EMPLOYMENT AGREEMENT
AGREEMENT, dated as of March 23, 1999, by and between Wells Aluminum
Corporation, a Maryland corporation (the "Corporation"), and William J. Milam
(the "Executive"), residing at 48 English Run Turn, Sparks, Maryland 21152.
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ the Executive and the Executive
is willing to accept such employment with the Corporation, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto do hereby agree as follows:
1. Title and Duties of Executive. (a) During the term of his employment as
provided in Section 3 below, the Executive will be employed as Vice President,
Business Selection and Capacity Management, of the Corporation, and the
Executive agrees to be employed in such capacities. In these capacities, the
Executive will be subject to the overall supervision of the Senior Vice
President, Sales and Marketing, of the Corporation. In no event shall the
Executive be assigned duties inconsistent with his status as an executive
officer of the Corporation.
(b) The Executive agrees to devote his full business time and his
best efforts to the performance of his duties hereunder and to the promotion of
the best interests of the Corporation. The Executive further agrees to normal
and reasonable business travel related to the performance of his duties
hereunder.
2. Place of Employment. The permanent place of the Executive's employment
shall be the Baltimore, Maryland area. If at any time the Board of Directors
shall determine it to be in the best interests of the Corporation for the
Executive to be relocated and the Executive, in the exercise of his sole
discretion, shall so elect, he may be relocated, provided that the Corporation
shall reimburse the Executive's reasonable expenses incurred in moving himself
and his immediate family.
3. Term of Agreement. The employment of the Executive hereunder shall
commence on March 23, 1999 and shall continue through September 22, 2000, unless
a Change in Ownership (as hereinafter defined) has occurred in which case the
term of this Agreement shall extend eighteen (18) months from the date of
notification of a Change in Ownership to the Executive, unless sooner terminated
by the Executive's death or as hereinafter provided in Section 6 below.
4. Compensation. (a) The Corporation agrees to pay the Executive a salary,
payable semi-monthly, at the rate of $117,500 per annum, which salary shall be
subject to increase pursuant to review at least annually.
(b) The Executive shall also be eligible to participate in any
executive incentive compensation or bonus programs of the Corporation each year
he is employed by the Corporation.
5. Benefits and Expenses. (a) During the term of the Executive's
employment hereunder, the Executive shall, subject to the terms thereof and the
eligibility requirements therefor, be eligible to participate in any insurance,
pension, retirement or other benefit program maintained by the Corporation for
executive employees.
(b) In order to facilitate the Executive's carrying out his duties
hereunder, the Corporation shall promptly reimburse the Executive for all
reasonable expenses paid or incurred by him in promoting the business of the
Corporation, upon presentation by the Executive of an itemized accounting
therefor.
6. Termination. (a) In the event of the Executive's willful misconduct
(not including negligence) in any material respect or his material breach of, or
material failure to perform, his duties or responsibilities hereunder, the
Corporation may terminate the Executive's employment hereunder at any time for
cause by giving written notice to the Executive stating the cause of such
termination. In no event shall the Executive's exercise of his rights under
Section 2 not to relocate be deemed to permit the Corporation to terminate his
employment under this Subsection 6(a).
(b) If the Executive is unable to perform his duties hereunder by
reason of mental or physical illness or other incapacity continuing for a period
of six (6) consecutive
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months, the Corporation may, at any time after the expiration of such six month
period and prior to his recovery from such illness or incapacity, elect to
terminate the Executive's employment hereunder by giving written notice of such
election to the Executive. During such period of incapacity, the Executive's
salary hereunder shall be reduced by the amount of any disability payments made
to him under programs maintained by the Corporation.
(c) If the Executive's employment is terminated by the Corporation
for any reason other than as provided in Subsection 6(a) or 6(b), the
Executive's salary shall continue through the term of this Agreement. The
obligation of the Corporation to continue salary pursuant hereto is subject to
offset for the Executive's earnings from other full-time employment.
(d) If the Executive's employment is terminated by the Corporation
for any reason other than as provided in Subsections 6(a) or 6(b), the
Corporation shall also maintain in force the benefits referred to in Subsection
5(a) for six (6) months after termination, to the extent allowed by the then
existing benefit plans of the Corporation.
(f) The Executive may terminate his employment hereunder at any time
by giving the Corporation ninety (90) days written notice.
