EXHIBIT 10.46
EMPLOYMENT AGREEMENT
AGREEMENT made as of November 27, 1996, between AMT/XXXXXX
CORPORATION, a Delaware corporation with an xxxxxx xx Xxx 000 Xxxx, Xxxxxxx,
Xxxxx Xxxxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxxxxxxx, Xx., residing
at 00-X Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires that Executive be employed to serve in
a senior executive capacity with the Company, a wholly-owned subsidiary of
American Buildings Company ("ABC"), and Executive desires to be so employed upon
the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, representations and covenants herein contained, the parties hereto
agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
such employment, subject to the terms and conditions herein set forth. Executive
shall hold the office of President of the Company reporting to the Chairman of
the Board of the Company.
2. TERM.
The initial term of employment under this Agreement shall begin on
the date hereof (the "Employment Date") and shall continue until January 1,
2000, subject to prior termination in accordance with the terms hereof.
Thereafter, this Agreement shall automatically be renewed for successive one
year terms unless either party shall give the other ninety (90) days prior
written notice of its intent not to renew this Agreement.
3. COMPENSATION.
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer or director of the
Company and any of its subsidiaries, the Company agrees to pay, or cause to be
paid, to Executive, and Executive agrees to accept, payable in equal
installments in accordance with Company
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practice, an initial annual salary of $90,000. Executive's annual salary
hereunder for the remaining years of employment shall be determined by the Board
of Directors in its sole discretion, but shall not in any year be reduced below
the rate for the previous year. In addition, Executive shall be entitled to
bonuses from time to time in such amounts as may be determined by the Board of
Directors in its sole discretion.
4. EXPENSES.
The Company shall pay or reimburse Executive, upon presentment of
suitable vouchers, for all reasonable business and travel expenses which may be
incurred or paid by Executive in connection with his employment hereunder.
Executive shall comply with such restrictions and shall keep such records as the
Company may deem necessary to meet the requirements of the Internal Revenue Code
of 1986, as amended from time to time, and regulations promulgated thereunder.
5. OTHER BENEFITS.
Executive shall be entitled to such vacations and to participate in
and receive any other benefits customarily provided by the Company to its senior
management personnel (including any profit sharing, pension, short and long-term
disability insurance, hospital, major medical insurance and group life insurance
plans in accordance with the terms of such plans) and including stock option
and/or stock purchase plans, all as determined from time to time by the Board of
Directors of the Company and, in the case of stock options and/or stock purchase
plans, the Board of Directors of ABC.
6. DUTIES.
(a) Executive shall perform such duties and functions as the
Chairman of the Board of Directors shall from time to time determine and
Executive shall comply in the performance of his duties with the policies of the
Board of Directors, and be subject to the direction of the Chairman of the Board
of Directors. At the request of the Board of Directors, Executive shall serve as
an executive officer and director of any subsidiary of the Company and, in the
performance of such duties, Executive shall comply with the policies of the
Board of Directors of each such subsidiary.
(b) During the term of this Agreement, Executive shall devote
substantially all of his time and attention, reasonable vacation time and
absences for sickness excepted, to the business of the Company, as necessary to
fulfill his duties. Executive shall perform the duties assigned to him with
fidelity and to the best of his ability. Notwithstanding anything herein to the
contrary, Executive may engage in other activities so long as such activities do
not unreasonably interfere with Executive's performance of his duties hereunder
and do not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this Agreement shall
be construed to prevent Executive from investing or trading in nonconflicting
investments
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as he sees fit for his own account, including real estate, stocks, bonds,
securities, commodities or other forms of investments.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION.
(a) Executive's employment hereunder may be terminated at any time
upon written notice from the Company to Executive:
(i) upon the determination by the Board of Directors that
Executive's performance of his duties has not been fully satisfactory for
any reason which would not constitute justifiable cause (as hereinafter
defined) upon thirty (30) days' prior written notice to Executive; or
(ii) upon the determination by the Board of Directors that there is
justifiable cause (as hereinafter defined) for such termination upon ten
(10) days' prior written notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter defined pursuant
to subsection (c) herein) pursuant to subsection (f) hereof.
