GREAT LAKES WINDOWS SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
GREAT
LAKES WINDOWS
SEPARATION
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This
Separation Agreement and General Release of all Claims (the “Agreement”),
dated
as of November 28, 2005, is entered into by and between Great Lakes Windows,
a
wholly owned subsidiary of Ply Gem Holdings, Inc., a Delaware corporation (the
“Company”),
▇▇▇▇
▇. ▇▇▇▇▇▇ (the “Executive”)
and,
with respect to Section 2C only, Ply Gem Investment Holdings, Inc., a Delaware
corporation (“PIHI”).
WHEREAS,
the Executive is currently employed by the Company as its President;
and
WHEREAS,
the Company and the Executive have agreed that the Executive’s employment with
the Company and its subsidiaries and affiliates shall terminate effective
November 28, 2005 (the “Termination
Date”),
and
the Executive shall relinquish his title of President of the Company and, except
as specifically provided herein, all other positions of employment, service
or
responsibility that he presently holds (whether as an officer, director,
employee or otherwise) with the Company or any of its subsidiaries or
affiliates, including, without limitation, PIHI and Ply Gem Industries, Inc.
(“Ply
Gem”)
(collectively, the “Company
Group”);
and
WHEREAS,
the Company desires to provide the Executive with certain benefits upon the
Executive’s termination of employment with the Company, in exchange for the
Executive’s agreement to comply with certain restrictive covenants in favor of
the Company and to release certain claims against the Company and its
subsidiaries, parents, shareholders and their respective executives, officers,
directors, partners, members and agents, on the terms and subject to the
conditions more fully set forth in this Agreement.
NOW
THEREFORE, in consideration of the promises, mutual covenants and other good
and
valuable consideration set forth in this Agreement, the receipt and sufficiency
of which is hereby acknowledged, the Executive and the Company (the
“Parties”)
agree
as follows:
1. Continuation
and Termination of Employment; Performance of Mutually Agreed
Tasks.
A. The
Executive will continue working for the Company pursuant to the terms of the
Employment Agreement through the Termination Date. Pursuant to Section 2 of
the
Employment Agreement, the Executive confirms that he and the Chairman and Chief
Executive Officer of the Company (the “CEO”)
have
mutually agreed that the Executive will continue to perform the Tasks for the
period commencing on the Termination Date and ending on the earlier of January
27, 2006 or the completion of the Tasks (the “Task
Completion Date”)
(with
both the Executive and the Company acknowledging that the Executive has been
engaged in the performance of the Tasks prior to the Termination Date), that
the
Tasks are consistent with the Executive’s prior status as President of the
Company and that the Executive will use his best efforts to perform the Tasks
and complete then as soon as reasonably practicable. The Tasks will be to
provide advice, support and services (including attending meetings if requested)
necessary to effect a succesful transition to the new President of the Company.
Notwithstanding clause (ii) of Section 4(a) of the Employment Agreement, during
the period following the Termination Date the Company may terminate the
Executive’s employment with the Company only for “Cause,” as defined in the
Employment Agreement, or upon the reasonable determination of the Board of
Directors of the Company (the “Board”)
that
the Executive has failed to attempt in good faith to perform the Tasks. The
Tasks need not be performed by the Executive at the Company’s offices, but the
Executive may be required to attend specific meetings outside of the Company’s
offices at specific times as directed by the CEO (it being understood that
the
Company will use its reasonable efforts to minimize the number of such meetings
following the Termination Date). The Executive will stay on the Company’s e-mail
system until January 27, 2006.
B. The
Executive will provide a written report to the CEO no later than five (5)
business days following the Termination Date, and no later than the fifth (5th)
day of each calendar month through the Task Completion Date, describing in
reasonable detail the status of each of the Tasks and the remaining items to
be
completed for each of the Tasks.
C. The
Executive and the Company hereby agree that Executive’s employment and any and
all titles, positions and appointments he holds with the Company and any of
its
affiliates or subsidiaries (collectively, the “Company
Group”),
whether as officer, director, employee, consultant, agent or otherwise
(including, without limitation as President of the Company) shall cease as
of
the Termination Date, unless earlier terminated by the Company for Cause, by
the
Executive by resignation or on account of the Executive’s death or disability.
Effective as of the Termination Date, the Executive shall have no authority
to
act on behalf of the Company or any other member of the Company Group, and
shall
not hold himself out as having such authority, enter into any agreement or
incur
any obligations on behalf of any member of the Company Group, commit any member
of the Company Group in any manner or otherwise act in an executive or other
decision-making capacity with respect to any member of the Company
Group.
