KROY BUILDING PRODUCTS, INC. SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
KROY
BUILDING PRODUCTS, INC.
SEPARATION
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This
Separation Agreement and General Release of all Claims (the “Agreement”),
dated
as of October 16, 2005, is entered into by and between Kroy Building Products,
Inc., a Delaware corporation (the “Company”),
Xxxxx
X. XxXxxxxx (the “Executive”)
and,
with respect to Section 2C only, Ply Gem Investment Holdings, Inc., a Delaware
corporation (“PIHI”).
WHEREAS,
the Executive is currently employed by the Company as its President;
and
WHEREAS,
the Company and the Executive have agreed that the Executive’s employment with
the Company and its subsidiaries and affiliates shall terminate effective
October 16, 2005 (the “Termination
Date”),
and
the Executive shall relinquish his title of President of the Company and any
other positions that he presently holds with the Company or any of its
subsidiaries or affiliates, including, without limitation, PIHI and Ply Gem
Industries, Inc. (“Ply
Gem”)
(collectively, the “Company
Group”);
and
WHEREAS,
the Company desires to provide the Executive with certain benefits upon the
Executive’s termination of employment with the Company, in exchange for the
Executive’s agreement to comply with certain restrictive covenants in favor of
the Company and to release certain claims against the Company and its
subsidiaries, parents, shareholders and their respective executives, officers,
directors, partners, members and agents, on the terms and subject to the
conditions more fully set forth in this Agreement.
NOW
THEREFORE, in consideration of the promises, mutual covenants and other good
and
valuable consideration set forth in this Agreement, the receipt and sufficiency
of which is hereby acknowledged, the Executive and the Company (the
“Parties”)
agree
as follows:
1. Termination
of Employment.
The
Executive and the Company hereby agree that the Executive’s employment and any
and all titles, positions and appointments he holds with the Company or any
member of the Company Group, whether as an officer, director, employee,
consultant, agent or otherwise (including, without limitation as President
of
the Company) shall cease as of the Termination Date. Effective as of the
Termination Date, the Executive shall have no authority to act on behalf of
any
member of the Company Group and shall not hold himself out as having such
authority, enter into any agreement or incur any obligations on behalf of any
member of the Company Group, commit any member of the Company Group in any
manner or otherwise act in an executive or other decision-making capacity with
respect to any member of the Company Group.
2. Payments
and Benefits.
In
consideration for the Executive’s entering into this Agreement, specifically
including the general release in Section 6 of this Agreement and the restrictive
covenants contained in Section 5 of this Agreement, the Executive shall be
entitled to the following payments and benefits, subject to the general release
becoming effective (i.e., the Executive not exercising his right to revoke
the
release as described in Section 6E of this Agreement) and the Executive’s
continued compliance with the restrictive covenants contained in Section 5
of
this Agreement:
A. Payment
by the Company of severance pay in an amount equal to $223,600, which represents
the Executive’s annual base salary as in effect immediately prior to the
Termination Date (for the avoidance of doubt this amount shall not, and no
portion of any severance paid to the Executive pursuant to this Agreement shall
include any amounts in respect of any car allowance or payments for any other
perquisites or benefits for the Executive) and which is subject to reduction
by
the Company to satisfy any applicable federal, state and local income and
employment tax withholding obligations of the Company. This payment shall be
made in 12 equal monthly installments during the period from the Termination
Date until the first anniversary of the Termination Date the (“Severance
Period”).
