Exhibit
10.6


 


EMPLOYMENT AGREEMENT


 


dated as of


 


November 1, 2004, between


 


AEP INDUSTRIES INC.,


 


a Delaware corporation (the “Company”), and


 


Lawrence R. Noll


 


(the “Executive”).


 





















 


EMPLOYMENT AGREEMENT


 


This Employment Agreement,
dated May 9, 2005, by and between AEP Industries Inc., a Delaware corporation
having its offices at 125 Phillips Avenue, South Hackensack, New Jersey 07606
(the “Company”),
and Lawrence R. Noll (the “Executive”),
presently residing at 65 Haddenfield Road, Clifton, NJ 07013, is entered into
and shall be effective as of November 1, 2004 (the “Effective Date”).


 


RECITALS


 


The Executive is an employee
of the Company; and


 


The Company desires to
continue to employ Executive upon the terms and conditions set forth in this
Agreement, and Executive desires to accept such continuation of employment.


 


Accordingly, in
consideration of the mutual promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:


 


Section 1.               Employment; Term.


 


(a)           Employment.  Subject to Section 3,
commencing as of the Effective Date, the Company hereby agrees to continue to
employ Executive, and Executive hereby agrees to continue to be employed by the
Company, in accordance with the terms and provisions of this Agreement.


 


(b)           Term.  The initial term of this Agreement
shall be a period of three (3) years (the “Initial Term”).  Thereafter this Agreement shall be extended
for successive periods of one (1) year each from the Effective Date (each an “Extended
Term” and together with the Initial Term the “Term”) unless either party gives
written notice to the other at least one hundred (180) days before the
expiration of the Initial Term or the then current Extended Term that it does
not wish to extend this Agreement beyond the last day of the current Term.


 


Section 2.               Terms of Employment.


 


(a)           Position. 
During the term of Executive’s employment, Executive shall serve in the
position set forth on the signature page hereto and shall report to the person
or persons set forth on the Executive Data Sheet annexed hereto as Exhibit A.  Executive shall have supervision and control
over, and responsibility for, such management and operational functions of the
Company currently assigned to such position, and shall have such other powers
and duties (including holding officer positions with the Company and one or
more subsidiaries of the Company) as may from time to time be prescribed by the
person or persons to whom Executive will report, so long as such powers and
duties are reasonable and customary for such position of an enterprise
comparable to the Company.  The primary
person(s) that Executive reports to shall be such person(s) as set forth under
the label “Reports to” on the Executive Data Sheet annexed hereto as Exhibit A.


 


(b)           Duties. 
During the term of Executive’s employment, and excluding any periods of
vacation and sick leave to which Executive is entitled, Executive agrees to
devote substantially all of his business time to the business and affairs of
the Company and, to the extent necessary to discharge the responsibilities
assigned to Executive hereunder, to use Executive’s reasonable best


 


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efforts to perform
faithfully, effectively and efficiently such responsibilities.  During the term of Executive’s employment, it
shall not be a violation of this Agreement for Executive to (1) serve on
corporate, civic or charitable boards or committees, (2) deliver lectures or
fulfill speaking engagements, and (3) manage personal investments, so long as
such activities do not interfere with the performance of Executive’s
responsibilities as an employee of the Company in accordance with this
Agreement.


 


(c)           Compensation.


 


