Exhibit 10.27
Diamond Triumph Auto Glass, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000-0000
As of October 21, 2004
Xx. Xxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Dear Xxxxxxx:
This Letter Agreement sets forth the understanding between you and
Diamond Triumph Auto Glass, Inc., a Delaware corporation (the "Company"),
regarding your resignation as an officer and director of the Company.
1. Resignation. Your last day of active employment with the Company was
October 21, 2004 (the "Resignation Date"). As of the Resignation Date, you
ceased to be Co-Chairman of the board of directors of the Company, and you
ceased to be an employee, officer, or director of the Company or any of its
subsidiaries. Your termination of employment will be considered a termination by
reason for your resignation, pursuant to Section 11.2 of your Employment
Agreement with the Company, dated as of November 17, 2003 (the "Employment
Agreement")).
2. Compensation. You shall receive your accrued, but unpaid base salary
(less any applicable withholding of any amounts required by Federal, state of
local law) through the Resignation Date.
3. Restrictive Covenants. You and the Company acknowledge and agree
that you will be subject (a) to continued compliance for five (5) years after
the Resignation Date with the non-competition and non-solicitation covenants set
forth in Sections 7 and 8 of the Employment Agreement and (b) to continued
compliance after the Resignation Date with the confidentiality covenant set
forth in Section 9 of the Employment Agreement. You and the Company acknowledge
and agree that the non-competition and non-solicitation covenants set forth in
Sections 7 and 8 of the Employment Agreement are reasonable and that the
payments and benefits that you received under the Employment Agreement
constitute good and sufficient consideration for such non-competition and
non-solicitation covenants.
4. Non-Disparagement. You agree not to disparage the Company, any of
its products or practices, or any of its directors, officers, agents,
representatives, stockholders or affiliates (including, without limitation,
Xxxxxxx Xxxxx & Partners, L.P. or any of its investors, employees or
affiliates), either orally or in writing, at any time.
5. Non-Disclosure. You agree not to disclose the terms or existence of
this Letter Agreement and the Waiver and Release of Claims annexed hereto as
Exhibit A (the "Waiver") to any person, agency, institution, company, or other
entity unless the Company agrees to such disclosure in advance and in writing,
provided that you may, without such permission (a) disclose that you resigned
your employment and make such disclosures as are required by law, including
disclosures to taxing agencies, and disclose the terms of this agreement to your
spouse and immediate family members, attorney(s), accountant(s), tax advisor(s),
and other professional service provider(s), as reasonably necessary, and (b)
disclose the terms and existence of the covenants referenced in Sections 3 and 4
hereof to prospective future employers; provided in each case that you instruct
such person(s) that the terms of this Letter Agreement and the Waiver are
strictly confidential and are not to be revealed to anyone else except as
required by law.
6. Waiver. You and the Company agree to sign and be bound by the
Waiver, which shall be considered an integral part of this Letter Agreement.
7. Entire Agreement. This Letter Agreement, the Waiver and the Purchase
Agreement dated as of October 21, 2004 between yourself and Xxxxxxx Xxxxxx (the
"Purchase Agreement") constitute the entire understanding between you and the
Company regarding your resignation of employment with, or otherwise from, the
Company and shall supersede any and all prior agreements with respect thereto;
provided, however, that Section 10 of the Employment Agreement will remain in
full force and effect. You acknowledge and agree that the payments and benefits
set forth in this Letter Agreement shall constitute the only payments and
benefits that you will be entitled to receive from the Company, its
stockholders, its predecessors or its affiliates in connection with your
termination of employment or otherwise. For the avoidance of doubt, nothing in
the preceding sentence shall prohibit you from selling shares of the Company
common stock to Xxxxxxx Xxxxxx pursuant to the Purchase Agreement.
[signature page follows]
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Please indicate your acceptance of the terms and provisions of this
Letter Agreement and the Waiver by signing both copies of this Letter Agreement
and the Waiver and returning one copy of each to me. The other copy of each is
for your files. By signing below, you acknowledge and agree that you have
carefully read this Letter Agreement in its entirety; fully understand and agree
to its terms and provisions; and intend and agree that it be final and legally
binding on you and the Company. This Letter Agreement shall be governed and
construed under the internal laws of the State of New York and may be executed
in several counterparts.
Very truly yours,
DIAMOND TRIUMPH AUTO GLASS, INC.
/s/ Xxxxxxx Xxxxxx
----------------------
By: Xxxxxxx Xxxxxx
Title: Co-Chairman
Agreed, Acknowledged and Accepted:
/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx
Date: December 1, 2004
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EXHIBIT A
WAIVER AND RELEASE OF CLAIMS
In exchange for the payments and benefits described in the attached
Letter Agreement, dated as of October 21, 2004 (the "Letter Agreement"), Xxxxxxx
Xxxxx ("Xxxxx") and Diamond Triumph Auto Glass, Inc. (the "Company") freely and
voluntarily agree to enter into and be bound by this Waiver and Release of
Claims ("Waiver"):
1. Xxxxx acknowledges that his employment with the Company and all
subsidiaries and affiliates thereof, terminated on October 21, 2004 (the
"Termination Date"). Xxxxx further acknowledges that the Company delivered this
Waiver to him on November 16, 2004.
