1
EXHIBIT 10.6
EMPLOYMENT AGREEMENT
BY AND BETWEEN
FLOUR CITY ARCHITECTURAL METALS, INC.
AND
XXXXXXX X. XXXXX
2
EMPLOYMENT AGREEMENT
I N D E X
1. EMPLOYMENT.....................................................................1
2. TITLES AND DUTIES..............................................................1
2.1 Initial Appointments.....................................................1
3. COMPENSATION...................................................................2
3.1 Base Salary..............................................................2
3.2 Benefits.................................................................2
4. STOCK PURCHASE RIGHTS..........................................................4
4.1 Stock Purchase Rights....................................................4
4.2 Disposition of Shares....................................................4
4.3 Transfer Restrictions....................................................6
4.4 Employer's Repurchase Right..............................................6
4.5 Fractional Shares........................................................8
4.6 Additional Shares or Substituted Securities..............................8
4.7 Special Termination of Repurchase Right..................................9
4.8 Cancellation of Shares...................................................9
4.9 Additional Rights.......................................................10
5. DISABILITY OR DEATH...........................................................10
6. TERMINATION...................................................................11
6.1 Termination by Employer.................................................11
6.2 Termination by Executive................................................12
7. ARBITRATION...................................................................12
8. PLACE OF PERFORMANCE..........................................................13
9. NON-DISCLOSURE................................................................13
10. NON-COMPETITION AND NON-SOLICITATION..........................................14
11. ASSIGNMENT OF WORK PRODUCT....................................................15
i
3
12. GENERAL PROVISIONS............................................................15
12.1 Governing Law and Jurisdiction..........................................15
12.2 Notices.................................................................15
12.3 Attorneys' Fees.........................................................15
12.4 Complete Agreement......................................................16
12.5 Binding.................................................................16
12.6 Authority...............................................................16
12.7 Number and Gender.......................................................17
12.8 Failure to Object Not a Waiver..........................................17
12.9 Unenforceable Terms.....................................................17
12.10 Execution in Counterparts...............................................17
12.11 Further Assurance.......................................................17
12.12 CrossReferences.........................................................18
12.13 Miscellaneous Provisions................................................18
ii
4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered on the 16th
day of January, 1997 (the "Execution Date"), by and between Flour City
International, Inc., a Nevada corporation ("Company"); Flour City Architectural
Metals, Inc., a Delaware corporation ("Employer"); and Xxxxxxx X. Xxxxx
("Executive"), (Employer and Executive are sometimes hereinafter referred to
collectively as the "Parties" and individually as a "Party").
RECITALS
A. Employer is a company engaged in the business of engineering,
management and construction of custom curtain wall projects; and
B. Executive has particular and peculiar knowledge and background in
performing executive level management services and related activities for a
business of this nature; and
C. The parties hereto desire to enter into an Agreement whereby the
Executive's services will be made available to Employer.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT
Employer shall employ Executive as its President and Chief Executive
Officer for a term of five (5) consecutive years (the "Term"), commencing on
January 1, 1997 (the "Effective Date"). The employment relationship created by
this Agreement may only be terminated prior to the expiration of the Term in
accordance with the provisions of Sections 5 and 6 hereof and in accordance with
the terms and conditions contained therein.
2. TITLES AND DUTIES.
2.1 INITIAL APPOINTMENTS.
Subject at all times to the supervision and direction of Employer's
Board of Directors, Executive shall be employed as the President and Chief
Executive Officer of Employer to perform such executive and other duties
relating to the business and operations of the Company
5
and any present or future subsidiaries or affiliates thereof as are delegated or
assigned to the Executive from time to time by such Board of Directors and are
consistent with the position of President and Chief Executive Officer. Executive
shall faithfully and diligently perform all duties and will promote and advance
the business and affairs of Employer.
3. COMPENSATION.
3.1 BASE SALARY.
3.1.1 Executive will be paid an annual base salary of $130,000
("Base Salary") commencing as of the Effective Date. The Base Salary shall be
payable in equal bi-weekly installments.
3.1.2 Executive's Base Salary shall be evaluated on an annual
basis by the Board of Directors. Executive's Base Salary may be increased in the
sole discretion of the Board of Directors, but never decreased during the Term,
without the consent of Executive.
