AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION
AGREEMENT - XXXXXX
THIS AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT
- XXXXXX (the "Agreement") is made and entered into this 26th day of June,
1999, by and between XXXXXXX X. XXXXXX ("Employee"), and THERMOVIEW
INDUSTRIES, INC., a Delaware corporation (the "Company").
PRELIMINARY STATEMENTS
WHEREAS the Company and Employee entered into that certain Employment
and Noncompetition Agreement - Xxxxxx, dated as of January 19, 1998 among the
Employee and Thermo-Tilt Window Company, a Delaware corporation and a wholly
owned subsidiary of the Company, ("TTWC Agreement") and that certain
Employment and Noncompetition Agreement - Xxxxxx dated April 15, 1998 among
the employee and ThermoView Industries, Inc., a Delaware corporation (the
"Employment Agreement"), whereby Employee, among other things agreed to serve
as Chief Operating Officer of the Company; and
WHEREAS both the Company and Employee desire to amend the Employment
Agreement whereby (i) the TTWC Agreement dated January 19, 1998 among the
Employee and Thermo-Tilt Window Company and that certain Employment and
Noncompetition Agreement - Xxxxxx dated April 15, 1998 among the employee and
ThermoView Industries, Inc. will be cancelled in their entirety, and (ii) the
Employee and the Company desire to enter into an agreement whereby Employee
will serve as Vice Chairman of the Board of Directors and Executive Vice
President - Acquisitions of the Company in accordance with the terms of this
Agreement.
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, Company hereby agrees to employ Employee,
and Employee hereby accepts such employment as Vice Chairman of the Board of
Directors and Executive Vice President - Acquisitions of the Company. As Vice
Chairman of the Board of Directors and Executive Vice President -
Acquisitions, Employee shall devote his best efforts and such business time
as may be necessary or appropriate on behalf of the Company:
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(i) To investigate potential acquisitions, negotiate terms of
acquisition and implement the acquisition strategy of the business
of the Company subject to the direction of the Board of Directors.
(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.
SECTION 2. TERM.
2.1 The term of Employee's employment hereunder shall be from April 15,
1998 through and including January 19, 2000 (the "Term"), 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
(iii) By the Employee at any time during the Term.
2.2 If Employee's employment herein is terminated prior to the end of
the Term by the Company for "good cause" pursuant to Section 2.1(ii) or by
Employee pursuant to Section 2.1(iii), Employee's compensation shall be
terminated in accordance with Section
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3.2 below.
SECTION 3. COMPENSATION.
3.1 COMPENSATION. Employee agrees that as compensation under this
Agreement, Employee shall receive:
(i) An annual salary of $145,000 to be reviewed annually for
escalation;
(ii) Health insurance coverage, life insurance coverage and
disability insurance coverage commensurate with the level of
coverage provided to other senior officers of the
Company as of the effective date of this Agreement;
(iii) An automobile allowance of $750 monthly; and
(iv) Other fringe benefits, perquisites, bonuses or compensation
that the Board of Directors may from time to time prescribe.
3.2 TERMINATION OF COMPENSATION. In the event Employee's employment is
terminated by the Company for "good cause" pursuant to Section 2.1(ii) or by
Employee pursuant to Section 2.1(iii), any and all unearned compensation as
of the termination date provided pursuant to Section 3.1 shall immediately
terminate subject to applicable law. Such compensation provided for under
Section 3.1 which has been earned by Employee as of the termination date but
not paid by the Company as of the termination date shall be paid by the
Company within a reasonable time after the termination date. In the event
Employee's employment is otherwise terminated by the Company, Employee shall
receive the compensation provided for under Sections 3.1 for the remainder of
the Term.
SECTION 4. CONFIDENTIAL INFORMATION AND NONCOMPETITION COVENANT.
4.1 CONFIDENTIAL INFORMATION AND TRADE SECRETS. Employee hereby agrees
that he shall hold in confidence all customer lists, supplier lists, price
lists, financial information, operating manual and forms, plans, notes,
computer programs, systems and software (including, without limitation,
documentation and related source and object codes), and all other knowledge
or information of a confidential or proprietary nature with respect to the
business of the Company (the "Proprietary Information"), and Employee will
not disclose, publish or make use of such knowledge or information during his
employment hereunder, except for purposes of his employment hereunder or as
required by law, or upon expiration of the Term or early termination pursuant
to Section 2.1. Upon the expiration of the Term or early termination pursuant
to Section 2.1, Employee shall return and deliver forthwith to the Company
any and all Proprietary Information, including all
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copies thereof and shall not retain or remove any secret or confidential
information of any type or description without the express written consent of
the Company. Employees duty of confidentiality shall survive the termination
of this Agreement for any reason.
