Exhibit
10.13
Ply Gem Industries, Inc.
5020 Weston Pkwy, Suite 400
Cary, North Carolina 27513
December 31, 2008
Mr. John C. Wayne
1235 West 61 st Street
Kansas City, MO 64113
Re: Amended
and Restated Retention Agreement
Dear Mr. Wayne:
Ply Gem Industries,
Inc. (“Ply Gem”) considers the continuity of management
essential to the best interests of Ply Gem and its stockholders and
desires to reinforce and encourage your continued attention and
dedication to your duties to Ply Gem and its subsidiaries and
affiliates (each, an “Employer”). To assure
your continued focus on your duties to your Employer, the Board of
Directors of Ply Gem (the “Board”) has authorized Ply
Gem to enter into this letter agreement with you, which is an
amended and restated version of the Retention Agreement between you
and Ply Gem, dated December 1, 2005 (as amended from time to time
prior to the date hereof, the “Original Retention
Agreement”). This letter agreement sets forth the
compensation that Ply Gem agrees to pay you if your employment is
terminated during the term of this agreement under the
circumstances described herein.
This letter
agreement sets forth the terms and conditions of Ply Gem’s
agreement to pay you the compensation under the circumstances
described herein, and the parties to this letter agreement
acknowledge the receipt and sufficiency of good and valuable
consideration in support of this letter agreement, including the
covenants and agreements set forth herein.
This letter
agreement is effective as of the date hereof and shall expire on
December 31, 2009 (the “Expiration Date”) provided,
that, Ply Gem shall have the right to renew this letter agreement
for successive one year periods (each, a “Renewal
Term”), which right it must exercise prior the Expiration
Date, or the last day of any Renewal Term, as applicable.
If, during the term
of this agreement, your employment is terminated (A) by your
Employer without “Cause” or (B) by you following a
“Material Adverse Change” (as such terms are defined
below), and subject to (X) your execution of a Release and
Restrictive Covenant Agreement substantially in the form attached
to this
letter agreement as Exhibit A (the
“Release and Restrictive Covenant Agreement”) within 30
days following the date of your termination of employment and (Y)
your continued compliance with such Release and Restrictive
Covenant Agreement for the periods described therein, you will be
entitled to receive:
(a) An amount equal
to your annual base salary in effect on the date of your
termination (which, for the avoidance of doubt shall not include
any amounts in respect of any car allowance or payments for any
other perquisites or benefits that you may be entitled
to). This salary continuation shall be payable in equal
installments over the 12-month period following the date of your
termination of employment (the “Payment Period”), in
accordance with your Employer’s normal payroll practices;
(b) An amount equal
to the pro rata portion, based upon the percentage of such year
that shall have elapsed through the date of your termination of
employment, of the lesser of (I) your target annual cash bonus with
respect to the fiscal year during which your termination of
employment occurs (the “Year of Termination”) and (II)
the actual annual cash bonus you would have received with respect
to the Year of Termination based on actual performance during that
year, measured as of the time such performance is measured for
purposes of paying annual cash bonuses to other executives of your
Employer with respect to such year (the “Pro Rata
Bonus”). You shall be paid a lump sum cash payment
equal to the Pro Rata Bonus when annual cash bonuses with respect
to the Year of Termination are paid to other executives of your
Employer, which shall be not later than March 15 next following the
close of the fiscal year to which the bonus relates; provided that
it shall not be a breach of this letter agreement if payment is
made later in such year to the extent financial results are not
available by March 15 so long as payment is made by payroll as soon
as practicable following certification of such results;
(c) To the extent not
already paid prior to the date of your termination, an amount equal
to the actual annual cash bonus you would have received with
respect to the year prior to the Year of Termination based on
actual performance during that year, measured as of the time such
performance is measured for purposes of paying annual cash bonuses
to other executives of your Employer with respect to such year (the
“Actual Bonus”). You shall be paid a lump
sum cash payment equal to the Actual Bonus as soon as reasonably
practicable following the date that the amount of the Actual Bonus
is determined, which shall be not later than March 15 next
following the close of the fiscal year to which the bonus relates;
provided that it shall not be a breach of this letter agreement if
payment is made later in such year to the extent financial results
are not available by March 15 so long as payment is made by payroll
as soon as practicable following certification of such results;
(d) Continuation of
medical and dental benefits for you and your spouse and dependents,
if any, during the Payment Period, in the
same plans and on the same basis (including,
without limitation, contribution rates) as such benefits are
provided from time to time to actively employed executives of your
Employer, subject to the terms of such plans as the same may exist
from time to time; provided, that, the Employer’s obligation
to provide such medical and dental benefits shall cease at the time
you become eligible for such benefits from another employer;
and
(e) (i) Your base
salary through the date of termination; (ii) any declared but
unpaid annual cash bonus for any fiscal year preceding the year in
which the termination occurs; (iii) reimbursement for any
unreimbursed business expenses properly incurred by you in
accordance with Employer policy through your date of termination;
and (iv) any other amounts, including without limitation, accrued
but unused vacation, required to be paid to you under any
applicable state statute or regulation.