3.2 BENEFITS.
In addition to the Base Salary, Executive shall receive the following
benefits:
3.2.1 During the period for which Executive is employed by
Employer, Employer shall purchase medical health insurance for Executive (which
health insurance shall also cover Executive's spouse and certain children) of
the type and in such amounts as is available from time to time to all other
executives of Employer;
3.2.2 During the period for which Executive is employed by
Employer, Executive shall be entitled to (a) a vacation period each year of
fifteen (15) business days and (b) additional holidays customarily observed by
Employer, and during such time, Executive's compensation shall be paid in full;
provided, however, that if Executive does not take all or a portion of the
vacation time to which Executive is entitled hereunder, Employer shall
compensate Executive therefor on such terms as Employer and Executive may
mutually agree;
3.2.3 During the period for which Executive is employed by
Employer, and within five (5) business days of the submission of the appropriate
documentation by Executive,
2
6
Executive shall be reimbursed by Employer for all ordinary and necessary
business expenses reasonably incurred by Executive in the performance of
Executive's duties, provided that:
3.2.3.1 Each such expenditure is of a nature qualifying it as
a proper business expense of Employer; and
3.2.3.2 Executive furnishes to Employer adequate records and
other documentation as may be reasonably required by Employer for the
substantiation of such expenditures as a business expense of Employer.
3.2.4 During the period for which Executive is employed by
Employer, Executive shall be entitled to the use of an automobile which shall be
purchased or leased at the Employer's expense; provided that, Executive shall be
responsible for any taxes associated with Executives personal use of the
automobile.
4. STOCK PURCHASE RIGHTS.
4.1 STOCK PURCHASE RIGHTS
4.1.1 Subject to and upon the terms and conditions set forth in
this Section 4, Executive is hereby granted the exclusive right to purchase a
total of 500,000 shares of Company's Common Stock (the "Shares"), representing
five percent (5%) of the total issued and outstanding shares of Company as of
the Effective Date, at the price of $.0001 per Share (the "Purchase Price").
4.1.2 By executing this Agreement, Executive hereby warrants and
represents that Executive will acquire the Shares for Executive's own account
and not with a view to their resale or distribution and that Executive is
prepared to hold the Shares for an indefinite period and has no present
intention to sell, distribute or grant any participating interests in the
Shares. Executive hereby acknowledges the fact that the Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
that Company is issuing the Shares to Executive in reliance on the
representations made by Executive herein.
3
7
4.1.3 Executive hereby confirms that Executive has been informed
that the Shares may not be resold or transferred unless the Shares are first
registered under Federal and applicable state securities laws or an exemption
therefrom is available. Accordingly, Executive hereby acknowledges that
Executive is prepared to hold the Shares for an indefinite period and that
Executive is aware that Rule 144 of the Securities and Exchange Commission
issued under the 1933 Act is not presently available to exempt the sale of the
Shares from the registration requirements of the 1933 Act. Should Rule 144
subsequently become available, Executive is aware that any sale of the Shares
effected pursuant to Rule 144 may, depending upon the status of Executive as an
"affiliate" or "non-affiliate" under the Rule, be made only in limited amounts
in accordance with the provisions of the Rule, and that in no event may any
Shares be sold pursuant to the Rule until Executive has held the Shares for the
requisite holding period following payment in full for the Shares.
4.1.4 Executive represents and warrants that Executive has a
preexisting business or personal relationship with the officers and directors of
Company, that Executive is aware of the business affairs and financial condition
of Company and that Executive has such knowledge and experience in business and
financial matters with respect to companies in business similar to Company's
which enables Executive to evaluate the risks of the prospective investment and
to make an informed investment decision with respect thereto. Executive further
represents and warrants that Company has made available to Executive the
opportunity to ask questions and receive answers from Company concerning the
terms and conditions of the issuance of the Shares and that Executive could be
reasonably assumed to have the capacity to protect Executive's own interests in
connection with such investment.
4.2 DISPOSITION OF SHARES.
4.2.1 Executive hereby agrees that Executive shall make no
disposition of the Shares (other than a permitted transfer under paragraph
4.3.1) unless and until:
4
8
(a) Executive shall have notified Company of the proposed
disposition and provided a written summary of the terms and conditions of the
proposed disposition;
(b) Executive shall have complied with all requirements of this
Agreement applicable to the disposition of the Shares; and
(c) Executive shall have provided Company with written
assurances, in form and substance satisfactory to Company that (i) the proposed
disposition does not require registration of the Shares under the 1933 Act or
(ii) all appropriate action necessary for compliance with the registration
requirements of the 1933 Act or any exemption from registration available under
the 1933 Act has been taken.
