Ply Gem Industries, Inc.
Exhibit
10.16
Ply
Gem Industries, Inc.
000
Xxxxxx-Xxxx Xxx, Xxxxx X
Xxxxxxx,
XX 00000
December
1, 2005
Xxxx
Xxxxx
0000
Xxxxx Xxxx. XX
Xxxxxx,
XX 00000
Dear
Xxxx:
Ply
Gem
Industries, Inc. (“Ply Gem”) considers the continuity of management essential to
the best interests of Ply Gem and its stockholders and desires to reinforce
and
encourage your continued attention and dedication to your duties to Ply Gem
and
its subsidiaries (each, an “Employer”). To assure your continued focus on your
duties to your Employer, the Board of Directors of Ply Gem (the “Board”) has
authorized Ply Gem to enter into this letter agreement with you, which sets
forth the compensation that Ply Gem agrees to pay you if your employment
is
terminated under the circumstances described herein.
This
letter agreement sets forth the terms and conditions of Ply Gem’s agreement to
pay you the compensation under the circumstances described herein, and the
parties to this letter agreement acknowledge the receipt and sufficiency
of good
and valuable consideration in support of this letter agreement, including
the
covenants and agreements set forth herein.
1. Term
This
letter agreement is effective as of the date hereof and shall expire on December
31, 2007 (the “Expiration Date”) provided, that, Ply Gem shall have the right to
renew this letter agreement for successive one year periods (each, a “Renewal
Term”), which right it must exercise prior the second anniversary of the
Expiration Date, or the last day of any Renewal Term, as applicable.
2. Compensation
If,
during the term of this letter agreement, your employment is terminated (A)
by
your Employer without “Cause” or (B) by you following a “Material Adverse
Change” (as such terms are defined below), you will be entitled to receive,
subject to your execution of and continued compliance with a Release and
Restrictive Covenant Agreement substantially in the form attached to this
letter
agreement as Exhibit A (the “Release and Restrictive Covenant Agreement”):
(a) An
amount
equal to your annual base salary in effect on the date of your termination
(which, for the avoidance of doubt shall not include any amounts in respect
of
any car allowance or payments for any other perquisites or benefits that
you may
be entitled to). This salary continuation shall be payable in equal installments
over the 12-month period following the date of your termination of employment
(the “Payment Period”), in accordance with your Employer’s normal payroll
practices;
(b) An
amount
equal to the lesser of (I) your target annual cash bonus with respect to
the
fiscal year during which your termination of employment occurs (the “Year of
Termination”) and (II) the actual annual cash bonus you would have received with
respect to the Year of Termination based on actual performance during that
year,
if you had been employed for the full year, measured as of the time such
performance is measured for purposes of paying annual cash bonuses to other
executives of your Employer with respect to such year (the “Actual Bonus”). As
soon as reasonably practicable following the date that the amount of the
Actual
Bonus is determined, you shall be paid a lump sum cash payment equal to the
portion of the Actual Bonus that you would have been paid prior to such date
had
such amount been determined as of the date of your termination of employment.
(c) A
lump
sum payment equal to a pro rata portion of any annual cash bonus that you
would
have been entitled to receive with respect to the Year of Termination based
upon
the percentage of such year that shall have elapsed through the date of your
termination of employment, and determined as of the date such bonuses are
determined for other executives of your Employer (the “Pro Rata Bonus”). The Pro
Rata Bonus shall be payable when annual cash bonuses with respect to the
Year of
Termination are paid to other executives of your Employer.
(d) Continuation
of medical and dental benefits for you and your spouse and dependents, if
any,
during the Payment Period, in the same plans and on the same basis (including,
without limitation, contribution rates) as such benefits are provided from
time
to time to actively employed executives of your Employer, subject to the
terms
of such plans as the same may exist from time to time; provided, that, the
Employer’s obligation to provide such medical and dental benefits shall cease at
the time you become eligible for such benefits from another
employer;
(e) (i)
your
base salary through the date of termination; (ii) any declared but unpaid
annual
cash bonus for any fiscal year preceding the year in which the termination
occurs; (iii) reimbursement for any unreimbursed business expenses properly
incurred by you in accordance with Employer policy through your date of
termination; and (iv) any other amounts, including without limitation, accrued
but unused vacation, required to be paid to you under any applicable state
statute or regulation.
