EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), originally dated as of August
21, 2002, amended and restated in its entirety, as of July 27, 2004 (the
"Restatement Date"), and further amended and restated in its entirety as of
March 31, 2006, by and between ASSOCIATED MATERIALS INCORPORATED, a Delaware
corporation (the "Company"), and XXXX X. XXXXXXXXX, an individual residing in
the State of Ohio (the "Executive").
WITNESSETH:
WHEREAS, the Executive previously served as the Vice President of
Human Resources of the Alside Division of the Company;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of March 16, 2002, among Associated Materials Holdings Inc. (formerly known
as Harvest/AMI Holdings Inc.) ("Parent"), Simon Acquisition Corp. and the
Company (the "Merger Agreement"), the Company became a wholly-owned subsidiary
of Parent upon consummation of the transactions contemplated by the Merger
Agreement (the "Merger");
WHEREAS, since the Merger, the Executive has served as Vice President
of Human Resources of the Company;
WHEREAS, on March 4, 2004, all of the stock of Parent was exchanged
for stock of AMH Holdings, Inc. ("AMH") as part of a series of corporate
reorganization transactions, and Parent became a wholly-owned subsidiary of AMH;
WHEREAS, on December 22, 2004, all of the stock of AMH was exchanged
for stock of AMH II Holdings, Inc. ("AMH II") as part of a series of corporate
reorganization transactions, and Parent became an indirect wholly-owned
subsidiary of AMH II;
WHEREAS, the Company desires to continue to retain the services and
employment of the Executive on behalf of the Company, and the Executive desires
to continue his employment with the Company, upon the terms and conditions
hereinafter set forth;
WHEREAS, pursuant to Section 12(g) of this Agreement, this Agreement
may be amended in writing by the parties hereto; and
WHEREAS, the Company and the Executive mutually desire to amend and
restate this Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Employment. On the terms and subject to the conditions set forth herein,
the Company hereby employs the Executive as the Vice President of Human
Resources of the Company, and the Executive accepts such employment, for the
Employment Term (as defined in Section 3). During the Employment Term, the
Executive shall serve as the Vice President of Human Resources of the Company
and shall report to the President and Chief Executive Officer of the Company,
performing such duties as shall be reasonably required of a vice president, and
shall have such other powers and perform such other duties as may from time to
time be assigned to him by the President and Chief Executive Officer of the
Company and the Board of Directors of the Company (the "Board"). To the extent
requested by the Company's President and Chief Executive Officer or the Board,
the Executive shall also serve on the Board or any committee of the Board and/or
as a director, officer or employee of AMH II or any other person or entity
which, from time to time, is a direct or indirect subsidiary of AMH II (AMH II
and each such subsidiary, person or entity, other than the Company, are
hereinafter referred to collectively as the "Affiliates," and individually as an
"Affiliate"). The Executive's service as a director of the Company or as a
director, officer or employee of any Affiliate shall be without additional
compensation.
2. Performance. The Executive will serve the Company faithfully and to the
best of his ability and will devote his full business time, energy, experience
and talents to the business of the Company and the Affiliates; provided,
however, that it shall not be a violation of this Agreement for the Executive to
manage his personal investments and business affairs, or to engage in or serve
such civic, community, charitable, educational, or religious organizations as he
may reasonably select so long as such service does not interfere with the
Executive's performance of his duties hereunder.
3. Employment Term. Unless earlier terminated pursuant to Section 6, the
Executive's term of employment hereunder shall begin on the Offer Completion
Date (hereinafter referred to as the "Commencement Date"), and continue through
the date which is one (1) year following the Commencement Date (the "Initial
Term"); provided that such term shall be automatically extended for additional
one (1) year periods commencing on the first day immediately following the
expiration date of the Initial Term and successively thereafter on the first day
immediately following the expiration of each such one-year period (each such
period an "Additional Term") unless the Company shall have given notice to the
Executive that the Company does not desire to extend the term of this Agreement,
such notice to be given at least thirty (30) days prior to the end of the
Initial Term or the applicable Additional Term (the Initial Term and any
Additional Terms, if applicable, collectively, the "Employment Term").
