15
CHANGE IN CONTROL AGREEMENT
This Agreement is made as of this ninth day of July,
1998, by and between Gibraltar Steel Corporation, a
Delaware corporation with offices at 3556 Lake Shore
Road, Buffalo New York (the "Company") and _____________,
an individual residing at _______________________ (the
"Executive").
RECITALS:
This Agreement is intended to help assure a
continuing dedication by the Executive to the performance
of his duties to the Company in the event of a change in
control.
The Company and the Executive desire to set forth in
writing the terms of the benefits which the Executive
will be entitled to receive in the event of a change in
the control of the Company occurs.
CONSIDERATION:
NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants set forth in this Agreement, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement, the
following terms shall the following meanings:
(a) "Aggregate Exercise Price" means: (i) in the case of
options to acquire common stock of the Company which are
owned by the Executive, the total amount of cash or
immediately available funds which the Executive would be
required to pay to the Company in order to purchase all
of the common stock of the Company which, as of the date
that the determination of the Aggregate Exercise Price is
to be made, the Executive is entitled to purchase under
the terms of all issued, outstanding and unexercised
options to purchase common stock of the Company which are
outstanding and exercisable on the date the determination
of the Aggregate Exercise Price to be made; and (ii) in
the case of options to acquire Successor Equity (as
hereinafter defined) the total amount of cash or
immediately available funds which the Executive would be
required to pay the Successor (as hereinafter defined) in
order to purchase all the Successor Equity which, as of
the date that the determination of the Aggregate Exercise
Price is to be made, the Executive is entitled to
purchase under the terms of all issued, outstanding and
unexercised options to purchase Successor Equity which
are outstanding and exercisable on the date the
determination of the Aggregate Exercise Price of such
options is to be made.
(b) "Annual Compensation" means the sum of: (i) the
amount of the annual base salary of the Executive which
is in effect during the calendar year preceding the
calendar year in which the Executive's employment with
the Company is terminated in a termination which
constitutes a Change in Control Termination (as
hereinafter defined); and (ii) the average of the annual
bonuses paid to the Executive by the Company during the
three (3) calendar years preceding the calendar year in
which the Executive's employment with the Company is
terminated in a termination which constitutes a Change in
Control Termination. The amount of any compensation
which the Executive has affirmatively elected to defer
his receipt of, including without limitation,
compensation deferred pursuant to any applicable 401(k)
plan, any Section 125 plan, any cafeteria plan or any
other deferred compensation plan maintained by the
Company, shall be included when calculating Annual
Compensation.
(c) "Built In Gain" means an amount equal to: (i) the
Highest Sale Price (as hereinafter defined) determined as
of the date the Change in Control occurs, multiplied by
the total number of shares of common stock of the Company
which the Executive could acquire by exercising all of
the options to acquire common stock of the Company which,
as of the date the Change in Control occurs, were issued
to the Executive, outstanding and unexercised, minus (ii)
the Aggregate Exercise Price of such options.
(d) "Change in Control" means, the occurrence of any of
the following events:
(i) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"))
becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than thirty percent (30%)
of the then outstanding voting stock of the Company; or
(ii) during any period of two consecutive
years, individuals who at the beginning of such period
constitute the Board of Directors of the Company cease
for any reason to constitute a majority thereof; or
(iii) the stockholders of the Company
approve a merger or consolidation of the Company with any
other company, other than a merger or consolidation which
would result in the voting securities of the Company
immediately prior thereto continuing to represent (either
by remaining outstanding or being converted into voting
securities of the surviving entity) at least 80% of the
combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately
after such merger or consolidation; or
(iv) the Board of Directors and the stockholders of the
Company approve an agreement for the sale or disposition
by the Company of all or substantially all the assets of
the Company following an approval of such sale by the
Board of Directors of the Company.