Your
termination shall not be deemed to be terminated by your Employer without
Cause
or by you following a Material Adverse Change, and you shall not be entitled
to
any payments or benefits under this Section 2 solely on account of, the sale
or
disposition by Ply Gem or any Employer, or any parent of Ply Gem or any
Employer, as applicable, of the subsidiary or division for which you are
employed if you are offered employment by the purchaser or acquirer of such
subsidiary or division and such acquirer or purchaser agrees to assume the
terms
of this letter agreement.
Notwithstanding
anything to the contrary in this letter agreement, no further payments or
benefits are due under this Section 2 and, subject to applicable state law,
Ply
Gem and any Employer, as applicable, shall have the right to reclaim any
amounts
already paid to you under this Section 2 if, at any time during the Restricted
Period (as such term is defined in the attached Release and Restrictive Covenant
Agreement) after your employment is terminated, (i) you breach any of the
provisions of Section VI of the Release and Restrictive Covenant Agreement,
or
(ii) the Board determines, in good faith, that grounds existed, on or prior
to
the date of termination of your employment with Employer, including prior
to the
date of this letter agreement, for your Employer to terminate your employment
for Cause; provided, that, in all events you will be entitled to receive
amounts
in sub-clauses (i), (iii), and (iv) of Section 2(e) above.
3. Definitions
For
purposes of this letter agreement, “Cause” shall mean: (i) your willful and
continued failure to perform substantially your material duties (other than
any
such failures resulting from, or contributed to by, incapacity due to physical
or mental illness), after a written demand for substantial performance is
delivered to you by the Board, which notice specifically identifies the manner
in which you have not substantially performed your material duties, and you
neglect to cure such failure within 30 days; (ii) a willful failure to follow
the lawful direction of the Board or of the senior executive officer of Ply
Gem
to whom you directly report (if applicable); (iii) your material act of
dishonesty or breach of trust in connection with the performance of your
duties
to Ply Gem or your Employer; (iv) your conviction of, or plea of guilty or
no contest to, (x) any felony or (y) any misdemeanor having as its
predicate element fraud, dishonesty or misappropriation; or (v) a civil judgment
in which Employer is awarded damages from you in respect of a claim of loss
of
funds through fraud or misappropriation by you, which has become final and
is
not subject to further appeal.
For
purposes of this letter agreement, a “Material Adverse Change” shall mean any of
the following, without your express written consent:
| (1) |
Assignment
to you of any duties that are inconsistent with your position,
duties and
responsibilities and status with Employer as of the Expiration
Date;
|
| (2) |
Employer’s
reduction of your base salary;
|
| (3) |
Any
action by Employer that would deprive you of any material employee
benefit
enjoyed by you, except where such change is applicable to all employees
participating in such benefit plan;
|
| (4) |
Any
breach by the Company or Employer of any provision of this Letter
Agreement or the Release and Restrictive Covenant
Agreement.
|
4. Release
and Restrictive Covenant Agreement
All
payments and benefits described in Section 2 of this letter agreement are
conditional upon and subject to your execution of the Release and Restrictive
Covenant Agreement.
5. Notices
Any
notice required by this letter agreement must be in writing and will be deemed
to have been duly given (i) if delivered personally or by overnight courier
service,
sent by
facsimile transmission or mailed
by
United States registered mail, return receipt requested, postage prepaid,
and
(ii) addressed to the respective addresses or sent via facsimile to the
respective facsimile numbers, as the case may be, as set forth below, or
to such
other address as either party may have furnished to the other in writing
in
accordance herewith, except that notice of change of address shall be effective
only upon receipt; provided, however, that (X) notices sent by personal delivery
or overnight courier shall be deemed given when delivered; (Y) notices sent
by
facsimile transmission shall be deemed given upon the sender’s receipt of
confirmation of complete transmission, and (Z) notices sent by United States
registered mail shall be deemed given two
days
after the date of deposit in the United States mail.
If
to the
Employee, to the address as shall most currently appear on the records of
the
Company
If
to the
Company, to:
Ply
Gem
Industries, Inc.
000
Xxxx
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
President
6. General
Your
Employer may withhold from any amounts payable under Section 2 of this letter
agreement such federal, state, local or other taxes required to be withheld
pursuant to applicable law or regulation.
The
payments and benefits provided for in Section 2 of this letter agreement
shall
not be counted as compensation for purposes of determining benefits under
other
benefit plans, programs, policies and agreements of your Employer, except
to the
extent expressly provided therein or herein.
This
letter agreement is not intended to result in any duplication of payments
or
benefits to you and does not give you any right to any compensation or benefits
from Ply Gem or your Employer except as specifically stated in this letter
agreement.
For
you
to receive the payments and benefits described in Section 2 of this letter
agreement, you will not be required to seek other employment or otherwise
mitigate the obligations of your Employer under this letter agreement. There
will be no offset against any amounts due under this letter agreement on
account
of any remuneration attributable to any subsequent employment that you may
obtain.
This
letter agreement is not a contract of employment and does not give you any
right
of continued employment or limit the right of your Employer to terminate
or
change the status of your employment at any time or change any employment
policies.
This
letter agreement is governed by the laws of the state of Delaware, without
reference to the principles of conflict of laws which would cause the laws
of
another state to apply. By signing this letter agreement, you and Ply Gem
irrevocably agree, for the exclusive benefit of the other, that any and all
suits, actions or proceedings relating to Section VI of the Release and
Restrictive Covenant Agreement (collectively, “Proceedings” and, individually, a
“Proceeding”) will be maintained in either the courts of the State of Delaware
or the federal District Courts sitting in Wilmington, Delaware (collectively,
the “Chosen Courts”) and that the Chosen Courts shall have exclusive
jurisdiction to hear and determine or settle any such Proceeding and that
any
such Proceedings shall only be brought in the Chosen Courts. You and Ply
Gem
irrevocably waive any objection that you or Ply Gem may have now or hereafter
to
the laying of the venue of any Proceedings in the Chosen Courts and any claim
that any Proceedings have been brought in an inconvenient forum and further
irrevocably agree that a judgment in any Proceeding brought in the Chosen
Courts
shall be conclusive and binding upon you and Ply Gem and may be enforced
in the
courts of any other jurisdiction.
You
and
Ply Gem agree that this letter agreement involves at least $100,000 and that
this letter agreement has been entered into in express reliance on Section
2708
of Title 6 of the Delaware Code. You and Ply Gem irrevocably and unconditionally
agree (i) that, to the extent you or Ply Gem are not otherwise subject to
service of process in the State of Delaware, you or Ply Gem will appoint
(and
maintain an agreement with respect to) an agent in the State of Delaware
as your
agent for acceptance of legal process and notify Ply Gem or you, as applicable,
of the name and address of said agent, (ii) that service of process may also
be
made on you or Ply Gem by pre-paid certified mail with a validated proof
of
mailing receipt constituting evidence of valid service sent to you or Ply
Gem at
the address set forth in this letter agreement, as such address may be changed
from time to time pursuant hereto, and (iii) that service made pursuant to
clause (i) or (ii) above shall, to the fullest extent permitted by applicable
law, have the same legal force and effect as if served upon such party
personally within the State of Delaware.
8
Your
rights under this letter agreement are not transferable, assignable or subject
to lien or attachment.
This
letter agreement contains the entire understanding and agreement between
you and
Ply Gem concerning the matters described herein. This letter agreement may
not
be amended except in a writing signed by you and by an authorized officer
on
behalf of Ply Gem.
Sincerley,
| PLY GEM INDUSTRIES, INC. | ||
| |
|
|
| By: | /s/ | |
|
Name: Xxx X. Xxxxx |
||
| Title: President | ||
Acknowledged
and Agreed:
______________________
RELEASE
AND RESTRICTIVE COVENANT AGREEMENT
This
Release and Restrictive Covenant Agreement (the “Agreement”) is entered into by
and between Xxxx Xxxxx (the “Employee”) and Ply Gem Industries, Inc. (the
“Company”), on December 1, 2005.
I. Release
of Claims
In
partial consideration of the payments and benefits described in Section 2
of the
letter agreement between you and the Company, dated December 1, 2005, (the
“Letter”), to which the Employee agrees the Employee is not entitled until and
unless he executes this Agreement, the Employee, for and on behalf of himself
and his heirs and assigns, subject to the last sentence of this paragraph,
hereby waives and releases any common law, statutory or other complaints,
claims, charges or causes of action of any kind whatsoever, both known and
unknown, in law or in equity, which the Employee ever had, now has or may
have
against the Company and its shareholders and their respective subsidiaries,
successors, assigns, affiliates, directors, officers, partners, members,
employees or agents (collectively, the “Releasees”) by reason of facts or
omissions which have occurred on or prior to the date that the Employee signs
this Agreement, including, without limitation, any complaint, charge or cause
of
action arising under federal, state or local laws pertaining to employment,
including the Age Discrimination in Employment Act of 1967 (“ADEA,” a law which
prohibits discrimination on the basis of age), the National Labor Relations
Act,
the Civil Rights Act of 1991, the Americans With Disabilities Act of 1990,
Title
VII of the Civil Rights Act of 1964, all as amended; and all other federal,
state and local laws and regulations. By signing this Agreement, the Employee
acknowledges that he intends to waive and release any rights known or unknown
that he may have against the Releasees under these and any other laws; provided,
that the Employee does not waive or release claims with respect to the right
to
enforce his rights under the Letter (the “Unreleased Claims”).
II. Proceedings
The
Employee acknowledges that he has not filed any complaint, charge, claim
or
proceeding, except with respect to an Unreleased Claim, if any, against any
of
the Releasees before any local, state or federal agency, court or other body
(each individually a “Proceeding”). The Employee represents that he is not aware
of any basis on which such a Proceeding could reasonably be instituted. The
Employee (a) acknowledges that he will not initiate or cause to be initiated
on
his behalf any Proceeding and will not participate in any Proceeding, in
each
case, except as required by law; and (b) waives any right he may have to
benefit
in any manner from any relief (whether monetary or otherwise) arising out
of any
Proceeding, including any Proceeding conducted by the Equal Employment
Opportunity Commission (“EEOC”). Further, the Employee understands that, by
executing this Agreement, he will be limiting the availability of certain
remedies that he may have against the Company and limiting also his ability
to
pursue certain claims against the Releasees. Notwithstanding the above, nothing
in Section I of this Agreement shall prevent the Employee from (x) initiating
or
causing to be initiated on his behalf any complaint, charge, claim or proceeding
against the Company before any local, state or federal agency, court or other
body challenging the validity of the waiver of his claims under the ADEA
contained in Section I of this Agreement (but no other portion of such waiver);
or (y) initiating or participating in an investigation or proceeding conducted
by the EEOC.
III. Time
to Consider
The
Employee acknowledges that he has been advised that he has 21 days from the
date
of receipt of this Agreement to consider all the provisions of this Agreement
and he does hereby knowingly and voluntarily waive said given 21 day period.
THE
EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT CAREFULLY,
HAS
BEEN ADVISED BY THE COMPANY TO, AND HAS IN FACT, CONSULTED AN ATTORNEY, AND
FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN RIGHTS WHICH
HE
MAY HAVE TO XXX OR ASSERT A CLAIM AGAINST ANY OF THE RELEASEES, AS DESCRIBED
IN
SECTION I OF THIS AGREEMENT AND THE OTHER PROVISIONS HEREOF. THE EMPLOYEE
ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER
TO SIGN THIS AGREEMENT, AND THE EMPLOYEE AGREES TO ALL OF ITS TERMS
VOLUNTARILY.
IV. Revocation
The
Employee hereby acknowledges and understands that the Employee shall have
seven
days from the date of the Employee’s execution of this Agreement to revoke this
Agreement (including, without limitation, any and all claims arising under
the
ADEA) and that neither the Company nor any other person is obligated to provide
any benefits to the Employee pursuant to Section 2 of the Letter until eight
days have passed since the Employee’s signing of this Agreement without the
Employee having revoked this Agreement, in which event the Company immediately
shall arrange and/or pay for any such benefits otherwise attributable to
said
eight-day period, consistent with the terms of the Letter. If the Employee
revokes this Agreement, the Employee will be deemed not to have accepted
the
terms of this Agreement, and no action will be required of the Company under
any
section of this Agreement.
V. No
Admission
This
Agreement does not constitute an admission of liability or wrongdoing of
any
kind by the Employee or the Company.
VI. Restrictive
Covenants
A. Non-Competition/Non-Solicitation
The
Employee acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its subsidiaries and controlled affiliates
and
accordingly agrees as follows:
1. During
the period commencing on the date of the Employee’s termination of employment
and ending on the last day of the Payment Period (the “Restricted Period”), or
such longer period as described in the last sentence of Section VII of this
Agreement, the Employee will not, directly or indirectly, (w) engage
in any “Competitive Business” (defined below) for the Employee’s own account,
(x) enter the employ of, or render any services to, any person engaged in
any Competitive Business, (y) acquire a financial interest in, or otherwise
become actively involved with, any person engaged in any Competitive Business,
directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant, or (z) interfere with
business relationships between the Company and customers or suppliers of,
or
consultants to, the Company.
2. For
purposes of this Section VI, a “Competitive Business” means, as of any date,
including during the Restricted Period, any person or entity (including any
joint venture, partnership, firm, corporation or limited liability company)
that
engages in or proposes to engage in the following activities in any geographical
area in which the business unit for which the Employee works does business:
the
manufacture and sale of vinyl, vinyl clad and aluminum windows.
3. For
purposes of this Section VI and of Section VII of this Agreement, the
Company shall be construed to include the Company and its subsidiaries and
controlled affiliates.
4. Notwithstanding
anything to the contrary in this Agreement, the Employee may, directly or
indirectly, own, solely as an investment, securities of any person engaged
in
the business of the Company which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if the Employee (A) is not
a controlling person of, or a member of a group which controls, such person
and
(B) does not, directly or indirectly, own one percent (1%) or more of any
class of securities of such person.
5. During
the Restricted Period, the Employee will not, directly or indirectly, without
the Company’s written consent, solicit or encourage to cease to work with the
Company any employee or any consultant of the Company or any person who was
an
employee of or consultant then under contract with the Company within the
six-month period preceding such activity. In addition, during the Restricted
Period, the Employee will not, without the Company’s written consent, directly
or indirectly hire any person who is or who was, within the six-month period
preceding such activity, an employee of the Company.
6. The
Employee understands that the provisions of this Section VI.A may limit the
Employee’s ability to earn a livelihood in a business similar to the business of
the Company, but the Employee nevertheless agrees and hereby acknowledges
that
(A) such provisions do not impose a greater restraint than is necessary to
protect the goodwill or other business interests of the Company, (B) such
provisions contain reasonable limitations as to time and scope of activity
to be
restrained, (C) such provisions are not harmful to the general public and
(D)
such provisions are not unduly burdensome to the Employee. In consideration
of
the foregoing and in light of the Employee’s education, skills and abilities,
the Employee agrees that he shall not assert that, and it should not be
considered that, any provisions of Section VI.A. otherwise are void, voidable
or
unenforceable or should be voided or held unenforceable.
7. It
is
expressly understood and agreed that, although the Employee and the Company
consider the restrictions contained in this Section VI.A to be reasonable,
if a judicial determination is made by a court of competent jurisdiction
that
the time or territory or any other restriction contained in this Section
VI.A or
elsewhere in this Agreement is an unenforceable restriction against the
Employee, the provisions of the Agreement shall not be rendered void but
shall
be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds
that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding
shall
not affect the enforceability of any of the other restrictions contained
herein.
B. Nondisparagement
The
Employee agrees (whether during or after the Employee’s employment with the
Company) not to issue, circulate, publish or utter any false or disparaging
statements, remarks or rumors about the Company or the shareholders, officers,
directors or managers of the Company other than to the extent reasonably
necessary in order to (i) assert a bona fide claim against the Company
arising
out of the Employee’s employment with the Company, or (ii) respond in a truthful
and appropriate manner to any legal process or give truthful and appropriate
testimony in a legal or regulatory proceeding.
C. Company
Policies
The
Employee agrees to abide by the terms of any employment policies or codes
of
conduct of the Company that apply to the Employee after termination of
employment.
D. Confidentiality/Company
Property
The
Employee shall not, without the prior written consent of the Company, use,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity, any “Confidential Information” (as defined below)
except while employed by the Company, in furtherance of the business of and
for
the benefit of the Company, or any “Personal Information” (as defined below);
provided that the Employee may disclose such information when required to
do so
by a court of competent jurisdiction, by any governmental agency having
supervisory authority over the business of the Company and/or its affiliates,
as
the case may be, or by any administrative body or legislative body (including
a
committee thereof) with jurisdiction to order the Employee to divulge, disclose
or make accessible such information; provided, further, that in the event
that
the Employee is ordered by a court or other government agency to disclose
any
Confidential Information or Personal Information, the Employee shall
(i) promptly notify the Company of such order, (ii) at the written
request of the Company, diligently contest such order at the sole expense
of the
Company as expenses occur, and (iii) at the written request of the Company,
seek to obtain, at the sole expense of the Company, such confidential treatment
as may be available under applicable laws for any information disclosed under
such order. For purposes of this Section VI.D, (i) “Confidential
Information” shall mean non-public information concerning the financial data,
strategic business plans, product development (or other proprietary product
data), customer lists, marketing plans and other non-public, proprietary
and
confidential information relating to the business of the Company or its
affiliates or customers, that, in any case, is not otherwise available to
the
public (other than by the Employee’s breach of the terms hereof) and
(ii) “Personal Information” shall mean any information concerning the
personal, social or business activities of the shareholders, officers or
directors of the Company. Upon termination of the Employee’s employment with the
Company, the Employee shall return all Company property, including, without
limitation, files, records, disks and any media containing Confidential
Information or Personal Information.
E. Developments
All
discoveries, inventions, ideas, technology, formulas, designs, software,
programs, algorithms, products, systems, applications, processes, procedures,
methods and improvements and enhancements conceived, developed or otherwise
made
or created or produced by the Employee, alone or with others, and in any
way
relating to the business or any proposed business of the Company of which
the
Employee has been made aware, or the products or services of the Company
of
which the Employee has been made aware, whether or not subject to patent,
copyright or other protection and whether or not reduced to tangible form,
at
any time during the Employee’s employment with the Company or any subsidiary of
the Company (“Developments”), shall be the sole and exclusive property of the
Company. The Employee agrees to, and hereby does, assign to the Company,
without
any further consideration, all of the Employee’s right, title and interest
throughout the world in and to all Developments. The Employee agrees that
all
such Developments that are copyrightable may constitute works made for hire
under the copyright laws of the United States and, as such, acknowledges
that
the Company is the author of such Developments and owns all of the rights
comprised in the copyright of such Developments, and the Employee hereby
assigns
to the Company, without any further consideration, all of the rights comprised
in the copyright and other proprietary rights the Employee may have in any
such
Development to the extent that it might not be considered a work made for
hire.
The Employee shall make and maintain adequate and current written records
of all
Developments and shall disclose all Developments promptly, fully and in writing
to the Company promptly after development of the same, and at any time upon
request.
F. Cooperation
At
any
time after the date of the Employee’s termination of employment, the Employee
agrees to cooperate (i) with the Company in the defense of any legal matter
involving any matter that arose during the Employee’s employment with the
Company and (ii) with all government authorities on matters pertaining to
any
investigation, litigation or administrative proceeding pertaining to the
Company. The Company will reimburse the Employee for any earnings lost by
the
Employee and any reasonable travel and out of pocket expenses incurred by
the
Employee in providing such cooperation.
VII. Enforcement
The
Employee acknowledges and agrees that the Company’s remedies at law for a breach
or threatened breach of any of the provisions of Sections VI.A,B,D and E
of this
Agreement would be inadequate, and, in recognition of this fact, the Employee
agrees that, in the event of such a breach or threatened breach, in addition
to
any remedies at law, the Company, without posting any bond, shall be entitled
to
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available. In addition, the Company shall be entitled
to immediately cease paying any amounts remaining due or providing any benefits
to the Employee pursuant to Section 2 of the Letter and, subject to applicable
state law, to reclaim any amounts already paid under Section 2 of the Letter
upon a good faith determination by the Board of Directors of the Company
that
the Employee has violated any provision of Section VI of this Agreement,
subject
to payment of all such amounts upon a final determination that the Employee
had
not violated Section VI of this Agreement. If the Employee breaches any of
the
covenants contained in Section VI.A, B, D or E of this Agreement, and the
Company Group obtains injunctive relief with respect thereto, the period
during
which the Employee is required to comply with that particular covenant shall
be
extended by the same period that the Employee was in breach of such covenant
prior to the effective date of such injunctive relief.
VIII. General
Provisions
A. No
Waiver; Severability
A
failure
of the Company or any of the Releasees to insist on strict compliance with
any
provision of this Agreement shall not be deemed a waiver of such provision
or
any other provision hereof. If any provision of this Agreement is determined
to
be so broad as to be unenforceable, such provision shall be interpreted to
be
only so broad as is enforceable, and in the event that any provision is
determined to be entirely unenforceable, such provision shall be deemed
severable, such that all other provisions of this Agreement shall remain
valid
and binding upon the Employee and the Releasees.
B. Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED
WITHIN THAT STATE, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS OR THE
CONFLICT OF LAWS PROVISIONS OF ANY OTHER JURISDICTION WHICH WOULD CAUSE THE
APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF DELAWARE.
Each
party to this Agreement irrevocably agrees for the exclusive benefit of the
other that any and all suits, actions or proceedings relating to Section
VI of
this Agreement (collectively, “Proceedings” and, individually, a “Proceeding”)
shall be maintained in either the courts of the State of Delaware or the
federal
District Courts sitting in Wilmington, Delaware (collectively, the “Chosen
Courts”) and that the Chosen Courts shall have exclusive jurisdiction to hear
and determine or settle any such Proceeding and that any such Proceedings
shall
only be brought in the Chosen Courts. Each party irrevocably waives any
objection that it may have now or hereafter to the laying of the venue of
any
Proceedings in the Chosen Courts and any claim that any Proceedings have
been
brought in an inconvenient forum and further irrevocably agrees that a judgment
in any Proceeding brought in the Chosen Courts shall be conclusive and binding
upon it and may be enforced in the courts of any other jurisdiction.
Each
of
the parties hereto agrees that this Agreement involves at least $100,000
and
that this Agreement has been entered into in express reliance on Section
2708 of
Title 6 of the Delaware Code. Each of the parties hereto irrevocably and
unconditionally agrees (i) that, to the extent such party is not otherwise
subject to service of process in the State of Delaware, it will appoint (and
maintain an agreement with respect to) an agent in the State of Delaware
as such
party’s agent for acceptance of legal process and notify the other parties
hereto of the name and address of said agent, (ii) that service of process
may
also be made on such party by pre-paid certified mail with a validated proof
of
mailing receipt constituting evidence of valid service sent to such party
at the
address set forth in this Agreement, as such address may be changed from
time to
time pursuant hereto, and (iii) that service made pursuant to clause (i)
or (ii)
above shall, to the fullest extent permitted by applicable law, have the
same
legal force and effect as if served upon such party personally within the
State
of Delaware.
C. Counterparts
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
D. Notice
For
the
purpose of this Agreement, notices and all other communications provided
for in
this Agreement shall be in writing and shall be deemed to have been duly
given
if delivered personally, if delivered by overnight courier service,
if sent
by facsimile transmission or if mailed
by
United States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses or sent via facsimile to the respective
facsimile numbers, as the case may be, as set forth below, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only
upon
receipt; provided, however, that (i) notices sent by personal delivery or
overnight courier shall be deemed given when delivered; (ii) notices sent
by
facsimile transmission shall be deemed given upon the sender’s receipt of
confirmation of complete transmission, and (iii) notices sent by United States
registered mail shall be deemed given two
days
after the date of deposit in the United States mail.
If
to the
Employee, to the address as shall most currently appear on the records of
the
Company
If
to the
Company, to:
Ply
Gem
Industries, Inc.
000
Xxxx
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
President
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement as of the day and year first
above written.
EMPLOYEE
______________________________
PLY
GEM INDUSTRIES,
INC.
By:___________________________
Name:
Xxx X.
Xxxxx
Title:
President
