AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "EMPLOYMENT
AGREEMENT") is made this 28th day of June, 2004 by and between Xxxx True Temper,
Inc., a Delaware corporation (the "COMPANY"), and Xxxxx X. Xxxxxxx
("EXECUTIVE").
WHEREAS, the Company and its subsidiaries are engaged in the business
of (i) manufacturing, marketing and distributing long-handled tools,
wheelbarrows, hose reels, striking tools, pruning implements, pots and planters,
snow tools, lawn carts, repair handles, garden hoses, and decorative accessories
for the lawn and garden, and (ii) conducting such other activities as are
undertaken from time to time by the Company and each of its Affiliates, as
defined in SECTION 9(F), as a result of future acquisitions, or otherwise;
WHEREAS, Executive entered into that certain Employment Agreement
amended and restated as of February 28, 2002 (the "OLD EMPLOYMENT AGREEMENT")
with the Company;
WHEREAS, the Company desires to continue to employ Executive, and
Executive desires to continue to be employed by the Company, as the COO of the
Company, in accordance with the terms and conditions set forth herein; and
WHEREAS, the Company and Executive each desire that the Old Employment
Agreement be amended and restated in its entirety as set forth in this
Employment Agreement and that this Employment Agreement supercede the Old
Employment Agreement, and all other agreements with respect to the subject
matter hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises in this Employment Agreement, the parties agree as
follows:
1. EMPLOYMENT. The Company hereby agrees to continue to employ
Executive as COO of the Company, and Executive hereby agrees to accept such
employment and agrees to act as COO of the Company, all in accordance with the
terms and conditions of this Employment Agreement. Executive hereby represents
and warrants that neither Executive's entry into this Employment Agreement nor
Executive's performance of Executive's obligations hereunder will conflict with
or result in a breach of the terms, conditions or provisions of any other
agreement or obligation of any nature to which Executive is a party or by which
Executive is bound, including, without limitation, any development agreement,
non-competition agreement or confidentiality agreement entered into by
Executive.
2. TERM OF EMPLOYMENT AND AUTOMATIC RENEWAL. The term of Executive's
employment under this Employment Agreement will commence on the date of this
Employment Agreement and will continue until the third (3rd) anniversary of the
date of this Employment Agreement (the "INITIAL EMPLOYMENT PERIOD"). THE INITIAL
EMPLOYMENT PERIOD AND ANY RENEWAL EMPLOYMENT PERIOD (AS DEFINED HEREIN) SHALL
AUTOMATICALLY BE RENEWED AND EXTENDED ON THE SAME TERMS AND CONDITIONS CONTAINED
HEREIN FOR CONSECUTIVE ONE-YEAR PERIODS (EACH, A "RENEWAL EMPLOYMENT PERIOD"),
UNLESS NOT LATER THAN SIXTY (60) DAYS PRIOR TO THE END OF THE INITIAL EMPLOYMENT
PERIOD
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OR ANY RENEWAL EMPLOYMENT PERIOD, AS THE CASE MAY BE, EITHER PARTY SHALL GIVE
WRITTEN NOTICE TO THE OTHER PARTY OF ITS ELECTION TO TERMINATE THIS EMPLOYMENT
AGREEMENT. The Initial Employment Period and the Renewal Employment Periods are
hereinafter referred to as the "EMPLOYMENT PERIOD." For purposes of this
Employment Agreement, any notice of termination electing not to renew this
Employment Agreement pursuant to this SECTION 2 shall be deemed: (i) a
termination without Due Cause pursuant to SECTION 9(D) if such notice is
delivered by the Company; or (ii) a voluntary resignation without Good Reason
pursuant to SECTION 9(E) if such notice is delivered by Executive.
Notwithstanding anything to the contrary contained herein, the Employment Period
is subject to termination pursuant to SECTION 9 below.
3. POSITION AND RESPONSIBILITIES. Executive shall report to and be
subject to the direction of the CEO of the Company. Executive shall perform and
discharge such duties and responsibilities for the Company as the CEO may from
time to time reasonably assign Executive. Executive understands and acknowledges
that such duties shall be subject to revision and modification by the Chief
Executive Officer and/or the Board of Advisors (the "Board") of CHATT Holdings
LLC ("CHATT"), as appropriate, upon reasonable notice to Executive. During the
Employment Period, Executive shall devote Executive's full business time,
attention, skill and efforts to the faithful performance of Executive's duties
herein, and shall perform the duties and carry out the responsibilities assigned
to Executive, to the best of Executive's ability, in a diligent, trustworthy and
businesslike manner for the purpose of advancing the Company. Executive
acknowledges that Executive's duties and responsibilities will require
Executive's full-time business efforts and agrees that during the Employment
Period, Executive will not engage in any outside business activities that
conflict with the Executive's obligations under this Employment Agreement.
4. COMPENSATION.
(a) Base Salary. During the Employment Period, the Company
shall pay to Executive a minimum base salary at the rate of $241,020 per year
(the "BASE SALARY"), less applicable tax withholding, subject to increase from
time to time, solely at the Company's discretion, payable at the Company's
regular employee payroll intervals. Executive's performance shall be reviewed
annually and the Base Salary may be increased at the Company's sole discretion.
(b) Discretionary Bonus. During the Employment Period,
Executive shall be eligible to receive a cash bonus based upon the achievement
of certain budgeted performance goals pursuant to a program approved by the
Board; provided, that, notwithstanding the foregoing, for fiscal year 2004,
Executive shall be eligible to receive a cash bonus based upon budgeted
performance goals which are substantially similar to the goals approved by the
Company prior to such fiscal year. Executive shall also be eligible to receive
additional bonuses, in such amounts, if any, as determined by the Board in its
sole discretion based upon the achievement of performance goals and objectives
approved by the Board.