(i)            Base Salary. 
During the term of Executive’s employment, Executive shall receive an
annual base salary (the “Annual
Base Salary”), which shall be paid in accordance with the
customary payroll practices of the Company, at least equal to the base salary
set forth on the Executive Data Sheet annexed hereto as Exhibit A.  Commencing on November 1, 2005 (the “First Date”), and on
each subsequent anniversary date of the First Date as long as Executive remains
an employee of the Company (the First Date and each subsequent anniversary of
the First Date being herein referred to as an “Adjustment Date”), the Annual Base
Salary of Executive in effect on the day preceding the Adjustment Date shall be
increased by (A) the percentage equal to the percentage increase, if any, in
the Consumer Price Index for all Urban Consumers for the New York-Northeastern
New Jersey Metropolitan Area (or any successor Consumer Price Index) based on
data published by the Bureau of Labor Statistics of the United States
Department of Labor for the 12-month period ended on the September 30th
immediately preceding the Adjustment Date over such Consumer Price Index for
September 30, in the year preceding the Adjustment Date, and (B) such
additional amount as the Board of Directors of the Company (the “Board”) in its
discretion may determine to be appropriate. 
The result of such increase or increases to the then current Annual Base
Salary shall constitute Executive’s Annual Base Salary commencing on the
Adjustment Date then at hand and continuing until the next Adjustment
Date.  Any increase in Annual Base Salary
shall not serve to limit or reduce any other obligation to Executive under this
Agreement.  After an Adjustment Date the
term Annual Base Salary as used in this Agreement shall refer to Annual Base
Salary as so increased.


 


(ii)           Bonuses.  In
addition to his Base Salary, Executive shall be paid an annual bonus (the “Bonus”) during the term of his
employment pursuant to the Company’s Management Incentive Plan or any successor
thereto (the “MIP”).  The Bonus shall be based upon performance
criteria and objectives determined by the Compensation Committee of the Board
in its reasonable discretion and approved by the Board.  All Bonuses shall become payable on a date
reasonably determined by the Company after the Company finally determines with
respect to Executive that the Company has achieved the applicable performance
criteria and objectives under the MIP, and the amount of the Bonus shall be
paid to Executive promptly thereafter.


 


(iii)          Benefits.  The
Company shall provide Executive during the term of his employment hereunder
with coverage under all employee pension and compensation programs, plans and
practices (commensurate with his positions in the Company and to the extent
permitted under any employee benefit plan) in accordance with the terms
thereof, which the Company makes available to its senior executives.  During the term of Executive’s employment,
Executive shall be entitled to receive, in addition to the benefits described
above, such perquisites and fringe benefits appertaining to his position in
accordance with any practice existing at the Company prior to the Effective
Date or as subsequently changed by the Board, which perquisites and fringe benefits
will be consistent with past practice.  
The Executive shall also be entitled to an additional perquisite
allowance each year in an amount from time to time determined by the Company’s
Compensation Committee in order to cover expenses not covered by the Company’s


 


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business expense
reimbursement policy.


 


(iv)          Expenses. 
During the term of Executive’s employment, Executive shall be entitled
to receive reimbursement for all reasonable employment expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company, including, without limitation, expenses for travel and similar items
related to such duties and responsibilities. 
The Company will reimburse Executive for all such expenses upon
presentation by Executive from time to time of appropriately itemized and
approved (consistent with the Company’s policy) accounts of such expenditures.


 


(v)           Vacation; 
During the term of Executive’s employment, Executive shall be entitled
to such number of days of paid vacation as set forth under the label “Vacation
Days” on the Executive Data Sheet annexed hereto as Exhibit A,
to be taken in accordance with the existing policies of the Company and past
practice.  Any paid vacation shall be
taken at such times as are consistent with Executive’s responsibilities
hereunder.  Unless otherwise approved by
the Company, any vacation days not taken in any calendar year shall be
forfeited without payment thereof as permitted by applicable law.   No such vacation days shall be forfeited to
the extent that such vacation days are not taken at the request of the Company.


 


(vi)          Stock Options etc. 
In addition to any benefits Executive may receive hereunder, the Company
may, from time to time, grant Executive stock options exercisable for shares of
common stock of the Company or restricted stock, stock appreciation rights or
performance awards under the Company’s then current Stock Option Plan (the “Executive Options”),
and such Executive Options shall be of such kind, in such number and have such
terms and provisions as may be determined appropriate by the Board or Stock
Option Committee thereof.


 


(vii)         Witholding.  The Company shall be entitled to withhold
from payment any amount of withholding required by law as the Company may
reasonably determine.