The Employer shall
have the authority to delay the provision of any amounts or
benefits under this letter agreement to the extent it reasonably
deems necessary to comply with Section 409A(a)(2)(B)(i) of the
Internal Revenue Code of 1986, as amended (the “Code”)
(relating to payments made to “specified employees”);
in such event any such amount or benefit to which you would
otherwise be entitled during the six-month period following your
separation from service will be provided or paid on the first
business day following the expiration of such six-month period, or,
if earlier, the date of death. For purposes of Section
409A of the Code, the right to a series of installment payments
under this letter agreement shall be treated as a right to a series
of separate payments except where otherwise specifically
provided.
Your employment
shall not be deemed to be terminated by your Employer without Cause
or by you following a Material Adverse Change, and you shall not be
entitled to any payments or benefits under this Section 2 solely on
account of, the sale or disposition by Ply Gem or any Employer, or
any parent of Ply Gem or any Employer, as applicable, of the
subsidiary or division for which you are employed if you are
offered employment by the purchaser or acquirer of such subsidiary
or division and such acquirer or purchaser agrees to assume the
terms of this letter agreement.
Notwithstanding
anything to the contrary in this letter agreement, no further
payments or benefits are due under this Section 2, and all other
benefits, if any, due you following a termination of employment
shall be determined in accordance with the plans, policies and
practices of your Employer. In addition, subject to
applicable state law, Ply Gem and any Employer, as applicable,
shall have the right to reclaim any amounts already paid to you
under this Section 2 if, at any time during the Restricted Period
(as such term is defined in the attached Release and Restrictive
Covenant Agreement) after your employment is terminated, (i) you
breach any of the provisions of Section VI of the Release and
Restrictive Covenant Agreement, or (ii) the Board determines, in
good faith, that grounds existed, on or prior to the
date of termination of your employment with Employer, including
prior to the date of this letter agreement, for your Employer to
terminate your employment for Cause; provided, that, in all events
you will be entitled to receive amounts in sub-clauses (i), (iii),
and (iv) of Section 2(e) above.
3.
Definitions
For purposes of this
letter agreement, “Cause” shall
mean: (i) your willful and continued failure to
perform substantially your material duties (other than any such
failures resulting from, or contributed to by, incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to you by the Board, which notice
specifically identifies the manner in which you have not
substantially performed your material duties, and you neglect to
cure such failure within 30 days; (ii) a willful failure to follow
the lawful direction of the Board or of the senior executive
officer of Ply Gem to whom you directly report (if applicable);
(iii) your material act of dishonesty or breach of trust in
connection with the performance of your duties to Ply Gem or your
Employer; (iv) your conviction of, or plea of guilty or no
contest to, (x) any felony or (y) any misdemeanor having
as its predicate element fraud, dishonesty or misappropriation; or
(v) a civil judgment in which Employer is awarded damages from you
in respect of a claim of loss of funds through fraud or
misappropriation by you, which has become final and is not subject
to further appeal.
For purposes of this
letter agreement, a “Material Adverse Change” shall
mean any of the following, without your express written
consent:
|
|
Assignment to you of any duties that are
inconsistent with your position, duties and responsibilities and
status with Employer as of the date of this Agreement;
|
|
|
Your Employer’s reduction of your base
salary;
|
|
|
Without your express written consent, your
Employer’s requiring you to be based anywhere other than
within 50 miles of your office location immediately prior to such
required relocation, except for required travel on your
Employer’s business;
|
|
|
Any action by your Employer that would deprive
you of any material employee benefit enjoyed by you, except where
such change is applicable to all employees participating in such
benefit plan;
|
|
|
Any breach by Ply Gem or your Employer of any
provision of this letter agreement or the Release and Restrictive
Covenant Agreement.
|
4.
