EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into January
5, 1999, by and between XXXXXXX X. XXXXX ("Employee"), and PRECISION WINDOW
MFG., INC., a Missouri corporation ("Company").
PRELIMINARY STATEMENTS
As of the date of this Agreement, ThermoView Industries, Inc. a Delaware
corporation ("ThermoView"), has acquired all of the issued and outstanding
stock of the Company pursuant to a certain Stock Purchase Agreement, dated as
of the date hereof (the "Purchase Agreement"), by and among ThermoView and
the shareholders of the Company.
Prior to the execution of the Purchase Agreement, Employee, in addition
to being a shareholder, was a director, officer and employee of the Company.
The Company desires to employ Employee on the terms and conditions
hereinafter set forth and Employee desires to be employed by the Company on
such terms and conditions.
NOW THEREFORE, in consideration of the premises and mutual promises and
agreements contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, the Company hereby agrees to employ
Employee, and Employee hereby accepts such employment. Employee shall serve
the Company during the Term (as defined in Section 2.1) of this Agreement,
subject to the direction of the Board of Directors of the Company. Employee
shall devote substantially all of his business time and best efforts to
rendering services on behalf of both the Company and Primax Window Co., a
subsidiary of ThermoView, as requested by the President of ThermoView.
SECTION 2. TERM AND TERMINATION.
2.1. The term of Employee's employment hereunder shall be from the date
hereof through and including January 5, 2002 (the "Term") including any
renewal periods hereof pursuant to Section 2.3 hereof, unless terminated
prior thereto.
2.2. (i) The Company may, at any time and in its sole discretion,
terminate the employment of Employee hereunder for Cause (as defined below),
effective as of the later of (i) the date of written notice to Employee
specifying the nature of such cause, or (ii) the expiration of the cure
period, if applicable, (the "Termination Date"). For purposes of this
Agreement, "Cause" shall mean any of the following: (a) fraud, commission or
conviction of a felony, use of illegal drugs or controlled substances,
misappropriation, dishonesty, embezzlement, disloyalty or other acts of
material misconduct by Employee, (b) repeated
failure of the Employee to follow the direction of the Board of Directors of
the Company or the President of ThermoView or his designee regarding the
material duties of his employment after written notice of such failure, or
(c) any breach by the Employee of any material term of this Agreement or any
other agreement with the Company. If the employment of the Employee
hereunder is terminated pursuant to this paragraph (i), the Company shall
have no further obligations hereunder after the Termination Date other than
the payment of accrued and unpaid base salary through the Termination Date.
In the event that the Company should elect to terminate Employee for "cause"
within the meaning of Section 2.2 (i) (c) above, Employee shall have a period
of twenty (20) days after the written notice to cure any non-compliance set
forth therein.
(ii) The Company may, at any time and in its sole discretion,
terminate the employment of Employee hereunder for any or no reason,
effective as of the date of provision of written notice to Employee thereof.
If the employment of Employee hereunder is terminated pursuant to this
paragraph (ii), the Company shall have no further obligations hereunder after
the Termination Date other than the payment of base salary for the remaining
Term.
(iii) If, at any time during the Employment Term, Employee resigns
from the employ of the Company for any reason, the Company shall have no
further obligations hereunder after the date that he tenders his resignation
other than the payment of accrued and unpaid base salary through the last
date he provides services hereunder.
(iv) If Employee dies during the Employment Term, the employment of
Employee hereunder shall terminate immediately upon the death of Employee,
and the Company shall have no further obligations hereunder after the date of
death other than the payment to Employee's estate, legal representatives,
heirs, successors, assigns or other beneficiaries of accrued and unpaid
salary through such date.
(v) If Employee becomes disabled during the Term, the employment of
Employee hereunder shall terminate effective as of the date of provision of
written notice to Employee thereof. For purposes of this Agreement, the term
"disability" shall be defined as defined by any applicable long-term
disability insurance policy held by the Company, or if the Company does not
maintain such a policy, the inability of Employee to perform his normal
duties as a full-time employee of the Company for a period of ninety (90)
consecutive days by reason of physical or mental illness or incapacity, or
for periods of physical or mental illness or incapacity aggregating one
hundred twenty (120) days in any consecutive six (6) month period.
