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EXHIBIT 10.13
EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND XXXXX X. XXXX, XX.
DATED JANUARY 1, 1998
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into, with
an effective date of January 1, 1998, by and between Atrium Companies, Inc., a
Delaware corporation (together with its successors and assigns permitted
hereunder, the "Company"), and Xxxxx X. Xxxx (the "Employee").
RECITALS
A. The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders to employ
the Employee on the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the respective agreements and covenants
set forth herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. EMPLOYMENT PERIOD. Subject to Section 3, the Company hereby agrees to
employ the Employee, and the Employee hereby agrees to be employed by the
Company in accordance with the terms and provisions of this Agreement, for a
period (the "Employment Period") commencing on the date herein and ending on
the third anniversary of such date. Neither party is under any obligation to
extend or renew this Agreement. Any new employment agreement shall only be
effective after having been reduced to writing and executed by both parties
hereto. In the event Employee continues to perform services after the
Employment Period, and pending execution of a new employment agreement, if any,
such services shall constitute employment for an unspecified term, terminable
at will, with or without cause or reason, with or without advance notice, and
with or without pay in lieu of advance notice.
2. TERMS OF EMPLOYMENT.
a. Position and Duties.
i. During the term of the Employee's employment, the Employee shall
serve as Executive Vice President of the Company and President of Atrium Door
and Window Company, and, in so doing, shall perform the normal duties and
responsibilities associated with such position, subject to the general
direction, approval and control of President and Chief Executive Officer of the
Company.
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ii. During the term of the Employee's employment, and excluding any
periods of vacation and other leave to which the Employee is entitled, the
Employee agrees to devote his full business time to the business and affairs of
the Company and to use the Employee's best efforts to perform faithfully,
effectively and efficiently his duties and responsibilities.
iii. During the term of the Employee's employment it shall not be a
violation of this Agreement for the Employee to serve on corporate, civic or
charitable boards or committees, deliver lectures or fulfill speaking
engagements and manage personal investments, so long as such activities do not
interfere with the performance of the Employee's duties and responsibilities as
an employee of the Company.
iv. Employee agrees to observe and comply with the Company's rules
and policies as adopted by the Company from time to time.
b. Compensation.
i. Base Salary. During the term of the Employee's employment, the
Employee shall receive an annual base salary ("Annual Base Salary"), which shall
be paid in accordance with the customary payroll practices of the Company, in an
amount equal to $170,000. The Board, in its discretion, may at any time increase
the amount of the Annual Base Salary to such greater amount as it may deem
appropriate, and the term "Annual Base Salary," as used in this Agreement, shall
refer to the Annual Base Salary as it may be so increased. It is understood that
the Company may, at any time, in the discretion of the Board, increase, but not
decrease, the amount of the Annual Base Salary.
ii. Incentive Bonus. Subject to the other terms and conditions of
this Agreement and as further compensation for the performance of his services
hereunder, during the term of his employment under this Agreement, the Employee
shall be eligible to receive an annual incentive bonus (the "Incentive Bonus")
in accordance with the Bonus Structure, attached hereto as Exhibit A.
(A) Targets. Prior to the end of each calendar year, the Board's
Compensation Committee shall approve the performance targets (the
"Targets") upon which the Employee's Incentive Bonus for the following
year will be based with respect to each of the criteria described in
the Bonus Structure, except that the Targets for 1998 have been
approved by the Board's Compensation Committee as of the date hereof.
The Targets for 1998 are as described in Exhibit B, which is hereby
incorporated as part of this Agreement. The Targets for each of such
criteria in each subsequent calendar year shall, after approval by the
Board's Compensation Committee, be attached hereto as Exhibit B as a
substitute for the previous years' Targets, and shall become a part of
this Agreement for such calendar year.
(B) Amount and Calculation. Should the Employee achieve 100% of
the Targets, the Incentive Bonus shall be $120,000 (the "Base
Incentive Bonus"). A lesser or greater Incentive Bonus will result
should the Employee achieve
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less or more than 100% of the Targets, but in any event, the maximum
Incentive Bonus that the Employee shall be eligible to receive is
$142,500, such amount to be determined in accordance with the terms of
Exhibit A hereto. The Employee understands and agrees that he is not
guaranteed an Incentive Bonus and that the amount of Incentive Bonus,
if any, is dependent on his achieving one or more of the Targets for
the criteria set forth in the Bonus Structure. In this regard, should
the Employee fail to achieve any of such Targets, the Employee shall
not be entitled to an Incentive Bonus for the applicable period.
