EXHIBIT 10.31
HUTTIG BUILDING PRODUCTS, INC.
CHANGE OF CONTROL AGREEMENT
AGREEMENT by and between HUTTIG BUILDING PRODUCTS, INC., a Delaware
corporation (the "Company"), and ______________ (the "Employee"), dated
November 19, 2002.
The Board of Directors of the Company (the "Board"), on the advice of its
Organization and Compensation Committee, has determined that it is in the best
interests of the Company and its stockholders to assure that the Company will
have the continued dedication of the Employee as ____________________________ of
the Company, notwithstanding the possibility, threat, or occurrence of a Change
of Control (as defined below) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the Employee by virtue of
the personal uncertainties and risks created by a pending or threatened Change
of Control, to encourage the Employee's full attention and dedication to the
Company currently and in the event of any threatened or pending Change of
Control, and to provide the Employee with compensation arrangements upon a
Change of Control which provide the Employee with individual financial security
and which are competitive with those of other corporations and, in order to
accomplish these objectives, the Board has caused the Company to enter into this
Agreement. This Agreement shall generally become effective on the Effective
Date, provided that the covenants contained in Section 10 of this Agreement
shall be effective immediately upon execution of this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall be the first date during the "Change of
Control Period" (as defined in Section 1(b)) on which a Change of Control
occurs. Anything in this Agreement to the contrary notwithstanding, if the
Employee's employment with the Company is terminated prior to the date on which
a Change of Control occurs, and it is reasonably demonstrated that such
termination (1) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control or (2) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date immediately prior to the
date of such termination.
(b) The "Change of Control Period" is the period commencing on the date
hereof and ending on the earlier to occur of (i) the third anniversary of such
date or (ii) the first day of the month next following the Employee's normal
retirement date ("Normal Retirement Date") under the Huttig Building Products,
Inc. Savings & Investment Plan, or any successor retirement plan (the
"Retirement Plan"); provided, however, that commencing on the date one year
after the date hereof, and on each annual anniversary of such date (such date
and each annual anniversary thereof is hereinafter referred to as the "Renewal
Date"), the Change of Control Period shall be automatically extended so as to
terminate on the earlier of (x) three years from such Renewal Date or (y) the
first day of the month coinciding with or next following the Employee's Normal
Retirement Date, unless at least 60 days prior to the Renewal Date the Company
shall give notice that the Change of Control Period shall not be so extended.
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2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean:
(i) The acquisition, other than from the Company, by any
individual, entity or group (within themeaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors, but excluding, for this purpose, any such acquisition by the Company
or any of its subsidiaries, by The Rugby Group Ltd. or any direct transferee
from The Rugby Group Ltd., or any employee benefit plan (or related trust) of
the Company or its subsidiaries, or any corporation with respect to which,
following such acquisition, more than 50% of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by substantially the same individuals and entities who were the
beneficial owners, respectively, of the common stock and voting securities of
the Company immediately prior to such acquisition in substantially the same
proportion as their ownership, immediately prior to such acquisition, of the
then outstanding shares of common stock of the Company or the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors, as the case may be; or
(ii) Individuals who, as of the date hereof, constitute the Board
(as of the date hereof the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the Directors of the Company; or
(iii) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to which
substantially the same individuals and entities who were the respective
beneficial owners of the common stock and voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such reorganization, merger
or consolidation, or a complete liquidation or dissolution of the Company or of
the sale or other disposition of all or substantially all of the assets of the
Company.
3. Employment Period. The Company hereby agrees to continue the Employee in
its employ, and the Employee hereby agrees to remain in the employ of the
Company, for the period commencing on the Effective Date and ending on the
earlier to occur of (a) the third anniversary of such date or (b) the first day
of the month coinciding with or next following the Employee's Normal Retirement
Date (the "Employment Period").
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4. Terms of Employment.
