FORM OF EMPLOYMENT AGREEMENT
Exhibit 10.1
FORM OF
THIS EMPLOYMENT AGREEMENT
(this "Agreement") is made on the ___ day of February, 2009, by PGT Industries,
Inc., a Florida corporation (the "Employer"), and [NAME], an individual and
resident of the State of [] (the "Employee").
RECITALS:
A.
The Employee is currently employed by the Employer, pursuant to that certain
employment agreement, dated [], by and between the Employer and Employee (the
“Prior Agreement”).
B. Employer
desires to employ Employee upon the terms and conditions set forth herein, and
the Employee wishes to terminate the Prior Agreement, and accept such employment
upon the terms and conditions set forth herein including, without limitation,
the nondisclosure and noncompetition covenants and agreements of the Employee
set forth in Sections 7 and 8 hereof, in order to cause Employer to provide
Employee the Compensation (as defined herein) and Termination Pay pursuant to
Section 6.2 hereof.
AGREEMENT
In
consideration of the foregoing and the mutual promises and covenants set forth
herein, the parties, intending to be legally bound, agree as
follows:
1. Definitions.
For
the purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 1.
"AFFILIATE(S)"
-- any Person, directly or indirectly controlled by, or under common control
with, the Employer or any other referenced Person.
"AGREEMENT"
-- this Employment Agreement, as amended from time to time.
"ANNUAL
PERFORMANCE BONUS" -- as described in Section 3.2.
"BENEFITS"
-- as described in Section 3.1(b).
"BOARD
OF DIRECTORS" -- the board of directors of the Employer.
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"CAUSE"
-- means the occurrence of any of the following events during the Employment
Period: (a) conduct amounting to fraud or dishonesty against the Employer or any
subsidiary or affiliate of the Employer; (b) the Employee's intentional
misconduct, repeated refusal to follow the reasonable directions of the Chairman
or Board of Directors of the Employer or a material breach of this Agreement,
provided an officer of the Employer, upon the direction of the Chairman or Board
of Directors of the Employer, notifies the Employee of the acts deemed to
constitute such intentional misconduct, repeated refusal or material breach in
writing and the Employee fails to correct such acts (or begin such action
necessary to correct such acts and thereafter diligently pursues the completion
thereof) within five (5) business days after written notice is given; (c)
repeated intoxication with alcohol or drugs while on the Employer's business
during regular business hours; (d) a conviction or plea of guilty or nolo
contendere to a felony (other than one arising from the operation of a motor
vehicle or resulting from actions taken (or not taken) by the Employee in good
faith in his capacity as an employee or officer of the Employer); or (e) the
Employee's failure to observe and comply with the requirements in Sections 7 or
8 hereof.
"COMPENSATION"
-- Salary and Benefits.
"CONFIDENTIAL
INFORMATION" -- any and all:
(a)
trade secrets concerning the business and affairs of the Employer or any
Affiliate of the Employer, product or service specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing, marketing or distribution
methods and processes, customer lists, prospective customer lists, current and
anticipated customer requirements, price lists, market studies, business plans,
computer software and programs (including object code and source code), computer
software and database technologies, systems, structures, and architectures (and
related formulae, compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information), and any other information, however documented, that is a "trade
secret" either under common law or as such term is defined by statute under the
laws of any applicable jurisdiction;
(b)
information concerning the business and affairs of the Employer or its
Affiliates (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training and techniques and materials), however documented; and
(c)
notes, analysis, compilations, studies, summaries, and other material prepared
by or for the Employer or Affiliates of the Employer, containing or based, in
whole or in part, on any information included in the foregoing.
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"DISABILITY"
-- as defined in Section 6.3.
