CONSULTING AND NON-COMPETITION AGREEMENT
AGREEMENT made this 15 day of February, 1996, by and
between Drew Industries Incorporated, a Delaware corporation (the
"Company"), and Lecil V. Thomas (the "Consultant").
W I T N E S S E T H :
WHEREAS, on the date hereof, the Company acquired the
assets, liabilities and business of Shoals Supply, Inc. ("Shoals");
and
WHEREAS, the Consultant is the sole shareholder and chief
executive officer of Shoals and has had extensive business and
financial experience with the business of Shoals to be conducted by
the Company, and the Company desires to utilize the Consultant's
experience, knowledge and abilities in connection with the
operations of the Company by retaining him as an independent
consultant and advisor to the Company; and
WHEREAS, the Company does not wish the Consultant to
compete against it,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, representations and warranties contained herein,
and subject to the conditions hereinafter set forth, it is agreed
as follows:
1. Term
The Company hereby retains the Consultant, and the
Consultant hereby agrees to serve as a general advisor and
independent consultant to the Company, for the term commencing on
the date hereof, and ending on February 14, 2001 (the "Term").
2. Services
2.1 The Consultant shall serve the Company
faithfully, efficiently and diligently as a general advisor and
independent consultant with respect to the business, operations and
affairs of the Company.
2.2 The Consultant shall be available to render
such services to the Company from time to time in person, or by
telephone and facsimile, as the Company and the Consultant shall
mutually deem necessary, in regard to manufacturing facilities and
methods, markets and customers, personnel, and planning; provided,
however, that the Consultant shall not be required to perform more
than one hundred twenty five (125) hours of service to the Company
in any year during the Term.
3. Non-Competition - Corporate Property
3.1 Except as set forth on Schedule "3.1" hereto,
during the term of this Agreement, and for a period of two (2)
years after termination of this Agreement, the Consultant shall not
(i) directly or indirectly, undertake or perform any services in or
for any other enterprise that may or would interfere with the due
performance of his duties hereunder; nor (ii) divulge to any
person, firm, corporation or other entity any information with
respect to the business of the Company, its parent company and
their respective subsidiaries (collectively, the "Affiliated
Companies") that he may acquire in connection with the performance
of his duties hereunder or may have acquired prior hereto,
including, but not limited to, production methods; manufacturing
methods, arrangements or processes; sales methods or arrangements;
customer lists; information relating to pricing; information
relating to suppliers; technical data; know-how; and other
information, whether or not any of the foregoing are commonly
regarded as proprietary information or trade secrets.
3.2 Except as set forth on Schedule "3.1" hereto,
during the term of this Agreement, and for a period of two (2)
years after termination of this Agreement, the Consultant shall
not, directly or indirectly, undertake or perform services in or
for, or render services to, participate in, or have any financial
interest in, or engage in, any business which is competitive with
the business of any of the Affiliated Companies, or solicit for
employment or employ any employee of the Affiliated Companies. For
the purposes hereof, a business shall be deemed competitive if it
is conducted in any geographic or market area in which any of the
Affiliated Companies are engaged in business relating to the
manufactured housing or recreational vehicle industries during the
term of this Agreement and involves the development, design,
manufacture, marketing, packaging or sale of any products or
services sold or offered by any of the Affiliated Companies, or any
products or services substantially similar thereto, or derived
from, such products or services sold or offered by any of the
Affiliated Companies during such period; and the Consultant shall
be deemed directly or indirectly to engage in such business if he
participates in such business, or in any entity engaged in or which
owns, such business, as an officer, director, employee, partner,
individual proprietor, manager or as an investor who has made any
loans, contributed to capital stock or purchased any stock. The
foregoing, however, shall not be deemed to prevent the Consultant
from (i) investing in securities, if such class of securities in
which the investment is so made is listed on a national securities
exchange or is of a company registered under Section 12(g) of the
Securities Exchange Act of 1934, and, if the company in which such
investment is made competes with any of the Affiliated Companies,
such investment represents less than one (1%) percent of the
outstanding securities of such class.
