APOGEE ENTERPRISES, INC.
EMPLOYMENT AGREEMENT
WITH RICHARD GOULD
THIS AGREEMENT is entered into effective as of the 23rd day of May,
1994, by and between Apogee Enterprises, Inc., a Minnesota corporation (the
"Company"), and Richard Gould, a Minnesota resident (the "Employee").
WHEREAS, the Company desires to engage the Employee in the position of
Senior Vice President to render services for the Company on the terms and
conditions set forth in this Agreement;
WHEREAS, the Employee desires to be retained by the Company as its
Senior Vice President and to be assured of reasonable tenure and terms and
conditions of employment with the Company; and
WHEREAS, both parties recognize the critical importance to the Company,
its employees and its investors of preserving the confidentiality of the
Company's trade secrets and confidential information and of protecting the
Company against competition from former executives or other key employees of the
Company following their separation from the Company;
NOW, THEREFORE, in consideration of the foregoing premises and the
parties' mutual covenants and undertakings contained in this Agreement, the
sufficiency of which is hereby acknowledged, the Company and the Employee agree
as follows:
1. EMPLOYMENT. The Company hereby employs the Employee, and the Employee
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accepts such employment and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. TERM. The Company may terminate the employment of the Employee upon
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thirty (30) days notice, without cause, provided the Company provides the
Employee with the severance arrangements discussed in paragraph 5 below.
Notwithstanding the foregoing, the Company may terminate the Employee's
employment for cause without notice and without further obligation of any kind
to the Employee. For purposes of this Agreement, "cause" shall mean dishonesty,
theft, fraud, conviction of any crime, unethical business behavior, failure to
render competent services, or any material breach of this Agreement.
It is further agreed that the term of the Employee's employment under
this Agreement shall automatically terminate in the event of the Employee's
death. In the event the Employee becomes mentally or physically disabled during
the term of employment hereunder, such that he cannot perform the essential
functions of his position, with or without reasonable accommodation, his
employment under this Agreement shall terminate as of the date such disability
is established. As used in this paragraph, the term "disabled" means suffering
from any mental or physical condition, other than the use of alcohol or illegal
use of narcotics, which renders the Employee unable to perform the essential
functions of his position, with or without reasonable accommodation, ("impaired
condition") for a period of ninety (90) consecutive days. The date that the
Employee's disability is established shall be the ninety-first (91st) day upon
which such impaired condition exists. Upon termination for disability, the
Employee shall be entitled to receive continuation of his base salary (as herein
defined) for a period of one hundred eighty (180) days. If the Company maintains
a disability policy covering the Employee, then the amount of payments to be
made by the Company to the Employee pursuant to this provision shall be reduced
by any amount so paid to the Employee under any such insurance policy.
3. DUTIES AND REPRESENTATIONS OF THE EMPLOYEE. During the Employee's
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employment hereunder, he shall serve as the Company's Senior Vice President. He
will report to the Company's Chairman and Chief Executive Officer, Donald W.
Goldfus, and will perform special projects assigned to him by Donald W. Goldfus.
The Employee shall devote his full time, attention, knowledge and skill
exclusively to the loyal service of the Company and shall perform all duties
reasonably assigned to him by Donald W. Goldfus. Additionally, the Employee
shall do such traveling as may be reasonably required by the Company in
connection with the performance of his duties and responsibilities. The
Employee represents and warrants to the Company that:
a. his acceptance of employment under this Agreement and his
performance of the duties contemplated herein are not in conflict
with any obligation, undertaking or agreement between the Employee
and any third party; and
b. he has not and will not, during the course of his employment with
the Company, disclose or utilize without permission, any
confidential or proprietary information, trade secrets, materials,
documents, or property owned by any third party.
4. COMPENSATION. The Company shall pay to the Employee the following
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compensation beginning May 23, 1994:
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(A) BASE SALARY. The Company shall pay to the Employee an annual
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base salary of Two Hundred Thousand Dollars ($200,000.00), less
legally required deductions and withholdings, payable in periodic
installments in accordance with the standard payroll practices of
the Company in effect from time-to-time. The base salary shall be
reviewed on an annual basis and the Employee will be eligible for
salary increases in accordance with the Company's standard
practices.
