AMENDED AND RESTATED EMPLOYMENT AND
NONCOMPETITION AGREEMENT - XXXXXXXX
THIS AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT -
XXXXXXXX (this "Agreement") is made and entered into this 15th day of April,
1998, by and between XXXXXX X. XXXXXXXX ("Employee"), and THERMOVIEW INDUSTRIES,
INC., a Nevada corporation (the "Company").
PRELIMINARY STATEMENTS
WHEREAS, the Corporation and Employee mutually desire to amend and restate
that certain Employment and Noncompetition Agreement - Xxxxxxxx, dated as of
April 15, 1998 (the "Original Employment Agreement"), whereby the Original
Employment Agreement shall be cancelled in its entirety and replaced by this
Agreement;
WHEREAS, the Company has agreed to employ Employee on the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and mutual promises and
agreements contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, Company hereby agrees to employ Employee, and
Employee hereby accepts such employment as Vice President - Finance and
Administration. Employee shall serve the Company during the Term (as defined in
Section 2.1) of this Agreement, subject to the direction of the Company's Board
of Directors. As Vice President - Finance and Administration, Employee shall
devote his best efforts and such business time as may be necessary or
appropriate on behalf of the Company:
(i) To conduct general and active management of the business of the
Company subject to the direction of the President and the Board of Directors.
(ii) To assist the Company in evaluating potential corporate
opportunities, including merger and acquisition structuring, negotiation and
closing services.
(iii) To provide the Company with a variety of general business
analyses, marketing and management services.
(iv) To conduct such other duties as the Board of Directors may
prescribe from time to time.
1
SECTION 2. TERM.
2.1. The term of Employee's employment hereunder shall be from April 15,
1998 through and including April 15, 2000 (the "Term"), unless terminated prior
thereto upon the occurrence of any of the following:
(i) The death or total disability of Employee. As used herein, "total
disability" means any physical or mental condition rendering the Employee
unable, for a total of six (6) months during any twelve month period, to perform
the duties and bear the responsibilities incident to the position referred to in
Section 1 hereof as determined by a physician acceptable to Employee and
Company; or
(ii) Company's termination of Employee's employment hereunder, upon
prior written notice to Employee, for "good cause." For the purposes of this
Agreement, "good cause" for termination of Employee's employment shall exist
only if (a) Employee is convicted of, pleads guilty to, or confesses to any act
of fraud, misappropriation or embezzlement or to any felony, (b) Employee has
engaged in a dishonest or disloyal act resulting in material damage or prejudice
to the Company, (c) Employee has engaged in conduct or activities materially
damaging or prejudicial to the property, business or reputation of the Company,
or (d) Employee otherwise fails to comply with the material terms of this
Agreement; or
(iii) By the Employee at any time during the Term.
In the event that the Company should elect to terminate Employee for "good
cause" within the meaning of sub-Section (ii)(b), (c) or (d) above, Employee
shall have a period of twenty (20) days after the written notice to cure any
non-compliance set forth therein prior to the time such termination would become
effective.
2.2. If Employee's employment herein is terminated prior to the end of the
Term by the Company for "good cause" pursuant to Section 2.1(ii) or by Employee
pursuant to Section 2.1(iii), Employee's compensation shall be terminated in
accordance with Section 3.5 below.
SECTION 3. COMPENSATION.
3.1. COMPENSATION. Employee agrees that as compensation under this
Agreement, Employee shall receive an annual salary of $125,000, to be reviewed
annually for escalation.
3.2 TERMINATION OF COMPENSATION. In the event Employee's employment is
terminated by the Company for "good cause" pursuant to Section 2.1(ii) or by
Employee pursuant to Section 2.1(iii),
2
any and all unearned compensation as of the termination date provided
pursuant to Section 3.1 shall immediately terminate subject to applicable
law. Such compensation provided for under Section 3.1 which has been earned
by Employee as of the termination date but not paid by the Company as of the
termination date shall be paid by the Company within a reasonable time after
the termination date. In the event Employee's employment is otherwise
terminated by the Company, Employee shall receive the compensation provided
for under Section 3.1 for the remainder of the Term.
SECTION 4. CONFIDENTIAL INFORMATION AND NONCOMPETITION COVENANT.
4.1. CONFIDENTIAL INFORMATION AND TRADE SECRETS. Employee hereby agrees
that he shall hold in confidence all customer lists, supplier lists, price
lists, financial information, operating manual and forms, plans, notes, computer
programs, systems and software (including, without limitation, documentation and
related source and object codes), and all other knowledge or information of a
confidential or proprietary nature with respect to the business of the Company
(the "Proprietary Information"), and Employee will not disclose, publish or make
use of such knowledge or information during his employment hereunder, except for
purposes of his employment hereunder or as required by law, or upon expiration
of the Term or early termination pursuant to Section 2.1. Upon the expiration
of the Term or early termination pursuant to Section 2.1, Employee shall return
and deliver forthwith to the Company any and all Proprietary Information,
including all copies thereof and shall not retain or remove any secret or
confidential information of any type or description without the express written
consent of the Company.