4. Compensation and Benefits.
(a) Salary. As compensation for his services hereunder and in
consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall pay the Executive a base salary, payable in
equal installments in accordance with the Company's payroll procedures, at an
annual rate of Two Hundred Twenty Five Thousand Dollars ($225,000), subject to
annual review by the Board, which may increase, but not decrease, the
Executive's base salary.
(b) Annual Incentive Bonus; Stock Options. The Executive shall be
entitled to participate in an annual incentive bonus arrangement established by
the Company on terms and
conditions substantially as set forth in Exhibit A hereto. The Executive shall
not be entitled to participate in any other annual cash bonus plan, program or
arrangement with respect to any period to which the annual incentive bonus
arrangement described in the immediately preceding sentence applies. The
Executive shall also be entitled to participate in the stock option plan
established by Parent or AMH II.
(c) Retirement, Medical, Dental and Other Benefits. During the
Employment Term, the Executive shall, in accordance with the terms and
conditions of the applicable plan documents and all applicable laws, be eligible
to participate in the various retirement, medical, dental and other employee
benefit plans made available by the Company, from time to time, for its
executives.
(d) Vacation; Sick Leave. During the Employment Term, the Executive
shall be entitled to not less than three (3) weeks of vacation during each
calendar year and sick leave in accordance with the Company's policies and
practices with respect to its executives.
(e) Business Expenses. (1) The Company shall reimburse or advance
payment to the Executive for all reasonable expenses actually incurred by him in
connection with the performance of his duties hereunder in accordance with
policies established by the Company from time to time and subject to receipt by
the Company of appropriate documentation.
(2) During the Employment Term, the Executive shall be paid an
automobile allowance in the amount of $900 per month. Such allowance shall
be paid by the Company to the Executive on the last business day of each
month or otherwise in accordance with Company policy.
5. Covenants of the Executive. The Executive acknowledges that in the
course of his employment with the Company he has and will become familiar with
the Company's and the Affiliates' trade secrets and with other confidential
information concerning the Company and the Affiliates, and that his services are
of special, unique and extraordinary value to the Company and the Affiliates.
Therefore, the Company and the Executive mutually agree that it is in the
interest of both parties for the Executive to enter into the restrictive
covenants set forth in this Section 5 and that such restrictions and covenants
are reasonable given the nature of the Executive's duties and the nature of the
Company's business.
(a) Noncompetition. During the Employment Term and for the Restricted
Period (as hereinafter defined) following termination of the Employment Term,
the Executive shall not, within any jurisdiction or marketing area in which the
Company or any Affiliate is doing or is qualified to do business, directly or
indirectly, own, manage, operate, control, be employed by or participate in the
ownership, management, operation or control of, or be connected in any manner
with, any Business (as hereinafter defined), provided that the Executive's
ownership of securities of two percent (2%) or less of any class of securities
of a public company shall not, by itself, be considered to be competition with
the Company or any Affiliate. For purposes of this Agreement, "Business" shall
mean the manufacturing, production, distribution or sale of exterior residential
building products, including, without limitation, vinyl siding, windows,
fencing, decking, railings and garage doors, or any other business of a type and
character engaged in by the Company or an Affiliate during the Employment Term.
For purposes of this Agreement, the "Restricted Period" shall be (1) twenty-four
(24) months if such termination occurs during the
two-year period following the Commencement Date; or (2) one (1) year if such
termination occurs after such two-year period following the Commencement Date.
(b) Nonsolicitation. During the Employment Term and for the Restricted
Period following termination of the Employment Term, the Executive shall not,
directly or indirectly, (i) employ, solicit for employment or otherwise contract
for the services of any individual who is or was an employee of the Company or
any Affiliate during the Employment Term; (ii) otherwise induce or attempt to
induce any employee of the Company or an Affiliate to leave the employ of the
Company or such Affiliate, or in any way knowingly interfere with the
relationship between the Company or any Affiliate and any employee respectively
thereof; or (iii) induce or attempt to induce any customer, supplier, licensee
or other business relation of the Company or any Affiliate to cease doing
business with the Company or such Affiliate, or interfere in any way with the
relationship between any such customer, supplier, licensee or business relation
and the Company or any Affiliate.