"EMPLOYEE
INVENTION" -- any idea, invention, technique, modification, process, or
improvement (whether patentable or not), and any work of authorship (whether or
not copyright protection may be obtained for it) created, conceived, or
developed by the Employee, either solely or in conjunction with others, during
the Employment Period, or a period that includes a portion of the Employment
Period, that relates in any way to, or is useful in any manner in, the business
then being conducted or proposed to be conducted by the Employer or any
Affiliate of the Employer, and any such item created by the Employee, either
solely or in conjunction with others, following termination of the Employee's
employment with the Employer, that is based upon or uses Confidential
Information; provided, however, that any item so created by the Employee that is
based upon or uses Confidential Information that the Employee demonstrates was
or became generally available to the public, other than as a result of a
disclosure by the Employee, will not be deemed to be an Employee Invention for
any purposes.
"EMPLOYER"
-- as defined on the first page of this Agreement and its successors and
assigns.
"EMPLOYMENT
PERIOD" -- the term of the Employee's employment with the Employer.
"GOOD
REASON" -- means the occurrence of any of the following events during the
Employment Period: (a) a material diminution of the duties or responsibilities
of the Employee; or (b) the assignment of the Employee to a worksite outside of
a fifty (50) mile radius from the Employer's current headquarters; provided,
however, that none of the foregoing events or conditions will constitute “Good
Reason” unless: (c) Employee provides the Employer with written objection to the
event or condition within sixty (60) days following the occurrence thereof, (d)
the Employer does not reverse or otherwise cure the event or condition within
thirty (30) days of receiving that written objection, and (e) Employee resigns
his employment within sixty (60) days following the expiration of that cure
period.
“INCENTIVE
AMOUNT” means the target amount payable to the Employee under the Employer’s
Annual Incentive Plan for the award period ending in the year in which the
termination of employment occurs.
"NONCOMPETITION
AGREEMENT" -- the agreements and covenants of the Employee found in Section
8.2.
"NONCOMPETITION
PERIOD" -- for a period of time equal to the Employment Period plus two (2)
years, unless this Agreement is terminated by the Employer without Cause or by
the Employee with Good Reason, in which case the Noncompetition Period will be
for a period of time equal to the Employment Period plus one (1) year.
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"PERSON"
-- any individual, corporation (including any non-profit corporation), general
or limited partnership, limited liability company, joint venture, estate, trust,
association, organization, or governmental body.
"PROPRIETARY
ITEMS" -- as defined in Section 7.2(a)(iv).
"SALARY"
-- as defined in Section 3.1(a).
2. Employment
Term and Duties.
2.1
Employment. The Employer hereby employs the Employee, effective as of the date
hereof, and the Employee shall accept employment by the Employer, effective as
of the date hereof, upon the terms and conditions set forth in this
Agreement.
2.2
Term. Subject to the provisions of Section 6, the term of the Employee's
employment under this Agreement shall commence on the date hereof and continue
until terminated in accordance with Section 6.
2.3
Duties. The Employee will initially serve as the [POSITION] of the Employer,
with duties and responsibilities associated with and related to such position
and as otherwise reasonably requested in good faith by the Chairman or Board of
Directors of the Employer consistent with such position. The Employee will (a)
devote the Employee's business effort, time, energy and skill (vacations and
reasonable absences due to illness excepted) as is necessary to fulfill the
duties of his position and those assigned by the Chairman or Board of Directors
of the Employer, (b) use his best efforts to promote the success of the
business, and (c) cooperate fully with the reasonable requests of the Chairman
and the Board of Directors, as the case may be, in the advancement of the best
interests of the Employer and its Affiliates. During the Employment Period, the
Employee shall not be engaged in or provide services to any other business or
enterprise (whether engaged in for profit or not), which interferes with the
Employee's obligations under this Agreement.
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3. Compensation.
3.1 Basic
Compensation.
(a)
Salary.
The Employer shall pay to the Employee an annualized salary at a rate of $[] per
year, subject to the provisions of Section 6 and increased (but not decreased)
as provided below (the "Salary"), which Salary will be payable in equal periodic
installments in accordance with the Employer's customary payroll practices. The
Salary will be reviewed by the Board of Directors, as the case may be, at least
once each year and may be increased by the Employer following such review. Any
such increase in the Salary shall be made by, and at the sole discretion and
approval of, the Board of Directors, as the case may be, and, as increased,
shall become the Employee's new "Salary" hereunder (unless and until further
increased).