(a) Position and Duties. During the Employment Period, and excluding
any periods of vacation and sick leave to which the Employee is entitled, the
Employee agrees to devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Employee hereunder, to use the
Employee's reasonable best efforts to perform faithfully and efficiently such
responsibilities. It is expressly understood and agreed that to the extent that
any outside activities have been conducted by the Employee prior to the
Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of the
Employee's responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Employee shall
receive an annual base salary ("Base Salary") at a rate at least equal to twelve
times the highest monthly base salary paid or payable to the Employee by the
Company during the twelve-month period immediately preceding the month in which
the Effective Date occurs. During the Employment Period, the Base Salary shall
be reviewed at least annually and shall be increased at any time and from time
to time as shall be substantially consistent with increases in base salary
awarded in the ordinary course of business to other key employees of the Company
and its subsidiaries. Any increase in Base Salary shall not serve to limit or
reduce any other obligation to the Employee under this Agreement. Base Salary
shall not be reduced after any such increase.
(ii) Annual Bonus. In addition to Base Salary, the Employee shall
be eligible (but not entitled) to receive, for each fiscal year during the
Employment Period, an annual bonus (an "Annual Bonus") (either pursuant to any
incentive compensation plan maintained by the Company or otherwise) in cash on
the same basis as in the fiscal year immediately preceding the fiscal year in
which the Effective Date occurs or, if more favorable to the Employee, on the
same basis as awarded at any time thereafter to other key employees of the
Company and its subsidiaries.
(iii) Incentive, Savings and Retirement Plans. In addition to Base
Salary and Annual Bonus payable as hereinabove provided, the Employee shall be
entitled to participate during the Employment Period in all incentive, savings
and retirement plans, practices, policies and programs applicable to other key
employees of the Company and its subsidiaries.
Such plans, practices, policies and programs, in the aggregate, shall
provide the Employee with compensation, benefits and reward opportunities at
least as favorable in the aggregate as the most favorable of such compensation,
benefits and reward opportunities provided by the Company for the Employee under
such plans, practices, policies and programs as in effect at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Employee, as provided at any time thereafter with respect to other key
employees of the Company and its subsidiaries.
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(iv) Welfare Benefit Plans. During the Employment Period, the
Employee and/or the Employee's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its subsidiaries
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), at least as favorable as the most
favorable of such plans, practices, policies and programs in effect at any time
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee and/or the Employee's family, as in effect at any time
thereafter with respect to other key employees of the Company and its
subsidiaries.
(v) Expenses. During the Employment Period, the Employee shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Employee in accordance with the most favorable policies, practices and
procedures of the Company and its subsidiaries in effect at any time during the
90-day period immediately preceding the Effective Date or, if more favorable to
the Employee, as in effect at any time thereafter with respect to other key
employees of the Company and its subsidiaries.
(vi) Fringe Benefits. During the Employment Period, the Employee
shall be entitled to fringe benefits, including use of an automobile and payment
of related expenses, in accordance with the most favorable plans, practices,
programs and policies of the Company and its subsidiaries in effect at any time
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee, as in effect at any time thereafter with respect to
other key employees of the Company and its subsidiaries.
(vii) Office and Support Staff. During the Employment Period, the
Employee shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, at
least equal to the most favorable of the foregoing provided to the Employee by
the Company and its subsidiaries at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Employee,
as provided at any time thereafter with respect to other key employees of the
Company and its subsidiaries.
(viii) Vacation. During the Employment Period, the Employee shall
be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its subsidiaries as in
effect at any time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Employee, as in effect at any time thereafter
with respect to other key employees of the Company and its subsidiaries.
5. Termination.
(a) Death or Disability. This Agreement shall terminate automatically
upon the Employee's death. If the Company determines in good faith that the
Disability of the Employee has occurred (pursuant to the definition of
"Disability" set forth below), it may give to the Employee written notice (given
in accordance with Section 12(b) hereof) of its intention to terminate the
Employee's employment. In such event, the Employee's employment with the Company
shall terminate effective on the 30th day after receipt of such notice by the
Employee
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(the "Disability Effective Date"), provided that, within the 30 days after such
receipt, the Employee shall not have returned to full-time performance of the
Employee's duties. For purposes of this Agreement, "Disability" means disability
which, at least 26 weeks after its commencement, is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Employee or the Employee's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Employee's employment for
"Cause." For purposes of this Agreement, "Cause" shall constitute either (i)
personal dishonesty or breach of fiduciary duty involving personal profit at the
expense of the Company; (ii) repeated violations by the Employee of the
Employee's obligations under Section 4(a) of this Agreement which are
demonstrably willful and deliberate on the Employee's part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company; (iii) the commission of a criminal act related to the performance of
duties, or the furnishing of proprietary confidential information about the
Company to a competitor, or potential competitor, or third party whose interests
are adverse to those of the Company; (iv) habitual intoxication by alcohol or
drugs during work hours; or (v) conviction of a felony.
