SEPARATION AGREEMENT AND GENERAL RELEASE
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SEPARATION AGREEMENT AND GENERAL RELEASE
This Agreement is entered into as of November 15, 2002, by and between Euramax International, Inc., a Delaware corporation (the "Company"), and Xxxx Xxxxxxx, an individual resident of Duluth, Georgia (the "Executive").
I. STATEMENT OF BACKGROUND INFORMATION
A. Executive has been employed as Executive Vice President of the Company.
B. Executive has resigned his position as Executive Vice President effective as of January 6, 2003 (the "Effective Date").
C. Executive and the Company desire to enter into this Agreement to establish certain post-employment nondisclosure, nonsolicitation and noncompetition arrangements with Executive, and to settle fully and finally any differences between the parties that might arise from Executive's employment and termination of employment with the Company.
II. STATEMENT OF AGREEMENT
In consideration of the mutual covenants and obligations hereinafter set forth, the receipt and adequacy of which are expressly acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Termination of Employment. Executive's employment with the Company shall terminate effective on January 6, 2003 (the "Termination Date").
2. Compensation to Executive. In consideration for the general release and for the covenants contained herein, the Company agrees to pay to Executive the following amounts, subject to the terms hereof. Except as set forth in this Agreement, Executive acknowledges that there is no other compensation, wages, salary, or other amounts due and owing to him from the Company:
i. on the Termination Date, Executive will receive a severance payment of $266,000.00 representing one year's salary and bonus, $416,000.00 as an accelerated vesting and full payout of the Executive's SERP entitlement, $10,000.00 for financial planning expenses (less amounts paid to Executive for financial planning prior to the Termination Date) and $7,380.00 to defray the cost of coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") for one year;
ii. On the Termination Date the Company will transfer to Executive free and clear title to the automobile currently leased for the Executive;
iii. on the Termination Date, Executive shall become Fully vested in 3,990 shares (which represents 3,694 existing shares and an additional grant, effective on the Termination Date, of 296 shares) of Company common stock (the "Stock") and will receive, in consideration for the surrender by Executive of the certificates representing the Stock and an executed stock power in blank, the sum of $1,516,000.00. In addition, as consideration for the surrender of his entitlements under the Euramax International, Inc. 1999 Phantom Stock Plan, Executive will receive $80,000.00 in cash on December 31, 2002 and $80,000.00 in cash on January 6, 2003. For the avoidance of doubt, Executive acknowledges that (A) following the surrenders referred to in this clause 2.iii, the Executive will cease to have any interest in any equity of the Company or any of its Subsidiaries and (B) he will not receive any cash payments with respect to stock or otherwise until such time as he has delivered documents satisfactory to Company's counsel evidencing the surrenders referred to in this clause 2.iii;
iv. on the Termination Date, a profit share of $11,400.00 will be paid by the Company to the credit of Executive's 401(k) account;
v. Executive will receive health plan continuation coverage for Executive and one additional family member under COBRA;
vi. Executive will receive a bonus to be determined representing Executive's 2002 EICP entitlement, to be paid in accordance with the Company's usual and customary payroll practices as if Executive were still an employee of the Company at the time of such payment. The payment will, in any event, be made by March 31, 2003;
vii. In the event a Change of Control occurs on or prior to July 1, 2003 in which holders of the Company's common stock receive cash or cash equivalents in the aggregate amount or of a value greater than $380.00 per share, Executive will receive, within 10 business days of the consummation of the Sale of the Company an amount of cash equal to amount of such excess multiplied by 3,990. Any cash equivalents will be valued on a net present value basis by the Company's auditors whose decision regarding such value shall be final. For the purposes of this clause 2vii., "Change of Control" has the meaning given to that term in the Executive Severance Agreement between the Company and the Executive dated July 1, 2002.
3. Deductions and Withholding; Expenses. Executive agrees that the Company may withhold from any and all compensation paid to and required to be paid to Executive pursuant to this Agreement, all federal, state, local and/or other taxes which the Company determines are required to be withheld in accordance with applicable statutes and/or regulations then in effect. For purposes of this Agreement and calculations hereunder, all such deductions and withholdings shall be deemed to have been paid to and received by Executive.
4. Release of Company. Except for the obligations of Company under this Agreement, Executive, for himself, his successors, assigns, attorneys, and all those entitled to assert his rights, now and forever hereby releases and discharges Company and its respective officers, directors, stockholders, trustees, employees, agents, parent corporations, subsidiaries, affiliates, estates, successors, assigns and attorneys, (the "Released Parties") from any and all claims, actions, causes of action, sums of money due, suits, debts, liens, covenants, contracts, obligations, costs, expenses, damages, judgments, agreements, promises, demands, claims for attorney's fees and costs, or liabilities whatsoever, in law or in equity ("Claims"), which Executive ever had or now has against the Released Parties, including any Claims arising by reason of or in any way connected with any employment relationship or Employment Agreement which existed between Company, or any of its parents, subsidiaries, affiliates, or predecessors, and Executive. It is understood and agreed that this Agreement is intended to cover all Claims which may be traced either directly or indirectly to the aforesaid employment relationship, or the termination of that relationship, that Executive has, had, or purports to have, from the beginning of time to the present, whether known or unknown, that now exists, no matter how remotely they may be related to the aforesaid employment relationship, including, but not limited to, Claims for employment discrimination under federal or state law; Claims arising under Title VII of the Civil Rights Act, 42 U.S.C. ss. 2000(e), et seq., the Americans With Disabilities Act, 42 U.S.C. ss. 12101 et seq. or the Age Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq.; Claims for statutory or common law wrongful discharge; Claims for attorney's fees, expenses and costs; Claims for defamation; Claims for intentional infliction of emotional distress; Claims for wages or vacation pay; Claims for benefits, including any Claims arising under the Employee Retirement Income Security Act, 29 U.S.C. ss. 1001, et seq.
Without limiting the generality of the foregoing, Executive agrees that by executing this Agreement, he has released and waived any and all Claims he has or may have as of the date of this Agreement under the Age Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq. It is
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understood that Executive is advised to consult with an attorney prior to executing this Agreement; that he may, before executing this Agreement, consider this Agreement for a period of twenty-one (21) calendar days; and that he is receiving consideration for this Agreement to which he was previously not entitled. It is further understood that this Agreement is not effective until seven (7) calendar days after the execution of this Agreement and that Executive may revoke this Agreement within seven (7) calendar days from the date of execution of this Agreement.
In the event Executive shall breach or attempt to rescind this Agreement or shall institute an action that would otherwise be subject to this release after the Effective Date, Executive agrees that he will first return to the Company all consideration received hereunder and the Company shall be entitled to all attorneys' fees and costs incurred in defending any Claim that Executive purports to release in this Agreement.
5. Return of Company Property. As soon as practicable, but in no event later than five (5) days after the Termination Date, Executive will return to the Company all property of the Company then in his possession, including, but not limited to computers, printers, Palm pilots, files, records, customer information, Confidential Information, Trade Secrets, and any written or electronic information that might constitute non-public insider information under the Securities and Exchange Act of 1934; provided, that the Executive will be entitled to keep his cellular phone at Executive's own expense for service. Upon return of all property, Executive shall represent to the Company that he has no other Company property in his possession.
6. Restrictions on Conduct of the Executive.
A. General. The Executive and the Company understand and agree that the purpose of the provisions of this Section 6 is to protect the legitimate business interests of the Company, including the protection of Confidential Information and Trade Secrets, and is not intended to impair or infringe upon the Executive's right to work, earn a living, or acquire and possess property from the fruits of his labor. The Executive hereby acknowledges that the post-employment restrictions set forth in this Section 6 are reasonable and that they do not, and will not, unduly impair his ability to earn a living. Therefore, subject to the limitations of reasonableness imposed by law, the Executive shall be subject to the restrictions set forth in this Section 6.
B. Restrictive Covenants.
i. Restriction on Disclosure and Use of Confidential Information and Trade Secrets. Executive hereby agrees that the Executive shall not, directly or indirectly, reveal, divulge, or disclose to any entity any Confidential Information, and the Executive shall not, directly or indirectly, at any time for a period of 5 years from the Termination Date use or make use of any Confidential Information in connection with any business activity. The Executive shall not directly or indirectly transmit or disclose any Trade Secret of the Company to any Person, and shall not make use of any such Trade Secret, directly or indirectly, for himself or for others. This Agreement is not intended to, and does not alter either the Company's rights or the Executive's obligations under any state or federal statutory or common law regarding trade secrets and unfair trade practices.
For purposes of this Agreement, "Confidential Information" means all information regarding the Company, its activities, business or clients that is the subject of reasonable efforts by the Company to maintain its confidentiality and that is not generally disclosed by practice or authority to persons not employed by the Company, but that does not rise to the level of a Trade Secret. Confidential Information shall include, but is not limited to, financial plans and data concerning the Company; management planning information; business plans; operational methods; market studies; marketing plans or strategies; product development techniques or plans; customer lists; details of customer contracts; current and anticipated customer requirements; past, current and planned research and
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development; business acquisition plans; and new personnel acquisition plans. Confidential Information shall not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right or privilege of the Company. This definition shall not limit any definition of "confidential information" or any equivalent term under state or federal law.