(B) INCENTIVE COMPENSATION. In addition to the base salary described
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above, the Employee shall be guaranteed a minimum bonus of
Seventy Thousand Dollars ($70,000.00), less legally required
deductions and withholdings, for the first year of his
employment, which bonus shall be prorated for fiscal 1995, and
which bonus shall be paid in May, 1995. In addition, the Employee
shall be eligible for election to the Apogee Enterprises, Inc.
Partnership Plan in fiscal year 1996.
(C) STOCK GRANT. As additional compensation for his services to the
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Company, the Company grants to the Employee a qualified stock
option of 5,000 shares of the Company's common stock pursuant to
the Company's Stock Incentive Plan as amended and restated April
20, 1990, which stock grant shall be evidenced by, and subject
to, the terms of a stock option agreement between the Employee
and the Company. The Company further makes an unrestricted stock
grant to the Employee of 5,000 shares of the Company's common
stock.
(D) CAR ALLOWANCE. The Employee shall be paid a car allowance by the
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Company in the amount of Six Thousand Five Hundred Dollars
($6,500.00) per year, consistent with the Company's payroll and
accounting practices. In addition, the Company will reimburse the
Employee for business mileage at Internal Revenue Service
approved rates.
(E) PARTICIPATION IN BENEFIT PLANS. The Employee shall also be
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entitled to participate in all employee benefit plans or programs
(including vacation time) of the Company to the extent that his
position, title, tenure, salary, age, health and other
qualifications make him eligible to participate. The Company does
not guarantee the adoption or continuance of any particular
employee benefit plan or program during the term of this
Agreement, and the Employee's participation in any such plan
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or program shall be subject to the provisions, rules and
regulations applicable thereto.
(F) EXPENSES. The Company shall pay or reimburse the Employee for
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all reasonable and necessary out-of-pocket expenses incurred by
him in the performance of his duties under this Agreement,
subject to the presentment of appropriate vouchers in accordance
with the Company's normal policies for expense verification.
5. SEVERANCE ARRANGEMENTS. Upon termination of the Employee's employment
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by the Company, other than for cause as defined in paragraph 2 above, or if the
Employee voluntarily resigns his employment following a change in his reporting
relationship such that he no longer reports to Donald W. Goldfus, the Employee
shall be entitled to receive severance compensation in an amount equal to one
(1) year of his base compensation plus his average annual bonus, calculated and
paid as though the Employee had remained in the employment of the Company. The
Employee shall not be entitled to any severance compensation if his employment
is terminated for cause as defined in paragraph 2 above or if the Employee
voluntarily resigns his employment for any reason other than a change in his
reporting relationship.
If the Employee's employment is terminated by the Company other than
for cause as defined in paragraph 2 above, or if the Employee voluntarily
resigns his employment following a change in his reporting relationship, the
Company will provide the Employee with health care coverage comparable to the
health care coverage being provided to the Company's executives. This coverage
will be provided, at the Company's option, either through the Company's plan or
an individual plan. This coverage will be provided until the Employee reaches
the age of 65.
In addition, if the Employee's employment is terminated by the
Company, other than for cause as defined in paragraph 2 above, or if the
Employee voluntarily resigns his employment following a change in his reporting
relationship within:
(a) six (6) years of the effective date of this Agreement, the
Employee shall become a consultant of the Company under the
terms set forth in this paragraph for five (5) years from the
date of his termination or resignation ;
(b) seven (7) years of the effective date of this Agreement the
Employee shall become a consultant of the Company under the
terms set forth in this paragraph for four (4) years from the
date of his termination or resignation;
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(c) eight (8) years of the effective date of this Agreement, the
Employee shall become a consultant of the Company under the
terms set forth in this paragraph for three (3) years from the
date of his termination or resignation ;
(d) nine (9) years of the effective date of this Agreement, the
Employee shall become a consultant of the Company under the
terms set forth in this paragraph for two (2) years from the
date of his termination or resignation; and
(e) ten (10) years of the effective date of this Agreement, the
Employee shall become a consultant of the Company under the
terms set forth in this paragraph for one (1) year from the date
of his termination or resignation.
The Employee shall not be entitled to become a consultant of the Company if his
employment is terminated for cause as defined in paragraph 2 above or if the
Employee voluntarily resigns his employment for any reason other than a change
in his reporting relationship.