(b)
Benefits.
The Employee will be entitled to participate in such deferred compensation,
profit sharing, bonus, life insurance, hospitalization and medical plans or
insurance coverage, disability, and other employee benefit plans, programs and
policies of the Employer in effect from time to time (collectively, the
"Plans"), vacation and holidays (as further provided in Section 5 below), and
any other plan which may be made available by the Employer to its key management
employees from time to time in the future, if, and to the extent that, the
Employee is eligible under the terms of such Plans. All of the plans,
agreements, and undertakings of Employer set forth above shall be called,
collectively, the "Benefits." Any Benefits hereunder shall be subject to such
local, state or federal tax reporting requirements as maybe in effect from time to time. This Agreement will not
limit the Employer’s ability to amend, modify or terminate such Plans at any
time for any reason.
3.2 Annual Performance
Bonus.
As
additional incentive compensation for the services to be rendered by the
Employee pursuant to this Agreement, the Employee shall be eligible, each
calendar year, to receive a bonus (the "Annual Performance Bonus"). The Annual
Performance Bonus, if any, shall be determined by the Board of Directors, in its
discretion. Any Annual Performance Bonus that is due to the Employee
hereunder shall be paid as soon as practicable, but in no event later than 30
days following completion of the Employer's audited financial statements of the
year to which the Annual Performance Bonus relates.
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4. Facilities
and Expenses.
The
Employer will furnish the Employee with office space, equipment, supplies,
computer and facsimile equipment, telephones (including cellular telephone), and
such other facilities, support staff and personnel as the Employer deems
necessary or appropriate for the performance of the Employee's duties under this
Agreement. The Employer will reimburse the Employee for reasonable business
expenses incurred by him on behalf of the Employer in the performance of his
duties; provided, that Employee furnishes to Employer documentation of such
expenses as is required by the Internal Revenue Service, as well as such other
documentation as the Employer may reasonably request. In addition, the Employer
shall reimburse the Employee or otherwise provide and pay for all approved
professional affiliation expenses incurred by the Employee. The Employee must
file authorization requests, to the extent required by the Employer's employment
policies and, in all instances, expense reports with respect to such expenses in
accordance with the Employer's policies.
5. Vacations
and Holidays.
The
Employee will be entitled to four (4) weeks paid vacation each year or such other amount of paid vacation as is provided in the
Employer's written vacation policy, if greater. Such vacation shall be taken in
accordance with the vacation policies of the Employer in effect for its
executive officers from time to time. Vacation must be taken by the Employee at
such time or times as mutually agreed by the Employee and the Employer. The
Employee will also be entitled to the paid holidays as set forth in the
Employer's policies.
6. Termination.
6.1 Events of
Termination.
(a)
Death;
Disability. In the event of the Employee's death or Disability, his
employment with the Employer shall be deemed terminated as of the end of the
month in which such death occurs or such Disability is determined, and all
rights, duties and obligations of the parties hereunder shall thereupon cease,
except for the Employee's obligations under Section 7 and Section 8 hereof (in
the case of a termination due to Disability), and the Employer's obligations
under Sections 6.2(a) and 6.2(b) hereof, as the case may be.
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(b)
By
The Employer for Cause. The Employee's employment with the Employer may
be terminated at the option of and by written notice from the Employer if the
Board of Directors in good faith finds Cause. Upon any such termination, all
rights, obligations and duties of the parties hereunder shall immediately cease
(including, but not limited to, the payment by the Employer of all
Compensation), except for the Employee's obligations under Section 7 and Section
8 hereof.