 


(d)           Director’s and Officer’s Liability Insurance.  The Company shall use all commercially
reasonably efforts to obtain and maintain a director’s and officer’s liability
insurance policy during the term of Executive’s employment covering Executive
on commercially reasonable terms, and the amount of coverage shall be
reasonable in relation to Executive’s position and responsibilities hereunder;
provided, however, that such coverage may be reduced or eliminated to the
extent that the Company reduces or eliminates coverage for its directors and
executives generally.


 


Section 3.               Termination of Employment.


 


(a)           Death or Disability.  Executive’s employment shall terminate
automatically upon Executive’s death.  If
Executive becomes Disabled during the Employment Period (pursuant to the
definition of Disability set forth below), the Company may give to Executive
written notice in accordance with Section 10(g) of its intention to terminate
Executive’s employment on the date specified in such notice.  In such event, Executive’s employment with
the Company shall terminate effective on such specified date, which date shall
be at least on thirty (30) days after receipt of such notice by Executive (the “Disability Effective Date”),
prior to the Disability Effective Date, Executive shall not have returned to
full-time performance of Executive’s duties. 
For purposes of this Agreement, “Disability” means, with respect to Executive,
Executive’s inability to perform the duties and obligations required by
Executive’s job by reason of any medically determined physical or mental
impairment, as determined in accordance with the


 


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provisions of the long term
disability coverage under the AEP Industries Inc. Long Term Disability Plan (the “AEP Disability Plan”), if Executive has
elected coverage thereunder, provided, however, that if Executive has not
elected long term disability coverage under the AEP Disability Plan, then “Disability” shall
mean, with respect to Executive, any medically determined physical or mental
impairment by the Compensation Committee of the Company or its insurers and
acceptable to Executive or Executive’s legal representative that prevents
Executive from performing the duties and obligations required by Executive’s
job for more than ninety (90) days during a period of one hundred and eight
(180) consecutive days.


 


(b)           Cause. 
Executive’s employment may be terminated at any time by the Company for
Cause or without Cause.  For purposes of
this Agreement, “Cause”
shall mean an Executive’s (i) commission of a crime of moral turpitude or a
felony that involves financial misconduct or moral turpitude or has resulted,
or reasonably could be expected to result, in any adverse publicity regarding
Executive or the Company or economic injury to the Company, (ii) dishonesty or
willful commission or omission of any action that has resulted, or reasonably
could be expected to result, in any adverse publicity regarding Executive or the
Company or has caused, or reasonably could be expected to cause, demonstrable
and serious economic injury to the Company, or (iii) material breach of this
Agreement or any other agreement entered into between Executive and the Company
or any of its subsidiaries or Affiliates (other than as a result of the
Disability of Executive or other factors outside of Executive’s control) after
notice and a reasonable opportunity to cure (if such breach can be cured).  For purposes of this Agreement, “without Cause” shall
mean a termination by the Company of Executive’s employment during the
Employment Period for any reason other than a termination based upon Cause,
death or Disability.  For purposes
hereof, no act or omission shall be considered willful unless committed in bad
faith or without a reasonable belief that the act or omission was in the best
interests of the Company or any of its Affiliates.  For purposes of this Agreement, “Affiliate” of the
Company means a Person (as defined below) that directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Company.  As used in
this definition, the term “control,”
including the correlative terms “controlling,” “controlled by” and “under common control with”
mean the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of
securities or any partnership or other ownership interest, by contract or
otherwise) of a Person.  For purposes of
this Agreement, “Person”
shall be construed broadly and shall include, without limitation, an
individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.