4.2 NONCOMPETITION. The Company and its wholly-owned subsidiaries are
engaged in the business of designing, selling and installing state of the art
custom vinyl new and replacement thermal paned windows for the existing home
market in the following geographic areas: Arizona, Arkansas, California,
Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota,
Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio,
Oklahoma, South Dakota, Tennessee, Wisconsin, and Wyoming. The Company's
principal operation and office is located at 0000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx (the "Business Address"). The geographic area within a 100-mile
radius of (i) the Business Address and (ii) all other address of the Company
or its subsidiaries existing at the time of Employee's termination shall
hereinafter be referred to as the "Territory." Employee acknowledges that the
goodwill of the Company and its subsidiaries and marketing and support of
services and products of the Company and its subsidiaries extends throughout
the Territory. In consideration of the rights granted to Employee hereunder,
Employee hereby agrees that for the period commencing on the date hereof and
ending AT THE LATER OF (i) two (2) years from the date hereof or (ii) one (1)
year after Employee ceases to be employed by the Company (the "Noncompete
Period"), Employee shall not (without the prior written consent of the
Company), in any manner, directly or indirectly,
(i) engage in, have any equity or profit interest in, make any loan
to or for the benefit of, guaranty the repayment of any funds by, or render
services of any executive, advertising, marketing, sales, administrative,
supervisory, engineering, computer program or system development,
maintenance, manufacturing or consulting nature to any business conducting
operations in the Territory which are competitive with the business
activities being directly engaged in by the Company and its subsidiaries as
of the date on which Employee's employment is terminated; or
(ii) solicit, divert or appropriate, or attempt to solicit, divert
or appropriate, any customer of the Company and its subsidiaries (including
current customers and those which become customers during the term of the
Employment Agreement) for the purpose of providing services competitive with
the Business; or
(iii) solicit to employ, on his own behalf or on behalf of any
other person, firm or corporation, any person who was employed during the
Term or any extended Term hereof and who has not thereafter ceased to be
employed by the Company and its subsidiaries for a period of at least one
year.
Notwithstanding anything contained herein to the contrary, Employee
shall not be prohibited from owning, directly or indirectly, up to 5% of the
outstanding equity interest
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of any company, which is in competition with the Company, its subsidiaries or
a Related Company and the stock of which is publicly traded.
4.3 SEVERABILITY. If a judicial determination is made that any of the
provisions of this Section 4 constitutes an unreasonable or otherwise
unenforceable restriction against Employee, the provisions of this Section 4
shall be rendered void only to the extent that such judicial determination
finds such provisions to be unreasonable or otherwise unenforceable. In this
regard, the parties hereto hereby agree that any judicial authority
construing this Agreement shall be empowered to sever any portion of the
Territory or any prohibited business activity from the coverage of this
Section 4, and to reduce the duration of the Noncompete Period and to apply
the provisions of this Section 4 to the remaining portion of the Territory or
the remaining business activities not to be severed by such judicial
authority and to the duration of the Noncompete Period as reduced by judicial
determination.
4.4 INJUNCTIVE RELIEF. Employee hereby agrees that any breach or
threatened breach by Employee of Sections 4.1 or 4.2 of this Agreement will
irreparably injure the Company and that any remedy at law for any breach or
threatened breach by Employee of the provisions contained in Sections 4.1 and
4.2 hereof shall be inadequate, and that the Company shall be entitled to
injunctive relief in addition to any other remedy it might have under this
Agreement or at law or in equity. Employee further agrees that the grant of
such injunctive relief and the enforcement of the terms of this Agreement
shall not deprive him of his ability to earn a living.
SECTION 5. MISCELLANEOUS.
5.1 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 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, other than the
Employment Stock Options, without the prior written consent of Company.
5.2 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.
5.3 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.
5.4 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth
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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, or (iii) sent by registered or certified mail, return receipt
requested, postage prepaid.
If to the Company:
ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx, Xx., Esq. (Xxxx)
If to the Employee:
Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxx 00000
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, or (iii) 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.
5.6 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.
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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. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
COMPANY: THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Title: President
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