2. Payments
and Benefits.
In
consideration for the Executive’s entering into this Agreement, specifically
including the general release in Section 6 of this Agreement and the restrictive
covenants contained in Section 5 of this Agreement, the Executive shall be
entitled to the following payments and benefits, subject to the general release
becoming effective (i.e., the Executive not exercising his right to revoke
the
release as described in Section 6 of this Agreement) and the Executive’s
continued compliance with the restrictive covenants contained in Section 5
of
this Agreement:
A. Payment
by the Company of severance pay at an annual rate in an amount equal to
$234,875.00, which represents the Executive’s annual base salary and performance
incentive bonus in 2003 (for the avoidance of doubt this amount shall not,
and
no portion of any severance paid to the Executive pursuant to this Agreement
shall include any amounts in respect of any car allowance or payments for any
other perquisites or benefits for the Executive) and which is subject to
reduction by the Company to satisfy any applicable federal, state and local
income and employment tax withholding obligations of the Company. This payment
shall be made in 24 equal monthly installments during the period from the
Termination Date until the second anniversary of the Termination Date the
(“Severance
Period”).
The
Company shall mail the first payment on the day following the date the general
release described in Section 6 of this Agreement becomes effective (i.e., the
Executive’s not exercising his right to revoke the release as described in
Section 6 of this Agreement) and shall make each of the following 23 payments
on
the 15th day of each of the months of December 2005 through October 2007
occurring during the Severance Period by direct deposit into an account of
the
Executive; provided, that, if the 15th day of any such month falls on a weekend
or on a Company holiday, the Company shall make such direct deposit payment
no
later than the Monday or first business day (as applicable) following the
15th;
B. Provided
that the Executive, or any of his covered dependents, as applicable, timely
elects to continue medical and dental coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”),
payment by the Company of the COBRA premiums for the Executive and each of
his
eligible covered dependents for whom continuation coverage is elected, for
the
period commencing on the Termination Date and ending on the earlier of (i)
last
day of the Severance Period, and (ii) the date on which the Executive’s COBRA
coverage otherwise terminates as provided by law;
C. An
amount
equal to $423,000.00 (the “Stock
Repurchase Amount”),
shall
be paid to you by PIHI, which shall constitute a repurchase by PIHI of (A)
the
28,710 shares of common stock par value $0.01 per share of PIHI (“PIHI
Stock”)
held
by the Executive as of the Termination Date that were purchased by the Executive
pursuant to the Ply Gem Investment Holdings, Inc. Subscription Agreement, dated
as of February 12, 2004, by and between PIHI and the Executive (the
“Subscription
Agreement”)
and
(B) the 13,590 phantom
incentive units
held by
the Executive as of the Termination Date that were acquired by the Executive
pursuant to the “Ply
Gem
Investment Holdings, Inc. Amended and Restated Phantom Stock Plan” (the
“Amended
and Restated Phantom Stock Plan”),
calculated
based on a $10.00 purchase price per share of PHIC Stock. All phantom
incentive units
belonging to the Executive as well as all of Executive’s rights under the
Amended
and Restated Phantom Stock Plan
are
terminated in full as of the Termination Date. The Stock Repurchase Amount
shall
be mailed to the Executive on February 15, 2006 (the “Stock
Repurchase Payment Date”),
assuming that the general release has become effective as of the Stock
Repurchase Payment Date, i.e., that the Executive has not exercised any of
his
rights to revoke as described in Section 6 of this Agreement. The Executive
acknowledges and agrees that, except as provided in this Section 2C, as of
the
date of this Agreement, there are no outstanding stock options or other equity
awards held by the Executive that were granted to the Executive by the Company,
PIHI or any other member of the Company Group and the Executive does not hold
any other shares of PIHI Stock, or hold or have any rights relating to PIHI
Stock or any other securities of the Company or of any member of the Company
Group;
D. Regardless
of whether the Executive signs this Agreement, as soon as reasonably practicable
following the Termination Date or such earlier date as may be required by
applicable state statute or regulation, (i) any annual base salary earned but
unpaid through the Termination Date, (ii) payment in respect of any vacation
time that is accrued but unused through the Termination Date, and (iii)
reimbursement for all un-reimbursed business expenses properly incurred by
the
Executive in accordance with Company policy prior to the Termination Date and
not yet reimbursed by the Company; provided, that, the Executive must submit
to
the Company, within 21 days after the Termination Date, any outstanding expense
reports within his possession, and the Executive shall not receive reimbursement
in respect of any expense reports submitted after such date.