 


(c)           Good Reason. 
Executive’s employment may be terminated at any time by Executive for
Good Reason or without Good Reason.  For
purposes of this Agreement, “Good Reason” means voluntary resignation after any of
the following actions are taken by the Company or any of its subsidiaries
without Executive’s consent: (a) any material breach by the Company of any
provision of this Agreement; (b) a significant diminution in the
responsibilities or authority of Executive which are materially inconsistent
with Executive’s position other than (1) an insubstantial and inadvertent
diminution that is remedied by the Company promptly after receipt of written
notice thereof sent by Executive, (2) in connection with the termination of
Executive’s employment for Cause, (3) as a result of Executive’s Disability, or
(4) by Executive other than for Good Reason; (c) a significant diminution in
the Annual Base Salary and Bonus to be paid to Executive (but not including any
diminution related to a broader compensation reduction that is not limited to
any particular employee or executive); provided, however, that none of the
events described in the foregoing clauses (a), (b) or (c) shall constitute Good
Reason unless Executive shall have notified the Company in writing describing
the events which


 


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constitute Good Reason and
then only if the Company shall have failed to cure such events within (x) in
the case of clause (a), fifteen (15) days, or (y) in the case of clauses (b) or
(c), thirty (30) days, after the Company’s receipt of such written notice.


 


(d)           Notice of Termination.  Any termination by the Company for Cause or
without Cause, or by Executive for Good Reason or without Good Reason, shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 11(g).  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) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’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 not be more than five
(5) days after the giving of such notice). 
The failure by Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of Executive or the Company hereunder
or preclude Executive or the Company from asserting such fact or circumstance
in enforcing Executive’s or the Company’s rights hereunder.


 


(e)           Date of Termination.  “Date of Termination” means (i) if Executive’s
employment is terminated by the Company for Cause or without Cause, or by
Executive for Good Reason or without Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein pursuant to Section
3(d), as the case may be, and (ii) if Executive’s employment is terminated by
reason of death or Disability, the date of death of Executive or the Disability
Effective Date, as the case may be.


 


Section 4.  Obligations of the Company upon
Termination.


 


(a)           With Good Reason; Other Than for Cause, Death or
Disability.  If, during the period
commencing with the Effective Date and ending with the termination of Executive’s
employment (the “Employment Period”), (1) the
Company shall terminate Executive’s employment other than for Cause, or (2)
Executive shall terminate his employment for Good Reason or within thirty (30)
days subsequent to a Discontinuation Event, and (3) the termination of
Executive’s employment in any case is not due to his death or Disability, then
the Company will provide Executive with the following severance payments and/or
benefits:


 


(i)            The Company shall pay, subject to Section 8, to Executive
as a severance payment an amount equal to two (2) times the sum of (x) the
Annual Base Salary in effect immediately prior to the event giving rise to such
termination and (y) the Bonus earned, if any, for the fiscal year immediately
preceding the fiscal year in which the event giving rise to such termination
occurs.  The severance payment shall be
payable over a period of two (2) years commencing on the Termination Date
(subject to applicable federal and state withholding taxes, social security
contributions, any garnishments, or any deductions required by law and any
other deductions) in accordance with the ordinary payroll practices of the
Company, but no less frequently than semi-monthly following such termination of
employment.  In addition, the Company
shall pay to Executive (A) any earned but unpaid Bonus of Executive with
respect to the fiscal year preceding this termination, (B) any earned but
unpaid Bonus of Executive with respect to the fiscal year in which his
termination occurs, multiplied by a fraction, (x) the numerator of which is the
number of days during such fiscal year that Executive was employed by the
Company, and (y) the denominator of which is three hundred and sixty-five
(365), and (C) amounts with respect to accrued and unused vacation through the
Date of Termination to the extent not theretofore paid (“Accrued Obligations”);
[Q: change re: termination by the Company


 


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without Cause, e.g.
downsize]


 


(ii)           Solely for purposes of this Section 4(a), the following
defined terms shall have the following meanings:


 


“Discontinuation Event” shall have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:


 


(A)
Any person, corporation or other entity or group, including any “group” as defined in Section
13(d)(3) of the Exchange Act of 1934, as amended, other than (1) those persons
in control of the Company on the Effective Date, (2) any person acting on
behalf of the Company in a distribution of stock to the public, or (3) a
trustee or other fiduciary holding securities of the Company under an employee
benefit plan of the Company, becomes the beneficial owner of shares of the
Company having fifty (50%) percent or more of the total number of votes that
may be cast for the election of directors of the Company; or