(c)
By
The Employer Without Cause. The Employer may also terminate the
Employee's employment at any time upon not less than thirty (30) days advance
written notice without Cause. Upon expiration of such notice period, all rights, obligations and
duties of the parties hereunder shall immediately cease, except for the
Employee's obligations under Section 7 and Section 8 hereof and the Employer's
obligations under Section 6.2(c). The Employer may accelerate the effective
date of such termination if, in lieu of such notice, and in addition to the
payments required by Section 6.2(c) below, Employer continues to pay Salary to
Employee for a number of days equal to the number of days by which Employer
accelerated the effective date of Employee's termination.
(d)
Voluntary
Termination without Good Reason By Employee. The Employee may terminate
his employment with the Employer without Good Reason upon not less than thirty
(30) days advance written notice to the Employer; provided, however, that after
the receipt of such notice, the Employer may, in its discretion accelerate the
effective date of such termination at any time by written notice to the
Employee. Upon the effective date of any such termination, all rights,
obligations and duties of the parties hereunder shall immediately cease, except
for the Employee's obligations under Section 7 and Section 8 hereof and the
Employer's obligations under Section 6.2(d).
(e)
Termination
with Good Reason by the Employee. The Employee may terminate his employment with
the Employer with Good Reason upon advance written notice to the Employer;
provided, however, that after the receipt of such notice, the Employer may, in
its discretion accelerate the effective date of such termination at any time by
written notice to the Employee. Upon the effective date of any such termination,
all rights, obligations and duties of the parties hereunder shall immediately
cease, except for the Employee's obligations under Section 7 and Section 8
hereof and the Employer's obligations under Section 6.2(e).
6.2
Termination
Pay. Upon cessation of Employee’s
employment with Employer, the Employer will be obligated to pay the
Employee (or, in the event of his death, his designated beneficiary) only such
compensation as is provided in this Section 6.2. For purposes of this Section 6.2, the
Employee's designated beneficiary will be such individual beneficiary or trust,
located at such address, as the Employee may designate by notice to the Employer
from time to time or, if the Employee fails to give notice to the Employer of
such a beneficiary, the Employee's estate.
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(a)
Termination
by Death. If the Employee’s employment
terminates because of the Employee's death, in addition to the Benefits
otherwise due the Employee, the Employer will, in accordance with normal payroll
practice, pay to the Employee's designated beneficiary the Employee's Salary for
a period of twelve (12) months.
(b)
Termination
upon Disability. If the Employee’s
employment is terminated by either party as a result of the Employee's
Disability, as determined under Section 6.3, in addition to the Benefits
otherwise due the Employee, the Employer will, in accordance with normal payroll
practice, continue to pay to the Employee his Salary for a period of twelve (12)
months following the effective date of such
termination.
(c)
Termination
by the Employer Without Cause. If the Employer terminates the Employee's
employment without Cause, the Employer will (i) pay to Employee his Salary, in
accordance with normal payroll practice, for a period of [] months, commencing no later than the tenth business day
following receipt by the Employer of an executed Release (as described below);
(ii) waive the applicable premium otherwise payable for COBRA continuation
coverage for Employee (and, if applicable, his spouse and eligible dependents)
for a period of []; and (iii) pay []% of the Employee’s Incentive
Amount, in a lump-sum payment payable no later than the tenth business day
following receipt by the Employer of an executed
Release.
(d)
Termination
by the Employee without Good Reason. If the Employee terminates his
employment other than with Good Reason, the Employer shall continue to pay to
the Employee his Salary for the shorter of: (i) thirty (30) days; or (ii) the
notice period provided by the Employee with respect to his
termination.
(e)
Termination
by the Employee with Good Reason. If the Employee terminates the
Employee's employment with Good Reason, he will be
entitled to the same payments and benefits described above in Section
6.2(c).
6.3
Definition
of Disability. For purposes of this
Agreement, “Disability” has the meaning defined in Treas. Reg. §
1.409A-3(i)(4).
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6.4
Release
Required as a Condition of Severance. Notwithstanding any other provision of this
Agreement, payments under Section 6.2, above, are conditioned on the Employee’s
(a) immediate resignation, upon Employer’s request, from all employee and
director positions with the Employer and its affiliates and (b) execution and
delivery to the Employer, within 45 days following the termination of his
employment, and non-revocation of, a general release of claims against the
Employer and its affiliates in such form as the Employer may reasonably require
(the “Release”). For avoidance of doubt, the payments and benefits
described in this Section 6.2 are in lieu of, and not in addition to, any other
severance arrangement maintained by the Employer.