E. All
benefits accrued up to the Termination Date, to the extent vested, under all
employee benefit plans of the Company and any member of the Company Group,
except for any plan that provides for severance, separation pay or termination
benefits, in accordance with the terms of such plans and under the Option
Agreement, Subscription Agreement, Stockholders Agreement or any other agreement
governing any securities of any member of the Company Group that are held by
the
Executive as of the Termination Date.
The
Executive acknowledges and agrees that (i) the Executive’s receipt of all
payments and benefits provided in Section 2 of this Agreement constitutes full
and final payment, accord and satisfaction of any and all potential claims
to
the extent described in Section 6 of this Agreement, (ii) except for the
payments and benefits described in Sections 2A through 2C of this Agreement,
to
which the Executive is only entitled if he does not exercise his rights of
revocation as provided in Section 6 of this Agreement and continues to comply
with the restrictive covenants contained in Section 5 of this Agreement, the
Executive is not entitled to any other compensation or benefits from the Company
or any member of the Company Group (including without limitation any severance
or termination compensation or benefits), and (iii) as of and after the
Termination Date, the Executive shall no longer participate in, accrue service
credit or have contributions made on his behalf under any employee benefit
plan
sponsored by any member of the Company Group in respect of periods commencing
on
and following the Termination Date, including without limitation, any plan
which
is intended to qualify under Section 401(a) of the Internal Revenue Code of
1986, as amended (a “Qualified
Plan”);
provided, that, except as expressly provided herein, nothing in this Agreement
shall constitute a waiver by the Executive of his rights to vested benefits,
if
any, under any Qualified Plan or under any Company group health plan or to
any
other fringe benefits to which he may be entitled under applicable law in
respect of his services to the Company prior to the Termination
Date.
If
the
Executive revokes the Initial Release pursuant to Sections 6A-6F of this
Agreement during the revocation period described in such section, then this
Agreement shall be void as of and following the date of this Agreement, and
the
Executive shall be deemed to have resigned from the Company as of such date
and
the applicable provisions of employee benefit plans and of the Ply Gem
Investment Holdings, Inc. Stockholders Agreement, dated as of February 12,
2004,
by and between PIHI, ▇▇▇▇▇▇-▇▇▇▇▇▇ (Ply Gem), L.P. and certain other investors
in and management stockholders of PIHI (the “Stockholders
Agreement”)
shall
apply. If the Executive does not revoke the Initial Release, but fails to give
or revokes after giving the Task Completion Date Release, then the provisions
of
Section 6G shall apply.
3. Additional
Consideration.
The
Executive acknowledges that, except with respect to the payments described
in
Section 2D of this Agreement, pursuant to this Agreement he is receiving
consideration in addition to any amounts to which he would have otherwise been
entitled but for this Agreement.
4. Return
of Company Property.
No
later
than the Task Completion Date, the Executive shall return to the Company all
originals and copies of papers, notes and documents (in any medium, including
computer disks), whether property of any member of the Company Group or not,
prepared, received or obtained by the Executive during the course of, and in
connection with, his employment with or services for the Company or any member
of the Company Group, and all equipment and property of any member of the
Company Group which may be in the Executive’s possession or under his control,
whether at the Company’s offices, the Executive’s home or elsewhere, including
all such papers, work papers, notes, documents and equipment in the possession
of the Executive. The Executive agrees that he and his family shall not retain
copies of any such papers, work papers, notes and documents. Notwithstanding
the
foregoing, the Executive may retain copies of any employment, compensation,
benefits or shareholders agreements between the Executive and the Company,
this
Agreement and any employee benefit plan materials distributed generally to
participants in any such plan by the Company. On the Task Completion Date,
all
telephone and other accounts being paid by the Company on the Executive’s
behalf, shall be terminated and all company credit cards shall be returned
to
the Company and canceled. To the extent any charges are made by the Executive
using company accounts or credit cards after the Task Completion Date, such
charges will be solely the Executive’s responsibility.
5. Restrictive
Covenants
A. Survival
of Non-Disclosure Agreement; Employee Information Agreement; Ply Gem Code of
Ethics
Notwithstanding
anything to the contrary in this Agreement, the covenants and other provisions
set forth in the Employee’s Non-Disclosure Agreement, previously signed by the
Executive (the “Non-Disclosure
Agreement”),
the
Great Lakes Windows Employee Information Agreement, (the “Employee
Information Agreement”),
the
Ply Gem Industries, Inc. Code of Ethics (the “Ply
Gem Code of Ethics”)
and
Section 6.3 of the Stockholders Agreement that expressly survive termination
of
the Executive’s employment shall survive the Termination Date and be effective
for the periods described therein.