 


(B)
As the result of, or in connection with, any tender or exchange offer, merger
or other business combination, sale of assets or contested election, or any
combination of the foregoing (a “Transaction”),
the persons who were directors of the Company before the Transaction shall
cease to constitute a majority of the Board of Directors of the Company or any
successor to the Company or its assets; or


 


(C)
If at any time, (1) the Company shall consolidate with, or merge with, any
other Person and the Company shall not be the continuing or surviving
corporation, (2) any Person shall consolidate with, or merge with, the Company,
and the Company shall be the continuing or surviving corporation and in
connection therewith, all or part of the outstanding Stock shall be changed
into or exchanged for stock or other securities of any other Person or cash or
any other property, (3) the Company shall be a party to a statutory share
exchange with any other Person after which the Company is a Subsidiary of any
other Person, or (4) the Company shall sell or otherwise transfer 50% or more
of the assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any Person or Persons;


 


“Person” shall have the meaning
ascribed to such term in Section 3(a)(9) of the Exchange Act of 1934, as
amended, and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d);
and


 


“Subsdiary” shall mean, a
subsidiary of the Company within the meaning Section 424(f) of Internal Revenue
Code, as amended. .


 


(iii)          After the Date of Termination, Executive (and Executive’s
eligible family members) will be entitled to continue their participation in
the Company’s medical and dental insurance plans at normal associate
contribution rates during the period ending on the earlier of (A) the last day
of the Severance Period and (B) the first date as of which the Company ceases
to be obligated to make such plans available to Executive under COBRA (the “COBRA Termination Date”).  In the event that the date specified in
clause (A) is the earlier date, Executive (and Executive’s eligible family
members) shall be entitled to continue their participation in the Company’s
medical and dental insurance plans during the period from such date until the
COBRA Termination Date by paying the full monthly premiums under these plans.


 


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Except in the case of a
termination by reason of Executive’s death or Disability, the Company’s
obligations to make payments under this Section 4(a) will be conditioned on
Executive executing and delivering a customary general release reasonably
satisfactory to the parties.


 


(b)           Death; Disability; Cause; Other than for Good Reason.  If Executive’s employment shall be terminated
by reason of Executive’s death or Disability, by the Company for Cause or by
Executive without Good Reason, Executive shall only be entitled to receive (i)
any earned but unpaid Annual Base Salary through the date of the termination
event, (ii) any earned but unpaid Bonus of Executive with respect to the fiscal
year preceding his termination, (iii) if other than Cause, any earned but
unpaid Bonus of Executive with respect to the fiscal year in which his
termination occurs, multiplied by a fraction, (x) the numerator of which is the
number of days during such current fiscal year that Executive was employed by
the Company, and (y) the denominator of which is three hundred and sixty-five
(365), (iv) payment of Accrued Obligations to Executive or his legal
representatives in the case of the death or, if applicable, the Disability of
Executive, and (v) the continuance of benefits under the Company’s employee
benefit plans to the Date of Termination and in the case of death or
Disability, the continuance of death or Disability benefits thereafter in
accordance with the terms of such plans and the Company’s perquisite policies
as in effect as of such date.  [Company
Policy must be written.]


 


(c)           Company Obligations After Termination.  After the termination of Executive’s
employment under Section 4(b) and payment of all amounts due and provision of
all benefits due to Executive pursuant to Section 4(b), the obligations of the
Company under this Agreement to make any further payments or provide any
benefits specified elsewhere in this Agreement (other than benefits required to
be provided by applicable law or under the terms of any employee benefit of the
Company in which the Executive was a participant), shall thereupon cease and
terminate.


 


(d)           Nature of Payments. 
Notwithstanding anything contained in this Section 4, all payments under
this Section 4 shall be deemed severance payments for the purpose of Section 8
and may be terminated as therein provided.