"EBITDA," as used in this Agreement and the Bonus Structure for any
calendar year, shall mean the earnings before income tax, depreciation
and amortization for such year, as determined in accordance with
generally accepted accounting principles by the certified public
accountants regularly engaged by the Company. The determination of
the Company's regularly engaged public accountants shall be final and
conclusive on the parties hereto.
(C) Time of Payment. The Incentive Bonus shall be paid to the
Employee on or before March 15th of the calendar year immediately
following the year with respect to which the calculation of the
Incentive Bonus is made. Payment of the Incentive Bonus shall be
accompanied by a copy of the calculation on which the Incentive Bonus
is based.
iii. Incentive, Savings, Stock Option and Retirement Plans. During
the term of the Employee's employment, the Employee shall be entitled to
participate in all incentive, savings, stock option and retirement plans,
practices, policies and programs applicable generally to other employees of the
Company ("Investment Plans"), as amended from time to time.
iv. Welfare Benefit Plans. During the term of the Employee's
employment, the Employee and/or the Employee's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under the
welfare benefit plans, practices, policies and programs ("Welfare Plans")
provided by the Company (including medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), as amended from time to time, to the
extent applicable generally to other employees of the Company. In the event that
Gay Ellis Simi does not qualify for coverage under the Company's medical plan,
the Company shall pay to the Employee, as additional compensation, the cost for
coverage of Gay Ellis Simi as if she did qualify for coverage under the
Company's medical plan.
v. Perquisites. During the term of the Employee's employment, the
Employee shall be entitled to receive (in addition to the benefits described
above) such perquisites and fringe benefits appertaining to his position in
accordance with any policies, practices and procedures established by the
Board, as amended from time to time.
vi. Payment of Certain Expenses by the Company. The Company hereby
agrees to pay certain expenses incurred by the Employee (including, but not
limited to, the Employee's American Express credit card statements, country club
statements, and gasoline credit card statements) which have been approved in
writing by the Company. To the extent that the Employee does not furnish an
itemized list of such expenditures (in such form as required by the Company for
reimbursement of expenses incurred in carrying out his duties hereunder), then
such amount not itemized during any fiscal year of the Company shall be set-off
against the
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Employee's Incentive Bonus, if any. In the event the Employee does not earn an
Incentive Bonus for any applicable period in an amount in excess of
non-itemized expenditures, then such non-itemized expenditures in excess of the
Incentive Bonus shall be treated as additional compensation of the Employee.
Payments by the Company pursuant to this Section 2(b)(vi) shall not exceed
Twenty-Five Thousand and No/100 Dollars ($25,000) during any fiscal year of the
Company.
vii. Automobile. The Company recognizes the Employee's need for an
automobile for business purposes. The Company shall provide the Employee with
an automobile, including all related maintenance, repairs, insurance and other
costs. At the Employee's request, a new automobile shall be purchased for the
Employee's use when the automobile that the Company is presently providing to
the Employee has either: (i) been in service for three years, or (ii) exceeded
75,000 miles. The Company's cost for a new automobile for the Employee shall
not exceed Twenty-Five Thousand and No/100 Dollars ($25,000.00) excluding sales
tax.
viii. Vacation. During the term of the Employee's employment, the
Employee shall be entitled to four (4) weeks paid vacation each calendar year.
Any vacation shall be taken at the reasonable and mutual convenience of the
Company and the Employee. Accrued vacation not taken in any calendar year will
not be carried forward or used in any subsequent calendar year and the Employee
shall not be entitled to receive pay in lieu of accrued but unused vacation in
any calendar year.
c. Key-Man Insurance. At any time during the Employment Period, the
Company shall have the right to insure the life of the Employee for the
Company's sole benefit, and to determine the amount of insurance and the type of
policy. The Employee shall cooperate with the Company in taking out such
insurance by submitting to physical examinations, by supplying all information
required by the insurance company, and by executing all necessary documents. The
Employee shall incur no financial obligation by executing any required document,
and shall have no interest in any such policy.
3. TERMINATION OF EMPLOYMENT.
a. Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
Disability (as defined below) of the Employee has occurred during the
Employment Period, the Company may give to the Employee written notice in
accordance with Section 12(b) of its intention to terminate the Employee's
employment. In such event, the Employee's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Employee (the "Disability Effective Date"), if, within the 30 days after such
receipt, the Employee shall not have returned to perform, with or without
reasonable accommodation, the essential functions of his position. For
purposes of this Agreement, "Disability" shall mean the Employee's inability to
perform, with or without reasonable accommodations, the essential functions of
his position hereunder for a period of 120 days, consecutive or
non-consecutive, in any 12-month period due to mental or physical incapacity,
as determined by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative, such
agreement as to acceptability not to be unreasonably withheld or delayed. Any
refusal by Employee to submit to a medical examination for the purpose of
determining Disability under this Section 3(a) shall be deemed to constitute
conclusive evidence of Employee's Disability.