(c) Stock. Pursuant to that Subscription Agreement (the
"SUBSCRIPTION AGREEMENT") entered into between CHATT and Executive, Executive
purchased certain Class B units of CHATT, which Class B units shall be subject
to certain vesting, repurchase and other obligations and restrictions set forth
in the Subscription Agreement.
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5. BENEFIT PLANS. During the Employment Period, Executive will be
entitled to receive traditional employment benefits comparable to (i) those
benefits provided to other senior executive officers of the Company (subject to
any applicable waiting periods, eligibility requirements, or other
restrictions), which may include insurance (medical, dental, life, disability,
directors and officers, etc.), retirement plans, and profit sharing plans; and
(ii) the benefits provided to the Executive immediately prior to the Effective
Date. Notwithstanding the foregoing, the Company may, at any time or from time
to time, amend, modify, suspend or terminate any benefit plan or program
contemplated hereunder in this Section 5 for any reason and without the
Executive's prior written; provided that such amendment, modification,
suspension or termination does not disproportionately impact the Executive as
compared to the other participants under such plan or program.
6. EXPENSES. The Company, in accordance with policies and practices
established by the Board from time to time, will pay or reimburse Executive for
all expenses (including travel and cell phone expenses) reasonably incurred by
Executive during the Employment Period in connection with the performance of
Executive's duties under this Employment Agreement, provided that Executive
shall provide to the Company documentation or evidence of expenses for which
Executive seeks reimbursement in accordance with the policies and procedures
established by the Board from time to time.
7. VACATION. Executive shall be entitled to vacation at the rate of 4
weeks per year in accordance with the Company's vacation policy. Executive shall
make good faith efforts to schedule vacations so as to least conflict with the
conduct of the Company's business and will give the Company adequate advance
notice of Executive's planned absences. Up to half of Executive's unused
vacation time may be carried over to subsequent years; provided, however, that
in no event shall Executive be entitled to greater than 6 weeks vacation per
year.
8. CONFIDENTIALITY, INVENTIONS, NON-COMPETITION AND NON-SOLICITATION
AGREEMENT. As of the date hereof, Executive shall have entered into a
confidentiality, inventions, non-competition and non-solicitation agreement, in
the form of EXHIBIT A attached hereto and made a part hereof (the
"CONFIDENTIALITY, INVENTIONS, NON-COMPETITION AND NON-SOLICITATION AGREEMENT").
9. TERMINATION.
(a) Death. The Employment Period will terminate immediately
upon the death of Executive. If the Employment Period is terminated pursuant to
this SECTION 9(A), the Company shall have no further obligation to Executive (or
the Executive's estate) except for salary and benefits accrued through the date
of termination, and except as otherwise described in the Subscription Agreement.
(b) Due Cause. The Company may terminate the Employment Period
immediately upon written notice to Executive for a material breach of this
Employment Agreement by Executive. The following events constitute the exclusive
list of events that will be deemed a material breach of this Employment
Agreement (each of which shall constitute "DUE CAUSE"):
(i) Executive's material breach of any of Executive's
obligations under the Confidentiality, Inventions,
Non-Competition and Non-Solicitation
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Agreement; this Employment Agreement; the Subscription
Agreement; the Amended and Restated Unitholders
Agreement of CHATT, dated as of June 28, 2004, as in
effect from time to time (the "Unitholders Agreement");
or the Limited Liability Company Agreement of CHATT,
dated as of June 28, 2004, by and among the parties
thereto, as in effect from time to time (the "LLC
Agreement"); or
(ii) Executive's continued and deliberate neglect of,
willful misconduct in connection with the performance
of, or refusal to perform Executive's duties in
accordance with SECTION 3 of this Employment Agreement,
which, in the case of neglect or failure to perform,
has not been cured within thirty (30) days after
Executive has been provided notice of the same; or
(iii) Executive's engagement in any conduct which injures the
integrity, character, financial position or financial
performance of the business or reputation of the
Company or which impugns Executive's own integrity,
character or reputation so as to cause Executive to be
unfit to act in the capacity of COO of the Company; or
(iv) the Board's good faith determination that Executive has
committed an act or acts constituting a felony, or
other act involving dishonesty, disloyalty or fraud
against the Company.
If the Employment Period is terminated pursuant to this SECTION 9(B),
the Company shall have no further obligation to Executive except for salary and
benefits accrued through the date of termination, and except as otherwise
described in the Subscription Agreement.
(c) Permanent Disability. The Company may terminate the
Employment Period upon the Permanent Disability (as defined below) of the
Executive. If the Employment Period is terminated pursuant to this SECTION 9(C),
then Executive will be entitled to receive the Executive's salary and benefits
accrued through the date of termination and such benefits, if any, as may be
provided Executive pursuant to the Company's disability insurance policy. Except
as set forth in the immediately preceding sentence and as otherwise described in
the Subscription Agreement, if the Employment Period is terminated pursuant to
this SECTION 9(C), the Company shall have no further obligation to Executive.
For purposes of this Employment Agreement, the term "PERMANENT DISABILITY" shall
mean that, pursuant to applicable law, Executive is unable to perform, with or
without reasonable accommodation, by reason of physical or mental incapacity,
the essential functions of the Executive's position for one hundred fifty (150)
or more days in any one hundred eighty (180) day period. The Board shall
determine, according to the facts then available, whether and when a Permanent
Disability has occurred. Such determination shall not be arbitrary or
unreasonable.
(d) Termination by the Company without Due Cause. The Company
may terminate the Employment Period without Due Cause upon thirty (30) days'
prior written notice. If the Employment Period is terminated pursuant to this
SECTION 9(D), then Executive will be entitled to receive as severance pay the
Executive's Base Salary plus benefits (at the same cost to the Executive as in
effect immediately prior to such termination of employment) for a period of
twenty-four (24) months, payable at the Company's regular payroll intervals.
