AGREEMENT AND RELEASE
Xxxxxxx X. Xxxxxxxx (hereinafter "Executive"), D and W Holdings, Inc.,
Atrium Corporation, Atrium Companies, Inc., Wing Industries Holdings, Inc.,
Door Holdings, Inc., Wing Industries, Inc., Atrium Door and Window Company of
Arizona, Atrium Door and Window Company - West Coast, Atrium Door and Window
Company of the Northeast, Atrium Door and Window Company of New York, Inc.,
Atrium Door and Window Company of New England, Inc., X.X. Xxxxx Company,
Inc., Total Trim, Inc. and their subsidiaries and affiliates (collectively
the "Company"), Ardshiel, Inc. ("Ardshiel"), GE Investment Management
Incorporated ("GEIM") and GE Investment Private Placement Partners II, a
Limited Partnership ("GEIPP") hereby enter into this Agreement and Release
(hereinafter the "Agreement") on April 1, 1999. In exchange for the
consideration listed below and on Attachment A, Executive promises to comply
fully with the terms of this Agreement. In exchange for Executive's promise,
the Company agrees to provide Executive with the consideration listed below
and on Attachment A to this Agreement, incorporated herein by reference.
1. TERMINATION OF EMPLOYMENT. Executive's last day of employment with
the Company shall be March 31, 1999. This shall be considered Executive's
termination date ("Termination Date"). Executive agrees to submit concurrently
with this Agreement a letter of resignation as an officer and director of D and
W Holdings, Inc., and any of its direct or indirect affiliates or subsidiaries,
in accordance with this Agreement and effective as of the Termination Date.
Executive agrees to vacate the space he currently occupies as an employee of the
Company ("Option Space") at Mockingbird Towers Office Building,
0000 X. Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000 (the "Building")
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within 180 days after the Termination Date. Executive further agrees to cause
Xxxxxxxx Interests, Inc. to vacate the space Xxxxxxxx Interests, Inc. currently
occupies in the Building ("Xxxxxxxx Subleased Premises") within 180 days after
the Termination Date, and to terminate the Sublease Agreement entered into on
February 1, 1997 between Atrium Companies, Inc. and Xxxxxxxx Interests, Inc. In
consideration for the promises contained in this paragraph 2, the Company agrees
to pay $50,000 to Xxxxxxxx Interests, Inc. on the date Xxxxxxxx Interests, Inc.
vacates the Xxxxxxxx Subleased Premises. Utilization of the Option Space and
the Xxxxxxxx Subleased Premises prior to vacating shall be on the same terms and
conditions as the day before the Termination Date, except that Executive agrees
to utilize the Xxxxxxxx Interests, Inc. door for all ingress and egress of the
Option Space and the Xxxxxxxx Subleased Premises, and Executive further agrees
to limit his presence in the Building to the Option Space, the Xxxxxxxx
Subleased Premises, common areas of the Building, and necessary rights of way.
2. CONSIDERATION UPON TERMINATION. As of the Termination Date, Executive
shall no longer be employed by the Company. In consideration of the Executive's
performance of his obligations under this Agreement and in satisfaction of all
claims and benefits under any employee benefit plans maintained by the Company,
the Company shall pay Executive the amounts and provide Executive the benefits
listed on Attachment A. Executive understands that, except for the benefits to
which Executive may be entitled under the express terms of the Company's
employee benefit plans and policies (in form and substance as in effect on the
date this Agreement is signed, subject to any subsequent amendments applicable
generally to all participants under such plans and policies), that certain
warrant dated October 2, 1998 entitling Executive to purchase 4,735,369 shares
of common stock of D and W Holdings, Inc., and amendments thereto
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(the "Executive Warrant"), that certain exchange warrant dated October 2, 1998
entitling Executive to purchase 1,000,000 shares of common stock of D and W
Holdings, Inc., and amendments thereto (the "Exchange Warrant"), that certain
Stockholders Agreement dated as of October 2, 1998, by and among D and W
Holdings, Inc. and the stockholders signatory thereto (including Executive), and
amendments thereto (the "Stockholders Agreement"), and the consideration listed
on Attachment A and in this Agreement, Executive will receive no other wage,
benefit, or other payments from the Company.