The
Company shall mail the first payment on the day following the date the general
release described in Section 6 of this Agreement becomes effective (i.e., the
Executive’s not exercising his right to revoke the release as described in
Section 6E of this Agreement) and shall make each of the following 11 payments
on the 15th day of each of the months of November through September occurring
during the Severance Period by direct deposit into an account of the Executive;
provided, that, if the 15th day of any such month falls on a weekend or on
a
Company holiday, the Company shall make such direct deposit payment no later
than the Monday or first business day (as applicable) following the
15th;
B. Provided
that the Executive, or any of his covered dependents, as applicable, timely
elects to continue medical and dental coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”),
payment by the Company of the COBRA premiums for the Executive and each of
his
eligible covered dependents for whom continuation coverage is elected, for
the
period commencing on the Termination Date and ending on the earlier of (i)
last
day of the Severance Period, and (ii) the date on which the Executive’s COBRA
coverage otherwise terminates as provided by law;
C. Effective
as of the Termination Date, an amount equal to $352,500.00 (the “Stock
Repurchase Amount”),
paid
by PIHI, which shall constitute a repurchase by PIHI of (A) the 5,250 shares
of
common stock par value $0.01 per share of PIHI (“PIHI
Stock”)
held
by the Executive as of the Termination Date that were purchased by the Executive
pursuant to the Ply Gem Investment Holdings, Inc. Subscription Agreement, dated
as of February 12, 2004, by and between PIHI and the Executive (the
“Subscription
Agreement”)
and
(B) the 30,000 shares of PIHI Stock held by the Executive as of the Termination
Date that were purchased by the Executive pursuant to the Option Agreement,
dated February 12, 2004, by and between the Executive and Xxxxxx-Xxxxxx (Ply
Gem), L.P. (the “Option
Agreement”),
calculated based on a $10.00 purchase price per share of PHIC Stock. The Stock
Repurchase Amount shall be mailed to the Executive on a date (the “Stock
Repurchase Payment Date”)
that
is not later than 15 days after the date the Executive signs this Agreement,
assuming that the general release has become effective as of the Stock
Repurchase Payment Date, i.e., that the Executive has not exercised his right
to
revoke the release as described in Section 6E of this Agreement. The Executive
acknowledges and agrees that, except as provided in this Section 2C, as of
the
date of this Agreement, there are no outstanding stock options or other equity
awards held by the Executive that were granted to the Executive by the Company,
PIHI or any other member of the Company Group and the Executive does not hold
any other shares of PIHI Stock or any other securities of the Company or any
member of the Company Group;
D. Regardless
of whether the Executive signs this Agreement, as soon as reasonably practicable
following the Termination Date or such earlier date as may be required by
applicable state statute or regulation, (i) any annual base salary earned but
unpaid through the Termination Date, (ii) payment in respect of any vacation
time that is accrued but unused through the Termination Date, and (iii)
reimbursement for all un-reimbursed business expenses properly incurred by
the
Executive in accordance with Company policy prior to the Termination Date and
not yet reimbursed by the Company; provided, that, the Executive must submit
to
the Company, within 21 days after the Termination Date, any outstanding expense
reports within his possession, and the Executive shall not receive reimbursement
in respect of any expense reports submitted after such date.
E. All
benefits accrued up to the Termination Date, to the extent vested, under all
employee benefit plans of the Company and any member of the Company Group,
except for any plan that provides for severance, separation pay or termination
benefits, in accordance with the terms of such plans and under the Option
Agreement, Subscription Agreement, Stockholders Agreement or any other agreement
governing any securities of any member of the Company Group that are held by
the
Executive as of the Termination Date.
The
Executive acknowledges and agrees that (i) the Executive’s receipt of all
payments and benefits provided in Section 2 of this Agreement constitutes full
and final payment, accord and satisfaction of any and all potential claims
to
the extent described in Section 6A of this Agreement, (ii) except for the
payments and benefits described in Sections 2A through 2C of this Agreement,
to
which the Executive is only entitled if he does not revoke the release in
Section 6 of this Agreement and continues to comply with the restrictive
covenants contained in Section 5 of this Agreement, the Executive is not
entitled to any other compensation or benefits from the Company or any member
of
the Company Group (including without limitation any severance or termination
compensation or benefits), and (iii) as of and after the Termination Date,
the
Executive shall no longer participate in, accrue service credit or have
contributions made on his behalf under any employee benefit plan sponsored
by
any member of the Company Group in respect of periods commencing on and
following the Termination Date, including without limitation, any plan which
is
intended to qualify under Section 401(a) of the Internal Revenue Code of 1986,
as amended (a “Qualified
Plan”);
provided, that, nothing in this Agreement shall constitute a waiver by the
Executive of his rights to vested benefits, if any, under any Qualified Plan
or
under any Company group health plan or to any other benefits to which he may
be
entitled under applicable law in respect of his services to the Company prior
to
the Termination Date.