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b. Cause or Without Cause. The Company may terminate the Employee's
employment during the Employment Period for Cause or without Cause. For
purposes of this Agreement, "Cause" shall mean a breach by the Employee of the
Employee's obligations under Section 2(a) (other than as a result of physical
or mental incapacity) which constitutes a continued material nonperformance by
the Employee of his obligations and duties thereunder, as determined by the
Board, and which is not remedied within 30 days after receipt of written notice
from the Company specifying such breach; commission by the Employee of an act
of fraud, embezzlement, misappropriation, willful misconduct or breach of
fiduciary duty against the Company, as reasonably determined by a majority of
the members of the Board after a hearing by the Board following ten days'
notice to the Employee of such hearing; a material breach by the Employee of
Sections 7, 8, 9, 10, or 11; the Employee's conviction, plea of no contest or
nolo contendere, or unadjudicated probation for any felony or crime involving
moral turpitude; the failure of the Employee to carry out, or comply with, in
any material respect any lawful directive of the Board consistent with the
terms of this Agreement, which is not remedied within 30 days after receipt of
written notice from the Company specifying such failure; or (vi) the Employee's
unlawful use (including being under the influence) or possession of illegal
drugs on the Company's premises or while performing the Employee's duties and
responsibilities under this Agreement. The Company may suspend the Employee's
title and authority pending the hearing provided for in clause (ii) above, and
such suspension shall not constitute "Good Reason" as defined below. For
purposes of this Agreement, "without Cause" shall mean a termination by the
Company of the Employee's employment during the Employment Period for any
reason other than a termination based upon Cause, death, Disability or upon a
Change of Control, as defined below.
c. Good Reason. The Employee's employment may be terminated during the
Employment Period by the Employee for Good Reason or without Good Reason;
provided, however, that the Employee agrees not to terminate his employment for
Good Reason unless (i) the Employee has given the Company at least 30 days'
prior written notice of his intent to terminate his employment for Good Reason,
which notice shall specify the facts and circumstances constituting Good
Reason, and (ii) the Company has not remedied such facts and circumstances
constituting Good Reason within such 30-day period. For purposes of this
Agreement, "Good Reason" shall mean:
i. any significant reduction, approved by the Board without the
Employee's consent, in the Employee's position, authority, duties or
responsibilities as contemplated in Section 2(a) or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of written notice thereof given by the Employee.
ii. any termination or material reduction of a material benefit under
any Investment Plan or Welfare Plan in which the Employee participates unless
(A) there is substituted a comparable benefit that is economically substantially
equivalent to the terminated or reduced benefit prior to such termination or
reduction or (B) benefits under such Investment Plan or Welfare Plan are
terminated or reduced with respect to all employees previously granted benefits
thereunder;
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iii. any failure by the Company to comply with any of the provisions
of Section 2(b), other than an inadvertent failure not occurring in bad faith
and which is remedied by the Company promptly after receipt of written notice
thereof given by the Employee;
iv. without limiting the generality of the foregoing, any material
breach by the Company or any of its subsidiaries or other affiliates (as defined
below) of (A) this Agreement or (B) any other agreement between the Employee and
the Company or any such subsidiary or other affiliate; or
v. the Company's requirement that the Employee's ongoing and regular
duties and responsibilities be performed in a location other than the
Dallas/Fort Worth Metroplex area, except for travel reasonably required in the
performance of the Employee's duties and responsibilities.
As used in this Agreement, "affiliate" means, with respect to a
person, any other person controlling, controlled by or under common control
with the first person; the term "control," and correlative terms, means the
power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a person; and "person" means an individual,
partnership, corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
b. Change of Control. If a Change of Control occurs during the
Employment Period and the Board determines in good faith that it is in the
Company's best interest to terminate the Employee's employment with the Company,
within 90 days of such Change of Control the Company may terminate the
Employee's employment by giving the Employee written notice in accordance with
Section 12(b) of its intention to terminate the Employee's employment. Any such
termination by the Company as contemplated in this Section 3(d) is referred to
herein as a termination "upon a Change of Control." For purposes of this
Agreement, "Change of Control" shall have the meaning given to such term in the
Atrium Corporation 1996 Stock Option Plan, as such Plan may be amended from time
to time.