(c) Nondisclosure; Inventions. For the Employment Term and thereafter,
(i) the Executive shall not divulge, transmit or otherwise disclose (except as
legally compelled by court order, and then only to the extent required, after
prompt notice to the Board of any such order), directly or indirectly, other
than in the regular and proper course of business of the Company and the
Affiliates, any customer lists, trade secrets or other confidential knowledge or
information with respect to the operations or finances of the Company or any
Affiliates or with respect to confidential or secret processes, services,
techniques, customers or plans with respect to the Company or the Affiliates
(all of the foregoing collectively hereinafter referred to as, "Confidential
Information"), and (ii) the Executive will not use, directly or indirectly, any
Confidential Information for the benefit of anyone other than the Company and
the Affiliates; provided, however, that the Executive has no obligation, express
or implied, to refrain from using or disclosing to others any such knowledge or
information which is or hereafter shall become available to the general public
other than through disclosure by the Executive. All Confidential Information,
new processes, techniques, know-how, methods, inventions, plans, products,
patents and devices developed, made or invented by the Executive, alone or with
others, while an employee of the Company which are related to the business of
the Company and the Affiliates shall be and become the sole property of the
Company, unless released in writing by the Board, and the Executive hereby
assigns any and all rights therein or thereto to the Company.
(d) Nondisparagement. During the Employment Term and thereafter, the
Executive shall not take any action to disparage or criticize the Company or any
Affiliate or their respective employees, directors, owners or customers or to
engage in any other action that injures or hinders the business relationships of
the Company or any Affiliate. Nothing contained in this Section 5(d) shall
preclude the Executive from enforcing his rights under this Agreement.
(e) Return of Company Property. All Confidential Information, files,
records, correspondence, memoranda, notes or other documents (including, without
limitation, those in computer-readable form) or property relating or belonging
to the Company or an Affiliate, whether prepared by the Executive or otherwise
coming into his possession in the course of the performance of his services
under this Agreement, shall be the exclusive property of the Company and shall
be delivered to the Company, and not retained by the Executive (including,
without limitations, any copies thereof), promptly upon request by the Company
and, in any event, promptly upon termination of the Employment Term.
(f) Enforcement. The Executive acknowledges that a breach of his
covenants contained in this Section 5 may cause irreparable damage to the
Company and the Affiliates, the exact amount of which would be difficult to
ascertain, and that the remedies at law for any such breach or threatened breach
would be inadequate. Accordingly, the Executive agrees that if he breaches or
threatens to breach any of the covenants contained in this Section 5, in
addition to any other remedy which may be available at law or in equity, the
Company and the Affiliates shall be entitled to specific performance and
injunctive relief to prevent the breach or any threatened breach thereof without
bond or other security or a showing that monetary damages will not provide an
adequate remedy.
(g) Scope of Covenants. The Company and the Executive further
acknowledge that the time, scope, geographic area and other provisions of this
Section 5 have been specifically negotiated by sophisticated commercial parties
and agree that all such provisions are reasonable under the circumstances of the
activities contemplated by this Agreement. In the event that the agreements in
this Section 5 shall be determined by any court of competent jurisdiction to be
unenforceable by reason of their extending for too great a period of time or
over too great a geographical area or by reason of their being too extensive in
any other respect, they shall be interpreted to extend only over the maximum
period of time for which they may be enforceable and/or over the maximum
geographical area as to which they may be enforceable and/or to the maximum
extent in all other respects as to which they may be enforceable, all as
determined by such court in such action.
