AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION
AGREEMENT - XXXX
THIS AGREEMENT (the "Agreement") is made and effective as of the 28th
day of July, 1999, by and between XXXX X. XXXX, an individual residing at
0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Employee"), and THERMOVIEW
INDUSTRIES, INC., a Delaware corporation (the "Company").
PRELIMINARY STATEMENTS
WHEREAS, the Company has agreed to employ Employee on the terms and
conditions hereinafter set forth herein.
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.
1.1 GENERAL DUTIES OF EMPLOYEE. Subject to the terms hereof, Company
hereby agrees to employ Employee, and Employee hereby accepts such employment
as Chief Financial Officer. Employee shall serve the Company during the Term
(as defined in Section 2.1) of this Agreement, subject to the direction of
the President of the Company or his designee. As Chief Financial Officer,
Employee shall devote his best efforts and such business time as may be
necessary and appropriate to meet or exceed all performance goals established
for his position by the President of the Company or his designee. It is
contemplated that Employee will work a minimum of forty (40) hours per week
to satisfy such goals and expectations.
1.2 SPECIFIC DUTIES. Employee shall conduct general and active
management of all financial aspects for the Company subject to the direction
of the President of the Company or his designee. Employee also shall conduct
such other duties as the President of the Company or his designee prescribes
from time to time. Employee shall at all times adhere to the Company's rules
and regulations and to any applicable code of conduct for Company Employees.
SECTION 2. TERM.
2.1 TERM. The term of Employee's employment hereunder shall commence
on July 28, 1999 (the "Commencement Date"), through and including October 31,
2000 (the "Term"), unless terminated prior thereto pursuant to Section 2.2, 2.3,
2.4 or 2.5 below.
2.2 DEATH OR DISABILITY. The death or total disability of Employee. As
used herein, "total disability" means any physical or mental condition
rendering the Employee unable, for a total of six (6) months during any
twelve month period, to perform the duties and bear the responsibilities
incident to the position referred to in Section 1 hereof with or without
reasonable accommodation, or if Employee applies for long-term disability
benefits under any applicable disability insurance plan or for social
security disability benefits.
2.3 TERMINATION FOR "GOOD CAUSE": For the purposes of this Agreement,
"good cause" for termination of Employee's employment shall exist only if
(a) Employee is convicted of, pleads guilty to, or confesses to any act of
fraud, misappropriation or embezzlement or to any felony, (b) Employee has
engaged in a dishonest or disloyal act resulting in damage or prejudice to
the Company, (c) Employee has engaged in conduct or activities reasonably
believed to be damaging or prejudicial to the property, business or
reputation of the Company, or (d) Employee fails to follow company policies,
procedures or any applicable code of conduct, or (e) otherwise fails to
comply with the material terms of this Agreement; or
2.4 RESIGNATION. Resignation by the Employee at any time during the
Term, upon no less than thirty (30) days prior written notice.
2.5 TERMINATION WITHOUT "GOOD CAUSE". Company may terminate Employee's
employment hereunder with or without prior written notice to Employee at any
time. However, in the event of a termination other than for "good cause" or
in the event of employee's resignation or disability, Company shall be
obligated to continue to pay Employee all compensation to which he would
otherwise be entitled hereunder for a period of the remainder of the term to
this Agreement.
SECTION 3. COMPENSATION.
3.1 COMPENSATION. Employee agrees that as compensation under this
Agreement, Employee shall receive:
(i) An annual salary of $150,000 (One Hundred Fifty Thousand
Dollars), to be reviewed annually for escalation.
(ii) Health insurance coverage, life insurance coverage and
disability insurance coverage commensurate with the level of coverage
provided to other senior officers of the Company as of the effective date of
this Agreement.
(iii) Other fringe benefits, perquisites, bonuses or compensation
that the Board of Directors may from time to time prescribe.
SECTION 4. CONFIDENTIAL INFORMATION AND NONCOMPETITION COVENANT.