Notwithstanding
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the above, Executive shall receive such amounts only if Executive is not in
material breach of any of the provisions of the Confidentiality, Inventions,
Non-Competition and Non-Solicitation Agreement. Except as set forth in the first
sentence of this SECTION 9(D) and as otherwise described in the Subscription
Agreement, if the Employment Period is terminated pursuant to this SECTION 9(D),
the Company shall have no further obligation to Executive.
(e) Voluntary Resignation by Executive. Executive may
terminate the Employment Period at any time for any reason upon thirty (30)
days' prior written notice. If the Employment Period is terminated pursuant to
this SECTION 9(E), the Company shall have no further obligation to Executive
except for salary and benefits accrued through the date of termination, and
except as otherwise described in SECTION 4(C) of this Employment Agreement;
provided, however, that if Executive is terminating the Employment Period for
Good Reason (as defined below), then Executive will be entitled to receive as
severance pay the Executive's Base Salary plus benefits (at the same cost to the
Executive as in effect immediately prior to such termination of employment) for
a period of twenty-four (24) months, payable at the Company's regular payroll
intervals. Notwithstanding the above, Executive shall receive such amounts only
if Executive is not in material breach of any of the provisions of the
Confidentiality, Inventions, Non-Competition and Non-Solicitation Agreement. The
following events will be deemed "GOOD REASON" for which Executive may terminate
the Employment Period and receive the severance payments set forth in this
SECTION 9(E):
(i) a material diminution of the Executive's
responsibilities after notice to the Company and a
thirty (30) day opportunity to cure; or
(ii) any material breach of this Employment Agreement on the
part of the Company (including, but not limited to, any
decrease in the Base Salary without the consent of the
Executive or relocation of Executive's place of
employment to a location that is greater than fifty
(50) miles from the Harrisburg, Pennsylvania
metropolitan area), after notice to the Board, and a
thirty (30) day opportunity to cure; provided, however,
that Executive is not in material breach of any of the
terms of this Employment Agreement.
(f) General Release. The receipt of any severance payment as
set forth in SECTIONS 9(C)-(E) above shall be contingent upon Executive's
execution of a general release of all claims against the Company and its
Affiliates (as defined below), substantially in the form attached hereto as
EXHIBIT B. For purposes of this Employment Agreement, the term "AFFILIATES"
means all persons or entities that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company, all companies or entities in which the Company owns an equity interest,
and all predecessors, successors and assigns of such affiliates.
(g) Mitigation. Notwithstanding anything herein to the
contrary, to the extent Executive obtains employment at any time during the
entire twenty-four (24) months of the severance period, the Company's severance
obligations under this Employment Agreement, including, without limitation, the
continuation of Executive's benefits hereunder, shall be reduced by the amount
of any compensation or benefits received (or accrued) by the Executive,
including without limitation any equity or other incentive compensation and any
bonus, under such new employment arrangement. Executive agrees that if Executive
accepts other employment at any time during the entire twenty-four (24) months
of the severance period,
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Executive shall notify the Company in writing within two (2) business days of
such acceptance. Executive acknowledges that the Executive's failure to abide by
this provision shall entitle the Company to recoup all severance pay previously
paid to Executive pursuant to this Employment Agreement.
(h) Survival. Termination of the Employment Period in
accordance with this SECTION 11, or expiration of the Employment Period, will
not affect the provisions of this Employment Agreement that survive such
termination, including without limitation, the provisions in the
Confidentiality, Inventions, Non-Competition and Non-Solicitation Agreement and
will not limit either party's ability to pursue remedies at law or equity.
10. ATTORNEY'S FEES. If either party prevails in a legal action to
enforce or protect its rights under this Employment Agreement, then that party
shall be entitled to recover reasonable attorneys' fees, costs, and expenses, in
addition to all other relief, including but not limited to damages and
injunctive relief. The Company shall reimburse the Executive for the Executive's
reasonable attorneys fees and costs incurred with respect to the negotiation and
execution of (a) the amendment and restatement of this Agreement; (b) the
Subscription Agreement; (c) the Amended and Restated Operating Agreement of
CHATT; (d) the Amended and Restated Unitholders Agreement of CHATT; and (e) the
Registration Rights Agreement by and among CHATT, Xxxxxx Xxxxxx Partners IV,
L.P. and each executive or employee signatory thereto.
11. EXECUTIVE ASSISTANCE. Both during and for two years after
Executive's employment with the Company, Executive shall, upon reasonable
notice, furnish the Company with such information as may be in Executive's
possession or control, and cooperate with the Company, as the Company may
reasonably request (with due consideration to Executive's business activities
and obligations after the Employment Period), in connection with any litigation,
claim, or other dispute in which the Company or any of its Affiliates is or may
become a party. The Company shall reimburse Executive for all reasonable
out-of-pocket expenses incurred by Executive in fulfilling Executive's
obligations under this SECTION 11. In addition, to the extent that the Executive
provides such assistance at any time after six months from the date that
Executive's employment with the Company has terminated, and Executive is
required to be absent from employment for one or more days in order to provide
such assistance, the Company shall pay the Executive for each such day an amount
equal to the daily rate of the Executive's Base Salary as in effect as of the
date of termination.
12. EFFECT OF PRIOR AGREEMENTS. This Employment Agreement, the
Subscription Agreement, the Confidentiality, Inventions, Non-Competition and
Non-Solicitation Agreement, the Unitholders Agreement and the LLC Agreement
contain the entire understanding among the Company, CHATT and Executive relating
to the subject matter hereof and supersede any prior employment agreement
between Executive, ATT Holding Co., and the Company, including, without
limitation, the Old Employment Agreement, or other agreement relating to the
subject matter hereof between ATT Holding Co., the Company and Executive.