If
the
Executive revokes the release in Section 6 of this Agreement during the
revocation period described in such section, then this Agreement shall be void
as of and following the date of this Agreement, and the Executive shall be
deemed to have resigned from the Company as of such date and the applicable
provisions of employee benefit plans and of the Ply Gem Investment Holdings,
Inc. Stockholders Agreement, dated as of February 12, 2004, by and between
PIHI,
Xxxxxx-Xxxxxx (Ply Gem), L.P. and certain other investors in and management
stockholders of PIHI (the “Stockholders
Agreement”)
shall
apply.
3. Additional
Consideration.
The
Executive acknowledges that, except with respect to the payments described
in
Section 2D of this Agreement, pursuant to this Agreement he is receiving
consideration in addition to any amounts to which he would have otherwise been
entitled but for this Agreement.
4. Return
of Company Property.
No
later
than the Termination Date, the Executive shall return to the Company all
originals and copies of papers, notes and documents (in any medium, including
computer disks), whether property of any member of the Company Group or not,
prepared, received or obtained by the Executive during the course of, and in
connection with, his employment with or services for the Company or any member
of the Company Group, and all equipment and property of any member of the
Company Group which may be in the Executive’s possession or under his control,
whether at the Company’s offices, the Executive’s home or elsewhere, including
all such papers, work papers, notes, documents and equipment in the possession
of the Executive. The Executive agrees that he and his family shall not retain
copies of any such papers, work papers, notes and documents. Notwithstanding
the
foregoing, the Executive may retain copies of any employment, compensation,
benefits or shareholders agreements between the Executive and the Company,
this
Agreement and any employee benefit plan materials distributed generally to
participants in any such plan by the Company. On the Termination Date, all
telephone and other accounts being paid by the Company on the Executive’s
behalf, shall be terminated and all company credit cards shall be returned
to
the Company and canceled. To the extent any charges are made by the Executive
using company accounts or credit cards after the Termination Date, such charges
will be solely the Executive’s responsibility.
5. Restrictive
Covenants
A. Survival
of Non-Disclosure Agreement; Employee Information Agreement; Ply Gem Code of
Ethics
Notwithstanding
anything to the contrary in this Agreement, the covenants and other provisions
set forth in the Employee’s Non-Disclosure Agreement, signed by the Executive on
January 11, 2005 (the “Non-Disclosure
Agreement”),
the
Kroy Building Products Employee Information Agreement, dated January 15, 2004
(the “Employee
Information Agreement”),
the
Ply Gem Industries, Inc. Code of Ethics (the “Ply
Gem Code of Ethics”)
and
Section 6.3 of the Stockholders Agreement that expressly survive termination
of
the Executive’s employment shall survive the Termination Date and be effective
for the periods described therein.
B. Non-Competition/Non-Solicitation.
The
Executive acknowledges and recognizes the highly competitive nature of the
Company and accordingly agrees as follows:
1. During
the period commencing on the Termination Date and ending on the first
anniversary of such date (the “Restricted
Period”)
or
such longer period as described in the last sentence of Section 5G of this
Agreement, the Executive will not, directly or indirectly, (w) engage
in any “Competitive Business” (defined below) for the Executive’s own account,
(x) enter the employ of, or render any services to, any person engaged in
any Competitive Business, (y) acquire a financial interest in, or otherwise
become actively involved with, any person engaged in any Competitive Business,
directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant, or (z) interfere with
business relationships between the Company and customers or suppliers of, or
consultants to the Company.
2. For
purposes of this Section 5B, a “Competitive
Business”
means,
as of any date, including during the Restricted Period, (A) any person or entity
(including any joint venture, partnership, firm, corporation or limited
liability company) that engages in or proposes to engage in the manufacturing
of
vinyl and composite fencing, railing and decking, or (B) any business or
activity that relates to the design, marketing, distribution, resale, wholesale
or retailing of vinyl and composite fencing, railing and decking, in the case
of
clause (A) or (B), in any geographical area in which the Company does
business.
