Exhibit 10 I
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CONSULTING AGREEMENT
This Agreement is made as of the 1st day of November, 1993, between
Apogee Enterprises, Inc., a Minnesota corporation (the "Company"), and
LaurenceJ. Niederhofer ("Consultant").
WHEREAS, Consultant has been an executive officer and member of the
Board of Directors of the Company for many years and in such capacities has
developed expertise and experience in matters relating to the Company's
business;
WHEREAS, Consultant has resigned as an officer of the Company, but
will remain as a director of the Company, and the Company desires to retain
Consultant to render consulting and advisory services for the Company in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Consultant desires to perform consulting and advisory
services for the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1. Term of Agreement. This Agreement shall become effective as of
November 1, 1993 and shall extend for five one-year terms commencing November 1,
1993 unless earlier terminated pursuant to Section 7 of the Agreement.
2. Consulting Agreement. The Company hereby agrees to retain
Consultant, and Consultant hereby agrees to be retained by the Company, to
perform consulting and advisory services in accordance with the terms of this
Agreement for, and on behalf of, the Company. During the term of this
Agreement, upon reasonable notice, Consultant shall be obligated to consult with
and advise the officers and directors of the Company as reasonably requested.
Such consulting and advisory services shall be performed by Consultant at such
times and at such locations as the Company shall reasonably request and as shall
be reasonably acceptable to Consultant.
3. Compensation. As compensation for the consulting and advisory
services rendered by Consultant pursuant to this Agreement, the Company shall
pay Consultant a fee equal to $60,000 per year, payable on a monthly basis in
advance on the first day of each month.
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4. Expenses.
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(a) The Company shall reimburse Consultant for reasonable out-of-
pocket expenses incurred by Consultant in connection with the performance of
services hereunder, including, but not limited to, travel and entertainment
expenses.
(b) The Company shall provide Consultant with suitable office space,
secretarial services and administrative assistance during the term of this
Agreement.
5. Other Benefits. During the term of this Agreement and so long as
Consultant remains a director of the Company, the Company will provide
Consultant with group health insurance or medical insurance supplementary to the
Medicare program in an amount such that Consultant shall be covered to the same
extent as though he were a full time employee of the Company and shall furnish
tax return preparation and tax consulting services to Consultant on
substantially the same basis as provided to corporate officers. Consultant will
continue to receive all fees, retainers, stock-based compensation and other
benefits generally granted to non-employee directors of the Company.
6. Covenants of Consultant. In consideration of the covenants of
the Company contained in this Agreement and in connection with Consultant's
termination of employment as an officer of the Company, Consultant agrees that
he will not
(a) divulge, furnish or make accessible to anyone or use in any way
(other than in respect of the Company's business) any confidential or
proprietary information or secret knowledge or information of the Company; or
(b) during the term of this Agreement, engage in competition,
directly or indirectly, with the Company in any manner or capacity (e.g., as an
advisor, principal, agent, partner, officer, director, stockholder, employee, or
otherwise) or directly or indirectly assist, induce or encourage any other
person to engage in a business in competition with the Company. The
obligations of Consultant under this Section 6(b) shall apply to any geographic
area within the United States where the Company, directly or indirectly, through
one or more subsidiaries or affiliates, has conducted business within the three
years preceding the date of this Agreement or shall conduct business during the
term of this Agreement.
7. Termination Upon Death or Disability. This Agreement shall
remain in effect for the balance of its then current one-year term upon
Consultant's death, but in such event shall then terminate without any further
notice under this Agreement. Upon Consultant's disability, this Agreement shall
remain in effect for six full months after the event of disability, and
Consultant shall receive monthly compensation as provided in Section 3, but
after such six-month period, this Agreement shall terminate.
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8. Successors; Binding Agreement.
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(a) The Company will 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, by agreement in
form and substance satisfactory to Consultant, to expressly assume 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
executes and delivers the agreement provided for in this Section 8(a) or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement is personal to Consultant and Consultant may not
assign or transfer any part of his obligations hereunder to any other person.
Notwithstanding the foregoing, the provisions of Section 7 of this Agreement
shall inure to the benefit of and be enforceable by Consultant's personal or
legal representatives, executors, administrators, heirs, distributees, devisees
and legatees.
9. Modification; Waiver. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by Consultant and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
10. Notice. All notices, requests, demands and all other
communications required or permitted by either party to the other party by this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered personally or received by certified or registered mail, return receipt
requested, postage prepaid, at the address of the other party, as follows:
If to the Company, to:
Apogee Enterprises, Inc.
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
Attention: Chief Executive Officer
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If to Consultant, to:
Laurence J. Niederhofer
1217 Kreutzer Boulevard
Wausau, Wisconsin 54401
Either party hereto may change its address for purposes of this Section 10 by
giving 15 days' prior notice to the other party hereto.
11. Severability. If any term or provision of this Agreement or the
application hereof to any person or circumstance shall to any extent to be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
12. Headings. The headings in this Agreement are inserted for
convenience of reference only and shall not be a part of or control or affect
the meaning of this Agreement.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Governing Law. This Agreement has been executed and delivered in
the State of Minnesota and shall in all respects be governed by, and construed
and enforced in accordance with, the laws of the State of Minnesota, including
all matters of construction, validity and performance.
15. Entire Agreement. This Agreement and any and all oral or written
agreements heretofore made relating to the subject matter hereof constitutes the
entire agreement of the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by a duly authorized officer and Consultant has hereunto
set his hand, all as of the date first above written.
Laurence J. Niederhofer
APOGEE ENTERPRISES, INC.
By
Its
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