3. NON-DISPARAGEMENT. The Company and Executive agree that there will be
no press release concerning this Agreement or the termination of Executive's
employment following the signing of this Agreement, unless required by law or
agreed to by both parties. Executive agrees not to disparage the Company,
Ardshiel, GEIM, GEIPP, or any of the affiliates, directors, officers, employees,
agents or representatives of any of them, or any of their products or practices,
either orally or in writing. GEIM, GEIPP, the officers and members of the Board
of Directors of the Company, and principals of Ardshiel agree not to disparage
Executive or any of his practices, either orally or in writing.
4. RELEASE. (a) Except for claims solely to enforce his rights under
this Agreement (subject to paragraph 5 of this Agreement) and claims to enforce
rights arising under the Age Discrimination in Employment Act of 1967 ("ADEA")
after Executive has signed this Agreement, Executive promises to and hereby does
release the Company, Ardshiel, GEIM, GEIPP, their parents, subsidiaries,
affiliates, related companies, and their employees, officers, directors,
attorneys, agents, shareholders, partners, and representatives, as well as the
trustees of any of their employee benefit plans (collectively, the "Releasees"),
from any and all actions, causes of action, suits, debts, claims, complaints,
charges, contracts, controversies, agreements, promises,
4
damages, counterclaims, cross-claims, claims for contribution and/or indemnity,
claims for costs and/or attorney's fees, judgments and demands whatsoever, in
law or equity, known or unknown, he ever had, now has, or may have in the future
based on the Releasees' conduct prior to the Termination Date. Executive
understands that this includes, but is not limited to, the release of any rights
or claims Executive may have under the ADEA, which prohibits age discrimination,
Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits
discrimination based on race, color, national origin, religion or sex, the
Americans with Disabilities Act ("ADA"), which prohibits disability
discrimination, the Family and Medical Leave Act, which imposes requirements for
leave related to a serious health condition or the birth, adoption or placement
of a child, claims pursuant to any other federal, state or local law regarding
discrimination based on age, race, sex, pregnancy, religion, national origin,
marital status or disability or any other unlawful basis, claims for alleged
violation of any other local, state or federal law, regulation, ordinance,
public policy or common-law duty having any bearing whatsoever upon the terms
and conditions of, and/or the cessation of Executive's employment with any of
the Releasees. Executive understands that this also includes a release by
Executive of claims for breach of express or implied contract, wrongful
discharge, constructive discharge, breach of an implied covenant of good faith
and fair dealing, negligent or intentional infliction of emotional distress, and
any claims under the Employee Retirement Income Security Act of 1974 ("ERISA").
This release is intended to cover all claims in existence as of the date of
Executive's signature on this Agreement, including both claims about which
Executive knows and about which Executive does not know. Executive further
represents that he has not filed any claims against the Releasees, or any of the
individuals covered by this Agreement with any governmental
5
agency or any court, and promises that Executive will not do so at any time
hereafter regarding any matter covered by this Agreement. Nothing in this
Agreement shall prohibit Executive from filing a charge of discrimination with
the U.S. Equal Employment Opportunity Commission, provided that Executive agrees
to waive any relief with respect to such charge of discrimination. Further,
notwithstanding the foregoing, Executive does not release the Company, Ardshiel,
GEIM and GEIPP from (i) any claim related to real estate transactions involving
Xxxxxxxx Interests, Inc. and/or its affiliates; or (ii) any claim involving
fraud, willful misconduct, intentional misconduct or criminal activity.
(b) Except for claims solely to enforce their rights under this Agreement
(subject to paragraph 5 of this Agreement) the Company, Ardshiel, GEIM, and
GEIPP each promise to and hereby do release Executive from any and all causes of
action, suits, debts, claims, complaints, charges, contracts, controversies,
agreements, promises, damages, counterclaims, cross-claims, claims for
contribution and/or indemnity, claims for costs and/or attorney's fees,
judgments and demands whatsoever, in law or equity, known or unknown, the
Company, Ardshiel, GEIM or GEIPP ever had, now has, or may have in the future
based on Executive's conduct prior to the Termination Date. This release is
intended to cover all claims in existence as of the date of Executive's
signature on this Agreement, including both claims about which the Company,
Ardshiel, GEIM or GEIPP know and about which the Company, Ardshiel, GEIM or
GEIPP do not know. The Company, Ardshiel, GEIM and GEIPP each further represent
that it has not filed any claims against Executive with any governmental agency
or any court. Notwithstanding the foregoing, the Company, Ardshiel, GEIM and
GEIPP do not release Executive from (i) any claim arising in connection with the
Merger Agreement dated August 3, 1998, as amended (the "Merger Agreement") (A)
to the extent of Executive's Maximum Security
6
Escrow Amount (as defined in the Merger Agreement) thereunder; (B) related to a
Title Claim (as defined in the Merger Agreement); or (C) under Section 13.16 of
the Merger Agreement; (ii) any claim related to real estate transactions
involving Xxxxxxxx Interests, Inc. and/or its affiliates; and (iii) any claim
involving fraud, willful misconduct, intentional misconduct, or criminal
activity.