3. For
purposes of this Section 5B, the Company shall be construed to include the
Company and its subsidiaries and controlled affiliates.
4. Notwithstanding
anything to the contrary in this Agreement, the Executive may, directly or
indirectly, own, solely as an investment, securities of any person engaged
in
the business of the Company which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if the Executive (A) is
not a controlling person of, or a member of a group which controls, such person
and (B) does not, directly or indirectly, own one percent (1%) or more of
any class of securities of such person.
5. During
the Restricted Period, the Executive will not, directly or indirectly, without
the Company’s written consent, solicit or encourage to cease to work with the
Company any employee or any consultant of the Company or any person who was
an
employee of or consultant then under contract with the Company within the
12-month period preceding such solicitation or encouragement activity. In
addition, during the Restricted Period, the Executive will not, without the
Company’s written consent, directly or indirectly hire any person who is or who
was, within the 12-month period preceding such hiring activity, an employee
of
the Company.
6. The
Executive understands that the provisions of this Section 5B may limit the
Executive’s ability to earn a livelihood in a business similar to the business
of the Company, but the Executive nevertheless agrees and hereby acknowledges
that (A) such provisions do not impose a greater restraint than is necessary
to
protect the goodwill or other business interests of the Company, (B) such
provisions contain reasonable limitations as to time and scope of activity
to be
restrained, (C) such provisions are not harmful to the general public and (D)
such provisions are not unduly burdensome to the Executive. In consideration
of
the foregoing and in light of the Executive’s education, skills and abilities,
the Executive agrees that he shall not assert that, and it should not be
considered that, any provisions of Section 5B otherwise are void, voidable
or
unenforceable or should be voided or held unenforceable.
7. It
is
expressly understood and agreed that, although the Executive and the Company
consider the restrictions contained in this Section 5B to be reasonable, if
a judicial determination is made by a court of competent jurisdiction that
the
time or territory or any other restriction contained in this Section 5B or
elsewhere in this Agreement is an unenforceable restriction against the
Executive, the provisions of the Agreement shall not be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained
herein.
C. Nondisparagement
The
Executive agrees not to issue, circulate, publish or utter any false or
disparaging statements, remarks or rumors about any member of the Company
Group
or any of their respective shareholders, officers, directors or managers
other
than to the extent reasonably necessary in order to (i) assert a bona fide
claim
against a member of the Company Group arising out of the Executive’s employment
with the Company, or (ii) respond in a truthful and appropriate manner to
any
legal process or give truthful and appropriate testimony in a legal or
regulatory proceeding.
D. References
The
Company agrees that, in response to a request from any person or entity for
a
reference check on the Executive, the Company shall only provide such person
or
entity with the Executive’s dates of employment and title and position held.
Nothing herein precludes employees of the Company or any employee of any member
of the Company Group from providing a reference if so requested by the
Executive, and the Company agrees not to prohibit such provision.
E. Confidentiality/Company
Property
The
Executive shall not, without the prior written consent of the Company or any
applicable member of the Company Group, use, divulge, disclose or make
accessible to any other person, firm, partnership, corporation or other entity,
any “Confidential Information” or any “Personal Information” (as such terms are
defined below); provided that the Executive may disclose such information when
required to do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of any member of the
Company Group, as the case may be, or by any administrative body or legislative
body (including a committee thereof) with jurisdiction to order the Executive
to
divulge, disclose or make accessible such information; provided, further, that
in the event that the Executive is ordered by a court or other government agency
to disclose any Confidential Information or Personal Information, the Executive
shall (i) promptly notify the applicable member of the Company Group of
such order, (ii) at the written request of such member, diligently contest
such order at the sole expense of such member as expenses occur, and
(iii) at the written request of such member, seek to obtain, at the sole
expense of the member, such confidential treatment as may be available under
applicable laws for any information disclosed under such order. For purposes
of
this Section 5E, (i) “Confidential
Information”
shall
mean non-public information concerning the financial data, strategic business
plans, product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
relating to the business of any member of the Company Group or customers, that,
in any case, is not otherwise available to the public (other than by the
Executive’s breach of the terms hereof) and (ii) “Personal
Information”
shall
mean any information concerning the personal, social or business activities
of
the shareholders, officers or directors of any member of the Company Group.