B. Non-Competition/Non-Solicitation
The
Executive acknowledges and recognizes the highly competitive nature of the
Company and accordingly agrees as follows:
1. During
the period commencing on the Termination Date and ending on the second
anniversary of such date (the “Restricted
Period”)
or
such longer period as described in the last sentence of Section 5G of this
Agreement, the Executive will not, directly or indirectly, (w) engage
in any “Competitive Business” (defined below) for the Executive’s own account,
(x) enter the employ of, or render any services to, any person engaged in
any Competitive Business, (y) acquire a financial interest in, or otherwise
become actively involved with, any person engaged in any Competitive Business,
directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant, or (z) interfere with
business relationships between the Company and customers or suppliers of, or
consultants to the Company.
2. For
purposes of this Section 5B, a “Competitive
Business”
means,
as of any date, including during the Restricted Period, (A) any person or entity
(including any joint venture, partnership, firm, corporation or limited
liability company) that engages in or proposes to engage in the manufacturing
of
windows, doors or siding, or (B) any business or activity that relates to the
design, marketing, distribution, resale, wholesale or retailing of windows,
doors or siding, in the case of clause (A) or (B), in any geographical area
in
which the Company does business.
3. For
purposes of this Section 5B, the Company shall be construed to include the
Company and its subsidiaries and controlled affiliates.
4. Notwithstanding
anything to the contrary in this Agreement, the Executive may, directly or
indirectly, own, solely as an investment, securities of any person engaged
in
the business of the Company which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if the Executive (A) is
not a controlling person of, or a member of a group which controls, such person
and (B) does not, directly or indirectly, own one percent (1%) or more of
any class of securities of such person.
5. During
the Restricted Period, the Executive will not, directly or indirectly, without
the Company’s written consent, solicit or encourage to cease to work with the
Company any employee or any consultant of the Company or any person who was
an
employee of or consultant then under contract with the Company within the
24-month period preceding such solicitation or encouragement activity. In
addition, during the Restricted Period, the Executive will not, without the
Company’s written consent, directly or indirectly hire any person who is or who
was, within the 24-month period preceding such hiring activity, an employee
of
the Company.
6. The
Executive understands that the provisions of this Section 5B may limit the
Executive’s ability to earn a livelihood in a business similar to the business
of the Company, but the Executive nevertheless agrees and hereby acknowledges
that (A) such provisions do not impose a greater restraint than is necessary
to
protect the goodwill or other business interests of the Company, (B) such
provisions contain reasonable limitations as to time and scope of activity
to be
restrained, (C) such provisions are not harmful to the general public and (D)
such provisions are not unduly burdensome to the Executive. In consideration
of
the foregoing and in light of the Executive’s education, skills and abilities,
the Executive agrees that he shall not assert that, and it should not be
considered that, any provisions of Section 5B otherwise are void, voidable
or
unenforceable or should be voided or held unenforceable.
7. It
is
expressly understood and agreed that, although the Executive and the Company
consider the restrictions contained in this Section 5B to be reasonable, if
a judicial determination is made by a court of competent jurisdiction that
the
time or territory or any other restriction contained in this Section 5B or
elsewhere in this Agreement is an unenforceable restriction against the
Executive, the provisions of the Agreement shall not be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained
herein.
C. Nondisparagement
The
Executive agrees not to issue, circulate, publish or utter any false or
disparaging statements, remarks or rumors about any member of the Company
Group
or any of their respective shareholders, officers, directors or managers
other
than to the extent reasonably necessary in order to (i) assert a bona fide
claim
against a member of the Company Group arising out of the Executive’s employment
with the Company, or (ii) respond in a truthful and appropriate manner to
any
legal process or give truthful and appropriate testimony in a legal or
regulatory proceeding.
D. References
The
Company agrees that, in response to a request from any person or entity for
a
reference check on the Executive, the Company shall only provide such person
or
entity with the Executive’s dates of employment and title and position held.
Nothing herein precludes employees of the Company or any employee of any member
of the Company Group from providing a reference if so requested by the
Executive, and the Company agrees not to prohibit such provision.