(c) Notwithstanding anything to the contrary contained in this Section 4,
Executive shall not be deemed to have released any rights relating to the
Exchange Warrant, Executive Warrant and Stockholders Agreement.
5. MEDIATION; ARBITRATION. (a) With the exception of matters for which a
dispute resolution mechanism is prescribed in the Exchange Warrant, the
Executive Warrant, and the Stockholders Agreement, the Company, Ardshiel, GEIM,
GEIPP and Executive agree to submit to mediation any claim or controversy
arising out of or relating to this Agreement or any breach thereof if any of
them requests mediation and gives written notice to the other (the "Mediation
Notice"). Any notice given pursuant to the preceding sentence shall include a
brief statement of the claim or controversy. If the parties do not resolve the
claim or controversy within five (5) days after the date of the Mediation
Notice, the parties shall then use reasonable efforts to agree upon an
independent mediator. If the parties do not agree upon an independent mediator
within ten (10) days after the date of the Mediation Notice, either party may
request that JAMS/Endispute ("JAMS"), or a similar mediation service of a
similar national scope if JAMS no longer then exists, appoint an independent
mediator. The parties shall share the costs of mediation equally and shall pay
such costs in advance upon the request of the mediator or any party. Within ten
(10) days after selection of the mediator, the mediator shall set the mediation.
The pendency of a mediation, or the failure to initiate a
7
mediation, shall not delay or prevent an action to enforce this Agreement
pursuant to paragraph 5(b) below.
(b) The parties hereto agree that any dispute regarding any aspect of this
Agreement or any act that allegedly has or would violate any provision of this
Agreement (except for claims for violation of paragraphs 3, 8, 9, 10 or
Attachment B hereof) will be submitted to arbitration in Dallas, Texas, or such
other location as the parties may mutually agree, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as
the exclusive remedy for such claim or dispute.
Only individuals who are (i) lawyers engaged full-time in the practice of
law and (ii) on the AAA register of arbitrators shall be selected as an
arbitrator. Within twenty (20) days of the conclusion of the arbitration
hearing, the arbitrator shall prepare written findings of fact and conclusions
of law. Judgment on the written award may be entered and enforced in any court
of competent jurisdiction. It is mutually agreed that the written decision of
the arbitrator shall be valid, binding, final and non-appealable; provided
however, that the parties hereto agree that the arbitrator shall not be
empowered to award punitive damages against any party to such arbitration. The
arbitrator shall require the non-prevailing party to pay the arbitrator's full
fees and expenses or, if in the arbitrator's opinion there is no prevailing
party, the arbitrator's fees and expenses will be borne equally by the parties
thereto. In the event an action is brought to enforce the provisions of this
Agreement pursuant to this paragraph 5(b), the non-prevailing party shall be
required to pay the reasonable and necessary attorney's fees and expenses of the
prevailing party, except that if in the opinion of the court or arbitrator
deciding such action there is no prevailing party, each party shall pay its own
attorney's fees and expenses.
The parties hereto agree that such arbitration will be confidential and no
details,
8
descriptions, settlements or other facts concerning such arbitration shall be
disclosed or released to any third party without the specific written consent of
the other party or parties unless required by law or court order or in
connection with enforcement of any decision in such arbitration.
Notwithstanding the foregoing, Executive, the Company, Ardshiel, GEIM and
GEIPP recognize that a violation of the non-competition and/or non-disclosure
provisions of this Agreement and in Attachment B would cause irreparable harm to
the Company and the Company is entitled to seek relief in court for any alleged
violations of such provisions. Executive, the Company, Ardshiel, GEIM and GEIPP
further recognize that a violation of the non-disparagement provisions, and/or
confidentiality provisions of this Agreement would cause irreparable harm and
each party is entitled to seek relief in court for any alleged violations of
such provisions. Nothing in this Agreement shall be construed to limit the
power of a court in appropriate circumstances under applicable rules or statutes
to award sanctions or costs in any such action.