2.3. The Term shall be automatically renewed for an additional year upon
the expiration of the initial Term, or any extended Term unless either party
should give notice to the other at least thirty (30) days prior to the
expiration of the initial Term, or any extended Term, that he or it elects
not to renew upon expiration of the Term, or any extended Term.
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SECTION 3. COMPENSATION AND BENEFITS.
3.1. BASE SALARY. Employee shall be paid an annual base salary of
$60,000. Payment of base salary shall be payable in installments at such
times as the Company customarily pays its other employees.
3.2 OTHER BENEFITS. Employee shall be eligible to receive the fringe
benefits, perquisites, and other benefits of employment for which he is
eligible under the Company's policies and procedures which may be revised
from time to time at the discretion of the Board of Directors of the Company.
In the event Employee's employment is terminated early pursuant to Section
2.2(i) hereof, benefits will likewise terminate prospectively subject to
applicable law.
SECTION 4. MISCELLANEOUS.
4.1. BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon Employee and his executor, administrator, heirs,
personal representative and assigns, and the Company and its successors and
assigns; provided, however, that Employee shall not be entitled to assign or
delegate any of his rights or obligations hereunder without the prior written
consent of the Company.
4.2. GOVERNING LAW. This Agreement shall be deemed to be made in, and
in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the Commonwealth of Kentucky, without regard to
conflicts of laws principles.
4.3. ARBITRATION. Any dispute or difference between the parties hereto
arising out of or relating to this Agreement shall be finally settled by
arbitration in accordance with the Commercial Rules of the American
Arbitration Association by a panel of three qualified arbitrators. Each
party shall choose an arbitrator and the third shall be chosen by the two so
chosen. If either party to the dispute or difference fails to choose an
arbitrator within 30 days after notice of commencement of arbitration or if
the two arbitrators fail to choose a third arbitrator within 30 days after
their appointment, the American Arbitration Association shall, upon the
request of any party to the dispute or difference, appoint the arbitrator or
arbitrators to constitute or complete the panel as the case may be.
Arbitration proceedings hereunder may be initiated by any party making a
written request to the American Arbitration Association, together with any
appropriate filing fee, at the office of the American Arbitration Association
in Louisville, Kentucky. All arbitration proceedings shall be held in
Louisville, Kentucky. Any order or determination of the arbitral tribunal
shall be final and binding upon the parties to the arbitration and may be
entered in any court having jurisdiction.
4.4. HEADINGS. The section and paragraph heading contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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4.5. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
recognized overnight courier, (iii) made by telecopy or facsimile
transmission, or (iv) sent by registered or certified mail, return receipt
requested, postage prepaid.
If to the Company:
c/o ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Chief Executive Officer
Fax No: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax No: (000) 000-0000
If to the Employee:
Xxxxxxx X. Xxxxx
c/o Primax Window Co.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No: (000) 000-0000
With a copy to:
Xxxxxxxxxx Xxxx & XxXxxxxx, PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax No: (000) 000-0000
All notices, requests, consents and other communications hereunder shall
be deemed to have been given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business
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day following the day such notice is delivered to the courier service, (iii)
if made by telecopy or facsimile transmission, at the time the receipt
thereof has been acknowledged by electronic confirmation or otherwise, or
(iv) if sent by registered or certified mail, on the fifth business day
following the day such mailing is sent.
Any party to this Agreement may change his or its address upon written
notice delivered pursuant to this Section.
4.6. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms
thereof notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement may be modified only by a written
instrument signed by each of the parties hereto.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Agreement and the Employee has executed this Agreement as of
the date first above written.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
COMPANY:
PRECISION WINDOW MFG., INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Vice President
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