Company shall not be required (i) to transfer on its books any
Shares which have been sold or transferred in violation of the provisions of
this Section 4 or (ii) to treat as the owner of the Shares, or otherwise to
accord voting or dividend rights to, any transferee to whom the Shares have been
transferred in contravention of this Agreement.
4.2.2 In order to reflect the restrictions on disposition of the
Shares, the stock certificates for the Shares will be endorsed with restrictive
legends, including the legends substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF (A)
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER SUCH ACT, (B) A
"NO ACTION" LETTER OF THE SECURITIES AND EXCHANGE COMMISSION WITH
RESPECT TO SUCH SALE OR OFFER, OR SATISFACTORY ASSURANCES TO THE
CORPORATION THAT REGISTRATION UNDER SUCH ACT IS NOT REQUIRED WITH
RESPECT TO SUCH SALE OR OFFER.
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN ANY MANNER DISPOSED OF EXCEPT
IN CONFORMITY WITH THE TERMS OF A WRITTEN AGREEMENT, DATED JANUARY 16,
1997 BETWEEN THE CORPORATION AND THE REGISTERED HOLDER OF THE SHARES (OR
ITS ASSIGNEES) WHICH CONTAINS CERTAIN RIGHTS OF REPURCHASE
5
9
UPON THE SALE, ASSIGNMENT, TRANSFER, ENCUMBRANCE OR OTHER DISPOSITION
OF THE CORPORATION'S SHARES OR UPON TERMINATION OF SERVICE WITH THE
CORPORATION. THE CORPORATION WILL, UPON WRITTEN REQUEST, FURNISH A COPY
OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.
4.2.3 Until such time as Company actually exercises its
repurchase rights under this Agreement, Executive (or any successor in interest)
shall have all the rights of a stockholder (including voting and dividend
rights) with respect to the Shares, subject, however, to the transfer
restrictions of this Section 4.
4.3 TRANSFER RESTRICTIONS.
4.3.1 Executive shall not transfer, assign, encumber or otherwise
dispose of any of the Shares which are subject to Company's repurchase rights
under this Section 4. Such restrictions on transfer, however, shall not be
applicable to (i) a gratuitous transfer of the Shares made to the Executive's
spouse or issue, including adopted children, or to a corporation, trust or
partnership for the exclusive benefit of the Executive or the Executive's spouse
or issue, or (ii) a transfer of title to the Shares effected pursuant to the
Executive's will or the laws of intestate succession.
4.3.2 Each person (other than Company) to whom the Shares are
transferred by means of one of the permitted transfers specified in paragraph
4.3.1 must, as a condition precedent to the validity of such transfer,
acknowledge in writing, the Company's repurchase rights granted hereunder, to
the same extent such shares would be so subject if retained by the Executive.
4.4 COMPANY'S REPURCHASE RIGHT.
4.4.1 The Company may repurchase all or any portion of the
Shares purchased by Executive hereunder, at the Purchase Price (the "Repurchase
Right") in which the Executive has not acquired a vested interest in accordance
with the vesting provisions of paragraph 4.4.3 (such shares to be
6
10
hereinafter called the "Unvested Shares"), solely in the event that Executive's
employment with the Company is terminated for any reason. Company's Repurchase
Rights with respect to the Unvested Shares shall be exercisable at any time
for a period of ninety (90) days following the effective date of Executives
termination of employment with the Company.
4.4.2 The Repurchase Right shall be exercisable by written notice
delivered to the Executive prior to the expiration of Company's Repurchase
Right. The notice shall indicate the number of Unvested Shares to be repurchased
and the date on which the repurchase is to be effected, such date to be not more
than thirty (30) days after the date of notice. Executive shall, prior to the
close of business on the date specified for the repurchase, deliver to the
Secretary of the Company the certificates representing the Unvested Shares to be
repurchased, each certificate to be properly endorsed for transfer. Company
shall, concurrently with the receipt of such stock certificates, pay to
Executive in cash or cash equivalents (including the cancellation of any
purchase-money indebtedness), an amount equal to the Purchase Price for the
Unvested Shares which are to be repurchased.