(c) For the purposes of this Agreement, the term "disability" shall mean
the inability of Executive, due to illness, accident or any other physical or
mental incapacity, substantially to perform his duties for a period of three (3)
consecutive months or for a total of six (6) months (whether or not consecutive)
in any twelve (12) month period during the term of this Agreement, as reasonably
determined by the Board of Directors of the Company after examination of
Executive by an independent physician reasonably acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause" shall mean and
be limited to: any repeated wilful failure or refusal to perform any of his
duties pursuant to this Agreement where such conduct shall not have ceased
within 30 days following written warning from the Company; Executive's
conviction (which, through lapse of time or otherwise, is not subject to appeal)
of, pleading guilty to, or confession of any crime or offense involving money or
other property of the Company or its subsidiaries or affiliates or which
constitutes a felony in the jurisdiction involved; Executive's performance of
any act or his failure to act, for which if Executive were prosecuted and
convicted, a crime or offense involving money or property of the Company or its
subsidiaries or affiliates, or which would constitute a felony in the
jurisdiction involved, would have occurred; any unauthorized disclosure by
Executive to any person, firm or corporation other than the Company, its
subsidiaries or affiliates and its and their directors, officers and employees,
of any confidential information or trade secret of
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the Company, ABC or any of their respective subsidiaries or affiliates
(collectively, the "ABC Group"); any attempt by Executive to secure any personal
profit in connection with the business of any member of the ABC Group;
Executive's engagement in a fraudulent act to the material damage or prejudice
of any member of the ABC Group or in conduct or activities materially damaging
to the property, business or reputation of any member of the ABC Group, all as
determined by the Board of Directors in good faith; Executive's illegal use of
controlled substances; any material act or omission by Executive involving
malfeasance or negligence in the performance of Executive's duties to the
material detriment of any member of the ABC Group, as determined by the Board of
Directors of the Company or of ABC, as the case may be, in good faith, which has
not been corrected by Executive within thirty (30) days after written notice
from the Company of any such act or omission; the entry of an order of a court
that remains in effect and is not discharged for a period of at least sixty (60)
days, which enjoins or otherwise limits or restricts the performance by
Executive under this Agreement, relating to any contract, agreement or
commitment made by or applicable to Executive in favor of any former employer or
any other person; or the engaging by Executive in any business other than the
business of the ABC Group which unreasonably interferes with the performance of
his duties hereunder. Upon termination of Executive's employment for justifiable
cause, this Agreement shall terminate immediately and Executive shall not be
entitled to any amounts or benefits hereunder other than such portion of
Executive's annual salary and reimbursement of expenses pursuant to Section 4
hereof as has been accrued through the date of his termination of employment.
(e) If Executive shall die during the term of his employment hereunder,
this Agreement shall terminate immediately. In such event, the estate of
Executive shall thereupon be entitled to receive such portion of Executive's
annual salary and reimbursement of expenses pursuant to Section 4 as has been
accrued through the date of his death. If Executive's death shall occur while he
is on Company business, the estate of Executive shall be entitled to receive, in
addition to the other amounts set forth in this subsection (e), an amount equal
to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have the right to
terminate Executive's employment. Notwithstanding any inability to perform his
duties, Executive shall be entitled to receive his compensation (including
bonus, if any) and reimbursement of expenses pursuant to Section 4 as provided
herein until he begins to receive long-term disability insurance benefits under
the policy provided by the Company pursuant to Section 5 hereof. Any termination
pursuant to this subsection (f) shall be effective on the later of (i) the date
30 days after which Executive shall have received written notice of the
Company's election to terminate or (ii) the date he begins to receive long-term
disability insurance benefits under the policy provided by the Company pursuant
to Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained herein, in the
event that Executive's employment is terminated by the Company at any time for
any reason other than justifiable cause, disability or death, the Company shall
(i) pay
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Executive, for a period equal to the longer of (1) the remaining term of this
Agreement or (2) one year (such period being hereinafter referred to as the
"Severance Period"), a monthly payment equal to one-twelfth of his then annual
salary, which amount shall be in lieu of any and all other payments due and
owing to the Executive under the terms of this Agreement (other than any
payments constituting reimbursement of expenses pursuant to Section 4 hereof),
and (ii) continue to allow Executive to participate, at the Company's expense,
in the Company's health insurance and disability insurance programs, to the
extent permitted under such programs, during the Severance Period (collectively,
the "Severance Payments"); provided, however, that if such termination occurs
within one (1) year following the effective date of a Change in Control of ABC
(as hereinafter defined), the Company shall pay to Executive, in lieu of the
amounts set forth in clause (i) above, in one lump sum, a severance payment
equal to (i) two years' annual salary plus (ii) an amount equal to twice
Executive's most recently declared bonus, if any.