6. ESCROW RELEASE. Upon receipt of written instructions satisfactory to
Ardshiel from each of the parties to the Merger Agreement, the Company will sign
and deliver to Executive a letter instructing Norwest Bank Texas, N.A. to
release to Executive his applicable percentage of the Escrow Amount established
by the Indemnification Escrow Agreement entered into on October 2, 1998,
provided that an amendment to the Merger Agreement is adopted in substantially
the form as attached hereto as Attachment D.
7. BREACH OF PROMISES. If Executive breaks his promises in paragraphs 4
or 5 of this Agreement and files a lawsuit based on a claim that Executive has
released pursuant to this Agreement or files in court a claim subject to the
exclusive arbitration
9
provisions hereof, Executive agrees that he will pay for all costs incurred by
the Releasees, including reasonable attorney's fees, in defending against
Executive's claim. If the Company, Ardshiel, GEIM or GEIPP breaks its promises
in paragraph 4 or 5 of this Agreement and files a lawsuit based on a claim that
the Company, Ardshiel, GEIM or GEIPP has released pursuant to this Agreement or
files in court a claim subject to the exclusive arbitration provisions hereof,
the Company agrees that it will pay for all costs incurred by Executive,
including reasonable attorney's fees, in defending against any such claim.
8. CONFIDENTIALITY OF AGREEMENT. The Company, Ardshiel, GEIM, GEIPP and
Executive promise to keep the negotiation and terms of this Agreement completely
confidential except as may be required by law. Notwithstanding the foregoing,
the Company, Ardshiel, GEIM, GEIPP and Executive agree that (a) the Company,
Ardshiel, GEIM and GEIPP may disclose such information that is a part of this
Agreement as they deem necessary in a Form 8-K or in connection with any
financing transaction, including an offering of securities; (b) the Company,
Ardshiel, GEIM and GEIPP may disclose such information as they deem necessary to
their professional representatives, including, but not limited to, investment
bankers and attorneys so long as these individuals are informed of, and agree to
be bound by, this confidentiality clause; and (c) the Executive may disclose
such information as he deems necessary to his immediate family and professional
representatives, so long as these individuals are informed of, and agree to be
bound by, this confidentiality clause.
9. NON-COMPETITION. (a) Executive agrees not to compete with the
Company for the period beginning on the Termination Date and ending on a date
which is eighteen months after the Termination Date ("Term of Non-Competition").
For the purposes of this paragraph 9, "compete" shall mean directly or
indirectly working or
10
serving, individually or as an officer, director, employee, shareholder, equity
owner, consultant, contractor, partner, joint venturer, agent, equity owner or
in any capacity whatsoever (1) in the business of manufacturing, marketing or
distributing aluminum, wood or vinyl windows or doors or (2) in any other
business activity that the Company (i) is conducting on the Termination Date
that was within Executive's management responsibility within the year
immediately prior to his termination, or (ii) has notified the Executive as of
the Termination Date that it proposes to conduct in the United States (a
"Competing Business"). Additionally, "compete" also means Executive's hire,
attempt to hire, or contact or solicitation with respect to hiring any employee
of the Company, or any effort to divert or take away any customers or suppliers
of the Company. Notwithstanding the foregoing, the Company agrees that
Executive 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
Executive does not otherwise participate in such Competing Business in any way
prohibited by this paragraph 9. Executive is prohibited from competing in any
state in which the Company did business within the last two years. Executive
expressly agrees that the restrictions set forth in this paragraph 9 have been
designed to be reasonable and are no greater than are required for the
protection of the Company.
(b) The Executive 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
confidentiality and the goodwill of the Company's proprietary information, plans
and services and to protect the other legitimate business interests of the
Company.
10. NON-DISCLOSURE. Executive hereby acknowledges and agrees to comply
with the agreement regarding confidential materials of the Company in Attachment
B,
11
attached hereto, except as required by law or by order of a court or government
agency, or pursuant to written consent given by a duly authorized officer of the
Company.