c. Notice of Termination. Any termination by the Company for Cause or
without Cause or upon a Change of Control, or by the Employee for Good Reason
or without Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 12(b). For purposes of
this Agreement, a "Notice of Termination" means a written notice which
indicates the specific termination provision in this Agreement relied upon, to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the
termination date (which date shall not be more than 15 days after the giving of
such notice). The failure by the Employee or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing
of Good Reason or Cause or a termination upon a Change of Control shall not
waive any right of the Employee or the Company hereunder or preclude the
Employee or the Company from asserting such fact or circumstance in enforcing
the Employee's or the Company's rights hereunder.
d. Date of Termination. "Date of Termination" means if the Employee's
employment is terminated by the Company for Cause or upon a Change of Control,
or by the
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Employee for Good Reason or without Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein pursuant to Section
3(e), as the case may be, if the Employee's employment is terminated by the
Company other than for Cause or upon a Change of Control, the date on which the
Company notifies the Employee of such termination and if the Employee's
employment is terminated by reason of death or Disability, the date of death of
the Employee or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
a. For Cause; Without Good Reason; Other Than for Death, Disability or
Upon a Change of Control. If, during the Employment Period, the Company shall
terminate the Employee's employment for Cause or the Employee shall terminate
his employment without Good Reason, and the termination of the Employee's
employment in any case is not due to his death or Disability or upon a Change of
Control, the Employee shall forfeit all rights to the Incentive Bonus otherwise
due to him or to which he may be entitled, and the Company shall have no further
payment obligations to the Employee or his legal representatives, other than for
the payment of: (i) in a lump sum in cash within ten (10) days after the Date of
Termination the sum of the Employee's Annual Base Salary through the Date of
Termination to the extent not theretofore paid, any compensation previously
deferred by the Employee (together with any accrued interest or earnings
thereon) and any accrued vacation pay (collectively, the "Accrued Obligations");
and (ii) any amount arising from the Employee's participation in, or benefits
under, any Investment Plans (the "Accrued Investments"), which amounts shall be
payable in accordance with the terms and conditions of such Investment Plans.
i. Death. If the Employee's employment is terminated by reason of
the Employee's death during the Employment Period, the Company shall have no
further payment obligations to the Employee or his legal representatives, other
than for payment of: in a lump sum in cash within ten (10) days after the Date
of Termination the Accrued Obligations; the Accrued Investments, which shall be
payable in accordance with the terms and conditions of the Investment Plans; and
the Incentive Bonus prorated from the first day of the Company's then-current
fiscal year to the Date of Termination (the "Prorated Incentive Bonus"), to be
paid in accordance with Section 2(b)(ii)(C).
ii. Disability. If the Employee's employment is terminated by reason
of the Employee's Disability during the Employment Period, the Company shall
have no further payment obligations to the Employee or his legal
representatives, other than for payment of: in a lump sum in cash within ten
(10) days after the Date of Termination the Accrued Obligations; the Accrued
Investments, which shall be payable in accordance with the terms and conditions
of the Investment Plans; and the Prorated Incentive Bonus, to be paid in
accordance with Section 2(b)(ii)(C).
iii. Without Cause or for Good Reason. If the Employee's employment
is terminated by the Company without Cause or by the Employee for Good Reason,
the Company shall have no further payment obligations to the Employee or his
legal representatives, other than for: (i) payment of, in a lump sum in cash
within ten (10) days after the Date of Termination, the Accrued Obligations;
(ii) payment of the Accrued Investments, which shall be payable in accordance
with the terms and conditions of the Investment Plans; (iii) payment of the
Prorated Incentive Bonus, to be paid in accordance with Section 2(b)(ii)(C) and
(iv) payment of
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one-twelfth of the sum of the Employee's Annual Base Salary on the Date of
Termination and the Annual Incentive Bonus for each month during a period of
twelve (12) months following the Date of Termination (the 'severance Period"),
in accordance with the customary payroll practices of the Company.
iv. Change of Control. If the Employee's employment is terminated
upon a Change of Control as contemplated in Section 3(d), the Company shall have
no further payment obligations to the Employee or his legal representatives,
other than for (i) payment of, in a lump sum in cash within ten (10) days after
the Date of Termination, the Accrued Obligations; (ii) payment of the Accrued
Investments, which shall be payable in accordance with the terms and conditions
of the Investment Plans; (iii) payment of the Prorated Incentive Bonus, to be
paid in accordance with Section 2(b)(ii)(C); and (iv) payment of one-twelfth of
the sum of the Employee's Annual Base Salary on the Date of Termination and the
Annual Incentive Bonus for each month during the Severance Period, in accordance
with the customary payroll practices of the Company; provided, however, that the
payments contemplated in (iii) and (iv) above shall not be made to the Employee
if, following such Change of Control, Xxxxxxx X. Xxxxxxxx continues to act in
the capacity of President and Chief Executive Officer of the Company.