E. Confidentiality/Company
Property
The
Executive shall not, without the prior written consent of the Company or any
applicable member of the Company Group, use, divulge, disclose or make
accessible to any other person, firm, partnership, corporation or other entity,
any “Confidential Information” or any “Personal Information” (as such terms are
defined below); provided that the Executive may disclose such information when
required to do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of any member of the
Company Group, as the case may be, or by any administrative body or legislative
body (including a committee thereof) with jurisdiction to order the Executive
to
divulge, disclose or make accessible such information; provided, further, that
in the event that the Executive is ordered by a court or other government agency
to disclose any Confidential Information or Personal Information, the Executive
shall (i) promptly notify the applicable member of the Company Group of
such order, (ii) at the written request of such member, diligently contest
such order at the sole expense of such member as expenses occur, and
(iii) at the written request of such member, seek to obtain, at the sole
expense of the member, such confidential treatment as may be available under
applicable laws for any information disclosed under such order. For purposes
of
this Section 5E, (i) “Confidential
Information”
shall
mean non-public information concerning the financial data, strategic business
plans, product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
relating to the business of any member of the Company Group or customers, that,
in any case, is not otherwise available to the public (other than by the
Executive’s breach of the terms hereof) and (ii) “Personal
Information”
shall
mean any information concerning the personal, social or business activities
of
the shareholders, officers or directors of any member of the Company Group.
Upon
termination of the Executive’s employment with the Company, and except as
provided in Section 4 of this Agreement, the Employee shall return all Company
property, including, without limitation, files, records, disks and any media
containing Confidential Information or Personal Information.
F. Cooperation
At
any
time after the Termination Date, the Executive agrees to cooperate (i) with
any
member of the Company Group in the defense of any legal matter involving any
matter that arose during the Executive’s employment with the Company or service
to any member of the Company Group and (ii) with all government authorities
on
matters pertaining to any investigation, litigation or administrative proceeding
pertaining to any member of the Company Group. The applicable member of the
Company Group will reimburse the Executive for any reasonable travel and out
of
pocket expenses incurred by the Executive in providing such cooperation. In
addition, with respect to any time after the Severance Period, the Company,
or
any applicable member of the Company Group, as applicable, shall pay the
Executive a fee equal to $2,000 per day, pro-rated for any partial days, that
the Executive is required to cooperate with any member of the Company Group
or
any government authorities in compliance with this Section 5F.
G. Enforcement
The
Executive acknowledges and agrees that the Company Group’s remedies at law for a
breach or threatened breach of any of the provisions of Sections 5.A, 5B, 5C
and
5E of this Agreement would be inadequate, and, in recognition of this fact,
the
Executive agrees that, in the event of such a breach or threatened breach,
in
addition to any remedies at law, the Company Group, without posting any bond,
shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction
or
any other equitable remedy which may then be available, and the Executive shall
reimburse any member of the Company Group for all reasonable attorneys’ fees,
expenses and costs incurred by such member in connection with such member’s
efforts to enforce such covenants. In addition, the Company shall be entitled
to
immediately cease paying any amounts remaining due or providing any benefits
to
the Executive pursuant to Section 2 of this Agreement and, subject to applicable
state law, to reclaim any amounts already paid to the Executive under this
Agreement upon a determination by the Company Group that the Executive has
violated any provision of Section 5 of this Agreement that is listed above,
subject to payment of all such amounts upon a final determination that the
Executive had not violated such section. If the Executive breaches any of the
covenants contained in Section 5 of this Agreement and any member of the Company
Group obtains injunctive relief with respect thereto, the period during which
the Executive is required to comply with that particular covenant shall be
extended by the same period that the Executive was in breach of such covenant
prior to the effective date of such injunctive relief.
6. Acknowledgment
and Release.
A. Initial
Release
The
Executive acknowledges and agrees that the payments and benefits described
in
Sections 2A, 2B and 2C above shall be contingent on the Executive’s not revoking
the Agreement during the seven-day revocation period described in Section 6B
of
this Agreement. If the Executive revokes this Agreement during such revocation
period, this Agreement shall be null and void and of no further force and
effect.
B. The
Executive shall have seven days from the date of his execution of this Agreement
to revoke this Agreement, including the release given under this Section 6
with
respect to all claims referred to herein (including, without limitation, any
and
all claims arising under the ADEA). If the Executive revokes this Agreement
including, without limitation, the release given under this Section 6, the
Executive will be deemed not to have accepted the terms of this Agreement,
including any action required of the Company by any section of this
Agreement.