4.4.3 The Repurchase Right shall terminate with respect to any
Unvested Shares for which it is not timely exercised under paragraph 4.4.2. In
addition, the Repurchase Right shall terminate, and cease to be exercisable,
with respect to any and all Shares in which the Executive vests in accordance
with the following schedule. Executive shall acquire a vested interest in, and
the Repurchase Right shall lapse with respect to, the Shares in accordance with
the following provisions:
(i) Twenty percent (20%) of the Shares purchased by
Executive shall vest one (1) year from the Effective Date; provided, that,
Company has "earnings before income taxes" ("EBIT") for the Company's 1997
fiscal year ending during this period in excess of $2,000,000;
(ii) Twenty percent (20%) of the Shares purchased by
Executive shall vest two (2) years from the Effective Date; provided, that,
Company has EBIT for the Company's 1998 fiscal year ending during this period in
excess of $3,000,000; or "cumulative EBIT"
7
11
("CEBIT") in excess of $6,000,000; for purposes of this Section 4, CEBIT means
the cumulative annual fiscal EBIT during the term of this Agreement through the
date of calculation;
(iii) Twenty percent (20%) of the Shares purchased by
Executive shall vest three (3) years from the Effective Date; provided, that,
Company has EBIT for Company's 1999 fiscal year ending during this period in
excess of $4,000,000; or CEBIT in excess of $10,800,000;
(iv) Twenty percent (20%) of the Shares purchased by
Executive shall vest four (4) years from the Effective Date; provided, that,
Company has EBIT for Company's 2000 fiscal year ending during this period in
excess of $5,000,000; or CEBIT in excess of $16,800,000; and
(v) Twenty percent (20%) of the Shares purchased by
Executive shall vest five (5) years from the Effective Date; provided, that,
Company has EBIT for Company's 2001 fiscal year ending during this period in
excess of $6,000,000; or CEBIT in excess of $24,000,000.
In the event Company does not have the requisite EBIT or CEBIT for its
fiscal year ending during any of the foregoing annual periods in which a
determination is made as to whether that portion of Shares vest, then all such
Shares attributable to that annual period shall be treated and shall remain
Unvested Shares until December 31, 2001 at which time all previously Unvested
Shares shall automatically vest and the Company's Repurchase Right shall
terminate.
4.5 FRACTIONAL SHARES.
No fractional shares shall be repurchased by Company. Accordingly,
should the Repurchase Right extend to a fractional share, then such fractional
share shall be added to any fractional share in which the Executive is at such
time vested in order to make one whole vested share no longer subject to the
Repurchase Right.
4.6 ADDITIONAL SHARES OR SUBSTITUTED SECURITIES.
In the event of any stock dividend, stock split, recapitalization or
other transaction affecting the Employer's outstanding Common Stock as a class
without receipt of consideration, then any new, substituted or additional
securities or other property (including money paid other
8
12
than as a regular cash dividend) which is by reason of any such transaction
distributed with respect to the Shares shall be immediately subject to the
Repurchase Right, but only to the extent the Shares are at the time covered by
such right. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number of Shares for all purposes
relating to the Repurchase Right. Appropriate adjustments shall also be made to
the price per share to be paid upon the exercise of the Repurchase Right in
order to reflect the effect of any such transaction upon the Employer's capital
structure; provided, however, that the aggregate purchase price shall remain the
same.
4.7 SPECIAL TERMINATION OF REPURCHASE RIGHT.
In the event of any of the following transactions (a "Corporate
Transaction"), other than a Corporate Transaction that occurs during the initial
12 months following the Effective Date:
(i) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the State in which the Company is incorporated,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company, or
(iii) any other corporate reorganization or business combination
in which fifty percent (50%) or more of the outstanding voting stock of the
Company is transferred, or exchanged through merger, to different holders in a
single transaction of the Company or a series of related transactions, then the
Company shall terminate the Repurchase Right in whole as of the effective date
of the Corporate Transaction.
4.8 CANCELLATION OF SHARES.
If the Company (or its assignees) shall make available, at the time and
place and in the amount and form provided in this Agreement, the consideration
for the Shares to be repurchased in accordance with the provisions of this
Agreement, then from and after such time, the person from whom such shares are
to be repurchased shall no longer have any rights as a holder of such
9
13
shares (other than the right to receive payment of such consideration in
accordance with this Agreement), and such shares shall be deemed purchased in
accordance with the applicable provisions hereof and the Company (or its
assignees) shall be deemed the owner and holder of such shares, whether or not
the certificates therefor have been delivered to the Company pursuant to this
Agreement.