Upon
termination of the Executive’s employment with the Company, and except as
provided in Section 4 of this Agreement, the Employee shall return all Company
property, including, without limitation, files, records, disks and any media
containing Confidential Information or Personal Information.
F. Cooperation
and Indemnification
1. Cooperation.
At any
time after the Termination Date, the Executive agrees to cooperate (i) with
any
member of the Company Group in the defense of any legal matter involving any
matter that arose during the Executive’s employment with the Company or service
to any member of the Company Group and (ii) with all government authorities
on
matters pertaining to any investigation, litigation or administrative proceeding
pertaining to any member of the Company Group. The applicable member of the
Company Group will reimburse the Executive for any reasonable travel and out
of
pocket expenses incurred by the Executive in providing such cooperation. In
addition, with respect to any time after the Severance Period, the Company,
or
any applicable member of the Company Group, as applicable, shall pay the
Executive a fee equal to $2,000 per day, pro-rated for any partial days, that
the Executive is required to cooperate with any member of the Company Group
or
any government authorities in compliance with this Section 5F.
2. Indemnification.
The
Company, on behalf of its affiliates, successors, employees, agents and assigns,
hereby agrees to defend, indemnify and hold harmless the Executive, to the
maximum extent permitted by applicable law, from and against any and all
actions, causes of action, claims, obligations, liabilities, demands, losses,
diminutions in value, damages (including incidental and consequential), costs
and expenses, including without limitation, costs of investigation and defense,
attorneys’ fees and other professional fees and expenses, of any kind or nature,
whether matured or hereinafter accruing, directly or indirectly arising from
any
act or omission of the Executive by reason of his being an officer, director
or
employee of any member of the Company Group. For a period of two years after
the
Termination Date, the Company shall provide, at its expense, Directors and
Officers insurance coverage to cover the Executive at least to the extent such
coverage was maintained during his employment by the Company.
G. Enforcement
The
Executive acknowledges and agrees that the Company Group’s remedies at law for a
breach or threatened breach of any of the provisions of Sections 5.A, 5B, 5C
and
5E of this Agreement would be inadequate, and, in recognition of this fact,
the
Executive agrees that, in the event of such a breach or threatened breach,
in
addition to any remedies at law, the Company Group, without posting any bond,
shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction
or
any other equitable remedy which may then be available, and the Executive shall
reimburse any member of the Company Group for all reasonable attorneys’ fees,
expenses and costs incurred by such member in connection with such member’s
efforts to enforce such covenants. In addition, the Company shall be entitled
to
immediately cease paying any amounts remaining due or providing any benefits
to
the Executive pursuant to Section 2 of this Agreement and, subject to applicable
state law, to reclaim any amounts already paid to the Executive under this
Agreement upon a determination by the Company Group that the Executive has
violated any provision of Section 5 of this Agreement that is listed above,
subject to payment of all such amounts upon a final determination that the
Executive had not violated such section. If the Executive breaches any of the
covenants contained in Section 5 of this Agreement and any member of the Company
Group obtains injunctive relief with respect thereto, the period during which
the Executive is required to comply with that particular covenant shall be
extended by the same period that the Executive was in breach of such covenant
prior to the effective date of such injunctive relief.
6. Acknowledgment
and Release.