11. FINANCIAL INFORMATION. The Company agrees to provide Executive with
the entire quarterly Board of Directors package, and, in any event, the
consolidated financial statements (including the balance sheet and income
statements), comparisons of EBTIDA for the relevant periods to EBTIDA for prior
comparable periods, and comparisons of EBTIDA to any part of the budget, prior
to each quarterly Board of Directors meeting, as long as Executive holds the
Exchange Warrant, Executive Warrant, or is a shareholder of the Company. In the
event that no quarterly Board of Directors meeting is scheduled or held, the
Company agrees to promptly deliver financial information to Executive that would
otherwise be included in the quarterly Board of Directors package upon written
request from Executive. The Company agrees to promptly deliver to Executive
copies of financial statements and other financial information that are required
to be made available to shareholders of the Company pursuant to the Stockholders
Agreement as long as Executive holds the Exchange Warrant, Executive Warrant, or
is a shareholder of the Company.
12. RESPONSIBILITIES UPON TERMINATION. (a) Executive shall advise
the Company of the identity of his new employer within ten (10) days after
accepting new employment and further agrees to keep the Company so advised of
any change in employment during the Term of Non-Competition set forth in
paragraph 9. Notwithstanding the foregoing, Executive shall not be required to
provide the identity of his new employer to the Company if his new employer is
Xxxxxxxx Interests, Inc., or an affiliate of Xxxxxxxx Interests, Inc.;
(b) The Company in its sole discretion may notify any new employer of
12
Executive that he has an obligation not to compete with the Company during such
term; and
(c) Executive shall deliver to the Company any and all original records,
forms, contracts, memoranda, work papers, customer data and any other documents
which have come into his possession by reason of his employment with the
Company, irrespective of whether or not any of said documents were prepared for
him, within 30 days after the Termination Date. Without limiting his duty to
preserve confidentiality set forth in paragraph 8 above and in Attachment B,
Executive may retain copies of any of said documents. From this day forward,
Executive agrees not to remove any originals or copies of any documents from the
Company's premises without the written consent of the Board of Directors of the
Company. Should Executive find any original Company documents at his home or
other location, Executive agrees to return all original documents to the Company
within 48 hours of the discovery.
13. PERSONAL PROPERTY. The furniture, lighting equipment, computer
equipment, office utensils and other personal property listed on Attachment C
hereto that were purchased by the Company ("Company Property") are hereby
conveyed to Executive by the Company. To the extent permitted under equipment
leases applicable to the items listed on Attachment C, the Company agrees to
assign the applicable equipment leases to Executive.
14. ADMINISTRATIVE ASSISTANT. Executive's administrative assistant shall
report to Executive through April 30, 1999. If Executive does not offer his
administrative assistant employment with Xxxxxxxx Interests, Inc. or one of its
affiliates, or if his administrative assistant does not accept employment with
Xxxxxxxx Interests, Inc. or one of its affiliates, the Company will offer
continued employment to Executive's administrative assistant after April 30,
1999 in an appropriate capacity with the
13
Company.
15. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
improvements and innovations (including all data and records pertaining thereto)
related to Executive's business, whether or not patentable, copyrightable,
registrable as a trademark, or reduced to writing, that Executive may discover,
invent or originate during his employment with the Company, 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. Executive 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. Executive 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.
16. ACKNOWLEDGMENTS. Executive acknowledges that (a) Executive received a
copy of this Agreement and was offered a period of twenty-one (21) days to
review and consider it; (b) Executive understands that he can use as much of the
21-day period as he wishes prior to signing and if the full 21-day period is not
used, Executive knowingly waives the remainder of the period; (c) Executive
consulted with and was advised by independent counsel of his choosing before
signing this Agreement; (d) no promise or inducement for this Agreement has been
made except as set forth in this Agreement; (e) this Agreement is executed by
Executive without reliance upon any statement or representation, written or
oral, by the Company or any of the Releasees or their employees, officers,
directors, agents or representatives, except as set forth herein; and
14
(f) Executive is legally competent to execute this Agreement and to accept full
responsibility therefor. The Company acknowledges that this Agreement has been
duly authorized and executed by the Company, and is a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms.