13. MODIFICATION AND WAIVER. This Employment Agreement may not be
modified or amended, nor may any provisions of this Employment Agreement be
waived, except by an instrument in writing signed by the parties. No written
waiver will be deemed to be a continuing waiver unless specifically stated
therein, and each such waiver will operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
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14. SEVERABILITY. If, for any reason, any provision of this Employment
Agreement is held invalid, such invalidity will not affect any other provision
of this Employment Agreement, and each provision will to the full extent
consistent with law continue in full force and effect. If any provision of this
Employment Agreement is held invalid in part, such invalidity will in no way
affect the rest of such provision, and the rest of such provision, together with
all other provisions of this Employment Agreement, will, to the full extent
consistent with law, continue in full force and effect.
15. NOTICES. Any notice, consent, waiver and other communications
required or permitted pursuant to the provisions of this Employment Agreement
must be in writing and will be deemed to have been properly given (a) when
delivered by hand; (b) when sent by telecopier (with acknowledgment of complete
transmission), provided that a copy is mailed by U.S. certified mail, return
receipt requested; (c) three (3) days after sent by certified mail, return
receipt requested; or (d) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case to the appropriate addresses and
telecopier numbers set forth below:
If to the Company:
Xxxx True Temper, Inc.
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Xxxxx X. Xxxxxxx
Each party will be entitled to specify a different address for the
receipt of subsequent notices by giving written notice thereof to the other
party in accordance with this SECTION 15.
16. THIRD PARTY BENEFICIARIES. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or entity,
other than the parties to this Employment Agreement and their respective
permitted successors and assigns, any rights or
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remedies under or by reason of this Employment Agreement.
17. HEADINGS. The headings and other captions in this Employment
Agreement are included solely for convenience of reference and will not control
the meaning and interpretation of any provision of this Employment Agreement.
18. GOVERNING LAW; ARBITRATION. This Employment Agreement has been
executed in the State of Pennsylvania, and its validity, interpretation,
performance, and enforcement will be governed by the laws of such state, except
with respect to conflicts of laws principles. Except for disputes arising out of
an alleged violation of the covenants set forth in the Confidentiality,
Inventions, Non-Competition and Non-Solicitation Agreement, any controversy or
claim arising out of or relating to any provision of this Employment Agreement
or any other document or agreement referred to herein shall be resolved by
arbitration. The arbitration process shall be instigated by either party giving
written notice to the other of the desire for arbitration and the factual
allegations underlying the basis for the dispute. The arbitration shall be
conducted by such alternative dispute resolution service as is agreed to by the
parties, or, failing such agreement within thirty (30) days after such dispute
arises, by arbitrators selected as described below in accordance with the rules
and procedures established by the American Arbitration Association. Only a
person who is a practicing lawyer admitted to a state bar may serve as an
arbitrator. Each party shall select one arbitrator, and those arbitrators shall
choose a third arbitrator; these arbitrators shall constitute the panel. The
American Arbitration Association rules for employment arbitration shall control
any discovery conducted in connection with the arbitration. The expenses of
arbitration (other than attorneys' fees) shall be shared as determined by
arbitration. Each side to the claim or controversy shall pay their own
attorneys' fees. Any result reached by the panel shall be binding on all parties
to the arbitration, and no appeal may be taken. It is agreed that any party to
any award rendered in such arbitration proceeding may seek a judgment upon the
award and that judgment may be entered thereon by any court having jurisdiction.
The arbitration shall be conducted in the State of Pennsylvania.
19. NON-ASSIGNABILITV/BINDING EFFECT. This Employment Agreement shall
not be assignable by either party without the prior written consent of the other
party. This Employment Agreement will be binding upon and inure to the benefit
of Executive, the Company, and their respective successors and permitted
assigns.
20. NO STRICT CONSTRUCTION. The language used in this Employment
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied against
any person.
[Remainder of Page Intentionally Blank; Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has caused this Employment Agreement to
be executed by its duly authorized officer and Executive has signed this
Employment Agreement, as of the date first above written.
XXXX TRUE TEMPER, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Its: Chief Financial Officer
--------------------------------------
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
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EXHIBIT A
CONFIDENTIALITY, INVENTIONS,
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Confidentiality, Inventions, Non-Competition and Non-Solicitation
Agreement (the "Agreement") is entered into this ___ day of _________ 2004 by
and between CHATT Holdings LLC, its successors or assigns (the "Company") and
__________ (the "Executive"). This Agreement sets forth the entire agreement
between the parties hereto concerning the subject matter hereof and supersedes
all prior agreements and understandings concerning the subject matter hereof. In
consideration of employment by the Company and/or its Affiliates (as defined in
Section 2(b) below) of Executive, which Executive acknowledges to be good and
valuable consideration for the Executive's obligations hereunder, the Company
and Executive agree as follows:
1. The Business.
Executive acknowledges that the Company and its Affiliates are
engaged in the business of (i) manufacturing, marketing and
distributing long-handled tools, wheelbarrows, hose reels,
striking tools, pruning implements, pots and planters, snow
tools, lawn carts, repair handles, garden hoses, and
decorative accessories for the lawn and garden, and (ii)
conducting such other activities as are undertaken (or are
proposed or contemplated to be undertaken) from time to time
by the Company and each of its Affiliates as a result of
future acquisitions or otherwise (collectively, the
"Business").