5. RETENTION BONUS. Following a "Change of Control," as contemplated in
Section 3(d), if the Employee is employed by the Company in his current position
or in a more senior position, or by a subsidiary or other affiliate of the
Company in a position with authority, duties and responsibilities substantially
similar to or greater than those of his current position, on the 12-month
anniversary of the Change of Control, the Company shall pay the Employee a
retention bonus in the amount of $125,000. Nothing in this Section 5 shall be
deemed to give the Employee the right to be retained in the employ of the
Company or to restrict the right of the Company to terminate the Employee at any
time and for any reason, without Cause or for Cause or upon a Change of Control.
Nothing in this Section 5 shall be deemed to give the Company the right to
require the Employee to remain in the employ of the Company or to restrict the
Employee's right to terminate his employment at any time and for any reason,
without Good Reason or for Good Reason.
6. FULL SETTLEMENT, MITIGATION. In no event shall the Employee be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to the Employee under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not the Employee obtains other
employment. Neither the Employee nor the Company shall be liable to the other
party for any damages in addition to the amounts payable under Section 4 arising
out of the termination of the Employee's employment prior to the end of the
Employment Period; provided, however, that the Company shall be entitled to seek
damages from the Employee for any breach of Sections 7, 8, 9, 10 or 11 by the
Employee or for the Employee's criminal misconduct.
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7. CONFIDENTIAL INFORMATION.
a. The Employee acknowledges that the Company and its affiliates have
trade, business and financial secrets and other confidential and proprietary
information (collectively, the "Confidential Information"). "Confidential
Information" includes sales materials, technical information, processes and
compilations of information, records, specifications and information concerning
customers or venders, manuals relating to suppliers' products, customer lists,
information regarding methods of doing business, and the identity of suppliers.
"Confidential Information" shall not include information that is generally known
to other persons or entities who can obtain economic value from its disclosure
or use and information required to be disclosed by the Employee pursuant to a
subpoena or court order, or pursuant to a requirement of a governmental agency
or law of the United States of America or a state thereof or any governmental or
political subdivision thereof; provided, however, that the Employee shall take
all reasonable steps to prohibit disclosure pursuant to subsection (ii) above.
b. During and following the Employee's employment by the Company, the
Employee shall hold in confidence and not directly or indirectly disclose or
use or copy or make lists of any Confidential Information or proprietary data
of the Company or its affiliates except to the extent authorized in writing by
the Board or required by any court or administrative agency, other than to an
employee of the Company or its affiliates or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Employee of his duties as an employee of the Company.
c. The Employee further agrees not to use any Confidential Information
for the benefit of any person or entity other than the Company or its
affiliates.
d. As used in this Section 7, "Company" shall include Atrium Companies,
Inc. and any of its subsidiaries.
8. SURRENDER OF MATERIALS UPON TERMINATION. All records, files, documents and
materials, or copies thereof, relating to the Company's and its respective
affiliates' business which the Employee shall prepare, or use, or come into
contact with, shall be and remain the sole property of the Company or its
affiliates, as the case may be, and shall be returned promptly by the Employee
to the owner upon termination of the Employee's employment with the Company. As
used in this Section 8, "Company" shall include Atrium Companies, Inc. and any
of its subsidiaries.
9. SUCCESSORS. The Company may assign its rights and obligations under this
Agreement to any successor to all or substantially all the assets of the
Company, by merger or otherwise, subject, however, to the Employee's right to
terminate this Agreement for Good Reason as provided in Section 3(c), and may
assign or encumber this Agreement and its rights hereunder as security for
indebtedness of the Company and its affiliates. The Company shall require that
any successor agree to assume in writing the obligations of the Company
pursuant to this Agreement and the failure to secure such assumption on or
prior to the closing of any merger or similar transaction shall constitute Good
Reason under Section 3(c); provided, however, that nothing set forth in this
Section 9 shall be deemed to limit or otherwise affect in any way the right of
the Company or such successor to terminate the Employee's employment upon a
Change in Control as contemplated in Section 3(d). The rights of the Employee
under this Agreement may not be
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assigned or encumbered by the Employee, voluntarily or involuntarily, during
his lifetime, and any such purported assignment shall be void. However, all
rights of the Employee under this Agreement shall inure to the benefit of and
be enforceable by the Employee's personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. All amounts payable to the
Employee hereunder shall be paid, in the event of the Employee's death, to the
Employee's estate, heirs and representatives.