4.9 ADDITIONAL RIGHTS.
The shares of Company's common stock issued to Executive hereunder,
shall be in addition to any additional stock or stock options which may be
granted to Executive by Company from time to time hereafter. In the event
Executive is granted stock options during Executive's association with Company,
the number of shares of common stock subject to the option and the price per
share thereof shall be proportionately adjusted for any increase or decrease in
the number of issued and outstanding shares of Company's common stock resulting
from any subdivision or consolidation of shares of Company's common stock or the
payment of a stock dividend (but only on common stock) or any other increases or
decrease in the number of such shares affected without the receipt of
consideration by Company. The issuance of shares of common stock upon the
conversion of convertible securities shall be treated as an issuance for which
Company received consideration for this purpose.
5. DISABILITY OR DEATH.
Employer shall have the right to terminate this Agreement in the event
of Executive's death or if Executive becomes permanently disabled. In the event
of Executive's permanent disability, Employer shall continue to pay the Base
Salary that would have otherwise been earned by Executive for a period of six
(6) months from the date of certification by an attending physician; provided,
however, that Employer's obligation hereunder shall be reduced to the extent of
any disability insurance payments received by Executive. In the event of the
death of Executive, Executive's estate will receive the Base Salary that would
have otherwise been earned by Executive for a period of twelve (12) months. For
purposes of this Agreement, the phrase
10
14
"permanently disabled" shall mean the inability of Executive to perform
Executive's duties hereunder for a continuous period of more than three (3)
consecutive months during any twelve (12) month period. Such permanent
disability shall be determined by Executive's attending physician.
6. TERMINATION.
6.1 TERMINATION BY EMPLOYER.
6.1.1 Except as expressly provided in Section 5 hereof Employer
may terminate Executive's employment hereunder for "cause" only in accordance
with the provisions of this Section 6.1.1, or "without cause" only in accordance
with the provisions of Section 6.1.2 hereinbelow. For purposes of this
Agreement, the term "cause" shall mean a material breach of this Agreement by
Executive or the willful and continued failure by Executive to substantially
perform Executive's duties hereunder. In the event termination is for cause,
Employer is not required to give advance notice to Executive. Employer will
continue the payment of Base Salary and all benefits provided for herein for a
ten (10) day period following notice of termination
6.1.2 Employer may terminate Executive's employment without cause
only in the event that Employer incurs a "net loss" for two (2) consecutive
quarters in excess of $250,000 per quarter; or absent such losses, only upon the
approval of a majority of Employer's Board of Directors, and if employed by
Employer at such time, the consent of either Xxxxx Xxxxxx or Xxxxx Xxxxxxxx. In
the event Executive's employment is terminated without cause Executive shall
receive not less than sixty (60) days prior written notice of such action.
Except as provided in Section 5 hereof, in the event of termination without
cause, Employer shall continue the payment of Executive's Base Salary and all
benefits provided for herein for a period of six (6) months following date of
termination.
11
15
6.2 TERMINATION BY EXECUTIVE.
6.2.1 Executive may terminate Executive's employment hereunder
for "cause" only in accordance with the provisions of this Section 6.2.1, or
"without cause" only in accordance with the provisions of Section 6.2.2
hereinbelow. For purposes of this Agreement, the term "cause" shall mean a
material breach of this Agreement by Employer which breach has not been cured
within thirty (30) days after a written demand for such performance is delivered
to Employer by Executive that specifically identifies the manner in which
Executive believes that Employer has breached this Agreement. In the event of
such termination, Employer will continue the payment of the Base Salary and all
benefits provided for in Section 3 hereof until the expiration of one (1) year
from the date of termination.
6.2.2 Executive may terminate Executive's employment hereunder
without cause at any time following the expiration of eighteen (18) months from
the Effective Date and only upon giving not less than three (3) months prior
written notice to Employer. In the event of such termination, Employer will
continue the payment of the Executive's Base Salary and all benefits provided
for in Section 3 hereof through the date of termination.
7. ARBITRATION.
In the event of any disagreement or controversy between Executive and
Employer arises out of or in connection with this Agreement, including without
limitation, the performance of the Parties hereunder, the same shall be
submitted to arbitration in accordance with the rules of the American
Arbitration Association and the Parties hereto agree that a decision of the
arbitrator shall be binding on the Parties hereto and each Party hereto agrees
to comply with any such decision; provided, that, Employer shall be entitled to
seek injunctive or equitable relief in any court of competent jurisdiction for a
breach or alleged breach by Executive of any provision contained in Sections 9
or 10 of this Agreement.