2. Confidential Information.
(a) Executive acknowledges that the Confidential Information (as
defined below) constitutes a protectible business interest of
the Company and its Affiliates, and covenants and agrees that
at all times during the period of Executive's employment, and
at all times after termination of such employment, Executive
will not, directly or indirectly, disclose, furnish, make
available or utilize any Confidential Information other than
in the course of performing duties as an employee of the
Company and/or its Affiliates. Executive will abide by Company
policies and rules as may be established from time to time by
it for the protection of its Confidential Information.
Executive agrees that in the course of employment with the
Company, Executive will not bring to the Company's offices or
use, disclose to the Company, or induce the Company to use,
any confidential information or documents belonging to others.
Executive's obligations under this Section 2(a) with respect
to Confidential Information will survive termination of
Executive's employment with the Company, and will terminate
only at such time (if any) as the Confidential Information in
question becomes generally known to the public other than
through a breach of Executive's obligations under this
Agreement.
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(b) As used in this Agreement, the term "Confidential Information"
means any and all confidential, proprietary or trade secret
information, whether disclosed, directly or indirectly,
verbally, in writing or by any other means in tangible or
intangible form, including that which is conceived or
developed by Executive, applicable to or in any way related
to: (i) the present or future business of the Company or any
of its Affiliates (as defined below); (ii) the research and
development of the Company or any of its Affiliates; or (iii)
the business of any client, vendor, supplier or distributor of
the Company or any of its Affiliates. Such Confidential
Information includes the following property or information of
the Company and its Affiliates, by way of example and without
limitation, trade secrets, processes, formulas, data, program
documentation, customer lists, designs, drawings, algorithms,
source code, object code, know-how, improvements, inventions,
licenses, techniques, all plans or strategies for marketing,
development and pricing, business plans, financial statements,
profit margins and all information concerning existing or
potential clients, suppliers or vendors. Confidential
Information also means all similar information disclosed to
the Company or any Affiliate by third parties which is subject
to confidentiality obligations. The term "Affiliates" means
(i) all persons or entities controlling, controlled by or
under common control with the Company, (ii) all companies or
entities in which the Company owns an equity interest and
(iii) all predecessors, successors and assigns of the those
Affiliates identified in (i) and (ii).
3. Return of Materials.
Upon termination of employment with the Company, and
regardless of the reason for such termination, Executive will
leave with, or promptly return to, the Company all documents,
records, notebooks, magnetic tapes, disks or other materials,
including all copies, in Executive's possession or control
which contain Confidential Information or any other
information concerning the Company, any of its Affiliates or
any of their respective products, services or clients, whether
prepared by the Executive or others. Notwithstanding the
foregoing, Executive shall be entitled to retain the
Executive's personal effects provided any Confidential
Information is removed therefrom.
4. Inventions as Sole Property of the Company.
(a) Executive covenants and agrees that all Inventions (as defined
below) shall be the sole and exclusive property of the
Company.
(b) As used in this Agreement, the term "Inventions" means any and
all inventions, developments, discoveries, improvements, works
of authorship, concepts or ideas, or expressions thereof,
whether or not subject to patents, copyright, trademark, trade
secret protection or other intellectual property right
protection (in the United States or elsewhere), and whether or
not reduced to practice, conceived or developed by Executive
while employed with the Company and/or any Affiliate of the
Company or within one (1) year following termination of such
employment which relate to or result from the actual or
anticipated business, work, research or
A-2
investigation of the Company or any of its Affiliates or which
are suggested by or result from any task assigned to or
performed by Executive for the Company or any of its
Affiliates.
(c) Executive acknowledges that all original works of authorship
which are made by the Executive (solely or jointly) are works
made for hire under the United States Copyright Act (17
U.S.C., et seq.).
(d) Executive agrees to promptly disclose to the Company all
Inventions, all original works of authorship and all work
product relating thereto. This disclosure will include
complete and accurate copies of all source code, object code
or machine-readable copies, documentation, work notes,
flow-charts, diagrams, test data, reports, samples and other
tangible evidence or results (collectively, "Tangible
Embodiments") of such Inventions, works of authorship and work
product. All Tangible Embodiments of any Invention, work of
authorship or work product related thereto will be deemed to
have been assigned to the Company as a result of the act of
expressing any Invention or work of authorship therein.
(e) Executive hereby assigns to the Company (together with the
right to prosecute or xxx for infringements or other
violations of the same) the entire worldwide right, title and
interest to any such Inventions or works made for hire, and
Executive agrees to perform, during and after employment, all
acts deemed necessary or desirable by the Company to permit
and assist it, at the Company's expense, in registering,
recording, obtaining, maintaining, defending, enforcing and
assigning Inventions or works made for hire in any and all
countries. Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and
agents as Executive's agents and attorneys-in-fact to act for
and on Executive's behalf and instead of Executive, to execute
and file any documents and to do all other lawfully permitted
acts to further the above purposes with the same legal force
and effect as if executed by Executive; this designation and
appointment constitutes an irrevocable power of attorney and
is coupled with an interest.
(f) Without limiting the generality of any other provision of this
Section 4, Executive hereby authorizes the Company and each of
its Affiliates (and their respective successors) to make any
desired changes to any part of any Invention, to combine it
with other materials in any manner desired, and to withhold
Executive's identity in connection with any distribution or
use thereof alone or in combination with other materials.
(g) This Agreement does not apply to any invention for which no
equipment, supplies, facility or trade secret information of
the Company or any Affiliate was used and which was developed
entirely on Executive's own time, unless (1) the invention
relates (a) to the business of the Company or any Affiliate or
(b) to the Company's or any Affiliate's actual demonstrably
anticipated research or development; or (2) the invention
results from any work performed by Executive for the Company
or any Affiliate.