10. NON-COMPETITION.
a. The term of Non-Competition (herein so called) shall be for a term
beginning on the date hereof and continuing until (i) the first anniversary of
the Date of Termination if the Employee's employment is terminated by the
Company for Cause or due to Disability or by the Employee without Good Reason,
(ii) the Date of Termination if the Employee's employment is terminated by the
Company without Cause (and not due to Disability) or by the Employee for Good
Reason or (iii) the first anniversary of the last date of the Severance Period
if the Employee's employment is terminated upon a Change in Control.
b. During the term of Non-Competition, the Employee will not (other than
for the benefit of the Company or its affiliates pursuant to this Agreement)
directly or indirectly, individually or as an officer, director, employee,
shareholder, consultant, contractor, partner, joint venturer, agent, equity
owner or in any capacity whatsoever engage in the business of manufacturing,
marketing or distributing windows or doors or in any other business activity
that the Company is conducting on the Date of Termination or has notified the
Employee that it proposes to conduct in the United States (a "Competing
Business"), hire, attempt to hire, or contact or solicit with respect to hiring
any officer, employee or consultant of the Company or its affiliates, or divert
or take away any customers or suppliers of the Company or its affiliates.
Notwithstanding the foregoing, the Company agrees that the Employee may own less
than five percent of the outstanding voting securities of any publicly traded
company that is a Competing Business so long as the Employee does not otherwise
participate in such competing business in any way prohibited by the preceding
clause.
c. The Employee acknowledges that the geographic boundaries, scope of
prohibited activities, and time duration of the preceding paragraphs are
reasonable in nature and are no broader than are necessary to maintain the
goodwill of the Company and its affiliates and the confidentiality of their
Confidential Information, and to protect the other legitimate business
interests of the Company and its affiliates.
d. If any court determines that any portion of this Section 10 is invalid
or unenforceable, the remainder of this Section 10 shall not thereby be affected
and shall be given full effect without regard to the invalid provisions. If any
court construes any of the provisions of this Section 10, or any part thereof,
to be unreasonable because of the duration or scope of such provision, such
court shall have the power to reduce the duration or scope of such provision and
to enforce such provision as so reduced.
e. As used in this Section 10, "Company" shall include Atrium Companies,
Inc. and any of its subsidiaries.
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11. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
improvements and innovations (including all data and records pertaining thereto)
related to the Company's business, whether or not patentable, copyrightable,
registrable as a trademark, or reduced to writing, that the Employee may
discover, invent or originate during the Employment Period, and for a period of
twelve (12) months thereafter, either alone or with others and whether or not
during working hours or by the use of the facilities of the Company
("Inventions"), shall be the exclusive property of the Company. The Employee
shall promptly disclose all Inventions to the Company, shall execute at the
request of the Company any assignments or other documents the Company may deem
necessary to protect or perfect its rights therein, and shall assist the
Company, at the Company's expense, in obtaining, defending and enforcing the
Company's rights therein. The Employee hereby appoints the Company as his
attorney-in-fact to execute on his behalf any assignments or other documents
deemed necessary by the Company to protect or perfect its rights to any
Inventions. As used in this Section 11, "Company" shall include Atrium
Companies, Inc. and any of its subsidiaries.
12. MISCELLANEOUS.
a. Construction. This Agreement shall be deemed drafted equally by both
the parties. Its language shall be construed as a whole and according to its
fair meaning. Any presumption or principle that the language is to be construed
against any party shall not apply. The headings in this Agreement are only for
convenience and are not intended to affect construction or interpretation. Any
references to paragraphs, subparagraphs, sections or subsections are to those
parts of this Agreement, unless the context clearly indicates to the contrary.
Also, unless the context clearly indicates to the contrary, (a) the plural
includes the singular and the singular includes the plural; (b) "and" and "or"
are each used both conjunctively and disjunctively; (c) "any," "all," "each," or
"every" means "any and all", and "each and every"; (d) "includes" and
"including" are each "without limitation"; (e) "herein," "hereof," "hereunder"
and other similar compounds of the word "here" refer to the entire Agreement and
not to any particular paragraph, subparagraph, section or subsection; and (f)
all pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the identity of the entities
or persons referred to may require.
b. Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee: Xxxxx X. Xxxx, Xx.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxx 00000
(000) 000-0000
If to the Company: Atrium Companies, Inc.