(h) For purposes of this Agreement, a "Change in Control of ABC" shall be
deemed to occur if (i) there shall be consummated (x) any consolidation or
merger of ABC in which ABC is not the continuing or surviving corporation or
pursuant to which shares of ABC's Common Stock would be converted into cash,
securities or other property, other than a merger of ABC in which the holders of
ABC's Common Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger, or (y) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all, or substantially all, of the assets
of ABC, or (ii) the stockholders of ABC shall approve any plan or proposal for
liquidation or dissolution of ABC, or (iii) any person (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) shall become the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of 40% or more of ABC's outstanding Common
Stock other than pursuant to a plan or arrangement entered into by such person
and ABC, or (iv) during any period of two consecutive years, individuals who at
the beginning of such period constitute the entire Board of Directors of ABC
shall cease for any reason to constitute a majority thereof unless the election,
or the nomination for election by ABC's stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(i) Notwithstanding any provision to the contrary contained herein, in the
event the Company elects not to renew this Agreement (other than within one year
following a Change in Control of ABC, which is covered in Section 7(g) above)
the Company will pay Executive a severance payment equal to one year's annual
salary.
(j) Executive may terminate his employment at any time upon 30 days' prior
written notice to the Company. Upon Executive's termination of his employment
hereunder or his election not to renew this Agreement, this Agreement (other
than Sections 4, 7, 9, 10, 11 and 12, which shall survive, if at all, in
accordance with their terms) shall terminate; provided, however, that Section 9
shall not survive such
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termination unless the Company pays to Executive during the Severance Period the
Severance Payments. In such event, Executive shall be entitled to receive such
portion of Executive's annual salary and bonus, if any, as has been accrued to
date. Executive shall be entitled to reimbursement of expenses pursuant to
Section 4 hereof and to participate in the Company's benefit plans to the extent
participation by former employees is required by law or permitted by such plans,
with the expense of such participation to be as specified in such plans for
former employees.
(k) If, in connection with a change of ownership or control of the Company
or a change in ownership of a substantial portion of the assets of the Company
(all within the meaning of Section 280G(b)(2) of the Internal Revenue Code of
1986, as amended (the "Code")), an excise tax is payable by Executive under
Section 4999 of the Code, then the Company will pay to the Executive additional
compensation which will be sufficient to enable Executive to pay such excise tax
as well as the income tax and excise tax on such additional compensation, such
that, after the payment of income and excise taxes, Executive is in the same
economic position in which he would have been if the provisions of Section 4999
of the Code had not been applicable. The additional compensation required by
this Section 7(k) will be paid to Executive promptly after the date or dates on
which the amount of such additional compensation is determinable, in whole or in
part.
8. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE.
(a) Executive represents and warrants that he is free to enter into this
Agreement and to perform the duties required hereunder, and that there are no
employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his duties
hereunder.
(b) Executive agrees to submit to a medical examination and to cooperate
and supply such other information and documents as may be required by any
insurance company in connection with the Company's obtaining life insurance on
the life of Executive, and any other type of insurance or fringe benefit as the
Company shall determine from time to time to obtain.
9. NON-COMPETITION.
(a) Executive agrees that during his employment by the Company and during
the Severance Period following the termination of Executive's employment
hereunder (the "Non-Competitive Period"), Executive shall not, directly or
indirectly, as owner, partner, joint venturer, stockholder, employee, broker,
agent, principal, trustee, corporate officer, director, licensor, or in any
capacity whatsoever engage in, become financially interested in, be employed by,
render any consultation or business advice with respect to, or have any
connection with, (i)Eany business which is competitive with products or services
of the ABC Group in any geographic area in the United States of America, Central
and South America and Canada where, at the time of the termination of his
employment hereunder, the business of the ABC Group was being conducted or
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was proposed to be conducted in any manner whatsoever or (ii)Eany business
conducted under any corporate or trade name utilized by any member of the ABC
Group or any name similar thereto without the prior written consent of the
Company; provided, however, that Executive may own any securities of any
corporation which is engaged in such business and is publicly owned and traded
but in an amount not to exceed at any one time one percent (1%) of any class of
stock or securities of such corporation. In addition, Executive shall not,
directly or indirectly, during the Non-Competitive Period, request or cause any
suppliers or customers with whom any member of the ABC Group has a business
relationship to cancel or terminate any such business relationship with any
member of the ABC Group, or solicit, interfere with or entice from the Company
any employee (or former employee) of the ABC Group.