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(h) The obligations of Executive set forth in this Section 4
(including, but not limited to, the assignment obligations)
will continue beyond the termination of Executive's employment
with respect to Inventions conceived or made by Executive
alone or in concert with others during Executive's employment
with the Company and during the one (1) year thereafter,
whether pursuant to this Agreement or otherwise. These
obligations will be binding upon Executive and Executive's
executors, administrators and other representatives.
5. List of Prior Inventions.
All Inventions which Executive has made prior to employment by
the Company or any Affiliate (including without limitation
Xxxx True Temper, Inc.) are excluded from the scope of this
Agreement. As a matter of record, Executive has set forth on
Annex I hereto a complete list of those Inventions which might
relate to the Company's Business and which have been made by
Executive prior to employment with the Company. Executive
represents that such list is complete. If no list is attached,
Executive represents that there are no prior Inventions.
6. Non-Competition.
(a) Executive acknowledges that: (i) the Company and its
Affiliates are and will be engaged in the Business during the
term of the Executive's employment and thereafter; (ii) the
Company and its Affiliates are and will be actively engaged in
the Business throughout the world; (iii) Executive is one of a
limited number of persons who will be developing the Business;
(iv) Executive has and will continue to occupy a position of
trust and confidence with the Company after the date hereof
and during the term of the Executive's employment Executive
will become familiar with the Company's (and its Affiliates')
trade secrets and with other proprietary and confidential
information concerning the Company (and its Affiliates) and
the Business; (v) the agreements and covenants contained in
this Agreement are essential to protect the Company, its
Affiliates and the goodwill of the Business and are a
condition precedent to the sale by the Company to Executive of
certain Common Units, pursuant to the Subscription Agreement
between the parties, dated as of the date hereof, and the
participation in the exchange of equity held by Executive for
strips of common and preferred units of the Company pursuant
to the Equity Term Sheet, dated June 1, 2004; (vi) Executive's
employment with the Company and/or its Affiliates has special,
unique and extraordinary value to the Company and its
Affiliates and the Company would be irreparably damaged if
Executive were to provide services to any person or entity in
violation of the provisions of this Section 6; and (vii)
Executive has means to support Executive and Executive's
dependents other than by engaging in the Business, and the
provisions of this Section 6 will not impair such ability.
(b) Executive will not, during the Restricted Period (as defined
below), anywhere in the world (the "Restricted Territory"),
directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee, independent
contractor,
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consultant, or otherwise) own, operate, manage, control,
invest in, perform services for, or engage or participate in
any manner in, or render services to (alone or in association
with any person or entity) or otherwise assist any person or
entity that engages in, or owns, invests in, operates, manages
or controls any venture or enterprise that engages in, the
Business. The term "Restricted Period" means the period of
time from the date of the closing of the purchase and sale of
shares, pursuant to the Stock Purchase Agreement by and among
ATT Holding Co., the Shareholders of ATT Holding Co., the
Warrantholders of ATT Holding Co., Wind Point Investors V,
L.P., CHATT Holdings, Inc., and the Company, dated June 1,
2004, until two (2) years after the termination for any reason
of Executive's employment relationship with the Company and/or
any Affiliate or any successor thereto (including any
termination based on non-renewal of any employment agreement
or arrangement). The Restricted Period shall be extended for a
period equal to any time period that Executive is in violation
of this Section 6. Nothing contained in this Section 6 shall
be construed to prevent Executive from investing in the stock
of any competing corporation listed on a national securities
exchange or traded in the over-the-counter market, but only if
Executive is not involved in the business of said corporation
and if Executive and Executive's associates (as such term is
defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as in effect on the date hereof),
collectively, do not own more than an aggregate of one percent
(1%) of the stock of such corporation.
(c) Scope/Severability. The parties acknowledge that the business
of the Company and its Affiliates is and will be national and
international in scope and thus the covenants in this Section
6 would be ineffective if the covenants were to be limited to
a particular geographic area. If any court of competent
jurisdiction at any time deems the Restricted Period
unreasonably lengthy, or the Restricted Territory unreasonably
extensive, or any of the covenants set forth in this Section 6
not fully enforceable, the other provisions of this Section 6,
and this Agreement in general, will nevertheless stand and, to
the full extent consistent with law, continue in full force
and effect, and it is the intention and desire of the parties
that the court treat any provisions of this Agreement which
are not fully enforceable as having been modified to the
extent deemed necessary by the court to render them reasonable
and enforceable and that the court enforce them to such extent
(for example, that the Restricted Period be deemed to be the
longest period permissible by law, but not in excess of the
length provided for in Section 6(b), and the Restricted
Territory be deemed to comprise the largest territory
permissible by law under the circumstances but not in excess
of the territory provided for in Section 6(b)).
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7. Non-Solicitation.
(a) Executive will not, during the Restricted Period,
directly or indirectly (whether as an owner, partner,
shareholder, agent, officer, director, employee,
independent contractor, consultant, or otherwise)
with or through any individual or entity:
i. employ, engage or explicitly solicit for
employment any individual who is, or was at any time during
the twelve-month period immediately prior to the termination
of Executive's employment with the Company and/or any
Affiliate for any reason, an employee of the Company or any of
its Affiliates or otherwise seek to adversely influence or
alter such individual's relationship with the Company or any
of its Affiliates; or
ii. solicit or encourage any individual or entity
that is, or was during the twelve-month period immediately
prior to the termination of Executive's employment with the
Company or any Affiliate for any reason, a customer, supplier
or vendor of the Company or any Affiliate to terminate or
otherwise alter his, her or its relationship with the Company
or any Affiliate.
(b) The Restricted Period shall be extended for a period
equal to any time period that Executive is in violation
of this Section 7.