3.3 Except as set forth on Schedule "3.1" hereto,
the Consultant agrees that all products, packaging, inventions,
designs, specifications, creations, ideas, techniques, methods, or
any portion thereof, or any improvements or modifications thereon,
or any know-how or any procedures related thereto, conceived,
invented, discovered, utilized or executed by the Consultant,
during the term of this Agreement or prior hereto, which relate to
any products or services sold or offered by any of the Affiliated
Companies, or any products or services substantially similar
thereto, derived therefrom, or competitive therewith, either alone
or with others, whether or not during business hours, whether or
not with the use of the Company's facilities, materials,
information or personnel, and whether or not marketed or utilized
by the Company, have been and shall remain the sole and exclusive
property of the Company, without additional compensation payable
therefor, will not be divulged, published, revealed or made
available to any person, firm or entity other than the Company,
shall be subject to the provisions of Section 3.2 hereof, and by
these presents the Consultant hereby assigns to the Company any and
all right, title and interest he has, or may have, therein.
3.4 The Consultant will not at any time from and
after the date hereof utilize the names "Shoals" or "Shoals Supply"
or any trademark, tradename, service mark, logo, copyright, patent,
or similar intellectual property, whether or not registered, at any
time owned or used by Shoals, or any proprietary information of
Shoals, except in connection with the services to be rendered to
the Company hereunder.
3.5 The Consultant acknowledges that the services
of the Consultant to be performed hereunder and the agreements and
undertakings of the Consultant contained herein are valuable and
unique and that in the event of a breach, or threatened breach, by
the Consultant of the terms hereof, the Company will not have an
adequate remedy at law. Therefore, in the event of such breach or
threatened breach, in addition to any other remedies the Company
may have, it shall be entitled to injunctive relief to enforce the
provisions of, or assert its rights pursuant hereto.
4. Compensation - Taxes
4.1 The Company agrees to pay the Consultant for
his services to the Company, and for his agreement not to compete,
at the annual rate of Twenty Five Thousand ($25,000) Dollars,
payable in equal monthly installments.
4.2 The Consultant is an independent contractor and
shall be responsible for all taxes, impositions and assessments due
to any Federal, state or local taxing authority with respect to the
compensation payable hereunder, and the Consultant shall indemnify
and hold the Company harmless from and against any and all
liabilities arising from the Consultant's failure to pay any such
taxes, impositions or assessments.
5. Expenses - Insurance
5.1 All travel and other expenses incident to the
rendering of services by the Consultant hereunder will be paid by
the Company. If any such expenses are paid in the first instance
by the Consultant, the Company will reimburse him therefor on
presentation of expense vouchers.
5.2 During the term of this Agreement, the
Consultant and his family shall continue to receive medical and
hospital insurance equivalent, in nature and extent, to the medical
coverage presently in effect for the Consultant.
6. Termination
6.1 The Company shall have the right to terminate
this Agreement, at any time, upon ten (10) days written notice to
the Consultant in the event that (i) the Consultant shall engage in
conduct which constitutes willful neglect with respect to the
performance of his duties hereunder; (ii) the Consultant shall
engage in conduct which may have a materially adverse effect on the
Company or any other of the Affiliated Companies; (iii) the
Consultant shall have wilfully breached any of the covenants and
agreements contained herein, which breach shall continue for a
period of thirty (30) days after notice; or (iv) the Consultant is
convicted of a crime involving moral turpitude.
6.2 If, on account of physical or mental disability
as certified in writing by a reputable doctor selected by the
Company, the Consultant shall fail or be unable to fully perform
the consulting and advisory services required by this Agreement for
a period aggregating one hundred twenty (120) days during any
twelve-month period, the Company may, at its option, at any time
thereafter upon ten (10) days prior written notice to the
Consultant, terminate this Agreement, and this Agreement shall
terminate and come to an end as of the end of said notice period as
if such date were the termination date of this Agreement.
6.3 In the event of termination pursuant to
Sections 6.1 or 6.2 hereof, this Agreement shall terminate as of
the end of the notice period provided therein as if such date were
the termination date of this Agreement, and neither party shall
have any further obligation or liability to the other hereunder,
except that (i) in the event of termination pursuant to Section 6.2
hereof, the Company will continue to pay the Consultant pursuant to
Section 2 hereof for the remainder of the Term pursuant to Section
4.1 hereof, and (ii) the provisions of Section 3 hereof shall
survive termination of this Agreement.
6.4 In the event of the death of the Consultant
during the term hereof, this Agreement shall terminate on the date
of death, and the Company shall have no further obligation, except
that the Company will pay to the estate of the Consultant the
payments required pursuant to Section 2 hereof for the remainder of
the Term pursuant to Section 4.1 hereof.