(e) "Change in Control Termination" means a
termination of the Executive's employment with the
Company other than a Termination For Cause (as
hereinafter defined), a termination which results from
the Executive's death or a termination (whether by the
Company or by the Executive) which results from the
Executive's disability (as determined under the
provisions of the long term disability plan of the
Company which is in effect at the time the Change in
Control occurs), which termination:
(i) is initiated:
(A) by the Company; or
(B) by the Executive as a result of
the occurrence of either of the following events:
(I) a reduction in the
Executive's annual base salary as in effect at the time
the Change in Control occurs; or
(II) a change in the terms upon
which the bonus payable to the Executive is determined,
as a result of which, the amount of the bonus which the
Executive is able to earn after the occurrence of the
Change in Control is significantly less than the amount
of the bonus which the Executive was able to earn
immediately prior to the occurrence of a Change in
Control; and
(ii) occurs:
(A) in the case of a Change in Control event described
in subparagraph 1(d)(i) or (ii) above, at any time prior
to the end of the two (2) year period immediately
following the occurrence of such Change in Control; or
(B) in the case of a Change in Control event described
in subparagraph 1(d)(iii) or (iv) above, at any time
prior to the earliest to occur of:
(I) the end of the two (2) year period immediately
following the occurrence of such Change in Control; and
(II) the adoption by the Board of Directors of the
Company of a resolution which acknowledges or confirms
that the merger or sale transaction which was previously
approved by the stockholders of the Company and which
formed the basis for the occurrence of a Change in
Control described in subparagraph 1(d)(iii) or (iv) will
not occur and which resolution further provides that the
approval by the stockholders of the Company of such
merger or sale shall no longer constitute a Change in
Control for purposes of this Agreement.
(f) "Conversion Options" means, an option or
options to purchase Successor Equity in the Successor
which option or options may be granted by the Successor
to the Executive and are exercisable in full, immediately
following the Change in Control for an Aggregate Exercise
Price which does not exceed the Aggregate Exercise Price
of the options to purchase common stock of the Company
which were owned by the Executive on the date the Change
in Control occurs and which options, if exercised by the
Executive in full, immediately following the occurrence
of a Change in Control would provide for the ownership by
the Executive of Successor Equity which, immediately
following the acquisition of such Successor Equity by the
Executive, may be sold by the Executive, free of any
restrictions imposed on the sale of securities by the
Securities Act of 1933, for a price which exceeds the
Aggregate Exercise Price of the such options by an amount
which is not less than the amount of the Built In Gain.
Nothing contained in this Agreement shall be deemed or
construed to require the Executive to accept a grant of
Conversion Options from the Successor.
(g) "Deferred Compensation" means any compensation,
payable to the Executive by the Company, receipt of which
is contingent or is deferred pursuant to the terms of any
applicable 401(k) plan, Section 125 cafeteria plan or any
other deferred compensation plan maintained by the
Company together with any interest or earnings, either
actually or hypothetically earned on the amount of such
compensation.
(h) "Highest Sale Price" means: (i) with respect to the
common stock of the Company, the highest closing sale
price at which common stock of the Company has been sold,
in an established securities market, during the twelve
(12) consecutive month period ending on the date as of
which the determination of the Highest Sale Price of the
common stock of the Company is to be made; and (ii) in
the case of any Successor Equity, the highest closing
sale price at which such Successor Equity has been sold,
in an established securities market, during the twelve
(12) consecutive month period ending on the date as of
which the determination of the Highest Sale Price of the
Successor Equity is to be determined.
(i) "Successor" means, the person, firm, corporation or
other entity which, as a result of the occurrence of a
Change in Control, has succeeded, directly or indirectly,
to all or substantially all the assets, rights,
properties, liabilities and obligations of the Company.
(j) "Successor Equity" means capital stock or any other
equity interest in the Successor.
(k) "Termination for Cause" means the termination by the
Company of the Executive's employment with the Company
for any of the following reasons:
(i) willful and continued failure by the
Executive to substantially perform his duties other than
any such failure resulting from the Executive's
incapacity due to physical or mental illness;
(ii) intentional falsification of records
or reports or any other act or acts of dishonesty
constituting a felony and resulting, or intended to
result, directly or indirectly, in personal gain or
enrichment of the Executive at the expense of the
Company;
(iii) excessive and/or chronic use of
alcohol, narcotics or other controlled substances (other
than under the supervision of a licensed physician); or
(iv) willful engagement in gross
misconduct materially injurious to the Company.
