THIS AGREEMENT,
made as of this 1st day of January, 2003, by and between Gibraltar
Steel Corporation, a Delaware corporation with offices at 3556 Lake
Shore Road, Buffalo, New York 14219 (the “Company”) and
Neil Lipke, an individual having an address at 53 Kenton Avenue,
Hamburg, New York 14075 (hereinafter referred to as the
“Consultant”).
Effective as of
December 30, 2002, the Consultant resigned, to pursue other
interests, from his position as a member of the Company’s
Board of Directors and from his positions as Senior Executive Vice
President and Secretary of the Company. The Company and the
Consultant acknowledge and agree that they will mutually benefit
from a consulting arrangement whereby the Consultant will perform
consulting services to the Company for a period of five
(5) years following the termination of the Consultant’s
employment with the Company.
The Company and
the Consultant desire to set forth in writing the terms and
conditions upon which the Consultant will provide consulting
services to the Company.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties hereto agree and contract
as follows:
1. Term. The
period during which the Consultant shall be obligated to provide
the consulting services required to be provided by this Agreement
(the “Term”) shall begin on January 1, 2003,
(hereinafter the “Effective Date”) and, unless
terminated earlier pursuant to Section 12 hereof, shall end on
December 31, 2007.
2. Consulting
Services. The Consultant hereby agrees that during the Term of this
Agreement he shall, subject to the terms and conditions of this
Agreement, perform such consulting services (“Consulting
Services”) as the Company may require. The Consulting
Services to be performed by the Consultant shall be executive in
nature. The specific projects with respect to which the Consultant
shall be required to perform the Consulting Services and the scope
of the Consulting Services shall be determined by the
Company’s Chief Executive Officer in consultation with the
Consultant.
3. Availability.
The Consultant hereby agrees that during the twelve (12)
consecutive month period which begins on the Effective Date and
during each successive twelve (12)consecutive month period
beginning on any anniversary of the Effective Date, the Consultant
shall be available to perform the Consulting Services for the
Company during the Company’s normal business hours and during
such other times as are reasonably requested by the Company and
reasonably necessary for the proper performance of his
responsibilities hereunder; provided that:(a) in no event shall the
Consultant be obligated to perform Consulting Services for the
Company for more than one hundred (100) business days (of
eight (8) hours per day) during any such twelve
(12) consecutive month periods; and (b) in no event shall
the number of business days (of eight (8) hours per day) which
the Consultant is required to perform in any calendar month which
elapses during any such twelve (12) consecutive month period
exceed fifteen (15) business days.
4. Consulting
Fees. (a) Subject to the provisions of this Section 4,
for each twelve (12) consecutive calendar month period which
elapses during the Term, the Company shall pay the Consultant an
annual consulting fee (hereinafter the “Annual Consulting
Fee”) of One Hundred Twenty Five Thousand Dollars ($125,000),
which Annual Consulting Fee shall be paid to the Consultant, in the
manner described in Section 4(c) below, in substantially equal
installments for each calendar month which elapses during the Term
of this Agreement (the aggregate amount payable to the Consultant
for any calendar month being hereinafter the “Monthly
Consulting Fee”).
(b) In
the event that the Consultant dies or suffers a disabling condition
which, in the good faith judgment of the Company, renders him
unable to perform the Consulting Services (such disabling condition
being hereinafter a “Total and Permanent Disability”),
the Company shall, notwithstanding such death or disability of the
Consultant, continue to pay the Consultant (or, in the case of the
Consultant’s death, the Consultant’s beneficiary), the
full amount of the Monthly Consulting Fee to the Consultant (or, in
the case of
8
the
Consultant’s death, the Consultant’s beneficiary) until
the earlier of: (i) the end of the six (6) calendar month
period following the date of the Consultant’s death or Total
and Permanent Disability; and (ii) the end of the
Term.
(c) Payment
of the Monthly Consulting Fee provided for in Section 4(a) and
(b) above shall be made in accordance with the payroll
practices of the Company which are in effect for employees of the
Company’s Buffalo, New York headquarters.
(d) The
Monthly Consulting Fee required to be paid to the Consultant
pursuant to this Section 4 shall be payable whether or not the
Consultant provides Consulting Services for fifteen (15) business
days per calendar month during the Term of this Agreement; provided
that the reason that the Consultant has not provided fifteen
(15) business days of Consulting Services per calendar month
is that the Consulting Services which the Company has requested the
Consultant to perform do not require the Consultant to provide
Consulting Services for fifteen (15) business days per
calendar month.
5. Group
Insurance Benefits. During the Term, the Company shall procure and
maintain for the Consultant (including the payment, on behalf of
the Consultant, of all applicable premiums necessary to procure and
maintain for the Consultant) the following insurance type benefits
at the same coverage and benefit levels which were in effect with
respect to the Consultant on December 31, 2002: (a) group
medical insurance coverage; (b) life insurance coverage;
(c) long term disability insurance coverage;
(d) accidental death and dismemberment coverage; and
(e) business travel accident insurance coverage. In the event
that the Consultant suffers a Total and Permanent Dis
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