8. Equitable Remedies.
Executive acknowledges and agrees that the agreements and
covenants set forth in this Agreement are reasonable and
necessary for the protection of the Company's and its
Affiliates' business interests, that irreparable injury will
result to the Company and its Affiliates if Executive breaches
any of the terms of said covenants, and that in the event of
Executive's actual or threatened breach of any such covenants,
the Company and its Affiliates will have no adequate remedy at
law. Executive accordingly agrees that, in the event of any
actual or threatened breach by Executive of any of said
covenants, the Company and its Affiliates will be entitled to
immediate injunctive and other equitable relief, without
posting bond or other security and without the necessity of
showing actual monetary damages. Nothing in this Section 8
will be construed as prohibiting the Company or any Affiliate
from pursuing any other remedies available to them for such
breach or threatened breach, including the recovery of any
damages that they are able to prove.
9. Breach.
(a) Executive's breach of any of the Executive's obligations under
this Agreement will be deemed a material breach of any
employment agreement or arrangement Executive has with the
Company or any of its Affiliates and will constitute cause or
due cause or the like for termination by the Company and/or
its Affiliates, as appropriate.
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(b) In the event that the Company and/or its Affiliates, as
appropriate, terminates Executive without cause or due cause
or the like or Executive voluntarily resigns, Executive will
receive severance payments, to the extent entitled under any
employment agreement or arrangement, only if Executive is not
in breach of any of the provisions in this Agreement.
10. No Right to Employment.
No provision of this Agreement shall give Executive any right
to continue in the employ of the Company or any of its
Affiliates, create any inference as to the length of
employment of Executive, affect the right of the Company or
its Affiliates to terminate the employment of Executive, with
or without cause, or give Executive any right to participate
in any welfare or benefit plan or other program of the Company
or any of its Affiliates.
11. Modification and Waiver.
This Agreement may not be modified or amended or terminated
except by an instrument in writing signed by the parties. No
term or condition of this Agreement will be deemed to have
been waived, except by written instrument of the party charged
with such waiver. No such written waiver will be deemed to be
a continuing waiver unless specifically stated therein, and
each such waiver will operate only as to the specific term or
condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than
that specifically waived.
12. Severability.
Executive acknowledges that the agreements and covenants
contained in this Agreement are essential to protect the
Company and its Affiliates and their goodwill. Each of the
covenants in this Agreement will be construed as independent
of any other covenants or other provisions of this Agreement.
It is the intention and desire of the parties that the court
treat any provisions of this Agreement which are not fully
enforceable as having been modified to the extent deemed
necessary by the court to render them reasonable and
enforceable and that the court enforce them to such extent.
13. Notices.
Any notice, consent, waiver and other communications required
or permitted pursuant to the provisions of this Agreement must
be in writing and will be deemed to have been properly given
(a) when delivered by hand; (b) when sent by telecopier (with
acknowledgment of complete transmission), provided that a copy
is mailed by U.S. certified mail, return receipt requested;
(c) three (3) days after sent by certified mail, return
receipt requested; or (d) one (1) day after deposit with a
nationally recognized overnight delivery service, in each case
to the appropriate addresses and telecopier numbers set forth
below:
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If to the Company:
CHATT Holdings LLC
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Each party will be entitled to specify a different address for
the receipt of subsequent notices by giving written notice
thereof to the other party in accordance with this Section 13.
14. Headings.
The headings and other captions in this Agreement are
included solely for convenience of reference and will not
control the meaning and interpretation of any provision of
this Agreement.
15. Governing Law.
This Agreement has been executed in the State of Pennsylvania,
and its validity, interpretation, performance, and enforcement
will be governed by the laws of such state, except with
respect to conflicts of laws principles.
16. Binding Effect.
This Agreement will be binding, upon and inure to the benefit
of Executive, the Company, and their respective successors and
permitted assigns; provided, however, that Executive may not
assign this Agreement or any part hereof.
17. Survival.
The provisions in this Agreement shall survive the termination
of Executive's employment with the Company.
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18. Compliance.
In order to monitor compliance with the terms of this
Agreement, Executive agrees to give written notice, including
a pertinent description, to the Company of each position of
employment, ownership of more than one percent (1%) of the
stock of any corporation, participation with another entity or
organization (except for religious institutions or charitable
organizations not related to the Business) which Executive
obtains during the Restricted Period.
19. No Strict Construction.
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any
person.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has signed this Agreement,
as of the date written below.
EXECUTIVE:
DATE: June ___, 2004
----------------------------------
XXXXX X. XXXXXXX
CHATT HOLDINGS LLC
BY:
ITS:
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EXHIBIT B
SEPARATION AGREEMENT AND GENERAL RELEASE
XXXX TRUE TEMPER, INC. ("COMPANY"), and Xxxxx X. Xxxxxxx ("Executive"),
agree that this Separation Agreement and General Release ("AGREEMENT") sets
forth their complete agreement and understanding regarding the termination of
Executive's employment with Company.
1. Separation Date. Executive's employment with Company will terminate
effective _______________ (the "SEPARATION DATE"). Executive agrees to return
all Company property to Company no later than the Separation Date. Except as
specifically provided below, Executive shall not be entitled to receive any
benefits of employment following the Separation Date.