17. REVOCATION PERIOD AND TERMINATION OF AGREEMENTS. Executive
acknowledges that he understands that he may revoke this Agreement within seven
(7) days of the date of signing of this Agreement by delivering a written notice
of revocation to the Company, no later than the close of business on the seventh
(7th) day after the Agreement is signed. If no such revocation is received, (1)
this Agreement is effective and irrevocable as of the eighth (8th) day following
the signing of this Agreement; (2) the Executive Employment Agreement dated
October 2, 1998 between the Company and Executive shall automatically be
terminated and of no further force or effect; and (3) the Expense Reimbursement
Agreement dated October 2, 1998 between the Company and Executive shall
automatically be terminated and of no further force or effect, and no sums shall
be due thereunder.
18. PROVISION DETERMINED INVALID. If any court determines that any
portion of this Agreement is invalid or unenforceable, the remainder of this
Agreement 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 Agreement, or any part thereof, to be unreasonable and unenforceable
because of the duration, scope, restrictions or burdens of such provision, such
court shall have the power to reduce the duration, scope, restrictions or
burdens of such provision and to enforce such provision as so reduced.
19. WAIVER. The waiver by any party of a breach of any provision herein
shall not operate or be construed as a waiver of any subsequent breach by any
party.
15
20. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of Executive, his heirs, beneficiaries, successors and assigns, and the
Company, Ardshiel, GEIM, GEIPP and their respective successors, employees,
officers, directors, agents and representatives in their capacity as such.
21. COMPLETE AGREEMENT. This Agreement (including the Attachments
thereto) sets forth the entire agreement between Executive, the Company,
Ardshiel, GEIM and GEIPP and may not be modified, altered, changed or terminated
except upon the express prior written consent of Executive, the Company,
Ardshiel, GEIM and GEIPP. Except as expressly set forth in Attachment A hereto,
nothing contained in this Agreement shall be construed to modify or amend the
Exchange Warrant, Executive Warrant, Stockholders Agreement, or Merger
Agreement.
22. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas, without giving effect to its conflict of law rules.
23. MISCELLANEOUS. (a) Whenever the terms "hereof", "hereby", "herein",
or words of similar import are used in this Agreement they shall be construed as
referring to this Agreement in its entirety rather than to a particular section
or provision, unless the context specifically indicates to the contrary. Any
reference to a particular "paragraph" or "section" shall be construed as
referring to the indicated paragraph or section of this Agreement unless the
context specifically indicates to the contrary. The use of the term "including"
herein shall be construed as meaning "including without limitation."
24. HEADINGS. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
25. 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
16
mail, return receipt requested, postage prepaid, addressed as follows:
IF TO EXECUTIVE: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
with a copy to:
O. Xxxxxx Xxxxxx, Jr.
0000 X. Xxxxxxxxxxx Xxxx
Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
IF TO THE COMPANY OR ARDSHIEL: D and W Holdings, Inc.
c/o Ardshiel, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Xxxx X. Xxxxx
Xxxxx Xxxxxxxxxx
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
IF TO GEIM OR GEIPP: General Electric Investment Corporation
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxxxx LLP
17
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
or to such other address as any party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
26. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD ALL OF THE PROVISIONS OF THIS
AGREEMENT AND RELEASE, THAT I HAVE CONSULTED COUNSEL TO THE EXTENT I DEEM
NECESSARY AND THAT I AM VOLUNTARILY ENTERING INTO THIS AGREEMENT AND RELEASE.
------------------------------ -----------------------------
Xxxxxxx X. Xxxxxxxx
Name:
-----------------------
Title:
----------------------
For D and W Holdings, Inc.
-----------------------------
Name:
-----------------------
Title:
----------------------
For Ardshiel, Inc.
-----------------------------
Name:
-----------------------
Title:
----------------------
For GE Investment Management
Incorporated
-----------------------------
Name:
-----------------------
Title:
------------------------
18
For GE Investment Private
Placement Partners II, a Limited
Partnership
Dated: April 1, 1999
19
ATTACHMENT A
CONSIDERATION TO BE PAID TO XXXXXXX X. XXXXXXXX
Subject to the terms of the foregoing Agreement, Xxxxxxx X. Xxxxxxxx
("Executive") will receive the following consideration. All payments and
benefits under the Agreement and this Attachment A are subject to applicable
federal withholding tax and any other taxes as required by law. Amounts payable
under the Agreement and this Attachment A shall be reduced by any amounts
Executive owes to D and W Holdings, Inc., Atrium Corporation, Atrium Companies,
Inc., Wing Industries Holdings, Inc., Door Holdings, Inc., Wing Industries,
Inc., Atrium Door and Window Company of Arizona, Atrium Door and Window Company
- West Coast, Atrium Door and Window Company of the Northeast, Atrium Door and
Window Company of New York, Inc., Atrium Door and Window Company of New England,
Inc., X.X. Xxxxx Company, Inc., Total Trim, Inc. and their subsidiaries and
affiliates (collectively, the "Company"). All capitalized terms in this
Attachment A are defined in the Agreement.