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
12
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (214) 220 -7716
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
a. Enforcement. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a portion of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision there shall be added automatically as part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
b. Withholding. The Company shall be entitled to withhold from any
amounts payable under this Agreement any federal, state, local or foreign
withholding or other taxes or charges which it is from time to time required to
withhold. The Company shall be entitled to rely on an opinion of counsel if any
questions as to the amount or requirement of such withholding shall arise.
c. No Waiver No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at any time.
d. Equitable Relief. The Employee acknowledges that money damages would
be both incalculable and an insufficient remedy for a breach of Section 7, 8, 9,
10 or 11 by the Employee and that any such breach would cause the Company
irreparable harm. Accordingly, the Company, in addition to any other remedies at
law or in equity it may have, shall be entitled, without the requirement of
posting of bond or other security, to equitable relief, including injunctive
relief and specific performance, in connection with a breach of Section 7, 8, 9,
10 or 11 by the Employee.
e. Complete Agreement. The provisions of this Agreement constitute the
entire and complete understanding and agreement between the parties with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous oral and written agreements, representations and understandings
between the Employee and the Company, or its affiliates and subsidiaries,
including the Employment Agreement made as of January 1, 1995, by and between
Xxxxxxxx Companies, Inc. and Xxxxx X. Xxxx, Xx., which are hereby terminated.
Other than expressly set forth herein, the Employee and the Company acknowledge
and represent that there
13
are no other promises, terms, conditions or representations (oral or written)
regarding any matter relevant hereto. This Agreement may be executed in two or
more counterparts. Notwithstanding any other provision set forth in this
Agreement, the Employee hereby acknowledges and agrees that Atrium Corporation,
the Company's sole stockholder, and each of the Company's subsidiaries are
intended third party beneficiaries of this Section 12(g), and each of them
shall be entitled to rely on the acknowledgments and agreements of the Employee
made in this Section 12(g) to the same extent as if they were parties to this
Agreement.
f. Arbitration. The Company and the Employee agree to the resolution by
binding arbitration of all claims, demands, causes of action, disputes,
controversies or other matters in question ("claims"), whether or not arising
out of this Agreement or the Employee's employment (or its termination),
whether sounding in contract, tort or otherwise and whether provided by statute
or common law, that the Company may have against the Employee or that the
Employee may have against the Company or its parents, subsidiaries and
affiliates, and each of the foregoing entities' respective officers, directors,
employees or agents in their capacity as such or otherwise; except that this
agreement to arbitrate shall not limit the Company's right to seek equitable
relief, including injunctive relief and specific performance, and damages in a
court of competent jurisdiction for an alleged breach of Sections 7, 8, 9, 10
or 11 of this Agreement. Claims covered by this agreement to arbitrate also
include claims by the Employee for breach of this Agreement, wrongful
termination, discrimination (based on age, race, sex, disability, national
origin or any other factor) and retaliation. In the event of any breach of
this Agreement by the Company, it is expressly agreed that notwithstanding any
other provision of this Agreement, the only damages to which Employee shall be
entitled is lost compensation and benefits in accordance with Section 2(b) or
4. The Company and the Employee agree that any arbitration shall be in
accordance with the Federal Arbitration Act ("FAA") and, to the extent an issue
is not addressed by the FAA, with the then-current National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
("AAA"). If a party refuses to honor its obligations under this agreement to
arbitrate, the other party may compel arbitration in either federal or state
court. The arbitrator shall apply the substantive law of the State of Texas
(excluding Texas choice-of-law principles that might call for the application
of some other state's law), or federal law, or both as applicable to the claims
asserted. The arbitrator shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability or formation of
this agreement to arbitrate, including any claim that all or part of this
Agreement is void or voidable and any claim that an issue is not subject to
arbitration. The parties agree that venue for arbitration will be in Dallas,
Texas, and that any arbitration commenced in any other venue will be
transferred to Dallas, Texas, upon the written request of any party to this
Agreement. In the event that an arbitration is actually conducted pursuant to
this Section 12(h), the party in whose favor the Arbitrator renders the award
shall be entitled to have and recover from the other party all costs and
expenses incurred including reasonable attorneys' fees, expert witness fees,
and costs actually incurred. Any and all of the arbitrator's orders, decisions
and awards may be enforceable in, and judgment upon any award rendered by the
arbitrator may be confirmed and entered by, any federal or state court having
jurisdiction. All proceedings conducted pursuant to this agreement to
arbitrate, including any order, decision or award of the arbitrator, shall be
kept confidential by all parties.
g. Survival. Sections 7, 8, 9, 10, 11 and 12 of this Agreement shall
survive the termination of this Agreement.