(c) Good Reason. The Employee's employment may be terminated by the
Employee for Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) any failure by the Company to comply with any of the provisions
of Section 4(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Employee;
(ii) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this Agreement; or
(iii) any failure by the Company to comply with and satisfy Section
11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of "Good
Reason" made by the Employee shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by the Employee for Good Reason shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 12(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than fifteen (15) days after
the giving of such notice). The failure by the Employee to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason shall not waive any right of the Employee hereunder or preclude the
Employee from asserting such fact or circumstance in enforcing his rights
hereunder.
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(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if the Employee's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the Employee of such
termination and (ii) if the Employee's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of the
Employee or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Death. If the Employee's employment is terminated by reason of the
Employee's death, this Agreement shall terminate without further obligations to
the Employee's legal representatives under this Agreement, other than those
obligations accrued or earned and vested (if applicable) by the Employee as of
the Date of Termination, including, for this purpose (i) the Employee's full
annual Base Salary through the Date of Termination at the rate in effect on the
Date of Termination or, if higher, at the highest annual rate in effect at any
time from the 90-day period preceding the Effective Date through the Date of
Termination (the "Highest Base Salary"), (ii) the product of the Annual Bonus
paid to the Employee for the last full fiscal year and a fraction, the numerator
of which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (iii) any compensation
previously deferred by the Employee (together with accrued interest thereon, if
any) and not yet paid by the Company and any accrued vacation pay not yet paid
by the Company (such amounts specified in clauses (i), (ii) and (iii) are
hereinafter referred to as "Accrued Obligations"). All such Accrued Obligations
shall be paid to the Employee's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination. Anything in this
Agreement to the contrary notwithstanding, the Employee's family shall be
entitled to receive benefits at least equal to the most favorable benefits
provided by the Company and any of its subsidiaries to surviving families of
employees of the Company and such subsidiaries under such plans, programs,
practices and policies relating to family death benefits, if any, in accordance
with the most favorable plans, programs, practices and policies of the Company
and its subsidiaries in effect at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Employee and/or the
Employee's family, as in effect on the date of the Employee's death with respect
to other key employees of the Company and its subsidiaries and their families.
(b) Disability. If the Employee's employment is terminated by reason of
the Employee's Disability, this Agreement shall terminate without further
obligations to the Employee, other than those obligations accrued or earned and
vested (if applicable) by the Employee as of the Date of Termination, including
for this purpose, all Accrued Obligations. All such Accrued Obligations shall be
paid to the Employee in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, the
Employee shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most favorable of those
provided by the Company and its subsidiaries to disabled employees and/or their
families in accordance with such plans, programs, practices and policies of the
Company and its subsidiaries in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the Employee
and/or
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the Employee's family, as in effect at any time thereafter with respect to other
key employees of the Company and its subsidiaries and their families.
(c) Cause; Other than for Good Reason. If the Employee's employment
shall be terminated for Cause, this Agreement shall terminate without further
obligations to the Employee other than the obligation to pay to the Employee the
Highest Base Salary through the Date of Termination plus the amount of any
compensation previously deferred by the Employee (together with accrued interest
thereon, if any). If the Employee terminates employment other than for Good
Reason, this Agreement shall terminate without further obligations to the
Employee, other than those obligations accrued or earned and vested (if
applicable) by the Employee through the Date of Termination, including for this
purpose, all Accrued Obligations. All such Accrued Obligations shall be paid to
the Employee in a lump sum in cash within 30 days of the Date of Termination.