END OF EMPLOYMENT PAYMENT. After the expiration of the 7-day revocation period
in paragraph 17 of the Agreement, provided Executive has not revoked the
Agreement pursuant to paragraph 17, the Company shall pay to Executive (i) in a
lump sum in cash $1,625,000; (ii) in a lump sum in cash within thirty days of
the Termination Date, the Accrued Obligations; (1) and (iii) the Accrued
Investments,(2) which amounts shall be payable in accordance with the terms and
conditions of the Investment Plans. (3) Further, notwithstanding the terms or
conditions of the Exchange Warrant, Executive Warrant or any other warrant,
stock option, stock appreciation right or similar agreements between the Company
and the Executive, the Executive shall vest, as of the Termination Date, in
---------
(1) ACCRUED OBLIGATIONS means the sum of (i) Executive's annual base salary
earned or accrued through the Termination Date to the extent not theretofore
paid; (ii) reimbursement for any and all monies advanced by Executive in
connection with Executive's employment for reasonable and necessary expenses
incurred by Executive through the Termination Date for which Executive timely
requested reimbursement and submitted appropriate receipts and documentation,
but only to the extent that such expenses exceed any advances received by
Executive from the Company; and (iii) any unpaid accrued vacation pay.
(2) ACCRUED INVESTMENTS means any amount arising from Executive's participation
in, or benefits under, any Investment Plans.
(3) INVESTMENT PLANS means all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other executives of the
Company in which Executive participates.
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all rights under such agreements (I.E., the Executive Warrant and any other
stock options that would otherwise vest after the Termination Date) and
thereafter he or his legal representative shall be permitted to exercise any and
all such vested rights until the expiration of such Exchange Warrant, Executive
Warrant, or such other warrant, stock option, stock appreciation right or
similar agreement pursuant to its terms. The Exchange Warrant and Executive
Warrant shall be subject to no agreements other than the Stockholders Agreement
and this Agreement. GEIPP and Ardshiel and its affiliates agree not to take any
action under Section 6.04 of the Stockholders Agreement to modify Sections
3.02, 3.05, 4.01, 4.02 and 5.07 of the Stockholders Agreement in any way that
would be adverse to the rights of Executive without Executive's consent.
MEDICAL AND DENTAL BENEFITS. Executive may continue to participate in the
Company's group medical and dental benefit plans in accordance with the
Consolidated Omnibus Budget Reconciliation Act ("COBRA"). The Company will
provide Executive with the form(s) necessary to elect continuation of benefits
pursuant to COBRA. Premiums for continuation of Executive's group medical and
dental insurance will be paid by the Company for 18 months from the Termination
Date.
I UNDERSTAND THE TERMS OF THIS ATTACHMENT A AND ACKNOWLEDGE THAT, OTHER THAN THE
PAYMENT AND BENEFITS DESCRIBED IN THE AGREEMENT AND RELEASE AND THIS ATTACHMENT
A, EXCHANGE WARRANT, EXECUTIVE WARRANT AND STOCKHOLDERS AGREEMENT, I AM NOT
ENTITLED TO ANY OTHER PAYMENT OR BENEFITS FROM THE COMPANY.
Dated: April 1, 1999
-------------------------------
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ATTACHMENT B
ACKNOWLEDGMENT CONCERNING CONFIDENTIAL INFORMATION
In connection with his employment by D and W Holdings, Inc., Atrium
Corporation, Atrium Companies, Inc., Wing Industries Holdings, Inc., Door
Holdings, Inc., Wing Industries, Inc., Atrium Door and Window Company of
Arizona, Atrium Door and Window Company - West Coast, Atrium Door and Window
Company of the Northeast, Atrium Door and Window Company of New York, Inc.,
Atrium Door and Window Company of New England, Inc., X.X. Xxxxx Company, Inc.,
Total Trim, Inc. and their subsidiaries and affiliates (collectively the
"Company"), Executive had access to proprietary and confidential information of
the Company, such as confidential business information, trade secrets, and
financial information (collectively "Confidential Information"). Executive
agrees that the Company's confidential and proprietary information are valuable
corporate assets and it is imperative that such information not be disclosed.