2. Effect of Change in Control. Upon the
occurrence of a Change in Control:
(a) the restrictions imposed upon the sale,
transfer or other conveyance of any restricted stock held
by the Executive pursuant to the terms of any restricted
stock agreement or any other plan or agreement shall
terminate and cease to exist, and such stock shall
thereafter be free from all such restrictions;
(b) any and all Deferred Compensation (except for
compensation deferred by the Executive pursuant to the
terms of any 401(k) plan maintained by the Company, which
deferred compensation shall be paid in accordance with
the terms of such 401(k) plan) shall be paid to the
Executive in one lump sum payment within thirty (30) days
following the occurrence of the Change in Control or, in
the case of a Change in Control event described in either
subparagraph 1(d)(iii) or 1(d)(iv) hereof, within thirty
(30) days following the consummation of the merger or
sale transaction referred to in such subparagraphs (the
consummation of such merger or sale transaction being
hereinafter referred to as a "Merger or Sale Event");
(c) if, following the occurrence of a Change in Control
(or, in the case of a Change in Control event described
in subparagraph 1(d)(iii) or (iv) hereof, following the
Merger or Sale Event), the Company's legal existence
continues and the proportionate number of the issued and
outstanding shares of common stock of the Company (on a
fully diluted basis) which may be purchased by the
Executive after the occurrence of the Change in Control
(or after the Merger or Sale Event) pursuant to the
exercise of his options and for a price equal to the
Aggregate Exercise Price of the Executive's options
(determined immediately prior to the occurrence of the
Change in Control), is at least equal to the
proportionate number of the issued and outstanding shares
of common stock of the Company which could have been
purchased by the Executive pursuant to the exercise by
the Executive of all of his options, immediately prior to
the Change in Control (or, in the case of a Change in
Control event described in subparagraph 1(d)(iii) or (iv)
above, immediately prior to the Merger or Sale Event)
(including any shares of the Company's common stock which
may be acquired by the Executive as a result of
adjustments made after the occurrence of a Change in
Control to the terms of the options which the Executive
held prior to the occurrence of the Change in Control,
which adjustments provide the Executive the right to
acquire more shares of the Company's common stock for the
same Aggregate Exercise Price and shares of the Company's
common stock which may be acquired by the Executive
pursuant to the exercise of additional options granted to
the Executive immediately following the Change in Control
(or the Merger or Sale Event) which are immediately
exercisable in full), then, all options to purchase the
Company's common stock which were granted to the
Executive prior to the occurrence of the Change in
Control shall immediately become fully exercisable by the
Executive; and
(d) if, following the occurrence of a Change in Control
(or, in the case of a Change in Control event described
in subparagraph 1(d)(iii) or (iv) hereof, following the
Merger or Sale Event): (i) the Company's legal existence
continues but the number of shares of common stock of the
Company which the Executive is entitled to purchase
pursuant to the exercise of all options to purchase the
Company's common stock which are owned by the Executive
immediately following the Change in Control for a price
which is not more than the Aggregate Exercise Price of
his unexercised options immediately prior to the
occurrence of the Change in Control, is not, on a fully
diluted basis, at least equal to the same proportion, on
a fully diluted basis, of the issued and outstanding
shares of common stock of the Company which could have
been purchased by the Executive pursuant to the exercise
of all of his options immediately prior to the occurrence
of the Change in Control; or (ii) the common stock of the
Company is no longer listed for trading on an established
securities market and the Successor has not, effective as
of the date the Change in Control occurs, offered to
grant Conversion Options to the Executive in lieu of the
options of the Executive to purchase common stock of the
Company; or (iii) the common stock of the Company is no
longer listed for trading on an established securities
market and the Successor has offered to grant Conversion
Options to the Executive effective as of the date the
Change in Control occurs (in lieu of the Executive's
options to purchase common stock of the Company) but the
Executive has elected not to accept such grant of
Conversion Options; then (iv) the Executive shall be
paid, in one lump sum payment not later than 90 days
following the occurrence of the Change in Control (or, in
the case of a Change in Control event described in
subparagraph 1(d)(iii) or (iv) hereof, not later than
ninety (90) days following the Merger of Sale Event), the
amount of the Built In Gain on the options to purchase
common stock of the Company which were issued to the
Executive and outstanding and unexercised on the date the
Change in Control occurs and, thereafter, all such
options shall be cancelled and shall for all purposes be
deemed and construed to be null and void.