C. In
consideration of the Company’s execution of this Agreement, and except with
respect to the Company’s obligations arising under or preserved in this
Agreement, the Executive, for and on behalf of himself and his heirs and
assigns, hereby waives and releases any common law, statutory or other
complaints, claims, charges or causes of action arising out of or relating
to
the Executive’s employment or termination of employment with, or his serving in
any capacity in respect of, any member of the Company Group, both known and
unknown, in law or in equity, which the Executive may now have or ever had
against any member of the Company Group or any shareholder, employee, director
or officer of any member of the Company Group (collectively, the “Releasees”),
including, without limitation, any claim for any severance benefit which but
for
this Agreement might have been due the Executive under any previous agreement
executed by and between any member of the Company Group and the Executive,
and
any complaint, charge or cause of action arising out of his employment with
the
Company Group under the Age Discrimination in Employment Act of 1967
(“ADEA,”
a
law
which prohibits discrimination on the basis of age), the National Labor
Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities
Act
of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement
Income Security Act of 1974, all as amended; and all other federal, state and
local laws. By signing this Agreement the Executive acknowledges that he intends
to waive and release any rights known or unknown he may have against the
Releasees under these and any other laws; provided, that the Executive does
not
waive or release claims with respect to the right to enforce this
Agreement.
D. The
Executive acknowledges that he has not filed any complaint, charge, claim or
proceeding against any of the Releasees before any local, state or federal
agency, court or other body relating to his employment or the resignation
thereof (each individually a “Proceeding”).
The
Executive represents that he is not aware of any basis on which such a
Proceeding could reasonably be instituted.
E. The
Executive (i) acknowledges that he will not initiate or cause to be initiated
on
his behalf any Proceeding and will not participate in any Proceeding, in each
case, except as required by law; and (ii) waives any right he may have to
benefit in any manner from any relief (whether monetary or otherwise) arising
out of any Proceeding, including any Proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”).
Further, the Executive understands that by entering into this Agreement, he
will
be limiting the availability of certain remedies that he may have against the
Company and also limiting his ability to pursue certain claims against the
Releasees. Notwithstanding the above, nothing in this Section 12 shall prevent
the Executive from (i) initiating or causing to be initiated on his behalf
any
complaint, charge, claim or proceeding against the Company before any local,
state or federal agency, court or other body challenging the validity of the
waiver of his claims under ADEA contained in this Section 12 (but no other
portion of such waiver); or (ii) initiating or participating in an investigation
or proceeding conducted by the EEOC with respect to the ADEA.
F. The
Executive acknowledges that he has been given 21 days from the date of receipt
of this Agreement to consider all the provisions of this Agreement and he does
hereby knowingly and voluntarily waive said given 21-day period. THE
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT CAREFULLY, HAS
BEEN ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY, AND FULLY UNDERSTANDS THAT,
BY SIGNING BELOW, HE IS GIVING UP CERTAIN RIGHTS WHICH HE MAY HAVE TO ▇▇▇ OR
ASSERT A CLAIM AGAINST ANY OF THE RELEASEES, AS DESCRIBED IN THIS SECTION 12
AND
THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN
FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS AGREEMENT, AND THE
EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
G. Task
Completion Date Release
Those
payments and benefits described in Sections 2A, 2B and 2C above which are due
after the Termination Date shall be contingent on the Executive’s execution on
the Task Completion Date of a release of claims substantially in the form
attached to this Agreement as Exhibit A (the “Task
Completion Date Release”),
and
not revoking such Task Completion Date Release during the applicable seven-day
revocation period. If the Executive revokes such Task Completion Date Release
during the period described in the immediately preceding sentence, this
Agreement (other than the Release given in Sections 6A-6F, and other than the
payments and benefits due between the Termination Date and the Task Completion
Date) shall be void as of and following the Termination Date.
7. Miscellaneous.
A. Entire
Agreement.
This
Agreement is the entire agreement between the Parties with respect to the
subject matter hereof and contains all agreements, whether written, oral,
express or implied, between the Parties relating thereto and supersedes and
extinguishes any other agreement relating thereto, whether written, oral,
express or implied, between the Parties, including, without limitation, the
Subscription Agreement and the Amended
and Restated Phantom Stock Plan;
provided, that the Non-Disclosure Agreement, the Employee Information Agreement
and the Executive’s obligations pursuant to the Ply Gem Code of Ethics shall not
be superseded by this Agreement and shall remain in full force and effect,
and
provided, further, that no rights or obligations established under any
superseded agreement and specifically preserved by this Agreement are
extinguished. All phantom
incentive units
belonging to the Executive as well as all of Executive’s rights under the
Amended
and Restated Phantom Stock Plan
are
terminated in full as of the Termination Date. Other than this Agreement and
as
otherwise explicitly stated herein, there are no agreements of any nature
whatsoever between the Executive and any member of the Company Group that
survive this Agreement. Notwithstanding the foregoing or anything to the
contrary in this Agreement, the Executive agrees that, as of the Termination
Date, the Executive shall have no further rights pursuant to the Stockholders
Agreement; provided that the provisions of Section 6.3 of the Stockholders
Agreement regarding post-employment covenants of the Executive shall remain
binding on the Executive and survive in accordance with their
terms.