Executive will perform all reasonably necessary actions to assure protection of
Confidential Information, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, does hereby specifically agree
to the following:
(1) Executive agrees not to disclose, use or exploit Confidential
Information after his employment ends, unless a court of lawful jurisdiction
directs otherwise. Any request for or attempt to subpoena Confidential
Information shall be reported directly to the Company as soon as possible after
receiving it.
(2) Confidential Information within the meaning and scope of this
Acknowledgment means all information (including a formula, pattern, compilation,
program, device, method, technique, or process) that: (i) is not generally known
to, and
22
not readily ascertainable by proper means by other persons, and (ii) is the
subject of efforts that are reasonable under the circumstances to maintain its
confidentiality. Confidential Information includes, but is not limited to, the
following:
- BUSINESS PROCEDURES: All information concerning or relating to the
way the Company conducts its business, which is not generally known to the
public or within the industry or trade in which the Company competes (such as
Company contracts, internal business procedures, controls, plans, licensing
techniques and practices, supplier, subcontractor and prime contractor names and
contacts and other vendor information, computer system passwords and other
computer security controls, financial information, distributor information, and
employee data) and the physical embodiments of such information (such as check
lists, samples, services and operational manuals, contracts, proposals,
printouts, correspondence, forms, listings, ledgers, financial statements,
financial reports, financial and operational analyses, financial and operational
studies, management reports of every kind, databases, employment or personnel
records, and any other written or machine-readable expression of such
information as are filed in any tangible media).
- MARKETING PLANS AND CUSTOMER LISTS: All information not generally
known to the public or within the industry or trade in which the Company
competes pertaining to the Company's marketing plans and strategies; forecasts
and projections; marketing practices, procedures and policies; financial data;
discounts; margins; costs; credit terms; pricing practices, procedures and
policies; goals and objectives; quoting practices, procedures and policies; and
customer data including the customer lists, contracts, representatives,
requirements and needs, specifications, data provided by or about prospective
customers, and the physical embodiments of such information.
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- BUSINESS VENTURES: All information not generally known to the public
or within the industry or trade in which the Company operates concerning new
product development, negotiations for new business ventures, future business
plans, and similar information and the physical embodiments of such information.
- SOFTWARE: All information relating to the Company's software or
hardware in operation or various stages of research and development, which are
not generally known to the public or within the industry or trade in which the
Company competes and the physical embodiments of such information.
- LITIGATION: Information which is not a public record and is not
generally known to the public or within the industry or trade in which the
Company competes regarding litigation and potential litigation matters and the
physical embodiments of such information.
- INFORMATION NOT GENERALLY KNOWN: Any information which (i) is not
generally known to the public or within the industry or trade in which the
Company competes; (ii) gives the Company a significant advantage over its
competitors; (iii) may be harmful to the Company; or (iv) has significant
economic value or potentially significant economic value to the Company,
including the physical embodiments of such information.
(3) Nothing in this Acknowledgment shall prohibit or limit Executive's use
of information (i) known previously to him prior to his employment with the
Company; (ii) independently developed by him without use of Confidential
Information; (iii) lawfully obtained from a third party that is not under an
obligation to the Company not to disclose such information; or (iv) that is, or
becomes, publicly available or generally known in the industry or trade in which
the Company competes through no breach by Executive of this Acknowledgment.
These exceptions (i) through (iv) shall not be interpreted by
24
Executive as justification to disregard the obligations of confidence set forth
in this Agreement merely because individual portions of the Confidential
Information may be found to be within the exceptions, or because the
Confidential Information is implied by, but not specifically disclosed in,
information falling within the exceptions.
I UNDERSTAND AND AGREE TO ABIDE BY THE TERMS OF THIS ACKNOWLEDGMENT AND I
UNDERSTAND THAT DISTRIBUTION OF CONFIDENTIAL INFORMATION TO UNAUTHORIZED
PERSONS OR ORGANIZATIONS IS PROHIBITED.
Dated: April 1, 1999
------------------------
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