3. Effect of Change in Control Termination. In
the event of a Change in Control Termination:
(a) the Company or the Successor, as the case may be,
shall, within thirty (30) days after the occurrence of
such Change in Control Termination, pay to the Executive,
in one (1) lump sum payment, the following amounts which
shall be in lieu of any rights which the Executive may
have to continuation of salary, compensation, benefits
and perquisites:
(i) the amount of any Deferred
Compensation, except for compensation deferred pursuant
to the terms of any applicable 401(k) plan maintained by
the Company, which shall remain subject to and shall be
payable in accordance with the terms of such plan; and
(ii) an amount equal to two-hundred twenty-
five percent (225%) of the Executive's Annual
Compensation;
(b) if the options to purchase common stock of the
Company have not been cancelled as provided for in
Section 2(d) above, to the extent that the Executive has
any unexercised options to purchase common stock of the
Company, which options are exercisable at the time the
Executive experiences the Change in Control Termination,
the Company shall pay to the Executive in one lump sum
payment within thirty (30) days following the date the
Change in Control Termination occurs, an amount equal to:
(i) the Highest Sale Price of the common stock of the
Company determined as of the date the Change in Control
Termination occurs; multiplied by (ii) the aggregate
number of shares of Common Stock of the Company which the
Executive is entitled to purchase pursuant to the terms
of all options to purchase any common stock of the
Company which are owned by the Executive and exercisable
on the date the Change in Control Termination occurs;
minus (iii) the Aggregate Exercise Price of the issued
and outstanding unexercised options to purchase common
stock of the Company which are owned by the Executive as
of the date the Change in Control Termination occurs to
the extent that such options are exercisable as of such
date; and
(c) if the Executive has elected to accept a
grant of Conversion Options from the Successor and, at
the time that the Executive's employment is terminated in
a termination which constitutes a Change in Control
Termination, the Executive owns Conversion Options or any
other options to acquire any Successor Equity which are
exercisable at the time the Executive's Change in Control
Termination occurs, but any such Conversion Options and
other options to purchase Successor Equity have not been
exercised by the Executive, the Successor shall pay to
the Executive in one lump sum payment within thirty (30)
days following the date the Change in Control Termination
occurs, an amount equal to: (i) the Highest Sale Price,
determined as of the date the Change in Control
Termination occurs, of each unit of Successor Equity
which could be acquired by the Executive upon the
exercise of all outstanding Conversion Options and other
options to purchase Successor Equity on the date the
Change in Control Termination occurs; multiplied by (ii)
the aggregate number of units of Successor Equity which
the Executive is entitled to purchase pursuant to the
terms of all options to purchase Successor Equity which
are owned by the Executive and exercisable on the date
the Change in Control Termination occurs; minus (iii) the
Aggregate Exercise Price of all issued and outstanding
unexercised Conversion Options and other options to
purchase Successor Equity which were owned by the
Executive and exercisable as of the date the Change in
Control Termination occurs.
4. Additional Payments by the Company. (a)
Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that
any payment or distribution by the Company to or for the
benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of
this Agreement or otherwise (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or
any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and
penalties being hereinafter collectively referred to as
the "Excise Tax"), then the Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment")
in an amount such that after payment by the Executive of
all taxes (including any interest or penalties imposed
with respect to such taxes), including any Excise Tax,
imposed upon the Gross-Up Payment, the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 4(c)
hereof, all determinations required to be made under this
Section 4, including whether a Gross-Up Payment is
required and the amount of such Gross-Up Payment, shall
be made by any nationally recognized firm of certified
public accountants (the "Accounting Firm") which shall
provide detailed supporting calculations both to the
Company and the Executive within 60 business days of a
Change in Control Termination. When calculating the
amount of the Gross-Up Payment, the Executive shall be
deemed to pay:
(i) Federal income taxes at the highest
applicable marginal rate of Federal income taxation for
the calendar year in which the Gross-Up Payment is to be
made; and
(ii) any applicable state and local income
taxes at the highest applicable marginal rate of taxation
for the calendar year in which the Gross-Up Payment is to
be made, net of the maximum reduction in Federal income
taxes which could be obtained from deduction of such
state and local taxes if paid in such year.
If the Accounting Firm has performed services
for the entity that caused the Change of Control or any
affiliate thereof, the Executive may select an
alternative accounting firm from any nationally
recognized firm of certified public accountants. If the
Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with an
opinion that he has substantial authority not to report
any Excise Tax on his federal income tax return. Any
determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with
the calculations required to be made hereunder. In the
event that the Company exhausts it remedies pursuant to
Section 4(c) hereof, and the Executive thereafter is
required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the
benefit of the Executive.
(c) The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall
be given as soon as practicable but no later than ten
business days after the Executive knows of such claim and
shall apprise the Company of the nature of such claim and
the date on which such claim is requested to be paid.
The Executive shall not pay such claim prior to the
expiration of the thirty-day period following the date on
which it gives such notice to the Company (or such
shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration
of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information
reasonably requested by the Company relating to such
claim;
(ii) take such action in connection with
contesting such claim as the Company shall reasonably
request in writing from time to time, including, without
limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the
Company;
(iii) cooperate with the Company in
good faith in order to effectively contest such claim;
and
(iv) permit the Company to participate in
any proceedings relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or
income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 4(c), the Company
shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine;
provided, however, that if the Company directs the
Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the
Executive, on an interest free basis and shall indemnify
and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and further provided that any
extension of the statue of limitations relating to
payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to
be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive
shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Executive of
an amount advanced by the Company pursuant to Section
4(c) hereof, the Executive becomes entitled to receive
any refund with respect to such claim, the Executive
shall (subject to the Company's complying with the
requirements of Section 4(c)) promptly pay to the Company
the amount of such refund (together with any interest
paid or credited thereon by the taxing authority after
deducting any taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the
Company pursuant to Section 4(c) hereof, a determination
is made that the Executive shall not be entitled to any
refund with respect to such claim and the Company does
not notify the Executive in writing of its intent to
contest such denial of refund prior to the expiration of
thirty days after such determination, then such advance
shall be forgiven and shall not be required to be repaid
and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required
to be paid under Section 4(a) hereof. The forgiveness of
such advance shall be considered part of the Gross-Up
Payment and subject to gross-up for any taxes (including
interest or penalties) associated therewith.
5. Effect on Terms and Conditions of Employment.
The Executive hereby acknowledges and agrees that, except
as otherwise specifically set forth in this Agreement,
the terms of this Agreement shall not be deemed or
construed to modify, alter or otherwise amend the terms
and conditions of the employment relationship between the
Executive and the Company as it now exists or as it may
exist in the future. Accordingly, the Executive hereby
agrees that nothing contained in this Agreement shall be
deemed or construed to entitle the Executive to remain in
the employment of the Company and that nothing contained
in this Agreement shall be deemed or construed to limit
or otherwise restrict any rights which the Company now
has or in the future have to terminate the employment of
the Executive. The Company hereby acknowledges and
agrees that, except as otherwise specifically set forth
in this Agreement, nothing in this Agreement shall be
deemed or construed to modify, alter, amend, limit or
restrict, in any way, any rights which the Executive may
now or in the future have to payment of any compensation
or benefits from the Company or any employee plan,
program or arrangement maintained by the Company and
which the Executive is a participant in.
6. Confidentiality. During the period of the
Executive's employment by the Company or any Successor,
the Executive shall not, except as may be required in
connection with the performance by the Executive of the
duties of his employment with the Company or the
Successor, disclose to any person, firm, corporation or
other entity, any information concerning matters
affecting or relating to the services, marketing, long
range plans, financial strategies or other business of
the Company or, if applicable, the Successor, or any of
their respective customers so long as such information is
not generally available to the public other than as a
result of disclosure by the Executive or any other third
party which is prohibited from disclosing such
information by a contractual or fiduciary obligation.