(b) If any portion of the restrictions set forth in this Section 9 should,
for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
(c) Executive acknowledges that the ABC Group conducts business throughout
the United States, that its sales and marketing prospects are for continued
expansion throughout the Xxxxxx Xxxxxx, Xxxxxxx xxx Xxxxx Xxxxxxx xxx Xxxxxx and
that, therefore, the territorial and time limitations set forth in this Section
9 are reasonable and properly required for the adequate protection of the
business of the ABC Group. In the event any such territorial or time limitation
is deemed to be unreasonable by a court of competent jurisdiction, Executive
agrees to the reduction of the territorial or time limitation to the area or
period which such court shall deem reasonable.
(d) The existence of any claim or cause of action by Executive against any
member of the ABC Group shall not constitute a defense to the enforcement by the
Company or any subsidiary or affiliate of the foregoing restrictive covenants,
but such claim or cause of action shall be litigated separately.
(e) In the event Executive's employment with the Company terminates for
any reason other than termination by the Company within one year following a
Change in Control of the ABC, the Company and Executive agree that in
consideration of the payments being made to Executive during the Severance
Period, Executive shall be available during the Severance Period to advise and
consult with the Board of Directors, the President and other officers of the
Company and its subsidiaries with respect to the affairs of the Company and its
subsidiaries on a part-time basis, in response to requests for such advisory and
consulting services by the Board of Directors, or other officers of the Company
or its subsidiaries, subject to the conditions that (i) such services shall be
performed within the United States of America, (ii) Executive shall not be
required to devote a major portion of his time to such services, (iii) such
services shall not unreasonably interfere with the performance of other
employment or consulting duties Executive may have, (iv) Executive shall not be
required to perform such services during usual vacation periods and reasonable
periods of illness or other incapacitation, (v) such services shall be performed
at times and
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places as shall be chosen by Executive, and which will result in the least
inconvenience to Executive, and (vi) all other provisions of this Section 9
shall apply. The Company shall reimburse Executive for actual out-of-pocket
expenses incurred in rendering the services performed by Executive upon the
request of the Board of Directors, or other officers of the Company or its
subsidiaries, payable at the end of each month during such period.
Notwithstanding the foregoing, in the event that Executive seeks full-time
employment with a third party and such third party will not accept Executive's
services for as long as he is committed under this subsection (e) to provide
consulting services to the Company, then if the Board of Directors of the
Company determines in its reasonable discretion that Executive's employment with
the third party will not cause him to breach the provisions of Section 9 of this
Agreement (other than this subsection (e)) and Executive provides the Board of
Directors with a letter signed by the third party stating that such third party
will not accept Executive's services as described above, the provisions of this
subsection (e) shall immediately terminate and be of no further force or effect.
(f) Notwithstanding anything herein to the contrary, this Section 9 shall
automatically terminate if the Company terminates Executive's employment within
one year following the effective date of a Change in Control of ABC, or if the
Company fails to make any payments due to Executive under Sections 7(g), 7(i),
7(j) or 9(e).
