FIRST AMENDMENT TO EMPLOYMENT AND
NONCOMPETITION AGREEMENT - XXXXXXXX
This First Amendment (this "Amendment") to Employment and Noncompetition
Agreement - Xxxxxxxx made and effective as of the 15th day of April, 1998, among
THERMO-TILT WINDOW COMPANY, a Delaware corporation (the "Company") and Xxxxxxx
X. Xxxxxxxx ("Employee").
WITNESSETH:
WHEREAS the Company and Employee entered into that certain Employment and
Noncompetition Agreement - Xxxxxxxx, dated as of January 13, 1998 (the
"Employment Agreement"), whereby Employee, among other things agreed to serve as
Vice President - Acquisitions; and
WHEREAS under the Employment Agreement both the Company and Employee desire
to amend the Employment Agreement whereby Employee will cease to serve as Vice
President - Acquisitions of the Company and instead will serve as President and
Chief Executive Officer of the Company in accordance with the terms of the
Employment Agreement, as amended;
NOW THEREFORE in consideration of the above recitals and the mutual
agreements herein contained and for other good and valuable consideration, the
parties hereby agree as follows:
1. Section 1 of the Employment Agreement is hereby amended to read in its
entirety as follows:
SECTION I. EMPLOYMENT.
Subject to the terms hereof, Company hereby agrees to employ Employee, and
Employee hereby accepts such employment as President and Chief Executive
Officer. Employee shall serve the Company during the Term (as defined in
Section 2.1) of this Agreement, subject to the direction of the Company's Board
of Directors. As President and Chief Executive Officer, Employee shall devote
his best efforts and such business time as may be necessary or appropriate on
behalf of the Company:
(i) To serve as the President and Chief Executive Officer of the
Company, whereby Employee shall preside at all meetings of the stockholders and
the Board of Directors and shall have general and active management of the
business of the Company.
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(ii) To assist the Company in evaluating potential corporate
opportunities, including merger and acquisition structuring, negotiation and
closing services.
(iii) To provide the Company with a variety of general business
analyses, marketing and management services.
(iv) To conduct such other duties as the Board of Directors may
prescribe from time to time.
2. Section 2.1 of the Employment Agreement is hereby amended to read in
its entirety:
2.1. The term of Employee's employment hereunder shall be from December
15, 1997, through and including April 15, 2000, unless terminated prior thereto
upon the occurrence of any of the following:
(i) The death or total disability of Employee. As used herein,
"total disability" means any physical or mental condition rendering the Employee
unable, for a total of six (6) months during any twelve month period, to perform
the duties and bear the responsibilities incident to the position referred to in
Section 1 hereof as determined by a physician acceptable to Employee and
Company; or
(ii) Company's termination of Employee's employment hereunder, upon
prior written notice to Employee, for "good cause." For the purposes of this
Agreement, "good cause" for termination of Employee's employment shall exist
only if (a) Employee is convicted of, pleads guilty to, or confesses to any act
of fraud, misappropriation or embezzlement or to any felony, (b) Employee has
engaged in a dishonest or disloyal act resulting in material damage or prejudice
to the Company, (c) Employee has engaged in conduct or activities materially
damaging or prejudicial to the property, business or reputation of the Company,
or (d) Employee otherwise fails to comply with the material terms of this
Agreement; or
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(iii) By the Employee at any time during the Term.
In the event that the Company should elect to terminate Employee for "good
cause" within the meaning of sub-Section (ii)(b), (c) or (d) above, Employee
shall have a period of twenty (20) days after the written notice to cure any
non-compliance set forth therein prior to the time such termination would become
effective.
3. Other than is set forth in this Amendment, all the terms, conditions,
rights, duties, responsibilities and obligations set forth in the Employment
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the Company has executed this Amendment by its duly
authorized corporate officer as of the date set forth above.
"Company"
THERMO-TILT WINDOW COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Vice President - Finance and
Administration
Accepted by:
"Employee"
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
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