14
h. Choice of Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Texas without reference to principles of conflicts of law of Texas or
any other jurisdiction, and, where applicable, the laws of the United States.
i. Amendment. This Agreement may not be amended or modified at any time
except by a written instrument approved by the Board and executed by the
Company and the Employee.
j. Employee Acknowledgment. Employee acknowledges that he has read and
understands this Agreement, is fully aware of its legal effect, has not acted
in reliance upon any representations or promises made by the Company other than
those contained in writing herein, and has entered into this Agreement freely
based on his own judgment.
IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand
and, pursuant to the authorization from the Board, the Company has caused this
Agreement to be executed in its name on its behalf, on this 1st day of January,
1998, to be effective as of the day and year first above written.
EMPLOYEE
/s/ XXXXX X. XXXX, XX.
---------------------------
Xxxxx X. Xxxx, Xx.
ATRIUM COMPANIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------
Xxxxxxx X. Xxxxxxxx
President
15
EXHIBIT A
Seventy-five percent (75%) of the Employee's Incentive Bonus ("EBITDA Bonus")
shall be payable based upon achievement of the following targets:
o If Atrium Aluminum and Vinyl achieves 80% of its budgeted EBITDA, the
Employee shall receive 50% of the EBITDA Bonus;
o If Atrium Aluminum and Vinyl achieves 90% of its budgeted EBITDA, the
Employee shall receive 75% of the EBITDA Bonus;
o If Atrium Aluminum and Vinyl achieves 100% of its budgeted EBITDA, the
Employee shall receive 100% of the EBITDA Bonus; and
o If Atrium Aluminum and Vinyl achieves 110% of its budgeted EBITDA, the
Employee shall receive 125% of the EBITDA Bonus.
The EBITDA Bonus will be paid on a sliding scale and on a pro rata
basis. For example, if 95% of the budgeted EBITDA is achieved, the
Employee is entitled to 87.5% of the EBITDA Bonus. No EBITDA Bonus
will be paid if Atrium Aluminum and Vinyl achieves less than 80% of
the budgeted EBITDA.
The remaining twenty-five percent (25%) of the Employee's Incentive Bonus shall
be payable based upon achievement of the following targets:
o If Atrium Aluminum and Vinyl meets its performance targets with
respect to Accounts Receivable Days, then the Employee shall be
entitled to receive 5% of the Employee's Incentive Bonus.
o If Atrium Aluminum and Vinyl meets its performance targets with
respect to Accounts Payable Days, then the Employee shall be entitled
to receive 5% of the Employee's Incentive Bonus.
o If Atrium Aluminum and Vinyl meets its performance targets with
respect to Inventory, then the Employee shall be entitled to receive
5% of the Employee's Incentive Bonus.
o If Atrium Aluminum and Vinyl meets its performance targets with
respect to Fixed Assets, then the Employee shall be entitled to
receive 5% of the Employee's Incentive Bonus.
o If Atrium Aluminum and Vinyl meets its performance targets with
respect to Lost Work Days, then the Employee shall be entitled to
receive 5% of the Employee's Incentive Bonus.
16
These parts of the Employee's Incentive Bonus shall not be paid on a
sliding scale or prorata basis.
EXHIBIT B
CRITERIA 1998 TARGET 1997 ACTUAL
-------- ----------- -----------
Budgeted EBITDA $7,630,079 $6,867,207
Number of Days Accounts Receivable
Outstanding 52.1 (or less) 54.8
Number of Days Accounts Payable
Outstanding 46.9 (or more) 45.8
Number of Inventory Turns 11.00 (or more) 10.85
Number of Fixed Assets Turns 60.0 (or more) 59.8
Number of Days Lost Due to Work
Injuries 3.18 (or less) 398
APPROVED:
/s/ XXXXX X. XXXX, XX. JANUARY 1, 1998
------------------------------- -----------------
Xxxxx X. Xxxx, Xx. Date
/s/ XXXXXXX X. XXXXXXXX JANUARY 1, 1998
------------------------------- -----------------
Xxxxxxx X. Xxxxxxxx Date
/s/ XXXX X. XXXX JANUARY 1, 1998
------------------------------- -----------------
Xxxx X. Xxxx Date
