AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.1
This
Agreement and General Release is made and entered into by and between Xxxx X. Xxxxxx
(hereinafter referred to as “Employee”) and Associated Materials Incorporated (hereinafter referred
to as “Company”).
WITNESSETH:
WHEREAS, Employee was employed by Company on July 1, 2006 and his employment is terminated
effective October 1, 2006;
WHEREAS, Employee and Company desire to settle fully and finally all differences between them,
including, but in no way limited to, any differences that might arise out of Employee’s employment
with Company;
NOW THEREFORE, in consideration of the mutual promises herein contained,
It is agreed as follows:
First: The Company will pay Employee severance pay in the amount of one thousand
dollars ($1,000) per month for a period until the earlier of (1) Employee no longer serves as a
member of the Company’s Board of Directors, or (2) Employee reaches sixty-five (65) years of age.
Second: The Company will continue Employee’s coverage under the Company medical, and
dental insurance program, as it may be amended and provided by law, through the period of severance
pay, as provided in the First paragraph above. Upon termination of medical and dental coverage, the
Employee will be offered COBRA coverage as provided by law.
Third: Employee agrees that he will continue to cooperate with the Company and will
make himself available as his services are needed by the Company. As Employee’s services are
needed by the Company the Employee will be reimbursed for his reasonable expenses.
Fourth: Employee understands and agrees that effective October 2, 2006, he is no
longer authorized to incur any expenses or obligations or liabilities on behalf of the Company,
unless specifically authorized.
Fifth: Employee agrees that in the course of his employment with the Company he has
acquired certain confidential Company information. Employee understands and agrees that such
Company information has been disclosed to Employee in confidence and for Company use only.
Employee understands and agrees that he (i) will keep such Company information confidential at all
times during and after his employment with the Company, (ii) will not disclose or communicate
Company information to any third party, and (iii) will not make use of Company information on
Employee’s own behalf, or on behalf of any third party. In view of the nature of Employee’s
employment and the
1
Exhibit 10.1
nature of the Company information which Employee has received during the course of his employment,
Employee agrees that any unauthorized disclosure to third parties of Company information or other
violation or threatened violation of this Agreement would cause irreparable damage to the trade
secret status of Company information and to Company and that, therefore, the Company shall be
entitled to an injunction prohibiting Employee from any such disclosure, attempted disclosure,
violation, or threatened violation. When Company information becomes generally available to the
public other than by Employee’s acts or omissions, it is no longer subject to the restrictions in
this paragraph. However, Company information shall not be deemed to come under this exception
merely because it is embraced by more general information which is or becomes generally available
to the public.
Sixth: It is agreed that the benefits contained in this Agreement and General Release
which flow to Employee from Company are subject to termination, reduction or cancellation in the
event that Employee takes any action or engages in any conduct in violation of this Agreement.
Seventh: Moreover, the provisions of this Agreement are severable, and if any part of
it is found to be unenforceable, the other paragraphs shall remain fully valid and enforceable.
Eighth: Employee agrees that he will make no disparaging or derogatory remarks or
statements, oral or written, about the Company, employees of the Company or the Company’s business
to any person.
Ninth: Employee understands and agrees that he fully understands his right to consult
with his private attorney and to discuss all aspects of this Agreement with his private attorney,
that to the extent, if any, that he desired, he has availed himself to this right, that he has
carefully read and fully understands all of the provisions of this Agreement and General Release,
and that he voluntarily entering this Agreement and General Release.
Tenth: As a material inducement to the Company to enter into this Agreement and
General Release, except as provided in the Fourteenth Paragraph, Employee hereby irrevocably and
unconditionally releases, acquits and forever discharges Company and each of company’s owners,
stockholders, predecessors, successors, assigns, agents, insurers, directors, officers, employees,
representatives, attorneys, divisions, subsidiaries, affiliates (and agents, directors, officers,
employees, representatives and attorneys of such parent companies, divisions, subsidiaries and
affiliates), and all persons acting by, through under or in concert with any of them (collectively
“Releasees”), from any and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes or action, suits, rights, demands, costs,
losses, debts and expenses (including attorney’s fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including, but not limited to, rights under
federal, state or local laws prohibit age, race, sex, handicap, or rights or claims arising under
the Age Discrimination in Employment Act (ADEA) or other forms of discrimination, claims growing
out of any legal restrictions on Company’s rights to
2
Exhibit 10.1
terminate its employees, workers’ compensation claims, (“Claim” or “Claims”), which Employee now
has, owns or holds, or claims to have, own or hold, or which Employee at any time heretofore had,
owned or held, or claimed to have, own or hold, against each of any of the Releases.
Eleventh: This Agreement and General Release shall not in any way be construed as an
admission by the Company that it has acted wrongfully with respect to employee or any other person,
or that Employee has any rights whatsoever against Company and Company specifically disclaims any
liability to or wrongful acts against Employee or any other person, on the part of itself, its
employees or its agents.
Twelfth: Employee represents that he has not filed any complaints, charges or
lawsuits against the Company with any government agency or any court and that he will not hereafter
file any complaints, charges or lawsuits with any governmental agency or any court against the
Company, its agents, employees, officers, directors, successors and assigns, provided, however,
this shall neither limit an Employee from filing a lawsuit for the sole purpose of enforcing
Employee’s rights under this Agreement and General Release nor affect an Employee’s right to file a
charge or complaint with the Equal Employment Opportunity Commission (EEOC) alleging a violation of
Age Discrimination in Employment Act or challenging the validity of this Agreement.
Thirteenth: Employee agrees not to seek or accept any further benefit or
consideration, including reinstatement, back pay, or attorney’s fees, or any additional money with
respect to his employment or separation of his employment from the Company. The Employee further
agrees that in the event he breaks the promises he has made in this Agreement, the Employee shall
return all money received under this agreement. The Company may also recover its attorney fees and
costs resulting from collecting this money, or enforcing any promise made by the Employee in this
Agreement, or defending any claim or action resulting from the Employee’s breaking of his promises
or this release or any other obligation set fourth in this Agreement.
Fourteenth: Employee understands that he has twenty-one (21) days from the date of
the Company’s final offer to consider the herein Agreement and further Employee understands that
material changes to the final offer restart the running of the twenty-one (21) day consideration
period. The Employee and the Company agree however that material or immaterial changes to the
Company’s final offer do not restart the running of the twenty-one (21) day period and further
Employee agrees to waive the said twenty-one (21) day period, and said waiver is knowing and
voluntary and is not induced by fraud, misrepresentation or threat by the Company to withdraw or
alter the final offer prior to the expiration of the twenty-one (21) day period.
This Agreement and General Release sets forth the entire agreement between the parties hereto
concerning the subject matter hereof, and fully supersedes any prior arrangements or understandings
between the parties hereto pertaining to the subject matter hereof.
The Employee states that he has been given a consideration period, as set forth in this
paragraph, to consider this Agreement and understands that he has seven days following the
execution of the Agreement to revoke said Agreement. Said revocation, if
3
Exhibit 10.1
exercised, must be in writing and be received by the Company prior to the expiration of the
seven-day period.
PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
| Associated Materials Incorporated | ||
BY:
|
/s/ Xxxx X. Xxxxxxxxx | |
| Xxxx X. Xxxxxxxxx | ||
| Vice President, Human Resources | ||
Date:
|
October 1, 2006 | |
Signed and Accepted:
|
/s/ Xxxx X. Xxxxxx | |
| Xxxx X. Xxxxxx | ||
Date:
|
October 1, 2006 | |
4