If the Employee shall become a consultant to the Company as provided
in this paragraph, the terms of his consultancy shall be as follows: the
Employee shall consult generally with executive personnel of the Company on
operations and policies with which he was familiar prior to the termination or
resignation of his employment. The Employee's services may be provided in
person, by telephone or by mail, and at such times, places and under such
circumstances as shall be mutually agreeable. The Company shall pay the
Employee Fifty Thousand Dollars ($50,000.00), less legally required deductions
and withholdings, per year for these consulting services.
6. CONFIDENTIAL INFORMATION. Except as permitted or directed by the
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Company's Chairman and Chief Executive Officer, during the term of this
Agreement or at any time thereafter, the Employee shall not divulge, furnish or
make accessible to anyone or use in any way (other than in an ordinary course of
business of the Company) any confidential or secret knowledge or information of
the Company which the Employee has acquired or become acquainted with or will
acquire or become acquainted with prior to the termination of the period of his
employment by the Company, whether developed by himself or by others, concerning
any trade secrets, confidential or secret designs, processees, formulae, plans,
devices or material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company, any customer or
supplier list of the Company, any confidential or secret development or research
work of the Company, or any other confidential information or secret aspects of
the business of the Company. The Employee acknowledges that the above-described
knowledge or information constitutes a unique and valuable asset of the Company
and represents a substantial investment of time and expense by the Company and
its
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predecessors, and that any disclosure or other use of such knowledge or
information other than for the sole benefit of the Company would be wrong and
would cause irreparable harm to the Company. Both during and after the term of
this Agreement, the Employee will refrain from any acts or omissions that would
reduce the value of such knowledge or information to the Company. The foregoing
obligations of confidentiality, however, shall not apply to any knowledge or
information which is now published or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than
as a direct or indirect result of the breach of this Agreement by the Employee.
7. RETURN OF PROPRIETARY PROPERTY. The Employee agrees that all property
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in the Employee's possession belonging to the Company, including without
limitation, all documents, reports, manuals, memoranda, computer print-outs,
customer lists, credit cards, keys, identification, products, access cards and
all other property relating in any way to the business of the Company are the
exclusive property of the Company, even if the Employee authored, created, or
assisted in authoring or creating such property. The Employee shall return to
the Company all such documents and property immediately upon termination of
employment or at such earlier time as the Company may reasonably request.
8. RESTRICTIVE COVENANT. The Employee acknowledges that the Company
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needs to be protected against the potential for unfair competition and
impairment of the Company's good will by the Employee's use of the Company's
training, assistance, confidential information and trade secrets in direct
competition with the Company. The Employee therefore agrees that for a period
of one (1) year from the date of the termination of his employment hereunder or
the expiration of this Agreement, the Employee shall not operate, join, control,
be employed by or participate in ownership, management, operation or control of,
or be connected in any manner as an independent contractor, consultant or
otherwise, with any person or organization engaged in any business activity
which is the same as, similar to, or competitive with any business of the
Company or any successor of the Company as of the expiration or termination date
of this Agreement within the states of the United States of America. The
Employee expressly agrees that the provisions of this paragraph 8 shall survive
the expiration or termination of this Agreement, whether such termination be
voluntary or involuntary or without or without cause.
The Employee agrees that in addition to, but not to the exclusion of
any other available remedy, the Company shall have the right to enforce the
provisions of this non-competition agreement by applying for and obtaining
temporary and permanent restraining orders or injunctions from a court of
competent jurisdiction without the necessity of filing a bond therefore, and the
Company shall be entitled to recover from the Employee its reasonable attorneys'
fees and costs and enforcing the non-competition agreement.
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9. COVENANT NOT TO RECRUIT. The Employee recognizes that the Company's
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workforce constitutes an important and vital aspect of its business. The
Employee agrees that for a period of two (2) years following the expiration or
termination of this Agreement for any reason whatsoever, he shall not recruit,
or assist anyone else in the solicitation of, any of the Company's then current
employees to terminate their employment with the Company and to become employed
by any business enterprise with which the Employee may then be associated or
connected, whether as an owner, employee, partner, agent, investor, consultant,
contractor or otherwise.