2. Xxxxx agrees for himself, his spouse and children, his heirs,
beneficiaries, devisees, executors, administrators, attorneys, personal
representatives, successors and assigns, hereby forever to release, discharge,
and covenant not to xxx the Company, the Company's past, present, or future
parent, affiliated, related, and/or subsidiary entities, and all of their past
and present directors, shareholders, officers, general or limited partners,
employees, agents, and attorneys, and agents and representatives of such
entities, and employee benefit plans in which Xxxxx is or has been a participant
by virtue of his employment with the Company, from any and all claims, debts,
demands, accounts, judgments, rights, causes of action, equitable relief,
damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability of
every kind and character whatsoever (including attorneys' fees and costs),
whether in law or equity, known or unknown, asserted or unasserted, suspected or
unsuspected, which Xxxxx has or may have had against such entities based on any
events or circumstances arising or occurring on or prior to the Termination Date
(or, with respect to claims of disparagement, arising or occurring on or prior
to the date this Waiver is executed), arising directly or indirectly out of,
relating to, or in any other way involving in any manner whatsoever, (a) his
employment with the Company or the termination thereof or (b) his status at any
time as a holder of any securities of the Company, and any and all claims
arising under federal, state, or local laws relating to employment, or
securities, including without limitation claims of wrongful discharge, breach of
express or implied contract, fraud, misrepresentation, defamation, or liability
in tort, claims of any kind that may be brought in any court or administrative
agency, any claims arising under Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Civil Rights Act of 1871, the Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Americans with
Disabilities Act, the Fair Labor Standards Act, the Rehabilitation Act, the
Worker Adjustment and Retraining Notification Act, the Employee Retirement
Income Security Act, the Family and Medical Leave Act, the Securities Act of
1933, the Securities Exchange Act of 1934 and similar state or local statutes,
ordinances and regulations, provided, however, notwithstanding anything to the
contrary set forth herein, that the release set forth in this Section 2 shall
not extend to (x) [benefit claims under employee pension benefit plans in which
Xxxxx is a participant by virtue of his employment with the Company or to]
benefit claims under employee welfare benefit plans for
occurrences (e.g., medical care, death, or onset of disability) arising after
the execution of this Waiver by Xxxxx , and (y) any obligation assumed under
this Waiver by any party hereto.
3. In consideration of the terms and conditions in the attached Letter
Agreement, the Company, the Company's past, present, or future parent,
affiliated, related and/or subsidiary entities, and all of their past and
present directors, shareholders, officers, general or limited partners,
employees, agents, and attorneys, and agents and representatives of such
entities hereby release and forever discharge Xxxxx, his heirs, administrators,
and assigns from any and all federal and/or state law claims, administrative
proceedings, actions, causes of action, charges, grievances, debts, expenses,
sums of money, accounts, claims of benefits and claims and demands of any kind
or description whatsoever, whether at law or in equity, known or unknown,
arising or occurring on or prior to the Termination Date, arising directly or
indirectly out of, relating to, or in any other way involving in any manner
whatsoever, (a) his employment with the Company or the termination thereof or
(b) his status at any time as a holder of any securities of the Company.
4. Xxxxx understands and agrees that this Waiver will be binding on him
and his heirs, administrators and assigns. Xxxxx acknowledges that he has not
assigned any claims or filed or initiated any legal proceedings against any of
the Releasees.
5. Except as may be required by law, Xxxxx agrees that he will not
disclose the existence or terms of this Waiver to anyone except his accountant,
attorney or spouse, each of whom shall also be bound by this confidentiality
provision.
6. Xxxxx understands that this Waiver includes a release of claims
arising under the Age Discrimination of Employment Act. Xxxxx understands and
warrants that he has been given twenty-one (21) days to review and consider
whether to sign this Waiver. The Company hereby advises Xxxxx of his right to
consult with an attorney before signing the Waiver, and Xxxxx acknowledges and
warrants that he has had an opportunity to consult with an attorney and has
either held such consultation or has determined not to consult with an attorney.
Xxxxx understands that he may revoke his acceptance of this Waiver by delivering
notice of his revocation to the Chief Financial Officer of the Company within
seven (7) days of the day he signs the Waiver. If Xxxxx does not revoke his
acceptance of this Waiver within seven days of the day he signs it, it will be
legally binding and enforceable.
7. Xxxxx and the Company acknowledge and agree that if any provision of
this Waiver is found, held or deemed by a court of competent jurisdiction to be
void, unlawful or unenforceable under any applicable statute or controlling law,
the remainder of this Waiver shall continue in full force and effect.
8. This Waiver is deemed made and entered into in the State of New
York, and in all respects shall be interpreted, enforced and governed under the
internal laws of the State of New York, to the extent not preempted by federal
law.
* * * * *
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Xxxxx and the Company acknowledge and agree that they have carefully
read and fully understand all of the provisions of this Waiver and that Xxxxx
and the Company voluntarily enter into this Waiver by signing below. Upon
execution, Xxxxx agrees to deliver a signed copy of this Waiver to the Chief
Financial Officer of the Company.
/s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
Date: December 1, 2004
DIAMOND TRIUMPH AUTO GLASS, INC.
/s/ Xxxxxxx Xxxxxx
--------------------------------
By: Xxxxxxx Xxxxxx
Title: Co-Chairman
Date: December 1, 2004
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