(d) Good Reason; Other Than for Cause or Disability. If, during the
Employment Period, the Company shall terminate the Employee's employment other
than for Cause, Disability, or death or if the Employee shall terminate his
employment for Good Reason:
(i) the Company shall pay to the Employee in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. to the extent not theretofore paid, the Employee's Highest
Base Salary through the Date of Termination; and
B. the product of (x) the greater of the Annual Bonus paid or
payable (annualized for any fiscal year consisting of less than twelve full
months or for which the Employee has been employed for less than twelve full
months) to the Employee for the most recently completed fiscal year during the
Employment Period, if any, or the average bonus (annualized for any fiscal year
consisting of less than twelve full months or with respect to which the Employee
has been employed by the Company for less than twelve full months) paid or
payable to the Employee by the Company and its affiliated companies in respect
of the three fiscal years immediately preceding the fiscal year in which the
Effective Date occurs (the "Average Annual Bonus"), such greater amount being
hereafter referred to as the "Highest Annual Bonus," and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the
Date of Termination, and the denominator of which is 365;
C. the product of (x) two and (y) the sum of (i) the Highest
Base Salary and (ii) the Average Annual Bonus; and
D. in the case of compensation previously deferred by the
Employee, all amounts previously deferred (together with accrued interest
thereon, if any) and not yet paid by the Company, and any accrued vacation pay
not yet paid by the Company; and
(ii) for two years after the Date of Termination, or such longer
period as any plan, program, practice or policy may provide, the Company shall
continue benefits to the Employee and/or the Employee's family at least equal to
those which would have been provided to them as if the Employee's employment had
not been terminated, in accordance with the most
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favorable employee welfare benefit plans (as such term is defined in Section
3(1) of the Employee Retirement Income Security Act of 1974, as amended) of the
Company and its subsidiaries (including health insurance and life insurance)
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee, as in effect at any time thereafter with respect to
other key employees and their families, and for purposes of eligibility for
retiree benefits pursuant to such employee welfare benefit plans, the Employee
shall be considered to have remained employed for such two-year period and to
have retired on the last day of such period.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Employee's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company or any of its subsidiaries and for which the Employee may qualify, nor
shall anything herein limit or otherwise affect such rights as the Employee may
have under any stock option, restricted stock, stock appreciation right, or
other agreements with the Company or any of its subsidiaries. Amounts which are
vested benefits or which the Employee is otherwise entitled to receive under any
plan, policy, practice or program of the Company or any of its subsidiaries at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program provided, however, that in the event the
terms of any such plan, policy, practice or program concerning the payment of
benefits thereunder shall conflict with any provision of this Agreement, the
terms of this Agreement shall take precedence but only if and to the extent the
payment would not adversely affect the tax exempt status (if applicable) of any
such plan, policy, practice or program and only if the employee agrees in
writing that such payment shall be in lieu of any corresponding payment from
such plan, policy, practice or program.
8. Full Settlement. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Employee or
others. In no event shall the Employee be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Employee under any of the provisions of this Agreement. The Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which the
Employee may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company or others of the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Employee about
the amount of any payment pursuant to Section 9 of this Agreement), plus in each
case interest at the applicable Federal rate provided for in Section 7872(f)(2)
of the Internal Revenue Code of 1986, as amended (the "Code").
9. Certain Limitations on Payments by the Company. Notwithstanding any
other provision of this Agreement to the contrary, if tax counsel selected by
the Company and reasonably acceptable to the Employee determines that any
portion of any payment under this Agreement would constitute an "excess
parachute payment" under Section 280G of the Internal Revenue Code, then the
payments to be made to the Employee under this Agreement shall be reduced (but
not below zero) such that the value of the aggregate payments that the Employee
is entitled to receive under this Agreement and any other agreement or plan or
program of the
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Company shall be one dollar ($1) less than the maximum amount of payments which
the Employee may receive without becoming subject to the tax imposed by Section
4999 of the Internal Revenue Code.
10. Certain Employee Covenants.
(a) Confidential Information. The Employee shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its subsidiaries, and their
respective businesses, which shall have been obtained by the Employee during the
Employee's employment by the Company or any of its subsidiaries and which shall
not be or become public knowledge (other than by acts by the Employee or his
representatives in violation of this Agreement). After termination of the
Employee's employment with the Company, the Employee shall not, without the
prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this subsection (a) constitute a basis for deferring or withholding any amounts
otherwise payable to the Employee under this Agreement.