6. Termination. The employment of the Executive hereunder shall
automatically terminate at the end of the Employment Term. The employment of the
Executive hereunder and the Employment Term may also be terminated at any time
by the Company with or without Cause. For purposes of this Agreement, except as
otherwise provided in Section 8, "Cause" shall mean: (i) embezzlement, theft or
misappropriation by the Executive of any property of the Company or an
Affiliate; (ii) any breach by the Executive of the Executive's covenants under
Section 5; (iii) any breach by the Executive of any other material provision of
this Agreement which breach is not cured, to the extent susceptible to cure,
within thirty (30) days after the Company has given notice to the Executive
describing such breach; (iv) willful failure by the Executive to perform the
duties of his employment hereunder which continues for a period of fourteen (14)
days following written notice thereof by the Company to the Executive; (v) the
conviction of, or a plea of nolo contendere (or a similar plea) to, any criminal
offense that is a felony or involves fraud, or any other criminal offense
punishable by imprisonment of at least one year or materially injurious to the
business or reputation of the Company involving theft, dishonesty,
misrepresentation or moral turpitude; (vi) gross negligence or willful
misconduct on the part of the Executive in the performance of his duties as an
employee, officer or director of the Company or an Affiliate; (vii) the
Executive's breach of his fiduciary obligations to the Company or an Affiliate;
(viii) the Executive's commission of intentional, wrongful damage to property of
the Company or an Affiliate; (ix) any chemical dependence of the Executive which
adversely affects the performance of his duties and responsibilities to the
Company or an Affiliate; or (x) the Executive's violation of the Company's or an
Affiliate's code of ethics, code of business conduct or similar policies
applicable to the Executive. The existence or non-
existence of Cause shall be determined in good faith by the Board. The
employment of the Executive may also be terminated at any time by the Executive
by notice of resignation delivered to the Company not less than ninety (90) days
prior to the effective date of such resignation.
7. Severance. Except as otherwise provided in Section 8, if the Executive's
employment hereunder is terminated during the Employment Term by the Company or
is terminated due to expiration of the Employment Term following notice by the
Company not to extend the Employment Term in accordance with Section 3, in each
case other than for Cause or due to disability (as determined in the good faith
discretion of the Board) or death, the Executive shall be entitled to receive as
severance: (i) an amount equal to the Executive's base salary as in effect
immediately prior to the date of the Executive's termination of employment for
twelve (12) months (payable, at the Company's option, in a lump-sum or in equal
installments in accordance with the Company's payroll procedures during the
twelve months following the date of the Executive's termination)(such
twelve-month period, the "Severance Period"); (ii) continued medical and dental
benefits described in Section 4(c) for the Severance Period, at the same rate of
employee and Company shared costs of such coverage as in effect from time to
time for active employees of the Company; and (iii) a pro rata portion (based on
the number of days the Executive was employed by the Company during the calendar
year of termination) of any incentive bonus otherwise payable in accordance with
Section 4(b) for the year of termination of the Executive's employment, payable
no earlier than the date on which such bonus, if any, would have been paid under
the applicable plan or policy of the Company absent such termination of
employment. With respect to any such continued medical and dental benefits
described in clause (ii) of the immediately preceding sentence for which the
Executive is eligible, (I) if the Company cannot continue such benefits, the
Company shall pay the Executive for the cost of such benefits; (II) such
benefits shall be discontinued in the event the Executive becomes eligible for
similar benefits from a successor employer (and the Executive's eligibility for
any such benefits shall be reported by the Executive to the Company); and (III)
the Executive's period of "continuation coverage" for purposes of Section 4980B
of the Internal Revenue Code of 1986, as amended (the "Code"), shall be deemed
to commence on the date of the Executive's termination of employment.
8. Change in Control. This Section 8 will be binding upon the Restatement
Date, but notwithstanding anything in this Agreement to the contrary, this
Section 8 will not be operative unless and until a Change in Control occurs.
Upon the occurrence of a Change in Control at any time during the Employment
Term, this Section 8 shall become immediately operative without further action;
provided, however, that if, prior to a Change in Control, the Executive ceases
for any reason to be an employee of the Company and any Affiliate, the
effectiveness of this Section 8 will immediately terminate without further
action and be of no further effect. Certain capitalized terms used in this
Section 8 are defined for purposes of this Section 8 in Section 8(e).
(a) Termination Following a Change in Control. In the event of a
Change in Control, if the Executive's employment is terminated by the Company or
an Affiliate during the Post-Change Period, the Executive shall be entitled to
the benefits provided by Section 8(c) unless such termination is the result of
the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive becomes permanently disabled within the meaning
of, and begins actually to receive disability benefits under, the
long-term disability plan applicable to the Executive immediately
prior to the Change in Control; or
(iii) Cause (as defined in Section 8(e)(i)).
If, during the Post-Change Period, the Executive's employment is terminated
by the Company or an Affiliate other than as described in clause (i), (ii)
or (iii) of this Section 8(a), the Executive will be entitled to the
benefits provided by Section 8(c).