12
16
8. PLACE OF PERFORMANCE.
It is contemplated that Executive will perform a majority of Executive's
principal duties at Employer's principal place of business located at 000
Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx 00000 or at such other location as
Employer may decide.
9. NON-DISCLOSURE
Executive understands that certain information regarding Employer's
business may be disclosed to Executive during the course of Executive's
association with Employer. Such information may include, but is not limited to
client and potential client names, addresses, telephone numbers and project
information; mailing labels; project report forms; actual or potential bidding
data for current or potential projects; information regarding pending projects
or proposals; methods of quotation, production or engineering, including quality
control and project management; business plans and projections; new product,
facility and expansion plans; pricing information, including price lists,
quotation guides, previous or outstanding quotations, equipment prices and
billing information; estimating programs and methodology; techniques used in,
approaches or results of any market research; advertising sources; employee
salaries, contract, project and wage information; financial information
regarding Employer and its business; customer information reports; and marketing
plans and programs; whether written, verbal or contained on computer hardware or
software, diskette, tape microfiche or other media ("Information"). This
Information is of substantial value and highly confidential, is not known to the
general public, is the subject of reasonable efforts to maintain its secrecy,
constitutes the professional and trade secrets of Employer and is being provided
and disclosed to Executive solely for use in connection with Executives
employment with Employer.
In consideration of such employment and receipt of Information,
Executive agrees that Executive: (i) will regard and preserve the Information as
highly confidential and as the trade secrets of Employer; (ii) will not
disclose, nor permit to be disclosed, any of the Information to any person or
entity, absent consent and approval from Employer; (iii) will not make any use
of
13
17
the Information for Executive's own benefit or for the benefit of any person or
entity other than Employer; (iv) will return all of the Information, including
but not limited to formulations, customer lists, books maintained by Employee,
source lists, to Employer within twenty-four (24) hours after request for same;
and (v) will comply with all of the provisions contained in this Section 9
during the Term of this Agreement and at all times following the termination of
this Agreement.
10. NON-COMPETITION AND NON-SOLICITATION
Executive agrees and represents to Employer that for so long as
Executive is an employee or director of Employer and for a period of one (1)
year thereafter, Executive will not, as principal, employer, stockholder,
co-partner, employee or in any other individual or representative capacity
whatsoever, enter into or engage, directly or indirectly, anywhere within the
World, in any business which is in any way directly competitive with the
business of Employer, and Executive will not acquire or own or become a partner,
employer, stockholder, officer or director of any company engaged in the
business of engineering, management or construction of curtain wall projects;
provided, however, that the preceding provision shall not be construed to
prevent Executive from owning less than five percent (5%) of the equity of any
public entity engaged in the curtain wall industry, whether or not such entity
is engaged in a business in competition with the business conducted by Employer.
Executive further agrees that during Executive's association with
Employer and for a period of one (1) year thereafter, Executive will not
directly or indirectly, solicit, communicate with or otherwise contact any of
Employer's customers or potential customers for the purpose of conducting any
engineering, management or construction of curtain wall business which business
is not the Employer's business. Executive agrees that Executive will not
directly or indirectly, employ, solicit for employment or advise or recommend to
any other person that they employ or solicit for employment, any person employed
by Employer during the Term of this Agreement or at any time following the
termination of this Agreement.
14
18
11. ASSIGNMENT OF WORK PRODUCT
Executive agrees that the fruits of Executive's labor and efforts as an
employee of Employer shall belong solely to Employer and Executive shall have no
proprietary or other rights relating to such work product.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW AND JURISDICTION.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Tennessee.
12.2 NOTICES.
All notices and other communications provided for or permitted hereunder
shall be made by hand delivery, first class mail, telex or telecopier, addressed
as follows:
PARTY ADDRESS
Employer: Flour City Architectural Metals, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Executive: Xxxxxxx Xxxxx
0000 Xxxxxxxxxxx Xx.
Xxxxx Xxxxx, XX 00000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) business days
after deposit in any United States Post Office in the Continental United States,
postage prepaid if mailed or if sent via professional carrier service provided
all fees are prepaid; when answered back, if telexed; and when receipt is
acknowledged or confirmed, if telecopied.