7. Non-Disclosure
Covenant; Employee Inventions.
7.1
Acknowledgments
by the Employee. The Employee acknowledges that (a) during the Employment
Period and as a part of his employment, the Employee will be afforded access to
Confidential Information; (b) public disclosure of such Confidential Information
could have an adverse effect on the Employer and its business; (c) since the
Employee possesses substantial expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; (d) the Compensation provided to Employee hereunder constitutes good
and sufficient consideration for the Employee's agreements and covenants in this
Section 7; and (e) the provisions of this Section 7 are reasonable and necessary
to prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee
Inventions.
7.2
Agreements
of the Employee. In consideration of the Compensation to be paid or
provided to the Employee by the Employer under this Agreement, the Employee
covenants as follows:
(a)
Confidentiality.
(i)
During and at all times following the Employment Period, the Employee will hold
in confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of the Employer or except
as otherwise expressly permitted by the terms of this Agreement.
(ii)
Any trade secrets of the Employer will be entitled to all of the protections and
benefits under applicable trade secret laws. If any information that the
Employer deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such
information will, nevertheless, be considered Confidential Information
for
purposes
of this Agreement. The Employee hereby waives any requirement that the Employer
submit proof of the economic value of any trade secret or post a bond or other
security.
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(iii)
None of the foregoing obligations and restrictions apply to any part of the
Confidential Information that the Employee demonstrates was or became generally
available to the public other than as a result of a disclosure by the
Employee.
(iv)
The Employee will not remove from the Employer's (or any Affiliate's) premises
(except to the extent such removal is for purposes of the performance of the
Employee's duties at home or while traveling, or except as otherwise
specifically authorized by the Employer) any document, record, notebook, plan,
model, component, device, or computer software or code, whether embodied in a
disk or in any other form (collectively, the "Proprietary
Items"). The Employee recognizes that, as between the Employer and
the Employee, all of the Proprietary Items, whether or not developed by the
Employee, are the exclusive property of the Employer. Upon termination of this
Agreement by either party, the Employee will return to the Employer all of the
Proprietary Items in the Employee's possession or subject to the Employee's
control, and the Employee shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary Items.
(b)
Employee
Inventions. Each Employee Invention will belong exclusively to the
Employer. The Employee acknowledges that all of the Employee's writing, works of
authorship, and other Employee Inventions are works made for hire and the
property of the Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is
determined
that any such works are not works made for hire, the Employee hereby assigns to
the Employer all of the Employee's right, title, and interest, including all
rights of copyright, patent, and other intellectual property rights, to or in
such Employee Inventions. The Employee covenants that he will
promptly:
(i)
disclose to the Employer in writing any Employee Invention;
(ii)
assign to the Employer or to a party designated by the Employer, at the
Employer's request and without additional compensation, all of the Employee's
right to the Employee Invention for the United States and all foreign
jurisdictions;
(iii)
execute and deliver to the Employer such applications, assignments, and other
documents as the Employer may request in order to apply for and obtain patents
or other registrations with respect to any Employee Invention in the United
States and any foreign jurisdictions;
(iv)
sign all other papers necessary to carry out the above obligations;
and
(v)
give testimony and render any other assistance at Employer's expense, in support
of the Employer's rights to any Employee Invention.
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7.3
Disputes
or Controversies. The Employee recognizes that should a dispute or
controversy arising from or relating to this Agreement be submitted for
adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Employee, and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by written agreement among
them.
8.
Non-Competition
and Non-Interference.