A. In
consideration of the Company’s execution of the Agreement, and except with
respect to the Company’s obligations arising under or preserved in the
Agreement, the Executive, for and on behalf of himself and his heirs and
assigns, hereby waives and releases all common law, statutory and other
complaints, claims, charges and causes of action of any nature whatsoever,
both
known and unknown, in law or in equity, which the Executive may now have or
ever
had against any member of the Company Group or any shareholder, employee,
director or officer of any member of the Company Group (collectively, the
“Releasees”),
including, without limitation, all complaints, claims, charges and causes of
action arising out of or relating to the Executive’s employment or termination
of employment with, status as a shareholder of or serving in any capacity in
respect of, any member of the Company Group and all complaints, claims, charges
and causes of action under the Age Discrimination in Employment Act of 1967
(the
“ADEA,”
a
law
which prohibits discrimination on the basis of age), the National Labor
Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities
Act
of 1990 and Title VII of the Civil Rights Act of 1964, all as amended, and
all other federal, state and local laws and in the nature of contract law or
tort law. By signing the Agreement the Executive acknowledges that he intends
to
waive and release any rights known or unknown he may have against the Releasees
under these and any other laws; provided,
that
the Executive does not waive or release claims with respect to the right to
enforce this Agreement.
B. The
Executive acknowledges that he has not filed any complaint, charge, claim or
proceeding against any of the Releasees before any local, state or federal
agency, court or other body (each individually a “Proceeding”).
The
Executive represents that he is not aware of any basis on which such a
Proceeding could reasonably be instituted.
C. The
Executive (i) acknowledges that he will not initiate or cause to be initiated
on
his behalf any Proceeding and will not participate in any Proceeding, in each
case, except as required by law; and (ii) waives any right he may have to
benefit in any manner from any relief (whether monetary or otherwise) arising
out of any Proceeding, including any Proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”).
Further, the Executive understands that by entering into this Agreement, he
will
be limiting the availability of certain remedies that he may have against the
Company and also limiting his ability to pursue certain claims against the
Releasees. Notwithstanding the above, nothing in this Section 6 shall prevent
the Executive from (i) initiating or causing to be initiated on his behalf
any
complaint, charge, claim or proceeding against any member of the Company Group
before any local, state or federal agency, court or other body challenging
the
validity of the waiver of his claims under the ADEA contained in Section 6
of
this Agreement (but no other portion of such waiver); or (ii) initiating or
participating in an investigation or proceeding conducted by the EEOC with
respect to the ADEA.
D. The
Executive acknowledges that he has been given 21 days from the date of receipt
of this Agreement to consider all the provisions of this Agreement, and he
does
hereby knowingly and voluntarily waive said given 21-day period. THE
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THE AGREEMENT CAREFULLY, HAS
BEEN ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY, AND FULLY UNDERSTANDS THAT
BY SIGNING BELOW HE IS GIVING UP CERTAIN RIGHTS WHICH HE MAY HAVE TO XXX OR
ASSERT A CLAIM AGAINST ANY OF THE RELEASEES, AS DESCRIBED IN THIS SECTION 6
AND
THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN
FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS AGREEMENT AND THE
EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
E. The
Executive shall have seven days from the date of his execution of this Agreement
to revoke the Agreement, including the release given under this Section 6 with
respect to all claims referred to herein (including, without limitation, any
and
all claims arising under the ADEA). If the Executive revokes this Agreement
including, without limitation, the release given under this Section 6, the
Executive will be deemed not to have accepted the terms of this Agreement,
including any action required of the Company, PIHI or any member of the Company
Group by any Section of this Agreement.
7. Miscellaneous.
A. Entire
Agreement.
This
Agreement is the entire agreement between the Parties with respect to the
subject matter hereof and contains all agreements, whether written, oral,
express or implied, between the Parties relating thereto and supersedes and
extinguishes any other agreement relating thereto, whether written, oral,
express or implied, between the Parties, including, without limitation, the
Subscription Agreement and the Option Agreement; provided, that the
Non-Disclosure Agreement, the Employee Information Agreement and the Executive’s
obligations pursuant to the Ply Gem Code of Ethics shall not be superseded
by
this Agreement and shall remain in full force and effect, and provided, further,
that no rights or obligations established under any superseded agreement and
specifically preserved by this Agreement are extinguished. Other than this
Agreement and as otherwise explicitly stated herein, there are no agreements
of
any nature whatsoever between the Executive and any member of the Company Group
that survive this Agreement. Notwithstanding the foregoing or anything to the
contrary in this Agreement, the Executive agrees that, as of the Termination
Date, the Executive shall have no further rights pursuant to the Stockholders
Agreement; provided that the provisions of Section 6.3 of the Stockholders
Agreement regarding post-employment covenants of the Executive shall remain
binding on the Executive and survive in accordance with their
terms.