(b) Termination by Executive. In the event of a Change in Control, the
Executive may terminate employment with the Company during the Post-Change
Period with the right to severance compensation as provided in Section 8(c) upon
the occurrence of one or more of the following events (regardless of whether any
other reason, other than death, permanent disability or Cause, for such
termination has occurred, including other employment):
(i) the failure to maintain the Executive in the position, or a
substantially equivalent or superior position, with the Company
and/or with a direct or indirect parent company of the Company
that the Executive held immediately prior to the Change in
Control, which is not remedied by the Company within 10 calendar
days after receipt by the Company of notice from the Executive of
such failure;
(ii) (A) a reduction in the Executive's base salary pursuant to
Section 4(a) hereof or (B) the termination or significant
reduction in the aggregate of the Executive's right to
participate in employee benefit plans or programs of the Company
as in effect prior to the Change in Control (other than Incentive
Pay (as hereinafter defined) or any other bonus, incentive or
stock or equity-based compensation or benefits), in either case
which is not remedied by the Company within 10 calendar days
after receipt by the Company of notice from the Executive of such
reduction or termination;
(iii) a reduction or elimination of the Executive's opportunity to
earn Incentive Pay pursuant to any plan or program in effect
immediately prior to the Change in Control which is not remedied
by the Company within 10 calendar days after receipt by the
Company of notice from the Executive of such reduction or
elimination (for the avoidance of doubt, changes in the value or
performance of the Company or an Affiliate or successor of either
following the Change in Control shall not be considered a
reduction or elimination of the Executive's opportunity to earn
Incentive Pay); or
(iv) the Company requires the Executive to have his principal place of
work changed to any location that is more than 35 miles from the
location thereof immediately prior to the Change in Control,
without his prior written consent.
(c) Change in Control Severance. If, following the occurrence of a
Change in Control, the Company or an Affiliate terminates the Executive's
employment during the Post-Change Period other than as described in clause (i),
(ii) or (iii) of Section 8(a), or if the Executive terminates his employment
pursuant to Section 8(b), the Executive shall not be entitled to the severance
compensation described in Section 7, and the Company will (i) pay or cause to be
paid to the Executive the amounts described in Sections 8(c)(1), 8(c)(2),
8(c)(3), 8(c)(6) and 8(c)(7) within five business days after the Termination
Date; (ii) pay or cause to be paid to the Executive the amount described in
Section 8(c)(4), such amount to be payable no earlier than the date on which
such Incentive Pay, if any, would have been paid under the applicable plan or
policy of the Company absent such termination of employment; and (iii) provide
the Executive the benefits described in Section 8(c)(5) for the period described
therein.
(1) A lump sum payment in an amount equal to all Base Pay and
Incentive Pay (other than for the calendar year of such
termination of employment) owed to the Executive for periods on
or prior to the Termination Date.
(2) A lump sum payment in an amount equal to two times the
Executive's base salary pursuant to Section 4(a) (at the rate in
effect immediately prior to the Termination Date).
(3) A lump sum payment equal to two times Incentive Pay (in an amount
equal to the highest amount of Incentive Pay earned by the
Executive in any calendar year during the three calendar years
immediately preceding the calendar year in which the Change in
Control occurred).
(4) In the event that the Termination Date occurs after June 30 in
any calendar year, a lump sum payment equal to one times
Incentive Pay for such calendar year, multiplied by a fraction,
the numerator of which is the number of days between (and
including) January 1 of the calendar year in which the
Termination Date occurs and the Termination Date, and the
denominator of which is 365.
(5) For a period of 24 months following the Termination Date (the
"Continuation Period"), the Company will provide the Executive
with medical, dental and life insurance benefits consistent with
the terms in effect for such benefits for active employees of the
Company during the Continuation Period. If and to the extent that
any benefit described in this Section 8(c)(5) is not or cannot be
paid or provided under any Company plan or program, then the
Company will pay or provide for the payment to the Executive, his
dependants and beneficiaries, of such employee benefits. Without
otherwise limiting the purposes of Section 8(d), employee
benefits otherwise receivable by the Executive pursuant to this
Section 8(c)(5) will be reduced to the extent comparable welfare
benefits are actually received by the Executive from another
employer during the Continuation Period following the Executive's
Termination Date, and any such benefits actually received by the
Executive shall be reported by the Executive to the Company.