7. Change in Ownership. In the event that the Corporation shall at any
time be merged or consolidated with or into any corporation or corporations
(other than a subsidiary of the Corporation), or in the event that all or
substantially all of the assets or all or substantially all of the stock of the
Corporation shall be sold or otherwise transferred, or in the event that Wells
Holdings Limited Partnership (or, upon distribution, their partners) shall sell,
transfer or otherwise dispose of an aggregate of 80% or more of the shares of
common stock of the Corporation transferred to Wells Holdings Limited
Partnership as successor to the The Fulcrum III Limited Partnership and The
Second Fulcrum III Limited Partnership (any of the foregoing events, a "Change
in Ownership"), the Corporation shall give the Executive prompt written notice
of such event, and the term of this Agreement shall be automatically extended
for the period eighteen (18) months after the date of such notification.
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(b) In the event of a Change in Ownership, the provisions of this
Agreement shall inure to the benefit of the successor of the Corporation
resulting from such merger or consolidation or the purchaser in such sale of
assets.
8. Confidential Information. (a) The Executive agrees that, during his
employment by the Corporation and at all times thereafter, he will not disclose
to others, directly or indirectly, any unpublished confidential information,
which is in the nature of trade secrets, relating to the business, prospects or
plans of the Corporation. Upon termination of his employment with the
Corporation, the Executive shall surrender to the Corporation any and all work
papers, reports, manuals, documents and the like (including all originals and
copies thereof) in his possession which contain any such unpublished
confidential information.
(b) The Executive agrees that, provided he is still employed by the
Corporation or is receiving payments pursuant to Subsection 6(c) above, he will
not directly or indirectly be engaged in the operation or management of, or be
interested as owner, holder of 5% or more of the outstanding equity, creditor,
partner, officer, employee or otherwise in, any business competing with the
business of the Corporation; provided, however, that nothing contained herein
shall prevent the Executive from working for a business or entity which has a
subsidiary, division or separate branch which is competitive with the business
of the Corporation, but only if the Executive does not work for, participate in
or otherwise render services to such competitive subsidiary, division or branch;
and provided, further, that the Executive may elect to terminate his obligations
under this Subsection 8(b) by waiving, irrevocably and in writing, any right to
further compensation, benefits or any other claim under this Agreement against
the Corporation and the directors, officers and employees of the Corporation.
(c) The Executive agrees that he will not, for a three (3) year
period following the date of the termination of his employment under this
Agreement, solicit or encourage any employee of the Corporation to work for the
Executive or any company, partnership or other organization in which the
Executive then works or with which the Executive then has a relationship or from
which the Executive then receives compensation.
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(d) In the event of a breach or threatened breach of the terms of
this Section 6 by the Executive, the Corporation shall, in addition to all other
remedies, be entitled to a temporary or permanent injunction and/or a decree for
specific performance, in accordance with the provisions hereof, without showing
any actual damage or that monetary damages would not provide an adequate remedy
and without any bond or other security being required.
9. Notices. Any and all notices or consents required or permitted to be
given under any of the provisions of this Agreement shall be in writing and
shall be deemed to have been duly given and received when delivered personally
or three (3) days after mailing, if mailed by registered or certified mail,
return receipt requested, as to the Executive, at his address appearing above,
and as to the Corporation, at its principal office at that time. The Executive
may change his mailing address for the purposes of this Agreement by notice to
the Corporation as herein provided.
10. Authority. This Agreement has been duly authorized on behalf of the
Corporation by the Compensation Committee of its Board of Directors. The
Executive represents that he is free to enter into this Agreement and that his
entering into this Agreement does not violate any obligation that he has to any
other person, firm or corporation.
11. Separability. In the event that any provision of this Agreement would
be held invalid or unenforceable for any reason unless narrowed by construction,
this Agreement shall be construed as if such invalid or unenforceable provision
had been more narrowly drawn so as not to be invalid or unenforceable. If,
notwithstanding the foregoing, any provision of this Agreement shall be held to
be invalid or unenforceable for any reason, such invalidity or unenforceability
shall attach only to such provision and shall not affect or render invalid or
unenforceable any other provision of this Agreement.
12. Miscellaneous. (a) This Agreement sets forth the entire understanding
of the Corporation and the Executive with respect to the subject matter hereof
and cannot be amended or modified except by a writing signed by both parties.
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(b) Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns, heirs and personal representatives.
(c) The Section headings contained herein are for purposes of
convenience only and are not intended to define or limit the contents of said
Sections.
(d) This Agreement shall be deemed to be a contract under the laws
of the State of Maryland and shall be construed and enforced in accordance with
such laws.
(e) This Agreement may be executed in two counterparts which, taken
together, shall constitute a single original document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WELLS ALUMINUM CORPORATION:
By /s/ Russell W. Kupiec
--------------------------
Russell W. Kupiec
President & Chief Executive Officer
EXECUTIVE:
/s/ William J. Milam
--------------------------
William J. Milam
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