8.1
Acknowledgments
By the Employee. The Employee acknowledges that: the services
to be performed by him under this Agreement are of a special, unique and unusual
character; and (b) the Compensation provided to the Employee hereunder, together
with the consideration provided to the Employee under the Related Agreements,
constitute good and sufficient consideration for the Employee's agreements and
covenants in this Section 8; and (c) the provisions of this Section 8 are
reasonable and necessary to protect the Employer's business.
8.2
Covenants
of the Employee. In consideration of the acknowledgments by the Employee,
and in consideration of the Compensation to be paid or provided to the Employee
by the Employer, the Employee covenants that he will not, directly or
indirectly:
(a)
during the Noncompetition Period, (i) solicit business from, or compete with the
Employer for the business of, any customer of the Employer in the same or
similar business as the business conducted by the Employer; (ii) own, operate,
control, finance, manage, advise, be employed or engaged by, perform any
services for, invest in or otherwise become associated in any capacity with, any
business, company, partnership, organization, proprietorship, or other entity,
whose activities compete in whole or in part with the activities of the Employer
or any of its Affiliates in any geographical area in which the Employer or any
of its Affiliates conducted or conducts its business (a "Competitive Business");
or (iii) engage in any practice the purpose or
effect of
which is to intentionally evade the provisions of this covenant; provided,
however, that the Employee may purchase or otherwise acquire up to (but not more
than) three percent (3%) of any class of securities of any Competitive Business
(but without otherwise participating in the activities of such Competitive
Business) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934; or
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(b)
whether for the Employee's own account or the account of any other person (i)
solicit or induce, directly or indirectly, whether or not for consideration, any
employee or agent of the Employer to terminate his or her relationship with the
Employer; or (ii) induce or attempt to induce any supplier or contractor of the
Employer to terminate or adversely change its relationship with the Employer or
otherwise interfere with any relationship between the Employer and any of its
suppliers or contractors.
8.3
Enforceability;
Notice. If any covenant in Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not
against
public policy, will be effective, binding, and enforceable against the Employee.
The period of time applicable to any covenant in Section 8.2 will be extended by
the duration of any violation by the Employee of such covenant. The Employee
will, while the covenant under Section 8.2 is in effect, give notice to the
Employer, within ten (10) days after accepting any other employment, of the
identity of the Employee's employer. Employer may notify such employer that the
Employee is bound by this Agreement and, at the Employer's election,
furnish
such
employer with a copy of this Agreement or relevant portions
thereof.
9. General
Provisions.
9.1
Injunctive
Relief and Additional Remedy. The Employee acknowledges that the injury
that would be suffered by the Employer as a result of a breach of the provisions
of this Agreement (including any provision of Section 7 and Section 8) would be
irreparable and that an award of monetary damages to the Employer for such a
breach would be an inadequate remedy.
Consequently,
the Employer will have the right, in addition to any other rights it may have,
at Employer's cost, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provision of this
Agreement, and the Employer will not be obligated to post bond or other security
in seeking such relief.
9.2
Covenants
of Sections 7 and 8 are Essential and Independent. The covenants by the
Employee in Section 7 and Section 8 are essential elements of this Agreement,
and without the Employee's agreement to comply with such covenants, the Employer
would not have entered into this Agreement, offered employment to the Employee
or offered the Employee the Salary and Benefits and other consideration provided
hereunder. The Employee's covenants in Section 7
and
Section 8 are independent covenants and the existence of any claim by the
Employee against the Employer under this Agreement or otherwise, or against any
Affiliate of Employer, will not excuse the Employee's breach of any covenant in
Section 7 or Section 8. If the Employee's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Employee
in
Section 7 and Section 8.
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9.3
Representations
and Warranties by the Employee. The Employee represents and warrants to
the Employer that the execution and delivery by the Employee of this Agreement
do not, and the performance by the Employee of the Employee's obligations
hereunder will not, with or without the giving of notice or the passage of time,
or both: (a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Employee; or (b) conflict
with, result in the breach of any provisions of or the termination of, or
constitute a default under, any agreement to which the Employee is a party or by
which the Employee is or may be bound.
9.4
Waiver.
