EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into April 29, 1998, by
and between Xxxxxxx X. Xxxxx ("Employee") and THERMOVIEW MERGER CORP., a
Kentucky corporation ("Company").
PRELIMINARY STATEMENTS
As of the date of this Agreement, ThermoView Industries, Inc. a Nevada
corporation ("ThermoView"), has acquired all of the outstanding shares of
capital stock of Primax Window, Co., a Kentucky corporation ("Primax") pursuant
to a certain Agreement and Plan of Merger (the "Merger Agreement"), among
ThermoView, the Company, Primax and the shareholders of Primax providing for the
merger of Primax into the Company.
Prior to the execution of the Merger Agreement, Employee, in addition to
being a shareholder of Primax was a director, officer and employee of Primax.
The Company desires to employ Employee on the terms and conditions
hereinafter set forth and Employee desires to be employed by the Company on such
terms and conditions.
NOW THEREFORE, in consideration of the premises and mutual promises and
agreements contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, the Company hereby agrees to employ Employee
as Vice President, and Employee hereby accepts such employment. Employee shall
serve the Company during the Term (as defined in Section 2.1) of this Agreement,
subject to the direction of the Board of Directors of the Company. Employee
shall devote substantially all of his business time and best efforts to
rendering services on behalf of the Company and shall report to the Chief
Operating Officer of Thermoview.
SECTION 2. TERM AND TERMINATION.
2.1. The term of Employee's employment hereunder shall be from May 1, 1998
through and including April 30, 2001, (the "Term") including any renewal periods
hereof pursuant to Section 2.3 hereof, unless terminated prior thereto.
2.2.
(i) The Company may, at any time and in its sole discretion, terminate
the employment of Employee hereunder for Cause (as defined below), effective as
of the later of (i) the date of written notice to Employee specifying the nature
of such cause, or (ii) the expiration of the cure period, if applicable, (the
"Termination Date"). For purposes of this Agreement, "Cause" shall mean any of
the following: (a) fraud, commission or conviction of
a felony, use of illegal drugs or controlled substances, misappropriation or
dishonesty by Employee, (b) repeated failure of the Employee to follow the
direction of Board of Directors of the Company or the President of ThermoView
or his designee regarding the material duties of his employment after written
notice of such failure, or (c) disloyalty or other acts of material
misconduct or any breach by the Employee of any material term of this
Agreement. If the employment of the Employee hereunder is terminated
pursuant to this paragraph (i), the Company shall have no further obligations
hereunder after the Termination Date other than the payment of accrued and
unpaid salary through the Termination Date. In the event that the Company
should elect to terminate Employee for "cause" within the meaning of Section
2.2(i)(c) above, Employee shall have a period of twenty (20) days after the
written notice to cure any non-compliance set forth therein.
(ii) The Company may, at any time and in its sole discretion,
terminate the employment of Employee hereunder for any or no reason, effective
as of the date of provision of written notice to Employee thereof. If the
employment of Employee hereunder is terminated pursuant to this paragraph (ii),
the Company shall have no further obligations hereunder after the Termination
Date other than the payment of salary for the remaining Term.
(iii) If, at any time during the Employment Term, Employee resigns
from the employ of the Company for any reason, the Company shall have no further
obligations hereunder after the date that he tenders his resignation other than
the payment of accrued and unpaid salary through the last date he provides
services hereunder.
(iv) If Employee dies during the Employment Term, the employment of
Employee hereunder shall terminate immediately upon the death of Employee, and
the Company shall have no further obligations hereunder after the date of death
other than the payment to Employee's estate, legal representatives, heirs,
successors, assigns or other beneficiaries of accrued and unpaid salary through
such date.
(v) If Employee becomes disabled during the Term, the employment of
Employee hereunder shall terminate effective as of the date of provision of
written notice to Employee thereof. For purposes of this Agreement, the term
"disability" shall be defined as defined by any applicable long-term disability
insurance policy held by the Company, or if the Company does not maintain such a
policy, the inability of Employee to perform his normal duties as a full-time
employee of the Company for a period of ninety (90) consecutive days by reason
of physical or mental illness or incapacity, or for periods of physical or
mental illness or incapacity aggregating one hundred twenty (120) days in any
consecutive six (6) month period.
2.3. The Term shall be automatically renewed for an additional year upon
the expiration of the initial Term, or any extended Term unless either party
should give notice to the other at least thirty (30) days prior to the
expiration of the initial Term, or any extended Term, that he or it elects not
to renew upon expiration of the Term, or any extended Term.
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SECTION 3. COMPENSATION AND BENEFITS.
3.1. SALARY. Employee shall be paid an annual salary of $125,000. Payment
of salary shall be payable in installments at such times as the Company
customarily pays its other employees.
3.2 OTHER BENEFITS. Employee shall be eligible to receive the fringe
benefits, perquisites, and other benefits of employment for which he is eligible
under the Company's policies and procedures which may be revised from time to
time at the discretion of the Board of Directors of the Company. In the event
Employee's employment is terminated early pursuant to Section 2.1 hereof,
benefits will likewise terminate prospectively subject to applicable law.
SECTION 4. MISCELLANEOUS.
4.1. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon Employee and his executor, administrator, heirs, personal
representative and assigns, and the Company and its successors and assigns;
provided, however, that Employee shall not be entitled to assign or delegate any
of his rights or obligations hereunder without the prior written consent of the
Company.
4.2. GOVERNING LAW. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with, the laws of the Commonwealth of Kentucky, without regard to conflicts of
laws principles.
4.3. ARBITRATION. Any dispute or difference between the parties hereto
arising out of or relating to this Agreement shall be finally settled by
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a panel of three qualified arbitrators. Each party shall choose
an arbitrator and the third shall be chosen by the two so chosen. If either
party to the dispute or difference fails to choose an arbitrator within 30 days
after notice of commencement of arbitration or if the two arbitrators fail to
choose a third arbitrator within 30 days after their appointment, the American
Arbitration Association shall, upon the request of any party to the dispute or
difference, appoint the arbitrator or arbitrators to constitute or complete the
panel as the case may be. Arbitration proceedings hereunder may be initiated by
any party making a written request to the American Arbitration Association,
together with any appropriate filing fee, at the office of the American
Arbitration Association in Louisville, Kentucky. All arbitration proceedings
shall be held in Louisville, Kentucky. Any order or determination of the
arbitral tribunal shall be final and binding upon the parties to the arbitration
and may be entered in any court having jurisdiction.
4.4. HEADINGS. The section and paragraph heading contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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4.5. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
recognized overnight courier, (iii) made by telecopy or facsimile transmission,
or (iv) sent by registered or certified mail, return receipt requested, postage
prepaid.
If to the Company:
c/o ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, President
Fax No: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax No: (000) 000-0000
If to the Employee:
Xxxxxxx X. Xxxxx
0000 Xxxxxx xx xxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxxxx, Doll & XxXxxxxx
0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Fax No: (000) 000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such notice is
delivered to the courier service, (iii) if made by telecopy or facsimile
transmission, at the time the receipt thereof has been acknowledged by
electronic
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confirmation or otherwise, or (iv) if sent by registered or certified mail,
on the fifth business day following the day such mailing is sent.
Any party to this Agreement may change his or its address upon written
notice delivered pursuant to this Section.
4.6. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to
execute this Agreement and the Employee has executed this Agreement as of the
date first above written.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
COMPANY:
THERMOVIEW MERGER CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, President
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