7. Litigation Expenses. The Company shall have no
liability or obligation for payment of any costs or
expenses (including reasonable attorneys fees) which may
be incurred by the Executive to enforce its rights to
payment of the amount which the Company is required to
pay to the Executive pursuant to this Agreement unless
the Company unreasonably fails or refuses to pay the
Executive any portion of or only pays to the Executive an
insignificant portion of the Change in Control benefits
the Executive is entitled to receive pursuant to this
Agreement. It is the intent of this provision that the
Company shall not be obligated to pay any costs and
expenses which may be incurred by the Executive to
enforce his rights under this Agreement in the event that
such expenses are incurred by the Executive in a dispute
over the amount of the Change in Control payments which
the Executive is entitled to receive pursuant to this
Agreement if the difference between the amount which the
Executive claims to be entitled to receive from the
Company and the amount which the Company claims it is
obligated to pay to the Executive is not material and if
the Company's determination of the amount which it is
obligated to pay to the Executive is based on a
reasonable good faith interpretation of the provisions of
this Agreement. However, it is also the intent of this
provision that, if the Company arbitrarily denies that it
is obligated to make the payments to the Executive
provided for by this Agreement or if the Company refuses
to pay the Executive any portion of or only pays to the
Executive an insignificant portion of the Change in
Control benefits which the Executive is entitled to
receive pursuant to this Agreement without any reasonable
basis for such refusal, the Company shall be obligated to
pay any and all expenses, including reasonable attorneys
fees, which may be incurred by the Executive to enforce
his rights under this Agreement.
8. Amendments. This Agreement may not be amended
or modified orally, and no provision hereof may be
waived, except in writing signed by both the parties
hereto.
9. Assignment. This Agreement may not be assigned by
either party hereto except with the written consent of
the other.
10. Successors, Binding Effect. (a) This Agreement
shall be binding upon and inure to the benefit of the
personal representatives and successors in interest of
the Executive. In addition, this Agreement shall be
binding upon any successor (whether direct or indirect,
by purchase, merger, amalgamation or otherwise) to all or
substantially of the business and/or assets of the
Company. The Company expressly agrees that it shall have
no right, power or authority to consummate any sale of
all or substantially all the business and/or assets of
the Company or to consummate any merger, consolidation or
other transaction as a result of which all or
substantially all the business and/or assets of the
Company are not owned by the Company or any of its direct
or indirect wholly owned subsidiaries unless the party
that will own all or substantially all the business
and/or assets of the Company following the consummation
of such transaction executes and delivers an agreement
with the Company expressly providing for the assumption
by such party of all of the Company's obligations under
this Agreement; provided that, notwithstanding the
foregoing, no such agreement shall be necessary to make
the obligations of the Company under the terms of this
Agreement binding on such successor to the business
and/or assets of the Company.
(b) This Agreement shall inure to the benefit
of and be enforceable by Executive's personal and legal
representatives, executors and administrators. If
Executive dies while any amount is still payable to him
hereunder, all such amounts shall paid in accordance with
the terms of this Agreement to the Executive's personal
representative or the executor or administrator of the
Executive's estate within ten (10) days from the date
such personal representative, executor or administrator
is appointed. In addition, the obligation of the Company
or, if applicable, the Successor to pay to the Executive
the amounts required to be paid under the terms of this
Agreement shall not be released, discharged or otherwise
affected by any disability which may be suffered by the
Executive after he becomes entitled to payment of any
amounts which he is entitled to be paid pursuant to the
terms of this Agreement.
11. Applicable Law. This Agreement shall be
governed and construed in accordance with the laws of the
State of New York applicable to contracts made and to be
performed wholly within such State except with respect to
the internal affairs of the Company and its stockholders,
which shall be governed by the General Company Law of the
State of Delaware.
12. Notices. All notices and other communications
given pursuant to this Agreement shall be deemed to have
been properly given or delivered if hand-delivered, or if
mailed, by certified mail or registered mail postage
prepaid, addressed to the Executive at the address first
above written or if to the Company, at its address set
forth above, with a copy to the attention of Gerald S.
Lippes, 700 Guaranty Building, Buffalo, New York 14202.
From time to time, any party hereto may designate by
written notice any other address or party to which such
notice or communication or copies thereof shall be sent.
13. Severability of Provisions. In case any one or
more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be
affected or impaired thereby and this Agreement shall be
interpreted as if such invalid, illegal or unenforceable
provision was not contained herein.
14. Headings. The headings of the Sections and
Articles of this Agreement are inserted for convenience
only and shall not constitute a part hereof or affect in
any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this
Change in Control Agreement to be executed as of the day
and year first above written.
__________________________
GIBRALTAR STEEL COMPANY
By:_________________________