B. Modification.
This
Agreement may not be modified or amended, nor may any rights under it be waived,
except in a writing signed and agreed to by the Parties.
C. Notices.
Any
notice given pursuant to the Agreement to any party hereto shall be deemed
to
have been duly given when mailed by registered or certified mail, return receipt
requested, or by overnight courier, or when hand delivered as
follows:
If
to the
Company:
Kroy
Building Products, Inc.
0000
Xxxxx
Xxxx
Xxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxx
Xxxxx, Chief Executive Officer
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention: Xxxx
Xxxxxxx, Esq.
If
to the
Executive:
0000
Xxxxxxx Xxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
or
at
such other address as either party shall from time to time designate by written
notice, in the manner provided herein, to the other party hereto.
D. Successors;
Death Benefit.
The
Agreement shall be binding upon and inure to the benefit of the Parties, their
respective heirs, successors and assigns. In the event the Executive dies at
any
time before any amounts payable to him under this Agreement are paid in full,
the amounts remaining to be paid under this Agreement at the time of his death
shall be paid (at such times as such amounts would have been paid to the
Executive) to his surviving spouse, if any, and otherwise to his
estate.
E. Taxes.
Notwithstanding any other provision of this Agreement to the contrary, the
Company or any member of the Company Group, as applicable, may withhold from
all
amounts payable under this Agreement all federal, state, local and foreign
taxes
that are required to be withheld pursuant to any applicable laws and
regulations. The Executive shall be responsible for the payment of his portion
of any and all required federal, state, local and foreign taxes incurred, or
to
be incurred, in connection with any amounts payable to the Executive under
this
Agreement.
F. Severability.
In the
event that any provision of the Agreement is determined to be invalid or
unenforceable, the remaining terms and conditions of the Agreement shall be
unaffected and shall remain in full force and effect. In addition, if any
provision is determined to be invalid or unenforceable due to its duration
and/or scope, the duration and/or scope of such provision, as the case may
be,
shall be reduced, such reduction shall be to the smallest extent necessary
to
comply with applicable law, and such provision shall be enforceable, in its
reduced form, to the fullest extent permitted by applicable law.
G. Non-Admission.
Nothing
contained in the Agreement shall be deemed or construed as an admission of
wrongdoing or liability on the part of the Executive or on the part of any
member of the Company Group.
H. No
Mitigation.
The
Executive shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment and, to the extent
that the Executive obtains or undertakes other employment, the payment will
not
be reduced by the earnings of the Executive from the other
employment.
I. Venue.
Any
action or other legal proceeding arising under or relating to any provision
of
this Agreement shall be commenced only in a court of the State of North Carolina
(or, if appropriate, a federal court located within the State of North
Carolina), and the Company and the Executive hereby consent to the jurisdiction
of such a court.
J. Governing
Law/Waiver of Jury Trial.
The
Agreement shall be governed by, and construed in accordance with the internal
laws of the State of North Carolina, without regard to principles of conflicts
of laws of such state that may cause the laws of another state to apply. The
Company and the Executive each hereby waive any right to a trial by jury in
any
action, suit or other legal proceeding arising under or relating to any
provision of this Agreement.
K. Counterparts.
The
Agreement may be executed by one or more of the Parties hereto on any number
of
separate counterparts and all such counterparts shall be deemed to be one and
the same instrument. Each party hereto confirms that any facsimile copy of
such
party’s executed counterpart of the Agreement (or its signature page thereof)
shall be deemed to be an executed original thereof.
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IN
WITNESS WHEREOF, the undersigned have executed the Agreement on the date first
written above.
KROY
BUILDING
PRODUCTS, INC.
By:_________________________________
Title:
_________________________________
Xxxxx
X.
XxXxxxxx
With
respect to
Section 2C only,
PLY
GEM INVESTMENT
HOLDINGS, INC.
By:_________________________________
Title:
