Exhibit 10.10(a)
SETTLEMENT AGREEMENT
This Settlement Agreement and Full and Final Release of Claims
("Settlement Agreement") is made as of the 20th day of February, 1997, by and
between Xxxxxx X. Xxxxxxxx ("Employee") and Diamond Home Services, Inc.
("Diamond Homes"). In this Settlement Agreement, Diamond Homes and its
successors, predecessors, subsidiaries, affiliates and related companies
(including but not limited to Globe Building Materials, Inc., Diamond Exteriors
Inc., Solitaire Heating and Air Conditioning, Inc., and Marquise Financial
Services, Inc.) and their respective present and former employees, officials,
directors, officers, agents and attorneys are sometimes referred to as a
"Diamond Entity" and collectively referred to as "Diamond" or the "Company".
WHEREAS, Employee desires to settle fully and finally all actual and
potential differences and disputes, if any, between Diamond and Employee
including, but in no way limited to, any differences that arose out of
Employee's employment with Diamond Homes, and the termination thereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Employee and his successors, assigns, relatives, related entities
and affiliates, release and forever discharge Diamond of and from all manner of
civil actions, causes, causes of action, suits, debts, sums of money, accounts,
reckonings, bonds, bills, covenants, controversies, agreements, promises,
damages, judgments, claims and demands whatsoever, in law or in equity, which
Employee has or may claim to have against any Diamond, prior to the date first
written above on account of, or arising out of, any acts or omissions by any
Diamond Entity whatsoever.
2. Diamond Homes and Employee each represents, warrants and
acknowledges to the other that the person signing below on its or his behalf is
authorized to make and deliver this Settlement Agreement. Diamond Homes and
Employee each represents, warrants and acknowledges to the other that each
intends to be bound by this Settlement Agreement. Employee represents and
warrants that he is the only person entitled to assert any claim on behalf of
himself.
3. Diamond Homes and Employee each recognizes that this Settlement
Agreement does not constitute an admission of liability or fault by either
party.
4. The receipt of the following consideration is in full and final
accord, satisfaction and final compromise and settlement of any and all claims
of Employee against any Diamond Entity for liquidated damages, compensatory
damages, punitive damages, backpay, front pay, lost benefits, lost wages,
attorneys' fees, interest, court costs and all other monetary and equitable
relief: (i) the Salary Payments; (ii) payment on March 31, 1997 (or as soon
thereafter as other final 1996 incentive compensation payments are made), of any
remaining 1996 incentive compensation payable to Employee under Diamond Homes's
incentive compensation payment program ("1996 Incentive Compensation Payment");
(iii) payment on May 15, 1997 (or as soon thereafter as practicable) of
incentive compensation, based on Diamond Homes's 1997 first quarter incentive
program as of March 31, 1997, of any bonus attributable to the region of the
United States for which Employee had responsibility, for the period from January
1, 1997, through the Termination Date, as determined from a pro forma
calculation of that region's financial results for that period (such
determination to be made by Diamond Homes and to be conclusively deemed correct
except in the case of manifest error and it being understood that Employee's
right to any such payment is dependent on those financial results) (the "1997
Incentive Compensation Payment"); and (iv) the Security Payments.
5. Settlement Election.
a. For purposes of this Settlement Agreement, "Salary Payments"
means either the Lump Sum Payment or the Continuation Payments.
b. Unless and until Employee elects to receive the Lump Sum
Payment in the manner specified herein, Employee shall be entitled to receive
every two weeks a payment in the amount of $5961.54 (each such payment being a
"Regular Continuation Payment" and all such payments being "Regular Continuation
Payments"). The first Regular Continuation Payment shall be reduced to reflect
compensation Employee has received through February 20, 1997, and shall be
payable to Employee on February 28, 1997, and the last Regular Continuation
Payment shall be payable to Employee on February 27, 1998. In addition, the
Company shall continue to pay for Employee's medical benefits through February
20, 1998, as if Employee continued to be an Employee of the Company ("Medical
Payments"). For the purpose of this Settlement Agreement, each of the Regular
Continuation Payments and the Medical Payments individually may be referred to
as a "Continuation Payment" and collectively as "Continuation Payments." Such
Continuation Payments shall be made in the same manner as if Employee continued
to be an employee of Diamond Homes.
c. On or before February 24, 1997 (the "Election Date"),
Employee may elect to receive, in lieu of the Continuation Payments, a lump sum
payment of $155,000.00 ("Lump Sum Payment"). To elect the Lump Sum Payment,
Employee must cause Diamond Homes actually to receive, no later than the close
of business, Woodstock, Illinois time, on the Election Date, at Diamond Homes's
corporate office in Woodstock, Illinois, a fully executed and signed notice of
election ("Notice") in the form of Exhibit A hereto. If the Employee elects to
receive the Lump Sum Payment, Diamond Homes shall deliver to Employee's
attention, at Diamond Homes's offices in Anaheim, California, on February 28,
1997 (or if Employee elects by marking the Notice, shall directly deposit at
Employee's bank account), payment in the amount of the Lump Sum Payment as
reduced for certain amounts that are withheld for payment of federal, state, and
local taxes.
d. Election of the Lump Sum Payment by Employee in the manner
specified herein shall release and discharge Diamond from any obligation to pay
any Continuation Payments or any other payments other than the Lump Sum Payment,
the 1996 Incentive Compensation Payment, the 1997 Incentive Compensation
Payment, the Vacation Payment, and the Security Payments. Failure of the
Employee to elect the Lump Sum Payment in the manner specified herein shall
forever preclude the Employee from the right to make such election and shall
forever release and discharge Diamond from any obligation to make the Lump Sum
Payment or any other payments other than the Continuation Payments, the 1996
Incentive Compensation Payment, the 1997 Incentive Compensation Payment, the
Vacation Payment, and the Security Payments.
6. Security Payment. Diamond Homes shall make thirty-five (35)
payments, one for each of the months in the period from February 1, 1997,
through December 31, 1999, in the amount of $5,000 on behalf of Employee (the
"Security Payments"). Each Security Payment will be made on the last day of the
month, with the first Security Payment being made on February 28, 1997.
7. Employee acknowledges that from time to time he has received
salary, medical benefits, a travel allowance, vacation pay, security payments
pursuant to an agreement dated April 1, 1996, and other compensation from
Diamond for the period through February 20, 1997. Employee agrees that, upon
his execution and delivery of this Settlement Agreement, his right to receive,
and Diamond's obligation to pay, any further salary, medical benefits, travel
allowances, security payments, and other compensation shall terminate and shall
be replaced by the obligations set forth in this Settlement Agreement.
8. In consideration of the payments made to and to be made to
Employee under this Settlement Agreement, Employee agrees as follows:
(i) In the course of Employee's employment with the Company, and
because of the nature of Employee's responsibilities, Employee has had
access to valuable trade secrets, proprietary data and other confidential
information of one or more Diamond Entities (collectively, "Confidential
Information"). With respect to the customers, suppliers, competitors and
business, such trade secrets, proprietary data and other Confidential
Information include but are not limited to the following: the Company's
existing and contemplated services, products, business and financial
methods and practices, plans, pricing, selling techniques, business
systems, product technologies and formulae, and special methods and
processes involved in providing services, lists of the Company's existing
and prospective suppliers, subcontractors and/or customers, methods of
obtaining suppliers and customers, credit and financial data of the
Company's present and prospective suppliers and/or customers, particular
business requirements of the Company's present and prospective customers.
In addition, Employee, on behalf of the Company, has developed personal
acquaintances and relationships with the Company's present and prospective
suppliers, subcontractor and customers, which acquaintances and
relationships may constitute the Company's only contact with such persons
or entities. As a consequence thereof, the parties agree that Employee
occupied a position of trust and confidence with respect to the Company's
affairs and its products and services. In view of the foregoing and in
consideration of the payments made pursuant to this Settlement Agreement,
Employee acknowledges and agrees that it is reasonable and necessary for
the protection of the goodwill and business of the Company that Employee
make the covenants contained in subparagraphs (ii) through (vi) below
regarding the conduct of Employee following the date of this Settlement
Agreement, and that the Company will suffer irreparable injury if Employee
engages in conduct prohibited thereby. Employee represents that observance
of the aforementioned covenants will not cause Employee any undue hardship
nor will it unreasonably interfere with Employee's ability to earn a
livelihood. The covenants contained in subparagraphs (ii) through (vi)
below shall each be construed as a separate agreement independent of any
other provision of this Settlement Agreement, and the existence of any
claim or cause of action of Employee against the Company, whether
predicated on this Settlement Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of any of those covenants.
(ii) Non-Disclosure. Employee will not, without the express
written consent of the Company, directly or indirectly communicate or
divulge to, or use for his own benefit or for the benefit of any other
person, firm, association or corporation, any Confidential Information;
provided, however, Employee may disclose or use such information under any
of the following circumstances: (a) disclosure which Employee is advised
by counsel is required by a court or other governmental agency of competent
jurisdiction, (b) disclosure or use by Employee of any such information or
data which is generally known within the industry or is otherwise available
through independent sources and (c) disclosure or use by Employee after the
expiration of three years following the date of this Settlement Agreement -
(or, if this period shall be unenforceable by law, then for such lesser
period as shall be required by law to make the provisions of this
subparagraph enforceable), of any such information in connection with
Employee's subsequent employment or business endeavors undertaken in good
faith and without the specific intent of unreasonably depriving any Diamond
Entity of the value and benefit of such proprietary data. In the event
that any Confidential Information is communicated as permitted by the
provisions of this subparagraph (ii), Employee shall notify the Chief
Executive Officer of Diamond Homes in writing at least ten calendar days
prior to such communication.
(iii) Return of Information and Equipment. Promptly after
executing this Settlement Agreement, Employee will deliver to Diamond Homes
all originals and copies of memoranda, customer lists, samples, records,
documents, computers, computer programs, computer disks and software,
product information, hardware, equipment (e.g., computers, fax machines)
and other materials and equipment requested by any Diamond Entity which he
has obtained from any Diamond Entity.
(iv) Non-Competition. For a period of three years following the
date of this Settlement Agreement (or, if this period shall be
unenforceable by law, then for such lesser period as shall be required by
law to make the provisions of this subparagraph enforceable), Employee
shall not, without the express written consent of Diamond Homes or approval
of the board of directors of Diamond Homes, directly or indirectly, own,
manage, participate in or otherwise engage in or have any connection with
(as an employee, representative, agent or otherwise) any business in the
United States which provides any product or service provided by any Diamond
Entity or actively contemplated to be provided by a Diamond Entity on the
date of this Settlement Agreement except that Employee shall not be
precluded hereby from (i) owning stock or any other securities in a
publicly traded company where such investment entitles Employee to less
than 5% of the voting control over such company, or (ii) working as an
employee, after the termination of Employee's employment with the Company,
for any entity in which Employee has no ownership interest, or option or
other right to acquire an ownership interest, in any capacity where the
likelihood of Employee's breach or violation of the provisions of subpara-
graphs (ii) and (vi) is demonstrated to the reasonable satisfaction of
Diamond Homes to be remote.
(v) Non-Solicitation of Customers, Subcontractors and Suppliers.
For a period of three years following the date of this Settlement Agreement
(or if this period shall be unenforceable by law, then for such lesser
period as shall be required by law to make the provisions of this
subparagraph enforceable), and except in the good faith furtherance of the
interests of the Company, Employee will not, without the express written
consent of the Company or the approval of the Board of Directors of Diamond
Homes, contact (whether or not initiated by Employee), with a view toward
selling any product or service competitive with any product or service, to
Employee's knowledge, sold or proposed to be sold by Diamond Homes or any
subsidiary of the Diamond Homes at the time of such contact, any person,
firm, association or corporation: (i) to which any Diamond Entity was
known by Employee to have sold any product or service during the preceding
year, (ii) which Employee solicited, contacted or otherwise dealt with on
behalf of any Diamond Entity during the preceding year, or (iii) which
Employee was otherwise aware was a customer or prospective customer, or
supplier subcontractor or prospective supplier subcontractor, of any
Diamond Entity during the preceding year. Employee will not directly or
indirectly make any such contact, either for his benefit or for the benefit
of any person, firm, association or corporation, and Employee will not in
any manner assist any such person, firm, association or corporation to make
any such contact.
(vi) Non-Interference. For a period of three years following the
date of this Settlement Agreement (or if this period shall be unenforceable
by law, then for such lesser period as shall be required by law to make the
provisions of this subparagraph enforceable), Employee shall not induce or
encourage, directly or indirectly, (a) any employee of any Diamond Entity
to leave his or her employment, or to seek employment with anyone other
than the Company, unless it has been determined by Employee in good faith,
with approval by the Board of Directors of Diamond Homes or the Chief
Executive Officer of Diamond Homes, that such employee's performance or
other characteristics or circumstances are such that employee's leaving the
relevant Diamond Entity is in the best interests of the Company, or (b) any
customer, subcontractor, or supplier (including without limitation, Sears,
Xxxxxxx & Co., ABC Supply Co., Inc., and independent contractors engaged by
Diamond Homes to provide or deliver products to, or perform services for,
customers of Diamond Homes) of any Diamond Entity to modify or terminate
any relationship, whether or not evidenced by a written contract, with such
Diamond Entity unless it has been determined by Employee in good faith,
with approval by the Board of Directors of Diamond Homes or the Chief
Executive Officer of Diamond Homes, that such modification or termination
is in the best interests of the Company.
9. Employee acknowledges and agrees that his employment relationship
with Diamond terminated as of February 20, 1997 (the "Termination Date").
Employee agrees that he will not, to any one or in any manner, portray himself
as an officer or an employee of Diamond Homes or any affiliate of Diamond Homes
for any time after the Termination Date.