Release and Restrictive Covenant Agreement
All payments and
benefits described in Section 2 of this letter agreement are
conditional upon and subject to your execution of the Release and
Restrictive Covenant Agreement.
5.
Notices
Any notice required
by this letter agreement must be in writing and will be deemed to
have been duly given (i) if delivered personally or by overnight
courier service, sent by facsimile transmission or mailed by United
States registered mail, return receipt requested, postage prepaid,
and (ii) addressed to the respective addresses or sent via
facsimile to the respective facsimile numbers, as the case may be,
as set forth below, 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; provided, however, that (X) notices sent by personal
delivery or overnight courier shall be deemed given when delivered;
(Y) notices sent by facsimile transmission shall be deemed given
upon the sender’s receipt of confirmation of complete
transmission, and (Z) notices sent by United States registered mail
shall be deemed given two days after the date of deposit in the
United States mail.
|
|
If to you, to the address as shall most
currently appear on the records of your Employer
|
|
|
5020 Weston Parkway, Suite 400
|
Cary, North Carolina 27513
Attn: Senior Vice President, Human Resources
Your Employer may
withhold from any amounts payable under Section 2 of this letter
agreement such federal, state, local or other taxes required to be
withheld pursuant to applicable law or regulation.
The payments and
benefits provided for in Section 2 of this letter agreement shall
not be counted as compensation for purposes of determining benefits
under other benefit plans, programs, policies and agreements of
your Employer, except to the extent expressly provided therein or
herein.
This letter
agreement is not intended to result in any duplication of payments
or benefits to you and does not give you any right to any
compensation or benefits from Ply Gem or your Employer except as
specifically stated in this letter agreement.
For you to receive
the payments and benefits described in Section 2 of this letter
agreement, you will not be required to seek other employment or
otherwise mitigate the obligations of your Employer under this
letter agreement. Except as described in Section 2(d) of
this letter agreement, there will be no offset against any amounts
due under this letter agreement on account of any remuneration
attributable to any subsequent employment that you may obtain.
This letter
agreement is not a contract of employment and does not give you any
right of continued employment or limit the right of your Employer
to terminate or change the status of your employment at any time or
change any employment policies.
This letter
agreement is governed by the laws of the state of Delaware, without
reference to the principles of conflict of laws which would cause
the laws of another state to apply. By signing this
letter agreement, you and Ply Gem irrevocably agree, for the
exclusive benefit of the other, that any and all suits, actions or
proceedings relating to Section VI of the Release and Restrictive
Covenant Agreement (collectively, “Proceedings” and,
individually, a “Proceeding”) will be maintained in
either the courts of the State of Delaware or the federal District
Courts sitting in Wilmington, Delaware (collectively, the
“Chosen Courts”) and that the Chosen Courts shall have
exclusive jurisdiction to hear and determine or settle any such
Proceeding and that any such Proceedings shall only be brought in
the Chosen Courts. You and Ply Gem irrevocably waive any
objection that you or Ply Gem may have now or hereafter to the
laying of the venue of any Proceedings in the Chosen Courts and any
claim that any Proceedings have been brought in an inconvenient
forum and further irrevocably agree that a judgment in any
Proceeding brought in the Chosen Courts shall be conclusive and
binding upon you and Ply Gem and may be enforced in the courts of
any other jurisdiction.
You and Ply Gem
agree that this letter agreement involves at least $100,000 and
that this letter agreement has been entered into in express
reliance on Section 2708 of Title 6 of the Delaware
Code. You and Ply Gem irrevocably and unconditionally
agree (i) that, to the extent you or Ply Gem are not otherwise
subject to service of process in the State of Delaware, you or Ply
Gem will appoint (and maintain an agreement with respect to) an
agent in the State of Delaware as your agent for acceptance of
legal process and notify Ply Gem or you, as applicable, of the name
and address of said agent, (ii) that service of process may also be
made on you or Ply Gem by pre-paid certified mail with a validated
proof of mailing receipt constituting evidence of valid service
sent to you or Ply Gem at the address set forth in this letter
agreement, as such address may be changed from time to time
