT
Holding Co., CHATT Holdings, Inc., CHATT Holdings LLC, Xxxxxx Xxxxxx Partners
IV, LP., and each of their affiliated companies, parents, subsidiaries,
predecessors, successors, assigns, divisions, related entities and any of
their past or present employees, officers, agents, insurers, attorneys,
administrators, officials, directors, shareholders, employee benefit plans, and
the sponsors, fiduciaries, or administrators of the Company's employee benefit
plans) from any and all liability, claims, demands, actions, causes of action,
suits, grievances, debts, sums of money, agreements, promises, damages, back and
front pay, costs, expenses, attorneys' fees, and remedies of any type, arising
or that may have arisen out of or in connection with Executives' employment with
or termination of employment from the Company, from the beginning of time to the
date hereof, including but not limited to claims, actions or liability under:
(1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss.2000 et seq., the
Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age Discrimination
in Employment Act, the Americans with Disabi1ities Act of 1990, 42 U.S.C.
ss.12101 et seq., the Fair Labor Standards Act, 29 U.S.C. ss.201 et seq, the
Family and Medical Leave Act of 1993, 29 U.S.C. ss.2601 et seq., the Workers'
Adjustment and Retraining Notification Act, the Employee Retirement Income
Security Act of 1974, 29 U.S.C. ss.1001 et seq., Pennsylvania Human Relations
Act Pa., Stat. Xxx. tit.43 ss.9051 et seq., all as amended; (2) any other
federal, state or local statute, ordinance, or regulation regarding employment,
termination of employment, or discrimination in employment, and (3) the common
law relating to employment contracts, wrongful discharge, defamation, or any
other matter.
4. Waiver of Reinstatement. Executive waives any reinstatement or
future employment with Company and agrees never to apply for employment or
otherwise seek to be hired, rehired, employed, re-employed, or reinstated by
Company or any of its affiliated companies or corporations.
5. No Disparagement or Encouragement of Claims. Executive agrees not
to make any oral or written statement that disparages or places any Released
Party in a false or negative
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light. Executive further agrees not to encourage or assist any person who files
a lawsuit, charge, claim or complaint against the Released Parties unless
Executive is required to render such assistance pursuant to a lawful subpoena or
other legal obligation. The Board of Directors (and each of its individual
members) and the Chief Executive Officer of the Company agree not to make
(outside the Company; or within the Company, except as may be reasonably
necessary to conduct the business of the Company) any oral or written statement
that disparages or places Executive in a false or negative light; and these
individuals further agree not to encourage or assist any person who files a
lawsuit, charge, claim or complaint against Executive unless such individuals
are required to render such assistance pursuant to a lawful subpoena or other
legal obligation.
6. Cooperation of Executive. Executive agrees to cooperate with Company
in any reasonable manner as Company may request, including but not limited to
furnishing information to and otherwise consulting with the Company; and
assisting Company in any litigation or potential litigation or other legal
matters, including but not limited to meeting with and fully answering the
questions of Company cr its representatives or agents. and testifying and
preparing to testify at any deposition or trial. Ccmpany agrees to compensate
Executive for any reasonable out of pocket expenses incurred as a result of such
cooperation.
7. Non-admission/Inadmissibility. This Agreement does not constitute
an admission by Company that any action it took with respect to Executive vas
wrongful, unlawful or in violation of any local, state, or federal act, statute,
or constitution, or susceptible of inflicting any damages or injury on
Executive, and Company specifically denies any such wrongdoing or violation.
This Agreement is entered into solely to resolve fully all matters related
to or arising out of Executive's employment with and termination from Company,
and its execution, and implementation may not be used as evidence, and shall not
be admissible in a subsequent proceeding of any kind, except one alleging a
breach of this Agreement.
8. Severability. The provisions of this Agreement shall be severable
and the invalidity of any provision shall not affect the validity of the other
provisions.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with laws and judicial decisions of the State of Pennsylvania,
without regard to its principles of conflicts of laws.
10. Scope of Agreement. Executive understands that he remains bound to
those provisions in the Executive's Employment Agreement, signed on _________,
2006, which survive the termination of the Executive's employment, including but
not limited to, those provisions in Paragraphs 9-11, 14, 19 and 20 of such
Employment Agreement. Except as specifically set forth in such provisions, this
Agreement contains the entire agreement and understanding between Executive and
Company concerning the matters described herein, and supersedes all prior
agreements, discussions, negotiations, understandings and proposals of the
parties. The terms of this Agreement cannot be chanced except in a subsequent
document signed by both parties.
11. Revocation Period. Executive has the right to revoke this
Agreement for up to seven days after he signs it. In order to revoke this
Agreement, Executive must sign and send a written notice of the decision to do
so, addressed to [NAME] at [INSERT TITLE, AND ADDRESS], and that written notice
must be received by Company no later than the eighth day after Executive
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signed this Agreement. If Executive revokes this Agreement, Executive will not
be entitled to any of the consideration from Company described in paragraph 2
above.
12. Voluntary Execution of Agreement. Executive acknowledges that:
a. Executive has carefully read this Agreement and
fully understands its meaning;
b. Executive had the opportunity to take up to 21 days
after receiving this Agreement to decide whether to
sign it;
c. Executive understands that the Company is hereby
advising him, in writing, to consult with an attorney
before signing it;
d. Executive is signing this Agreement, knowingly,
voluntarily, and without any coercion or duress; and
e. everything Executive is receiving for signing this
Agreement is described in the Agreement itself, and
no other promises or representations have been made
to cause Executive to sign it.
13. Nondisclosure. Executive shall not disclose the contents or
substance of this Agreement to any third parties, other than the Executive's
attorneys, accountants, or as required by law and shall instruct each of the
foregoing not to disclose the same.
COMPANY
____________________________________ By: __________________________________
Executive Signature
Title: _______________________________
Dated: _____________________________ Dated: _______________________________
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