<PAGE>
EXHIBIT 10.12
-------------
SEPARATION, CONSULTING AND NONCOMPETITION AGREEMENT
This
Separation, Consulting and Noncompetition Agreement (hereafter
"Agreement") is entered into as of January
5, 2004 by and between John T. Forbis
(hereafter "Forbis") and Kroy Building
Products, Inc. (hereafter "Company").
In
exchange for the mutual promises set forth below and intending to
be
legally bound hereby, Forbis and the
Company hereby agree as follows:
1. Forbis'
employment will be terminated on January 5, 2004 (the
"Termination Date"). Forbis will be paid
his salary (less usual payroll
deductions) through the Termination
Date.
2. Forbis
agrees that for a period of time commencing on the Termination
Date and ending December 31, 2005, he shall
provide consulting services relating
to the business of the Company pursuant to
the following: a maximum of 40 hours
per week for a period of three months
beginning January 6, 2004; a maximum of 32
hours per week for a period of three months
beginning April 6, 2004; a maximum
of 16 hours per week for a period of three
months beginning July 6, 2004; a
maximum of 8 hours per week for a period of
three months beginning October 6,
2004; and a maximum of 8 hours per week
through 2005, as requested by the
Company. Forbis and the Company agree that
Forbis will not maintain an office at
any Company facility, but will be provided
space as needed and that any
consulting services requested by the
Company are performed by Forbis as an
independent contractor and not as an
employee of the Company. In exchange for
the foregoing consulting services, the
Company agrees to pay Forbis, as a
non-employee, twenty-four monthly payments
in the amount of $21,500 each. The
payments will be mailed on the fifteenth
day of each month beginning on the
later of January 15, 2004 or the day which
is one day after the expiration of
the
<PAGE>
Revocation Period (as defined in section
7(b) herein), and ending on December
15, 2005. If the fifteenth day of a
particular month is a Saturday, Sunday or
Holiday, then the payment that month will
be mailed on the first business day
after the fifteenth day of the month.
Should Forbis breach his obligation to
provide consulting services hereunder, the
Company, after providing Forbis with
at least 30 days notice and an opportunity
to cure same, may terminate the
consulting arrangement and be relieved of
any obligation to make Forbis any
further payments hereunder.
3. The
Company shall cause the payments made pursuant to paragraph 2
hereunder to be reported to the Internal
Revenue Service as income to Forbis on
a Form 1099. The Company shall have no
responsibility to pay any federal, state
or local taxes due on the payments made to
Forbis hereunder. Payment of any
federal, state or local taxes due on such
payments is the exclusive
responsibility of Forbis, and Forbis agrees
to indemnify and hold the Company
harmless from any such taxes, penalties or
interest.
4. All
fringe benefits of employment (including but not limited to
eligibility for bonus and car allowance)
cease as of the Termination Date. To
the extent Forbis was a participant in any
salary investment plan, profit
sharing plan, stock option plan or any
other similar benefit plan (hereinafter
"Plans") during his employment with the
Company, any rights, benefits or
obligations under such Plans remain
governed by the terms of those Plans, and
this Agreement is not intended to either
enhance or impair whatever rights,
benefits or obligations existed as of the
Termination Date.
5.
PROTECTION OF CONFIDENTIAL INFORMATION AND NON-COMPETITION.
Forbis
acknowledges and agrees that the Noncompetition Agreement dated
as
of September 9, 1999 between Forbis and the
Company ("Noncompetition Agreement")
2
<PAGE>
remains in full force and effect, is fully
enforceable and survives the
termination of his employment, provided,
however, the non-compete term (as set
forth in section 2(a) of the Noncompetition
Agreement) shall be extended to a
period of three years commencing on the
earlier of December 31, 2005 or the date
in which the consulting arrangement is
terminated by the Company pursuant to
section 2 of this Agreement. Forbis agrees
to comply with and be bound by the
terms of the Noncompetition Agreement, as
amended herein.
6. GENERAL
RELEASE.
Full and Final Release of All Claims
a. As a material inducement to the Company to enter into this
Agreement, Forbis does for himself and for
his heirs, representatives,
executors, administrators, trustees,
guardians, successors and assigns hereby
remise, release, settle, discontinue,
satisfy and fully and finally forever
discharge any and all persons or entities,
including without limitation the
Company and its past, present and future
foreign and/or domestic agents,
servants, directors, officers, employees,
shareholders, trustees, predecessors,
successors, assigns, parents, subsidiaries,
divisions, affiliates (including but
not limited to Nortek, Inc., PlyGem
Industries, Inc., and Variform, Inc.),
dealers, distributors, and insurers, and
each of their past, present and future
foreign and/or domestic agents, servants,
directors, officers, employees,
shareholders, trustees, predecessors,
successors, assigns, parents,
subsidiaries, divisions, affiliates,
dealers, distributors and insurers
(hereinafter collectively referred to as
the "Released Parties"), of and from
any and all demands, liability, grievances,
claims, actions, causes of action,
awards, verdicts, judgments, decrees,
damages, compensatory damages, punitive
3
<PAGE>
damages, delay damages, liquidated damages,
attorney's fees, past, present and
future wages, fringe benefits and demands
of every kind, whether in tort or in
contract, or for violation of federal or
state law, or otherwise, whether at law
or in equity, and whether known or unknown,
which Forbis has ever had, now has
or may hereafter have arising from any act
or omission which occurred before the
date on which this Agreement is executed by
Forbis.
The claims
being released hereunder include, but are not limited to,
claims of negligence, breach of contract,
wrongful discharge, violation of
federal, state and local laws which
prohibit discrimination and/or retaliation
on the basis of race, color, national
origin, religion, sex, age, and
disability, including, but not limited to,
the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. Sections
621 et seq., and the Older
Workers Benefits Protection Act, as
amended, 29 U.S.C. Sections 629 et
seq. (hereafter referred to as "OWBPA"),
claims under Nebraska's Wage Payment
and Collection Law, claims growing out of
any legal restrictions on the
Company's right to terminate its employees,
claims arising directly or
indirectly from Forbis' employment with, or
termination by, the Company
(including, but not limited to, any claims
relating to wages, fringe benefits,
severance pay, overtime pay, etc.). Forbis
further agrees that he will not file
a lawsuit, g