(b) Covenant Not To Compete. At all times during the Employee's
employment by the Company or any of its subsidiaries and for one year following
termination of the Employee's employment, the Employee shall not, unless acting
with the prior written consent of the Company, directly or indirectly (i) own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing or control of, or be associated as an officer,
director, employee, partner, principal, agent, representative, consultant or
otherwise with, or use or permit his name to be used in connection with, any
profit or not-for-profit business or enterprise which at any time during such
period designs, manufactures, assembles, sells, distributes or provides products
(or related services) in competition with those designed, manufactured,
assembled, sold, distributed or provided, or under active development, by the
Company (including all future developments in and improvements on such products
and services) in any part of the world; (ii) offer or provide employment to,
interfere with or attempt to entice away from the Company, either on a full-time
or part-time or consulting basis, any person who then currently is, or who
within one year prior thereto had been, employed by the Company; or (iii)
directly or indirectly, solicit the business of, or do business with, any
customer, supplier, or prospective customer or supplier of the Company with whom
the Employee had direct or indirect contact or about whom the Employee may have
acquired any knowledge while employed by the Company; provided, however, that
this provision shall not be construed to prohibit the ownership by the Employee
of not more than 2% of any class of securities of any corporation which is
engaged in any of the foregoing businesses that has a class of securities
registered pursuant to the Securities Exchange Act of 1934. If the Employee's
spouse engages in any of the restricted activities set forth in the preceding
sentence, the Employee shall be deemed to have indirectly engaged in such
activities in violation of this covenant. This provision shall be extended at
the option of the Company, for a period of time equal to all periods during
which the Employee is in violation of the foregoing covenant not to compete and
to extend the covenant not to compete to run from the date any injunction may be
issued against the Employee, should that occur, to enable the Company to receive
the full benefit of the covenant not to compete agreed to herein by the
Employee.
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(c) Rights and Remedies Upon Breach. It is recognized that the services
to be rendered under this Agreement by the Employee are special, unique and of
extraordinary character. If the Employee breaches, or threatens to commit a
breach of, any of the provisions of Section 10(a) or 10(b) (the "Covenants"),
then the Company and/or any of its affiliates shall have the following rights
and remedies, each of which shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity:
(i) Specific Performance. The right and remedy to have the
Covenants specifically enforced by any court having equity jurisdiction,
including obtaining an injunction to prevent any continuing violation
thereof, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that
money damages will be difficult to ascertain and will not provide adequate
remedy to the Company.
(ii) Severability of Covenants. If any of the Covenants, or any
part thereof, are hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the Covenants or
the enforceability thereof in any other jurisdiction, which shall be given
full effect, without regard to the invalidity or unenforceability in such
other jurisdiction.
(iii) Blue-Pencilling. If any of the Covenants, or any part
thereof, are held to be unenforceable because of the duration of such
provision or the geographical scope covered thereby, the parties agree that
the court making such determination shall have the power to reduce the
duration or geographical scope of such provision and, in its reduced form,
such provision shall then be enforceable and shall be enforced; provided,
however, that the determination of such court shall not affect the
enforceability of the Covenants in any other jurisdiction.
(d) Assignability. The Employee specifically acknowledges and agrees
that in the event the Company should undergo any change in ownership or change
in structure or control, or should the Company transfer some or all of its
assets to another entity, the Covenants contained herein and the right to
enforce the Covenants may be assigned by the Company to any company, business,
partnership, individual or entity, and that the Employee will continue to remain
bound by the Covenants.
11. Successors.
(a) This Agreement is personal to the Employee and without the prior
written consent of the Company shall not be assignable by the Employee otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Employee's legal representatives.
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(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Employee:
___________________
___________________
___________________
If to the Company:
Huttig Building Products, Inc.
555 Maryville University Dr.
St. Louis, MO 63141
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
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(e) The Employee's failure to insist upon strict compliance with any
provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
the Employee with respect to the subject matter hereof. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(g) The Employee and the Company acknowledge that the employment of the
Employee by the Company is "at will," and, prior to the Effective Date, may be
terminated by either the Employee or the Company at any time. Upon a termination
of the Employee's employment or prior to the Effective Date, there shall be no
further rights under this Agreement.
IN WITNESS WHEREOF, the Employee has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
EMPLOYEE
________________________________________
[Print name]
HUTTIG BUILDING PRODUCTS, INC.
By:_____________________________________
Barry J. Kulpa
President and Chief Executive Officer
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