4.1 CONFIDENTIAL INFORMATION AND TRADE SECRETS. Employee hereby agrees
that he shall hold in confidence all customer lists, supplier lists, price
lists, financial information, operating manual and forms, plans, notes,
computer programs, systems and software (including, without limitation,
documentation and related source and object codes), and all other knowledge
or information of a confidential or proprietary nature with respect to the
business of the Company and its subsidiaries (the "Proprietary Information"),
and Employee will not disclose, publish or make use of such knowledge or
information during his employment hereunder, except for purposes of his
employment hereunder or as required by law. Upon the expiration of the Term
or early termination pursuant to Section 2.1, Employee shall return and
deliver forthwith to the Company any and all Proprietary Information,
including all copies thereof and shall not retain or remove any secret or
confidential information of any type or description without the express
written consent of the Company. Employee's duty of confidentiality shall
survive the termination of this Agreement for any reason.
4.2 NONCOMPETITION. The Company and its wholly-owned subsidiaries are
engaged in the business of designing, selling and installing state of the art
custom vinyl new and replacement thermal paned windows for the existing home
market in the following geographic areas: Arizona, Arkansas, California,
Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota,
Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio,
Oklahoma, South Dakota, Tennessee, Wisconsin, and Wyoming. The Company's
principal operation and office is located at 0000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx (the "Business Address"). The geographic area within a 100-mile
radius of (i) the Business Address and (ii) all other physical addresses of
the Company or its subsidiaries existing at the time of Employee's
termination shall hereinafter be referred to as the "Territory." Employee
acknowledges that the goodwill of the Company and its subsidiaries and
marketing and support of services and products of the Company and its
subsidiaries extends throughout the Territory. In consideration of the rights
granted to Employee hereunder, Employee hereby agrees that for the period
commencing on the date hereof and ending at the later of (i) two (2) years
from the date hereof or (ii) one (1) year after Employee ceases to be
employed by the Company (the "Noncompete Period"), Employee shall not
(without the prior written consent of the Company), in any manner, directly
or indirectly,
(i) engage in, have any equity or profit interest in, make any
loan to or for the benefit of, guaranty the repayment of any funds by, or
render services of any executive, advertising, marketing, sales,
administrative, supervisory, engineering, computer program or system
development, maintenance, manufacturing or consulting nature to any business
conducting operations in the Territory which are competitive with the
business activities being directly engaged in by the Company and its
subsidiaries as of the date on which Employee's employment is terminated; or
(ii) solicit, divert or appropriate, or attempt to solicit, divert
or appropriate, any customer or specifically identified merger or acquisition
candidates of the Company and its subsidiaries (including current customers
and current merger or acquisition candidates, as well as those which become
such during the term of this Agreement) for the purpose of providing services
competitive with the Business (in the case of a customer) or for the purpose
of forming a business association of any sort (in the case of a merger or
acquisition candidate); or
(iii) solicit to employ, on his own behalf or on behalf of any
other person, firm or corporation, any person who was employed during the
Term hereof and who has not thereafter ceased to be employed by the Company
and its subsidiaries for a period of at least one year, or to provide
services to or be associated with any person or entity that employs any such
person.
Notwithstanding anything contained herein to the contrary, Employee
shall not be prohibited from owning, directly or indirectly, up to 5% of the
outstanding equity interest of any company, which is in competition with the
Company, its subsidiaries or a Related Company and the stock of which is
publicly traded.
4.3 DISCLOSURE. Employee further covenants and agrees that during his
employment with the Company, and for a period of five years thereafter, he
will provide written notice to any prospective employer or business associate
of the duties and obligations set forth in this Agreement prior to accepting
employment, or entering into any business relationship, with that person,
firm, corporation, association or other entity.
4.4 SEVERABILITY. If a judicial determination is made that any of the
provisions of this Section 4 constitutes an unreasonable or otherwise
unenforceable restriction against Employee, the provisions of this Section 4
shall be rendered void only to the extent that such judicial determination
finds such provisions to be unreasonable or otherwise unenforceable. In this
regard, the parties hereto hereby agree that any judicial authority
construing this Agreement shall be empowered to sever any portion of the
Territory or any prohibited business activity from the coverage of this
Section 4, and to reduce the duration of the Noncompete Period and to apply
the provisions of this Section 4 to the remaining portion of the Territory or
the remaining business activities not to be severed by such judicial
authority and to the duration of the Noncompete Period as reduced by judicial
determination.