B. Modification.
This
Agreement may not be modified or amended, nor may any rights under it be waived,
except in a writing signed and agreed to by the Parties.
C. Notices.
Any
notice given pursuant to the Agreement to any party hereto shall be deemed
to
have been duly given when mailed by registered or certified mail, return receipt
requested, or by overnight courier, or when hand delivered as
follows:
If
to the
Company:
Great
Lakes Windows
c/o
Ply
Gem Holdings, Inc.
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇
▇▇▇▇▇, Chief Executive Officer
▇▇▇▇,
Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇, Esq.
If
to the
Executive:
[Address]
or
at
such other address as either party shall from time to time designate by written
notice, in the manner provided herein, to the other party hereto.
D. Successors;
Death Benefit.
The
Agreement shall be binding upon and inure to the benefit of the Parties, their
respective heirs, successors and assigns. In the event the Executive dies at
any
time before any amounts payable to him under this Agreement are paid in full,
the amounts remaining to be paid under this Agreement at the time of his death
shall be paid (at such times as such amounts would have been paid to the
Executive) to his surviving spouse, if any, and otherwise to his
estate.
E. Taxes.
Notwithstanding any other provision of this Agreement to the contrary, the
Company or any member of the Company Group, as applicable, may withhold from
all
amounts payable under this Agreement all federal, state, local and foreign
taxes
that are required to be withheld pursuant to any applicable laws and
regulations. The Executive shall be responsible for the payment of his portion
of any and all required federal, state, local and foreign taxes incurred, or
to
be incurred, in connection with any amounts payable to the Executive under
this
Agreement.
F. Severability.
In the
event that any provision of the Agreement is determined to be invalid or
unenforceable, the remaining terms and conditions of the Agreement shall be
unaffected and shall remain in full force and effect. In addition, if any
provision is determined to be invalid or unenforceable due to its duration
and/or scope, the duration and/or scope of such provision, as the case may
be,
shall be reduced, such reduction shall be to the smallest extent necessary
to
comply with applicable law, and such provision shall be enforceable, in its
reduced form, to the fullest extent permitted by applicable law.
G. Non-Admission.
Nothing
contained in the Agreement shall be deemed or construed as an admission of
wrongdoing or liability on the part of the Executive or on the part of any
member of the Company Group.
H. No
Mitigation.
The
Executive shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment and, to the extent
that the Executive obtains or undertakes other employment, the payment will
not
be reduced by the earnings of the Executive from the other
employment.
I. Venue.
Any
action or other legal proceeding arising under or relating to any provision
of
this Agreement shall be commenced only in a court of the State of Ohio (or,
if
appropriate, a federal court located within the State of Ohio), and the Company
and the Executive hereby consent to the jurisdiction of such a court.
J. Governing
Law/Waiver of Jury Trial.
The
Agreement shall be governed by, and construed in accordance with the internal
laws of the State of Ohio, without regard to principles of conflicts of laws
of
such state that may cause the laws of another state to apply. The Company and
the Executive each hereby waive any right to a trial by jury in any action,
suit
or other legal proceeding arising under or relating to any provision of this
Agreement.
K. Counterparts.
The
Agreement may be executed by one or more of the Parties hereto on any number
of
separate counterparts and all such counterparts shall be deemed to be one and
the same instrument. Each party hereto confirms that any facsimile copy of
such
party’s executed counterpart of the Agreement (or its signature page thereof)
shall be deemed to be an executed original thereof.
[Remainder
of Page Intentionally Left Blank]
Doc
#:NY7:89700.2
IN
WITNESS WHEREOF, the undersigned have executed the Agreement on the date first
written above.
GREAT
LAKES
WINDOWS
By:_________________________________
Title:
_________________________________
▇▇▇▇
▇.
▇▇▇▇▇▇
[Address]
With
respect to
Section 2C only,
PLY
GEM INVESTMENT
HOLDINGS, INC.