2. Consideration of Company. In consideration for the releases and
covenants by Executive in this Agreement, Company will provide Executive with
the following: INSERT CONSIDERATION AS SET FORTH IN EMPLOYMENT AGREEMENT
3. Executive Release of Rights. Executive (defined for the purpose of
this Paragraph 3 as Executive and Executive's agents, representatives,
attorneys, assigns, heirs, executors, and administrators) irrevocably, fully,
and unconditionally releases the Released Parties (defined as the Company, ATT
Holding Co., CHATT Holdings, Inc., CHATT Holdings LLC, Xxxxxx Xxxxxx Partners
IV, L.P., and each of their affiliated companies, parents, subsidiaries,
predecessors, successors, assigns, divisions, related entities and any of their
past or present employees, officers, agents, insurers, attorneys,
administrators, officials, directors, shareholders, employee benefit plans, and
the sponsors, fiduciaries, or administrators of the Company's employee benefit
plans) from any and all liability, claims, demands, actions, causes of action,
suits, grievances, debts, sums of money, agreements, promises, damages, back and
front pay, costs, expenses, attorneys' fees, and remedies of any type, arising
or that may have arisen out of or in connection with Executive's employment with
or termination of employment from the Company, from the beginning of time to the
date hereof, including but not limited to claims, actions or liability under:
(1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss.2000 et seq., the
Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age Discrimination
in Employment Act, the Americans with Disabilities Act of 1990, 42 U.S.C.
ss.12101 et seq., the Fair Labor Standards Act, 29 U.S.C. ss.201 et seq., the
Family and Medical Leave Act of 1993, 29 U.S.C. ss.2601 et seq., the Workers'
Adjustment and Retraining Notification Act, the Employee Retirement Income
Security Act of 1974, 29 U.S.C. ss.1001 et seq., Pennsylvania Human Relations
Act Pa., Stat. Xxx. tit.43, ss.ss.951 et seq., all as amended; (2) any other
federal, state or local statute, ordinance, or regulation regarding employment,
termination of employment, or discrimination in employment, and (3) the common
law relating to employment contracts, wrongful discharge. defamation, or any
other matter.
4. Waiver of Reinstatement. Executive waives any reinstatement or
future employment with Company and agrees never to apply for employment or
otherwise seek to be hired, rehired, employed, re-employed, or reinstated by
Company or any of its affiliated companies or corporations.
5. No Disparagement or Encouragement of Claims. Executive agrees not
to make any oral or written statement that disparages or places any Released
Party in a false or negative
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light. Executive further agrees not to encourage or assist any person who files
a lawsuit, charge, claim or complaint against the Released Parties unless
Executive is required to render such assistance pursuant to a lawful subpoena or
other legal obligation. The Board of Directors (and each of its individual
members) and the Chief Executive Officer of the Company agree not to make
(outside the Company; or within the Company, except as may be reasonably
necessary to conduct the business of the Company) any oral or written statement
that disparages or places Executive in a false or negative light; and these
individuals further agree not to encourage or assist any person who files a
lawsuit, charge, claim or complaint against Executive unless such individuals
are required to render such assistance pursuant to a lawful subpoena or other
legal obligation.
6. Cooperation of Executive. Executive agrees to cooperate with
Company in any reasonable manner as Company may request, including but not
limited to furnishing information to and otherwise consulting with the Company;
and assisting Company in any litigation or potential litigation or other legal
matters, including but not limited to meeting with and fully answering the
questions of Company or its representatives or agents, and testifying and
preparing to testify at any deposition or trial. Company agrees to compensate
Executive for any reasonable out of pocket expenses incurred as a result of such
cooperation.
7. Non-admission/Inadmissibility. This Agreement does not constitute
an admission by Company that any action it took with respect to Executive was
wrongful, unlawful or in violation of any local, state, or federal act, statute,
or constitution, or susceptible of inflicting any damages or injury on
Executive, and Company specifically denies any such wrongdoing or violation.
This Agreement is entered into solely to resolve fully all matters related to or
arising out of Executive's employment with and termination from Company, and its
execution, and implementation may not be used as evidence, and shall not be
admissible in a subsequent proceeding of any kind, except one alleging a breach
of this Agreement.
8. Severability. The provisions of this Agreement shall be severable
and the invalidity of any provision shall not affect the validity of the other
provisions.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with laws and judicial decisions of the State of Pennsylvania,
without regard to its principles of conflicts of laws.
10. Scope of Agreement. Executive understands that he remains bound to
those provisions in the Executive's Employment Agreement, signed on June 28,
2004, which survive the termination of the Executive's employment, including but
not limited to, those provisions in Paragraphs 9-11, 14, 19 and 20 of such
Employment Agreement. Except as specifically set forth in such provisions, this
Agreement contains the entire agreement and understanding between Executive and
Company concerning the matters described herein, and supersedes all prior
agreements, discussions, negotiations, understandings and proposals of the
parties. The terms of this Agreement cannot be changed except in a subsequent
document signed by both parties.
11. Revocation Period. Executive has the right to revoke this
Agreement for up to seven days after he signs it. In order to revoke this
Agreement, Executive must sign and send a written notice of the decision to do
so, addressed to [NAME] at [INSERT TITLE, AND ADDRESS], and that written notice
must be received by Company no later than the eighth day after Executive signed
this Agreement. If Executive revokes this Agreement, Executive will not be
entitled to
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any of the consideration from Company described in paragraph 2 above.
12. Voluntary Execution of Agreement. Executive acknowledges that:
a. Executive has carefully read this Agreement and fully
understands its meaning;
b. Executive had the opportunity to take up to 21 days after
receiving this Agreement to decide whether to sign it;
c. Executive understands that the Company is hereby advising
him, in writing, to consult with an attorney before signing
it;
d. Executive is signing this Agreement, knowingly, voluntarily,
and without any coercion or duress; and
e. everything Executive is receiving for signing this Agreement
is described in the Agreement itself, and no other promises
or representations have been made to cause Executive to sign
it.
13. Nondisclosure. Executive shall not disclose the contents or
substance of this Agreement to any third parties, other than the Executive's
attorneys, accountants, or as required by law and shall instruct each of the
foregoing not to disclose the same.
COMPANY
_______________________________ By: ______________________________
Executive Signature
Title: ___________________________
Dated: ________________________ Dated: ___________________________
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