10. ASSIGNMENTS. The rights and obligations of the Company under this
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Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. The Employee may not assign this Agreement or any
rights hereunder. Any purported or attempted assignment or transfer by the
Employee of this Agreement or any of the Employee's duties, responsibilities or
obligations hereunder shall be void.
11. NOTICES. For purposes of this Agreement, notices provided in this
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Agreement shall be in writing and shall be deemed to have been given when
personally served or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the last known residents address
of the Employee or, in the case of the Company, to its principal office to the
attention of its Chairman and Chief Executive Officer, or to such other address
as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
12. CONSTRUCTION AND SEVERABILITY. The validity, interpretation,
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performance and enforcement of this Agreement shall be governed by the laws of
the state of Minnesota. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, said illegality or invalidity will not
in any way effect the legality or validity of any other provision hereof. It is
the intention of the parties hereto that the Company be given the broadest
possible protection respecting its confidential information and trade secrets
and respecting competition by the Employee following his separation by the
Company.
13. ARBITRATION. Except as provided in subparagraph (b) below, any claims
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or disputes of any nature between the parties arising from or related to the
performance, breach, termination, expiration, application or meaning of this
Agreement shall be resolved exclusively by arbitration before the American
Arbitration Association in Minneapolis, Minnesota, in accordance with the
applicable rules then obtaining of the American Arbitration Association.
(a) The decision of the arbitrator(s) shall be final and binding
upon both parties. Judgment of the award rendered by the
arbitrator(s)
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may be entered in any court having jurisdiction thereof. In the
event of submission of any dispute to arbitration, each party
shall, not later than thirty (30) days prior to the date set for
hearing, provide to the either party and to the arbitrator(s) a
copy of all exhibits upon which the party intends to rely at the
hearing and a list of all persons whom each party intends to
call as a witness at the hearing.
(b) This section shall have no obligation to claims by the Company
asserting violation of or seeking to enforce, by injunction or
otherwise, the terms of paragraphs 6, 7, 8 and 9 above. Such
claims may be maintained by the Company in a lawsuit subject to
the terms of paragraph 14 below.
14. VENUE. Any action at law, suit in equity or judicial proceeding
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arising directly, indirectly or otherwise in connection with, out of, related to
or from this Agreement or any provision hereof, shall be litigated only in the
courts of the state of Minnesota, County of Hennepin. The Employee waives any
right the Employee may have to transfer or change the venue of any litigation
brought against the Employee by the Company.
15. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
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between the Company and the Employee with respect to his employment by the
Company and there are not undertakings, covenants or commitments other than as
set forth herein. This Agreement may not be altered or amended, except by a
writing executed by the party against whom such alteration or amendment is to be
enforced. This Agreement supersedes any and all prior understandings or
agreements between the parties.
16. COUNTERPARTS. This Agreement may be simultaneously executed in any
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number of counterparts, and such counterparts executed and delivered, each as an
original, shall constitute but one in the same instrument.
17. CAPTIONS AND HEADINGS. The captions and paragraph headings used in
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this Agreement are for convenience of reference only, and shall not affect the
construction or interpretation of this agreement or any of the provisions
hereof.
18. SURVIVAL. The parties expressly acknowledge and agree that the
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provisions of this Agreement which by their expressed or implied terms extend
beyond the expiration of this Agreement or the termination of the Employee's
employment hereunder, shall continue in full force and effect, notwithstanding
the Employee's termination of employment hereunder or the expiration of this
Agreement.
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19. WAIVERS. No failure on the part of either party to exercise, and no
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delay in exercising any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof, or the exercise of any
other right or remedy granted hereby or by any related document or by law. No
single or partial waiver of rights or remedies hereunder, nor any cause of
conduct of the parties, shall be construed as a waiver of rights or remedies by
either party (other than as expressly and specifically waived).
20. RELIANCE BY THIRD PARTY. This Agreement is intended and exclusive
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benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns, and
no other person or entity shall have any right to rely on this agreement or to
claim or derive any benefit therefrom, absent the express written consent of the
party to be charged with such reliance or benefit.
IN WITNESS WHEREOF, the parties have signed this agreement.
Dated: ____________________ ____________________________________
Richard Gould
Dated: ___________________ APOGEE ENTERPRISES, INC.
By ______________________
Its ____________________
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