4.2. NONCOMPETITION. The Company, through its wholly-owned subsidiary,
Thermo-Tilt Window Company, a Delaware corporation ("Thermo-Tilt") is engaged in
the business of designing, selling and installing state of the art custom vinyl
new and replacement thermal paned windows for the existing home market in the
following geographic areas: Alabama, Illinois, Indiana, Kentucky, Missouri and
Tennessee. Thermo-Tilt's operations and offices are located at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx (the "Owensboro Address"). The geographic area
within a 100-mile radius of (i) the Owensboro Address and (ii) all other
addresses of the Company and its subsidiaries existing at the time of Employee's
termination shall hereinafter be referred to as the "Territory." Employee
acknowledges that the goodwill of the Company and its subsidiaries and marketing
and support of services and products of the Company and its subsidiaries extends
throughout the Territory. In consideration of the rights granted to Employee
hereunder, Employee hereby agrees that for the period commencing on the date
hereof and ending AT THE LATER OF (i) two
3
(2) years from the date hereof or (ii) one (1) year after Employee ceases to
be employed by the Company (the "Noncompete Period"), Employee shall not
(without the prior written consent of the Company), in any manner, directly
or indirectly,
(i) engage in, have any equity or profit interest in, make any loan to
or for the benefit of, guaranty the repayment of any funds by, or render
services of any executive, advertising, marketing, sales, administrative,
supervisory, engineering, computer program or system development, maintenance,
manufacturing or consulting nature to any business conducting operations in the
Territory which are competitive with the business activities being directly
engaged in by the Company or its subsidiaries as of the date on which Employee's
employment is terminated; or
(ii) solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, any customer of the Company or its subsidiaries (including current
customers and those which become customers during the term of the Employment
Agreement) for the purpose of providing services competitive with the Business;
or
(iii) solicit to employ, on his own behalf or on behalf of any other
person, firm or corporation, any person who was employed during the Term or any
extended Term hereof and who has not thereafter ceased to be employed by the
Company and its subsidiaries for a period of at least one year.
Notwithstanding anything contained herein to the contrary, Employee shall
not be prohibited from owning, directly or indirectly, up to 5% of the
outstanding equity interest of any company, which is in competition with the
Company, its subsidiaries or a Related Company and the stock of which is
publicly traded.
4.3. SEVERABILITY. If a judicial determination is made that any of the
provisions of this Section 4 constitutes an unreasonable or otherwise
unenforceable restriction against Employee, the provisions of this Section 4
shall be rendered void only to the extent that such judicial determination finds
such provisions to be unreasonable or otherwise unenforceable. In this regard,
the parties hereto hereby agree that any judicial authority construing this
Agreement shall be empowered to sever any portion of the Territory or any
prohibited business activity from the coverage of this Section 4, and to reduce
the duration of the Noncompete Period and to apply the provisions of this
Section 4 to the remaining portion of the Territory or the remaining business
activities not to be severed by such judicial authority and to the duration of
the Noncompete Period as reduced by judicial determination.
4
4.4. INJUNCTIVE RELIEF. Employee hereby agrees that any breach or
threatened breach by Employee of Sections 4.1 or 4.2 of this Agreement will
irreparably injure the Company and that any remedy at law for any breach or
threatened breach by Employee of the provisions contained in Sections 4.1 and
4.2 hereof shall be inadequate, and that the Company shall be entitled to
injunctive relief in addition to any other remedy it might have under this
Agreement or at law or in equity. Employee further agrees that the grant of
such injunctive relief and the enforcement of the terms of this Agreement shall
not deprive him of his ability to earn a living.
SECTION 5. MISCELLANEOUS.
5.1. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon Employee and his executor, administrator, heirs, personal
representative and assigns, and Company and its successors and assigns;
provided, however, that Employee shall not be entitled to assign or delegate any
of his rights or obligations hereunder, other than the Employment Stock Options,
without the prior written consent of Company.
5.2. GOVERNING LAW. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with, the laws of the Commonwealth of Kentucky, without regard to conflicts of
laws principles.
5.3. HEADINGS. The section and paragraph heading contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.4. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
recognized overnight courier, or (iii) sent by registered or certified mail,
return receipt requested, postage prepaid.
If to the Company:
ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
5
Attn: Xxxx X. Xxxxxxxxxx, Xx., Esq. (Xxxx)
If to the Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iii) if sent by registered or certified
mail, on the fifth business day following the day such mailing is sent.
Any party to this Agreement may change his or its address upon written
notice delivered pursuant to this Section.
5.5. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject matter
hereof and is the complete and exclusive statement of the terms thereof
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer to
execute this Agreement and the Employee has executed this Agreement as of the
date first above written.
EMPLOYEE: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
COMPANY: THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
6