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by either party in exercising any
right, power, or privilege under this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
9.5
Binding
Effect; Delegation of Employee's Duties Prohibited. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives, including any
Affiliate to which Employer may assign this Agreement or any entity with which
the Employer may merge or consolidate or to which all or substantially all of
its assets may be transferred. The duties and covenants of the Employee under
this Agreement, being personal, may not be delegated or assigned.
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9.6
Notices.
All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
to the address(es) below, or (b) one business day after deposit with a
nationally recognized overnight delivery service (receipt and next day delivery
requested), in each case to the appropriate addresses set forth below (or to
such other addresses as a party may designate by notice to the other
parties):
If
to Employer: PGT Industries
0000
Xxxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
General Counsel
If
to
Employee: [ ]
[ ]
[ ]
9.7
Entire
Agreement; Amendments. This Agreement, as it may be amended from time to
time, contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior employment arrangements (as the
same may have been amended from time to time) and other agreements or
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof, including but not limited to the Prior Agreement. This
Agreement may not be amended orally, but only by an agreement in writing signed
by the parties hereto.
9.8
Governing
Law; Venue and Jurisdiction. This Agreement shall be governed by and
construed under Florida law, without regard to conflict of laws principles. The
parties agree that any lawsuit between them arising under this Agreement shall
be filed in any state or federal court located in Sarasota County, Florida or
Tampa, Florida, and each of the parties hereby agrees, acknowledges and submits
itself to the exclusive jurisdiction and venue of such courts for the purposes
of such lawsuit and agrees to accept service of process in accordance with the
provisions for delivery of notice set forth in Section 9.6 hereof.
9.9
Section
Headings; Construction. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be
of such gender or number as the circumstances require. Unless otherwise
expressly provided, the
word
"including" does not limit the preceding words or terms.
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9.10
Severability.
If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.11 Section
409A Compliance.
(a) Notwithstanding any other provision of this Agreement,
if the termination giving rise to the payments described in Sections 6.2(c) or
(e) is not a “Separation from Service” within the meaning of Treas. Reg. §
1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable
pursuant to those paragraphs will instead be deferred without interest and will
not be paid until Employee experiences a Separation from Service. In
addition, to the extent compliance with the requirements of Treas. Reg. §
1.409A-3(i)(2) (or any successor provision) is necessary to avoid the
application of an additional tax under Section 409A of the Code to payments due
to Employee upon or following his Separation from Service, then notwithstanding
any other provision of this Agreement (or any otherwise applicable plan, policy,
agreement or arrangement), any such payments that are otherwise due within six
months following Employee’s Separation from Service (taking into account the
preceding sentence of this paragraph) will be deferred without interest and paid
to Employee in a lump sum immediately following that six month
period. This paragraph should not be construed to prevent the
application of Treas. Reg. §§ 1.409A-1(b)(4) or -1(b)(9)(iii)(or any successor
provisions) to any amount payable to Employee. For purposes of the
application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision) to this
Agreement, each payment in a series of payments will be deemed a separate
payment.
(b) Notwithstanding anything to the contrary contained in
this Agreement or otherwise, to the extent an expense, reimbursement or in-kind
benefit due to Employee constitutes a “deferral of compensation” within the
meaning of Section 409A of the Code: (i) the amount of expenses eligible for
reimbursement or in-kind benefits provided to the Employee during any calendar
year will not affect the amount of expenses eligible for reimbursement or
in-kind benefits provided to the Employee in any other calendar year, (ii)
reimbursement of expenses will be made on or before the last day of the calendar
year following the calendar year in which the applicable expense is incurred,
and (iii) the right to payment, reimbursement or in-kind benefits may not be
liquidated or exchanged for any other benefit. Unless otherwise
specifically provided herein, expense reimbursements will be limited to expenses
incurred during the Employment
Period.
9.12
Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed and delivered this Employment
Agreement on the date first written
above.
PGT
INDUSTRIES, INC.
------------------------------------
[ ]
("Employer")
----------------------------------------
[ ]
("Employee")
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