By:_________________________________
Title:
Doc
#:NY7:89700.2
Exhibit
A
RELEASE
OF CLAIMS
[Great
Lakes Windows, a wholly owned subsidiary of Ply Gem Holdings, Inc., a Delaware
corporation] (the “Company”)
and
▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Executive”)
are
parties to a Separation Agreement and General Release of all Claims, dated
as of
November 28, 2005, under which the parties mutually agreed to terminate the
Employment Agreement by and between the Company and the Executive, (the
“Employment
Agreement”),
and
the Executive’s employment thereunder (the “Termination
Agreement”).
In
consideration of the promises set forth in this Release and the Termination
Agreement, the Executive agrees as follows:
1. Acknowledgment
and Release
In
consideration of the Company’s execution of the Termination Agreement, and
except with respect to the Company’s obligations arising under or preserved in
the Termination Agreement, the Executive, for and on behalf of himself and
his
heirs and assigns, hereby waives and releases all common law, statutory or
other
complaints, claims, charges or causes of action arising out of or relating
to
the Executive’s employment or termination of employment with, or his serving in
any capacity in respect of, any member of the Company Group (as defined in
the
Termination Agreement), both known and unknown, in law or in equity, which
the
Executive may now have or ever had against any member of the Company Group
or
any shareholder, employee, director or officer of any member of the Company
Group (collectively, the “Releasees”), including, without limitation, any claim
for any severance benefit which but for this Release and the Termination
Agreement might have been due the Executive under any previous agreement
executed by and between any member of the Company Group and the Executive,
and
any complaint, charge or cause of action arising out of his employment with
the
Company Group under the Age Discrimination in Employment Act of 1967 (“ADEA,” a
law which prohibits discrimination on the basis of age), the National Labor
Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities
Act
of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement
Income Security Act of 1974, all as amended; and all other federal, state and
local laws. By signing this Release the Executive acknowledges that he intends
to waive and release all rights known or unknown he may have against the
Releasees under these and any other laws; provided, that the Executive does
not
waive or release claims with respect to the right to enforce this Release or
the
Termination Agreement.
The
Executive acknowledges that he has not filed any complaint, charge, claim or
proceeding against any of the Releasees before any local, state or federal
agency, court or other body relating to his employment or the resignation
thereof (each individually a “Proceeding”).
The
Executive represents that he is not aware of any basis on which such a
Proceeding could reasonably be instituted.
The
Executive (i) acknowledges that he will not initiate or cause to be
initiated on his behalf any Proceeding and will not participate in any
Proceeding, in each case, except as required by law; and (ii) waives any
right he may have to benefit in any manner from any relief (whether monetary
or
otherwise) arising out of any Proceeding, including any Proceeding conducted
by
the Equal Employment Opportunity Commission (“EEOC”).
Further, the Executive understands that by entering into this Release, he will
be limiting the availability of certain remedies that he may have against the
Company and also limiting his ability to pursue certain claims against the
Releasees. Notwithstanding the above, nothing in this Release shall prevent
the
Executive from (i) initiating or causing to be initiated on his behalf any
complaint, charge, claim or proceeding against the Company before any local,
state or federal agency, court or other body challenging the validity of the
waiver of his claims under ADEA contained in this Release (but no other portion
of such waiver); or (ii) initiating or participating in an investigation or
proceeding conducted by the EEOC with respect to ADEA.
The
Executive acknowledges that he has been given 21 days from the date of receipt
of this Release to consider all the provisions of this Release and he does
hereby knowingly and voluntarily waive said given 21 day period. THE
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS RELEASE CAREFULLY, HAS
BEEN
ADVISED BY THE COMPANY TO CONSULT AN
ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW, HE IS GIVING UP CERTAIN
RIGHTS WHICH HE MAY HAVE TO ▇▇▇ OR ASSERT A CLAIM AGAINST ANY OF THE RELEASEES,
AS DESCRIBED IN THIS RELEASE AND THE OTHER PROVISIONS HEREOF. THE EXECUTIVE
ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER
TO SIGN THIS RELEASE, AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS
VOLUNTARILY.
The
Executive shall have seven days from the date of his execution of this Release
to revoke this Release. If the Executive revokes this, the Executive will be
deemed not to have accepted the terms of the Termination Agreement (other than
the Release given in Sections 6A-6F thereof from and after the Task Completion
Date), including any action required of the Company after the Task Completion
Date by any Section of the Termination Agreement.
The
Executive acknowledges that nothing in this Release shall constitute any
admission of wrongdoing by the Company or any Releasee.
_________________________________
▇▇▇▇
▇.
▇▇▇▇▇▇
Dated: January
27, 2006