"Trade Secrets" means all information, with regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans. distribution lists or a list of actual or potential customers, advertisers or suppliers which is not commonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without limiting the foregoing, Trade Secret means any item of Confidential Information that constitutes a "trade secret(s) "under the common law or statutory law of the State of Georgia.
ii. Noncompetition with the Company. In consideration of the compensation and benefits being paid and to be paid by the Company to the Executive hereunder, and in consideration of Executive's former employment with the Company, Executive hereby agrees that, for a period of 5 years from the Termination Date (the "Noncompete Period"), he shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, or in any manner engage in any business competing with the businesses of thc Company or its Subsidiaries, as such businesses exist, are in process or the subject of a written business plan of the Company or any of its Subsidiaries on or prior to the Termination Date, within any geographical area in which the Company or its Subsidiaries engage or plan to engage in such businesses. Nothing herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation.
iii. Non-Solicitation. During the Noncompete Period, Executive shall not directly or indirectly through another person or entity (i) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof, (ii) hire any person who was an employee of the Company or any Subsidiary at any time during the period of Executive's employment or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the Company or any Subsidiary to cease doing business with the Company or such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any Subsidiary (including, without limitation, making any negative or disparaging statements or communications regarding the Company or its Subsidiaries).
C. Enforcement of Restrictive Covenants.
i. Rights and Remedies Upon Breach. In the event the Executive breaches, or threatens to commit a breach of, any of the provisions of the Restrictive Covenants, the Company shall have (a) the right and remedy to enjoin the Executive from violating or threatening to violate the Restrictive Covenants 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; and (b) thc right and the remedy to cease payment of any continuing compensation that would otherwise be due to
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Executive under this Agreement and require repayment of all cash compensation paid to Executive pursuant to Section 2 of this Agreement.
ii. Severability of Covenants. The Executive acknowledges and agrees that the restrictive covenants herein are reasonable and valid in time and scope and in all other respects. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid; void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing provisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of activities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be redefined, or a new enforceable term provided, such that the intent of the Company and the Executive in agreeing to the provisions of this Agreement will not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.
7. Confidentiality and Non-Disparagement. Executive and the Company covenant and warrant that they have not and will not disclose or publish, verbally, in writing or otherwise, to any person or entity the amount of consideration passing pursuant to this Agreement, or any other term or consideration passing pursuant to this Agreement. The parties specifically except from this limitation the following: as to Executive, his tax advisor(s), his immediate family, and the Internal Revenue Service; as to the Company, its attorneys, accountants, directors, and only those employees determined to have a bona fide need to know the information, in the Company's good faith determination, as well as any disclosures required by state or Federal law, including, but not limited to the Securities and Exchange Act of 1934. Executive and the Company further covenant and warrant that neither will make any statements or comments of a defamatory or disparaging nature to third parties, including the Company's customers or potential employers of Executive, regarding Executive, the Company or its directors, officers, personnel, or products. Executive further agrees that, should he breach the obligations set forth in this Paragraph 7, the Company will be entitled to cease payment of all continuing consideration for the remainder of the term of this Agreement. Executive further agrees that any breach of this paragraph shall cause irreparable harm to the Company, and nothing herein shall prohibit the Company from seeking equitable relief, including an injunction, in the case of a breach of the terms of this paragraph
8. Entire Agreement. This Agreement embodies the entire agreement of the parties and supercedes any prior written or oral agreement, including, without limitation, the Employment Agreement between the parties. This Agreement may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.
9. Waiver. The waiver by the Company of a breach of any provision of this Agreement by the Executive shall not operate or be construed as a waiver of any subsequent breach by him. The waiver by the Executive of a breach of any provision of this Agreement by the Company shall not operate or be construed as a waiver of any subsequent breach by the Company.
10. Governing Law. This Agreement shall be subject to, and governed by, the internal laws of the State of Georgia, without regard to choice of law principles.
11. Assignability; Successors. The obligations of Executive may not be delegated and, Executive may not, without the Company's written consent thereto, assign, transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this Agreement or any interest herein. Any such attempted delegation or disposition shall be null and void and without effect.
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12. Effective Date. This Agreement shall take effect seven (7) days after it is fully executed by the parties, and Executive shall have the right to revoke the Agreement during that period (the "Revocation Period"); provided, however, that Executive shall be bound by all restrictive covenants dating from the Termination Date during the Revocation Period, and any breach of this Agreement by Executive during that Revocation Period shall be construed as a revocation of this Agreement.
13. Paragraph Headings. The paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| EURAMAX INTERNATIONAL, INC. | ||||
Dated: 11/15/02 |
By: |
/s/ J. XXXXX XXXXX |
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Dated: 11/15/02 |
/s/ XXXX XXXXXXX Xxxx Xxxxxxx |
|||
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SEPARATION AGREEMENT AND GENERAL RELEASE