7. Retirement Plans
The Consultant shall not be entitled to participate
in any pension, retirement or profit-sharing plan maintained by the
Company on the date hereof or hereafter established, except that
nothing herein shall affect any benefits in which the Consultant is
vested, prior to the date hereof, pursuant to any plan assumed by
the Company.
8. Prior Agreements - Satisfaction of Obligations
This Agreement supersedes and renders null and void
all agreements, written or oral, to which the Consultant and Shoals
are parties relating to employment, compensation and non-competition.
The Consultant acknowledges and agrees that this Agreement is entered
into by the Company in full satisfaction and discharge of all
obligations and liabilities for all salaries, bonuses, employee
benefits, perquisites and other compensation to which the Consultant
is now, or may have become, entitled from Shoals, except as expressly
set forth herein.
9. Additional Provisions
9.1 All notices and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, telegram,
telex, facsimile or other standard form of telecommunication, or by
registered or certified post-paid mail, return receipt requested,
and addressed as follows, or to such other address as any party may
notify the other in accordance with the provisions hereof:
To the Company: Drew Industries Incorporated
200 Mamaroneck Avenue
White Plains, NY 10601
Attention: President
-copy to-
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, N.Y. 10036
Attention: Harvey F. Milman, Esq.
To the Consultant: Lecil V. Thomas
Route #5
P. O. Box 274
Haleyville, AL 35565
-copy to-
Spain & Gillon, LLC
The Zinszer Building
2117 Second Avenue North
Birmingham, AL 35203
Attention: John P. McKleroy, Jr., Esq.
9.2 This Agreement constitutes the whole agreement
between the parties, and there are no terms other than those
contained herein. No variations hereof shall be deemed valid
unless in writing and signed by the parties hereto, and no
discharge of the terms hereof shall be deemed valid unless by full
performance by the parties hereto, or by a writing signed by the
parties hereto.
9.3 Each party hereto hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court for
the Northern District of Georgia and any court of competent
jurisdiction of the State of Georgia located in the City of Atlanta
over any suit, action or proceeding arising out of or relating to
this Agreement. Each party hereby irrevocably waives to the
fullest extent permitted by law, (i) any objection that they may
now or hereafter have to the venue of any such suit, action or
proceeding brought in any such court, (ii) any claim that any such
suit, action or proceeding has been brought in an inconvenient
forum, and (iii) all right to trial by jury in any proceeding
enforcing or defending any rights under this Agreement or relating
hereto. Final judgement in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon each
party duly served with process therein and may be enforced in the
courts of the jurisdiction of which either party or any of its
property is subject, by a suit upon such judgement.
9.4 This Agreement shall inure to the benefit and
be binding upon the Company, its successors and assigns, and the
Consultant, his heirs, executors, administrators and legal
representatives.
IN WITNESS WHEREOF, the Company has caused these presents
to be signed by its duly authorized officer, and the Consultant
has hereunto set his hand the day and year first above written.
ATTEST: DREW INDUSTRIES INCORPORATED
______________________________ By____________________________
WITNESS:
______________________________ _____________________________
Lecil V. Thomas
Schedule 3.1 - Competition
Thomas will continue to perform services for Marion Products,
Inc. and Gulf States Iron and Metal, Inc. All information
regarding products, packaging, inventions, designs, specifications,
creations, ideas, techniques, methods, conceived, invented,
discovered, utilized or executed by him prior to the term hereof
which have been utilized by those companies may continue to be
utilized by such companies.
Shareholder currently owns all of the issued and outstanding
stock of Marion Products, Inc. and Gulf States Iron and Metal, Inc.
Marion Products, Inc. and Gulf States Iron and Metal, Inc.
will continue their present business. Their respective business
are as follows:
Marion Products, Inc. - Building chassis (not including the
manufacture of parts currently being purchased from Seller) for the
manufactured housing industry and the recreational vehicles
industry.
Gulf States Iron and Metal, Inc. - Manufacturing and building
dumpsters, compactors, balers and garbage truck beds.
Thomas will continue to perform services for Marion Products,
Inc. and Gulf States Iron and Metal, Inc. All information
regarding products, packaging, inventions, designs, specifications,
creations, ideas, techniques, methods, conceived, invented,
discovered, utilized or executed by him prior to the term hereof
which have been utilized by those companies may continue to be
utilized by such companies.
Neither corporation is granted the authority to expand the
businesses of the above named entities into other areas which will
compete with Buyer.