4.5 INJUNCTIVE RELIEF. Employee hereby agrees that any breach or
threatened breach by Employee of Sections 4.1 or 4.2 of this Agreement will
irreparably injure the Company and that any remedy at law for any breach or
threatened breach by Employee of the provisions contained in Sections 4.1 and
4.2 hereof shall be inadequate, and that the Company shall be entitled to
injunctive relief in addition to any other remedy it might have under this
Agreement or at law or in equity. Employee further agrees that the grant of
such injunctive relief and the enforcement of the terms of this Agreement
shall not deprive him of his ability to earn a living.
SECTION 5. ARBITRATION.
5.1 AGREEMENT TO ARBITRATE. Employee and the Company agree that they
will both benefit from a procedure for resolving legal disputes which may
arise between them which is expeditious, cost efficient, fair and impartial.
Therefore, except as otherwise provided in this Agreement, Employee and the
Company agree that either party may elect to submit to arbitration any
employment related claims or controversies for which a court otherwise would
be authorized by law to grant relief. This agreement applies to all claims,
disputes or controversies (including any issue or dispute concerning the
formation, applicability, interpretation or enforceability of this Agreement)
based on legally protected rights (i.e., statutory, contractual or common law
rights) that may arise between Employee and the Company, or any of its
current or former affiliates, officers, directors, employees and agents,
including but not limited to claims, demands or actions under Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Age
Discrimination in Employment Act, the Rehabilitation Act of 1973, the
Americans with Disabilities Act, the Employee Retirement Income Security Act
of 1974, the Fair Labor Standards Act and all amendments thereto, and any
other federal, state or local statute, regulation or common law doctrine,
regarding employment discrimination, terms and conditions of employment or
termination of employment. This agreement does not apply to claims for
workers' compensation and unemployment compensation benefits, and claims by
the Company for injunctive or other equitable relief for unfair competition,
breach of the non-competition or confidentiality provisions of this
Agreement, and/or unauthorized use or disclosure of trade secrets or other
confidential information. All claims or controversies in which arbitration
has been elected by either Employee or the Company shall be submitted to
arbitration pursuant to the provisions of the American Arbitration
Association ("AAA") in accordance with the arbitration rules of that body and
the arbitration rules of the Employer, if any, then in effect. Employee and
the Company both agree that any claim or controversy shall be governed by the
United States Arbitration Act, Xxxxx 0, Xxxxxx Xxxxxx Code. Employee and the
Company shall share equally in the payment of all arbitration fees. Employee
acknowledges and agrees that he is waiving any right to resolve disputes
covered by this agreement in a judicial forum.
SECTION 6. MISCELLANEOUS.
6.1 BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon Employee and his executor, administrator, heirs,
personal representative and assigns, and Company and its successors and
assigns; provided, however, that Employee shall not be entitled to assign or
delegate any of his rights or obligations hereunder without the prior written
consent of Company.
6.2 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.
6.3 HEADINGS. The section and paragraph heading contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.4 NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
recognized overnight courier, or (iii) sent by registered or certified mail,
return receipt requested, postage prepaid.
If to the Company:
ThermoView Industries, Inc.
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Chairman of the
Board and Chief Executive Officer
With a copy to:
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Employee:
Xxxx X. Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
All notices, requests, consents and other communications hereunder shall
be deemed to have been given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by
registered or certified mail, on the fifth business day following the day
such mailing is sent.
Any party to this Agreement may change his or its address upon written
notice delivered pursuant to this Section.
6.5 ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms
thereof notwithstanding any representations, statements or agreements to the
contrary heretofore made. This
Agreement may be modified only by a written instrument signed by each of the
parties hereto. This Agreement supercedes that certain Employment and
Noncompetition Agreement - Xxxx dated April 15, 1998 and all prior agreements
between 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 written above.
EMPLOYEE: /s/ Xxxx X. Xxxx
----------------------------
Xxxx X. Xxxx
COMPANY: THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
Chairman of the Board,
and Chief Executive Officer