(6) The Company will pay to the Executive the cost of employee
outplacement services for the Executive in the amount of $30,000.
(7) The Company will pay the Executive a two-year automobile
allowance in the amount provided to the Executive immediately
prior to the Termination Date.
(d) No Mitigation Obligation; Effect on Other Rights The payment of
the severance compensation by the Company to the Executive in accordance with
the terms of this Section 8 is hereby acknowledged by the Company to be
reasonable, and the Executive will not be required to mitigate the amount of any
payment provided for in this Section 8 by seeking other employment or otherwise,
except as expressly provided in the last sentence of Section 8(c)(5). This
Section 8 will not affect any rights (other than any rights to severance,
termination, retention or similar compensation or benefits) that the Executive
may have pursuant to any agreement, plan or policy of the Company or a
Subsidiary providing employee benefits, which rights shall be governed by the
terms thereof.
(e) Certain Defined Terms. The following terms have the following
meanings when used in this Section 8:
(i) "Cause" means that, prior to any termination pursuant to Section
8(b), the Executive shall have:
(1) been convicted of a criminal violation involving fraud,
embezzlement or theft;
(2) committed intentional wrongful damage to property of the
Company or any Affiliate; or
(3) committed intentional wrongful disclosure of confidential
information of the Company or any Affiliate.
Nothing herein will limit the right of the Executive or his
beneficiaries to contest the validity of any determination by the
Company to terminate the Executive for Cause.
(ii) "Change in Control" means (A) a stock sale, merger,
consolidation, combination, reorganization or other transaction
involving the Company resulting in less than fifty percent (50%)
of the combined voting power of the surviving or resulting entity
being owned by the shareholders of the Company immediately prior
to such transaction; (B) a stock sale, merger, consolidation,
combination, reorganization or other transaction involving AMH
II, AMH or Parent resulting in less than fifty percent (50%) of
the combined voting power of the surviving or resulting entity
being owned by the shareholders of AMH II, AMH or Parent, as
applicable, immediately prior to such transaction or (C) the
liquidation or dissolution of the Company, AMH II, AMH or Parent
or the sale or other disposition of all or substantially all of
the assets or business of the Company, AMH
II, AMH or Parent (other than, in the case of either clause (A),
(B) or (C) above, in connection with any employee benefit plan of
the Company or an Affiliate).
(iii) "Incentive Pay" means an annual cash bonus or annual cash
incentive compensation, in addition to base salary, made or to be
made in regard to services rendered in any year or other period
pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or
arrangement (whether or not funded) of the Company or an
Affiliate, or any successor thereto; provided that the Incentive
Pay shall not include any stock options or other stock-based
compensation or any special management bonuses paid in connection
with any debt offering or recapitalization of AMH II and/or
another Affiliate. For the avoidance of doubt, as of the date
hereof, Incentive Pay shall mean the annual incentive bonus
arrangement described in Section 4(b).
(iv) "Post-Change Period" means the period of time commencing on the
date of the first occurrence of a Change in Control and
continuing until the second anniversary of the occurrence of such
Change in Control.
(v) "Termination Date" means the date on which the Executive's
employment with the Company or an Affiliate is terminated.
9. Termination of Compensation and Benefits; Execution of Release;
Coordination of Provisions. If the Executive's employment terminates otherwise
than in a termination entitling him to severance pay and benefits pursuant to
Section 7 or Section 8, the Executive shall not be entitled to any severance,
termination pay or similar compensation or benefits, provided that the Executive
shall be entitled to any benefits then due or accrued in accordance with the
applicable employee benefit plans of the Company or applicable law, including
"continuation coverage" under the Company's group health plans for purposes of
Section 4980B of the Code. As a condition of receiving any severance
compensation for which the Executive otherwise qualifies under Section 7 or
Section 8, the Executive agrees to execute a general release of the Company and
the Affiliates and their respective officers, directors and employees from any
and all claims, obligations and liabilities of any kind whatsoever arising from
or in connection with the Executive's employment or termination of employment
with the Company or this Agreement (including, without limitation, civil rights
claims), in such form as is requested by the Company. Any severance compensation
and benefits to which the Executive may be entitled under Section 8 shall be in
lieu of any severance compensation or benefits to which the Executive may be
entitled under Section 7. The Executive acknowledges and agrees that, except as
specifically described in Section 7 and Section 8, all of the Executive's rights
to any compensation, benefits (other than base salary earned through the date of
termination of employment and any benefits due or accrued prior to termination
of employment in accordance with the applicable employee benefit plans of the
Company or applicable law), bonuses or severance from the Company or any
Affiliate after termination of the Employment Term shall cease upon such
termination.