10. INVENTIONS AND DISCOVERIES.
(a) Executive shall promptly and fully disclose to the Company, and with
all necessary detail for a complete understanding of the same, all developments,
know-how, discoveries, inventions, improvements, concepts, ideas, writings,
formulae, processes and methods (whether copyrightable, patentable or otherwise)
made, received, conceived, acquired or written during working hours, or
otherwise, by Executive (whether or not at the request or upon the suggestion of
the Company) during the period of his employment with, or rendering of advisory
or consulting services to, any member of the ABC Group, solely or jointly with
others in or relating to any activities of the ABC Group known to him as a
consequence of his employment or the rendering of advisory and consulting
services hereunder (collectively the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to assign and
transfer, to the Company, all his rights, title and interest in and to the
Subject Matter, and Executive further agrees to deliver to the Company any and
all drawings, notes, specifications and data relating to the Subject Matter, and
to execute, acknowledge and deliver all such further papers, including
applications for copyrights or patents, as may be necessary to obtain copyrights
and patents for any thereof in any and all countries and to vest title thereto
to the Company. Executive shall assist the Company in obtaining such copyrights
or patents during the term of this Agreement, and any time thereafter on
reasonable notice and at mutually convenient times, and Executive agrees to
testify in any prosecution or litigation involving any of the Subject Matter;
provided, however, that Executive shall be compensated in a timely manner at the
rate of $500.00 per day (or portion thereof), plus out-of-pocket expenses
incurred in rendering such
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assistance or giving or preparing to give such testimony if it is required after
the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) Executive shall not, during the term of this Agreement, or at any time
following termination of this Agreement, directly or indirectly, disclose or
permit to be known (other than as is required in the regular course of his
duties (including without limitation disclosures to the Company's advisors and
consultants) or is required by law (in which case Executive shall give the
Company prior written notice of such required disclosure) or with the prior
written consent of the Board of Directors of the Company), to any person, firm
or corporation, any confidential information acquired by him during the course
of, or as an incident to, his employment or the rendering of his advisory or
consulting services hereunder, relating to the ABC Group, the directors of any
member of the ABC Group, any client of the ABC Group, or any corporation,
partnership or other entity owned or controlled, directly or indirectly, by any
of the foregoing, or in which any of the foregoing has a beneficial interest,
including, but not limited to, the business affairs of each of the foregoing.
Such confidential information shall include, but shall not be limited to,
proprietary technology, trade secrets, patented processes, research and
development data, know-how, market studies and forecasts, competitive analyses,
pricing policies, employee lists, personnel policies, the substance of
agreements with customers, suppliers and others, marketing or dealership
arrangements, servicing and training programs and arrangements, customer lists
and any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential information which
thereafter becomes publicly available other than pursuant to a breach of this
Section 11(a) by Executive.
(b) All information and documents relating to the ABC Group as hereinabove
described (or other business affairs) shall be the exclusive property of the ABC
Group, and Executive shall use commercially reasonable best efforts to prevent
any publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings and other
similar documents containing confidential information, including copies thereof,
then in Executive's possession or control shall be returned and left with the
Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit a breach of,
any of the provisions of Sections 9, 10 or 11 (the "Restrictive Covenants"), the
Company shall have, in addition to, and not in lieu of, any other rights and
remedies available to the Company under law and in equity, the right to
injunctive relief and/or to have the Restrictive Covenants specifically enforced
by an court of competent jurisdiction, it being agreed that any breach or
threatened breach of the Restrictive Covenants would cause irreparable injury to
the Company and that money damages would not provide an adequate remedy to the
Company. Notwithstanding the foregoing, nothing herein
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shall constitute a waiver by Executive of his right to contest whether a breach
or threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION.
No amendment or alteration of the terms of this Agreement shall be valid
unless made in writing and signed by both of the parties hereto.
14. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina applicable to agreements made and to be
performed therein.
15. SEVERABILITY.
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
16. NOTICES.
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above or
such other address as either party may from time to time designate in writing to
the other, and shall be deemed given as of the date of the delivery or at the
expiration of three days in the event of a mailing.
17. WAIVER OR BREACH.
It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not operate, or be construed, as a waiver of
any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT.
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof, supersedes all prior agreements, both
written and oral, between the parties with respect to the subject matter hereof,
and may be modified only by a written instrument signed by each of the parties
hereto. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, heirs, distributors,
successors and assigns, provided, however, that Executive shall not be entitled
to assign or delegate any of his or her rights or obligations hereunder without
the prior written consent of the Company.
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19. SURVIVAL.
Except as otherwise expressly provided herein, the termination of
Executive's employment hereunder or the expiration of this Agreement shall not
affect the enforceability of Sections 4, 7, 9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES.
The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
21. CONSTRUCTION OF AGREEMENT.
No provision of this Agreement or any related document shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured or drafted such provision.
22. HEADINGS.
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this Agreement
or in any way modify, demand or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
AMT/XXXXXX CORPORATION
[CORPORATE SEAL]
By:___________________________
Name:
Title:
ATTEST:
By:________________________
Name:
Title:
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Xxxxxx X. Xxxxxxxxxxx, Xx.
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