10. Diamond Homes confirms that, upon the effectiveness of this
Settlement Agreement, Employee shall be deemed to have retired for purposes of
the Diamond Home Services, Inc. Incentive Stock Option dated June 19, 1996,
between Diamond Homes and Employee.
11. Employee and Diamond hereby acknowledge and agree that any breach
by Employee or his affiliates, individually or collectively, of the foregoing
restrictive covenants may cause Diamond irreparable injury for which there is no
adequate remedy at law. Therefore, Employee expressly agrees that in the event
of any breach by Employee or his affiliates of the foregoing, Diamond shall be
entitled, in addition to any remedies available at law, to injunctive and/or
other equitable relief, to require specific performance or prevent a breach
under the provisions of this Settlement Agreement. In addition, as partial
consideration for any damages to Diamond, if Employee or his affiliates shall
breach any provisions of this Settlement Agreement or if any representation by
Employee herein is incorrect in any material respect, Diamond Homes, at its
option, may discontinue making any payments to Employee otherwise due pursuant
to this Settlement Agreement.
12. Employee agrees that he may have certain property in his
possession which is the property of one or more Diamond Entities, including, but
not limited to, the following: (i) keys to certain buildings; (ii) credit
cards; (iii) documentation concerning other Diamond corporate charge privileges;
(iv) computer hardware and software; and (v) airplane tickets which have been
ordered in connection with Employee's employment. As a part of this Settlement
Agreement, Employee agrees to return all of Diamond's property promptly upon his
execution of this Settlement Agreement, including but not limited to the
property specifically listed in this paragraph 12, to Diamond, c/o Xxxxxx
X'Xxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
13. Each party to this Settlement Agreement hereby affirms that it/he
has had the opportunity to consult with counsel with respect to the terms and
conditions of this Settlement Agreement, and each party hereto waives the right
to assert that any claim, demand or provision has been, through oversight or
error, omitted from the covenants set forth in this Settlement Agreement. The
parties understand that this Settlement Agreement and the releases it contains
may be pled by any Diamond Entity as a complete defense to any claim or
entitlement which Employee may hereafter assert in any suit or claim for or on
account of any matter or thing whatsoever occurring up to and including the date
of this Settlement Agreement.
14. The provisions of this Settlement Agreement are severable, and if
any part of it is found to be unenforceable, the other provisions shall remain
fully valid and enforceable.
15. The undersigned Employee affirms that the only consideration for
his signing this Settlement Agreement are the terms stated above; that no other
promise or Settlement Agreement of any kind has been made to or with him by any
person or entity whomsoever to cause him to execute this instrument and that he
fully understands the meaning and intent of this release, including, but not
limited to, its final and binding effect, and that he is voluntarily entering
into this Settlement Agreement.
16. Employee agrees to keep the terms, amount and fact of this
Settlement Agreement completely confidential and not to disclose any information
concerning this Settlement Agreement to anyone except pursuant to the provisions
of subparagraph 8(ii) hereof.
17. This Settlement Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Illinois and may be
executed in separate counterparts that together constitute one instrument. This
Settlement Agreement shall be binding upon and shall inure to the benefit of
Diamond, its successors and assigns and shall be binding upon and inure to the
benefit of Employee, his successors, assigns, relatives, related entities and
affiliates.
18. This Settlement Agreement shall become effective only if (a) on
or before the close of business at its Woodstock, Illinois corporate offices, on
February 24, 1997, Diamond Homes executes this Settlement Agreement and (b) on
or before the close of business at its Woodstock, Illinois corporate offices, on
February 24, 1997, Diamond Homes actually receives, at its Woodstock, Illinois
corporate offices, a copy of this Settlement Agreement executed by Employee.
19. If the date on which any payment due hereunder is not a business
day of Diamond Homes, such payment shall be due and payable, without interest,
on the next business day thereafter.
20. This Settlement Agreement may only be changed or modified in
writing signed by both of the parties hereto.
21. WHEREFORE, the parties have executed this Settlement
Agreement as of the date first written above.
DIAMOND HOME SERVICES, INC.
________________________
By: C. Xxxxxxx Xxxxx
Its: Chief Executive Officer
_________________________
Xxxxxx X. Xxxxxxxx
EXHIBIT A
To: Diamond Home Services, Inc.
Attn: Xxxxxx X'Xxxx
From: Xxxxxx X. Xxxxxxxx ("Employee")
Employee hereby elects the option of a Lump Sum Payment pursuant to that
certain Settlement Agreement dated as of February 20, 1997.
_____________________
Xxxxxx X. Xxxxxxxx
_________ Please direct deposit the Lump Sum Payment. [Please initial if direct
deposit election is taken.]