10. Limitation on Payments and Benefits. Notwithstanding any provision of
this Agreement to the contrary, no amount or benefit shall be paid or provided
under this Agreement
to an extent or in a manner that would result in payments or benefits (or other
compensation) not being fully deductible by the Company or an Affiliate for
federal income tax purposes because of Section 280G of the Code, or any
successor provision thereto (or that would result in the Executive being subject
to the excise tax imposed by Section 4999 of the Code, or any successor
provision thereto). The determination of whether any such payments or benefits
to be provided under this Agreement or otherwise would not be so deductible (or
whether the Executive would be subject to such excise tax) shall be made at the
expense of the Company, if requested by either the Executive or the Company, by
a firm of independent accountants or a law firm selected by the Company and
reasonably acceptable to the Executive. In the event that any payment or benefit
intended to be provided under this Agreement or otherwise would constitute a
"parachute payment," as defined in Section 280G of the Code, the Executive shall
be entitled to designate the payments and/or benefits to be reduced or modified
so that the Company or an Affiliate is not denied any federal income tax
deductions for any such parachute payment because of Section 280G of the Code
(or so that the Executive is not subject to the excise tax imposed by Section
4999 of the Code). The Company shall provide the Executive with all information
reasonably requested by the Executive to permit the Executive to make such
designation. In the event that the Executive fails to make such designation
within 10 business days of the Termination Date, the Company may effect such
reduction in any manner it deems appropriate.
11. Notice. Any notices required or permitted hereunder shall be in writing
and shall be deemed to have been given when personally delivered or when mailed,
certified or registered mail, or sent by reputable overnight courier, postage
prepaid, to the addresses set forth as follows:
If to the Company: Associated Materials Incorporated
0000 Xxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxx 00000
With copies to: Harvest Partners, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxx
and
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to the Executive: Xxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as shall be furnished in writing by either party to the
other party; provided that such notice or change in address shall be effective
only when actually received by the other party.
12. General.
(a) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York applicable to contracts executed and to be performed entirely within said
State.
(b) Construction and Severability. If any provision of this Agreement
shall be held invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to amend,
supplement or substitute all and any such invalid, illegal or unenforceable
provisions with enforceable and valid provisions which would produce as nearly
as may be possible the result previously intended by the parties without
renegotiation of any material terms and conditions stipulated herein.
(c) Assignability. The Executive may not assign his interest in or
delegate his duties under this Agreement. This Agreement is for the employment
of the Executive, personally, and the services to be rendered by him under this
Agreement must be rendered by him and no other person. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Company and
its successors and assigns. Without limiting the foregoing and notwithstanding
anything else in this Agreement to the contrary, the Company may assign this
Agreement to, and all rights hereunder shall inure to the benefit of, any
subsidiary of the Company or any person, firm or corporation resulting from the
reorganization of the Company or succeeding to the business or assets of the
Company by purchase, merger, consolidation or otherwise.
(d) Warranty by the Executive. The Executive represents and warrants
to the Company that the Executive is not subject to any contract, agreement,
judgment, order or decree of any kind, or any restrictive agreement of any
character, that restricts the Executive's ability to perform his obligations
under this Agreement or that would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
(e) Compliance with Rules and Policies. The Executive shall perform
all services in accordance with the lawful policies, procedures and rules
established by the Company and the Board. In addition, the Executive shall
comply with all laws, rules and regulations that are generally applicable to the
Company or its subsidiaries and their respective employees, directors and
officers.
(f) Withholding Taxes. All amounts payable hereunder shall be subject
to the withholding of all applicable taxes and deductions required by any
applicable law.
(g) Entire Agreement; Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof, supersedes all prior agreements and undertakings, both written and oral,
and may not be modified or amended in any way except in writing by the parties
hereto. As of the date hereof, the Amended and Restated Severance Agreement,
dated as of December 27, 2001, between the Company and the Executive shall be
cancelled and be of no further force or effect, without the payment of any
additional consideration by or to either of the parties thereto.