12.3 ATTORNEYS' FEES.
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including,
without limitation, reasonable
15
19
attorneys' fees and expenses incurred in ascertaining such party's rights and
in preparing to enforce or in enforcing such party's rights under this
Agreement.
12.4 COMPLETE AGREEMENT.
This Agreement supersedes any and all other agreements, either oral or
in writing, between the Parties with respect to the subject matter hereof and
contains all of the covenants and agreements between the Parties with respect to
such subject matter in any manner whatsoever. Each Party to this Agreement
acknowledges that no representations, inducements, promises or agreements, oral
or otherwise, have been made by any Party, or anyone herein, and that no other
agreement, statement or promise not contained in this Agreement shall be valid
or binding. This Agreement may be changed or amended only by an amendment in
writing signed by all of the Parties or their respective successors-in-interest.
12.5 BINDING.
The Agreement shall be binding upon and inure to the benefit of the
successors-in-interest, assigns and personal representatives of the respective
Parties. If Executive should die while any amount would still be payable to
Executive hereunder if Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee.
12.6 AUTHORITY.
Each of the Parties hereby represents and warrants to the other that:
(a) he/she/it has the power and authority to enter into this Agreement, and (b)
the execution, delivery and performance of this Agreement do not and will not
violate the terms of any agreement or other instrument to which he/she/it is a
party or by which he/she/it is bound. Employer further represents and warrants
to Executive that this Agreement has been duly authorized by all necessary
corporate action and has been duly and validly executed and delivered by
Employer and constitutes the valid and binding obligation of Employer,
enforceable against Employer in accordance with its terms.
16
20
12.7 NUMBER AND GENDER
Whenever the singular number is used in this Agreement and when required
by the context, the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders and the word "person" shall
include corporation, firm, partnership or other form of association.
12.8 FAILURE TO OBJECT NOT A WAIVER.
The failure of either Party to this Agreement to object to or to take
affirmative action with respect to any conduct of the other which is in
violation of the terms of this Agreement, shall not be construed as a waiver or
continuing waiver of the violation or breach or of any future violation, breach
or wrongful conduct.
12.9 UNENFORCEABLE TERMS.
Any provision hereof prohibited by law or unenforceable under the law of
any jurisdiction in which such provision is applicable shall as to such
jurisdiction only be ineffective without affecting any other provision of this
Agreement. To the full extent, however, that such applicable law may be waived
to the end that this Agreement be deemed to be a valid and binding agreement
enforceable in accordance with its terms, the Parties hereto hereby waive such
applicable law knowingly and understanding the effect of such waiver.
12.10 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in several counterparts and when so
executed shall constitute one agreement binding on all the Parties,
notwithstanding that all the Parties are not signatory to the original and same
counterpart.
12.11 FURTHER ASSURANCE.
From time to time each Party will execute and deliver such further
instruments and will take such other action as any other Party may reasonably
request in order to discharge and perform their obligations and agreements
hereunder and to give effect to the intentions expressed in this Agreement.
17
21
12.12 CROSS-REFERENCES.
All cross-references in this Agreement, unless specifically directed to
another agreement or document, refer to provisions in this Agreement, and shall
not be deemed to be referenced to the overall transaction or to any other
agreements or documents.
12.13 MISCELLANEOUS PROVISIONS.
The various headings and numbers herein and the grouping of provisions
of this Agreement into separate Sections and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof. The language in all
parts of this Agreement shall in all cases be construed in accordance with its
fair meaning as if prepared by all Parties to the Agreement and not strictly for
or against any of the Parties.
(SIGNATURES ON FOLLOWING PAGE)
18
22
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
"Employer"
Flour City Architectural Metals, Inc.,
a Delaware corporation
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: Director
------------------------------
"Company"
Flour City International, Inc.,
a Nevada corporation
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: Director
------------------------------
"Executive"
-----------------------------------
Xxxxxxx X. Xxxxx
19
23
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
"Employer"
Flour City Architectural Metals, Inc.,
a Delaware corporation
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx Xxxx
-------------------------------
Title:
------------------------------
"Company"
Flour City International, Inc.,
a Nevada corporation
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx Xxxx
-------------------------------
Title:
------------------------------
"Executive"
/s/ XXXXXXX X. XXXXX
-----------------------------------
Xxxxxxx X. Xxxxx
19