(h) Duration. Notwithstanding the Employment Term hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement.
(i) Survival. The covenants set forth in Section 5 and the parties'
respective rights and obligations under Section 8 shall survive and shall
continue to be binding upon the Executive and the Company, as the case may be,
notwithstanding the termination or expiration of this Agreement or the
termination of the Executive's employment following a Change in Control for any
reason whatsoever.
(j) Waiver. No waiver by either party hereto of any of the
requirements imposed by this Agreement on, or any breach of any condition or
provision of this Agreement to be performed by, the other party shall be deemed
a waiver of a similar or dissimilar requirement, provision or condition of this
Agreement at the same or any prior or subsequent time. Any such waiver shall be
express and in writing, and there shall be no waiver by conduct. Pursuit by
either party of any available remedy, either in law or equity, or any action of
any kind, does not constitute waiver of any other remedy or action. Such
remedies are cumulative and not exclusive.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
(l) Section References. The words Section and paragraph herein shall
refer to provisions of this Agreement unless expressly indicated otherwise.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement as of the day and year first written
above.
ASSOCIATED MATERIALS INCORPORATED
Date: 4/3/06 By: /s/ X. Xxxxxxxx
------------------------------- ------------------------------------
Name: X. X. Xxxxxxxx
----------------------------------
Title: CFO
---------------------------------
XXXX X. XXXXXXXXX
Date: 4/3/06 /s/ Xxxx Xxxxxxxxx
------------------------------- ----------------------------------------
Exhibit A
Annual Incentive Bonus
The Executive's annual incentive bonus for each calendar year during
the Employment Term shall be a percentage of the Executive's base salary based
upon the achievement by AMH II of annual EBITDA Hurdles with respect to the
applicable calendar year, as follows:
Achievement of EBITDA Hurdles Percentage of Base Salary
----------------------------- -------------------------
Less than threshold Zero
Threshold 20.00%
Target 60.00%
Maximum 80.00%
If the actual EBITDA for a particular calendar year is between two
EBITDA Hurdles, the applicable percentage of base salary shall be determined by
linear interpolation based on the difference between such EBITDA Hurdles. For
the avoidance of doubt, in no event shall the annual incentive bonus exceed 80%
of base salary. For purposes of the Executive's annual incentive bonus and the
computation thereof:
1. Base salary shall mean the annual rate of base salary in effect under this
Agreement as of April 1 of the calendar year to which the bonus relates.
2. "EBITDA Hurdle" means threshold, target and maximum amounts of EBITDA with
respect to a calendar year, as determined in good faith by the Board.
3. EBITDA shall mean the consolidated net income of AMH II, adjusted to
exclude deduction of interest expense (net of interest income), income
taxes, depreciation and amortization and the Harvest Fee pursuant to the
Management Agreement, dated as of April 19, 2002, between Harvest Partners,
Inc. and Associated Materials Incorporated, as amended from time to time,
and to exclude gain or loss from sale of capital assets, and including
deduction of all bonuses paid or accrued with respect to the Executive and
all other officers and employees of AMH II and its subsidiaries (including,
without limitation, the Executive's bonus hereunder), for the relevant
calendar year, calculated otherwise in accordance with generally accepted
accounting principles, subject to any adjustments made in good faith by the
Board. EBITDA shall be determined by the Company's management, subject to
audit or review by AMH II's external accountants and approval, in good
faith, by the Board. EBITDA shall exclude, without duplication, any
transaction- or merger-related costs which are expensed rather than
capitalized; any revenue, expense, gain or loss from operations divested
during the relevant calendar year; the effect of inventory write-ups made
due to purchase accounting; and any other non-recurring, extraordinary
items subject to approval, in good faith, by the Board.
4. Any annual incentive bonus to which the Executive is entitled under this
Agreement for any calendar year shall be paid in a cash lump-sum within
thirty days following the close of AMH II's books and completion of AMH
II's annual audit by its external accountants for such calendar year but in
any event shall not be paid later than March 15 of the calendar year
immediately following the calendar year to which the bonus relates.
The Executive's entitlement to an annual incentive bonus shall be determined by
the Board in good faith in accordance with this Exhibit A.