 


(e)           Executive’s Obligations after Termination.  Executive agrees that at any time after the
Date of Termination he will cooperate with the Company in any litigation
brought by or against the Company at no additional compensation.  Executive shall, however, be entitled to be
reimbursed by the Company for his reasonable costs and expenses in connection
with such cooperation.


 


Section 5.               Nondisclosure and Nonuse of
Confidential Information.


 


(a)           Executive shall not disclose or use at any time, either
during the Employment Period or thereafter, any Confidential Information (as
hereinafter defined) of which Executive is or becomes aware, whether or not
such information is developed by him, except (i) to the extent that such
disclosure or use is directly related to, and required by, Executive’s
performance in good faith of duties assigned to Executive by the Company or
(ii) when required to do so by a court of competent jurisdiction, by any
governmental agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body (including a
committee thereof) with jurisdiction to order Executive to divulge, disclose or
make accessible such information, provided that Executive shall notify the Company
promptly upon learning that such event may occur, and, if the Company shall so
request, Executive shall use his reasonable best efforts (without any
additional consideration to be paid to Executive) to assist the Company in 


 


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seeking a protective order
to prevent and/or limit disclosure of such Confidential Information.  Executive will take all appropriate steps to
safeguard Confidential Information in his possession and to protect it against
disclosure, misuse, espionage, loss and theft. 
Executive shall deliver to the Company at the termination of the
Employment Period, and at any time, either before or after the Termination
Date, as the Company may request, all memoranda, notes, plans, records, reports,
computer tapes and software and other documents and data (and copies thereof)
relating to the Confidential Information or the Work Product (as hereinafter
defined) of the business of the Company or any of its Affiliates which
Executive may then possess or have under his control.


 


(b)           As used in this Agreement, the term “Confidential Information”
means information that is not generally known to the public in the context in
which used and that is used, developed or obtained by Executive in the course
of performing his duties for the Company, including, but not limited to,
information, observations and data obtained by Executive while employed by the
Company or any predecessors thereof (including those obtained prior to the date
of this Agreement) concerning (i) the business or affairs of the Company and
its Affiliates (or such predecessors), including without limitation, financial
data, marketing plans, strategic business plans, product development plans (or
other product data), (ii) products or services, (iii) fees, costs and pricing
structures, (iv) designs, (v) analyses, (vi) drawings, photographs and reports,
(vii) computer software, including operating systems, applications and program
listings, (viii) flow charts, manuals and documentation, (ix) data bases, (x)
accounting and business methods, (xi) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xii) customers and clients and customer or client lists,
(xiii) other copyrightable works, (xiv) all production methods, processes,
technology, know how and trade secrets, and (xv) all similar and related
information in whatever form. 
Confidential Information will not include any information in the context
in which used that has been published in a form generally available to the
public prior to the date Executive proposes to disclose or use such
information.  Confidential Information
will not be deemed to have been published merely because individual portions of
the information have been separately published, but only if all material
features comprising such information have been published in combination.


 


(c)           As used in this Agreement, the term “Work Product” means
all inventions, innovations, improvements, technical information, systems,
software developments, methods, designs, analyses, drawings, reports, service
marks, trademarks, trade names, logos and all similar or related information
(whether patentable or unpatentable) which relates to the Company’s or any of
its Affiliates’ actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive (whether or not during usual business hours and whether or
not alone or in conjunction with any other person) while employed (and for the
Restricted Period (as defined below) if and to the extent such Work Product
results from any work performed for the Company, any use of the Company’s
premises or property or any use of the Company’s Confidential Information) by
the Company (including those conceived, developed or made prior to the date of
this Agreement) together with all patent applications, letters patent,
trademark, trade name and service mark applications or registrations,
copyrights and reissues thereof that may be granted for or upon any of the
foregoing.


 


Section 6.               Non-Solicitation; Non-Compete.


 


(a)           During the period commencing on the Effective Date and
ending on the latter of (x) second anniversary of the Termination Date or (y)
the first anniversary of the date on which Executive ceases to receive any
payments from the Company or any of its Affiliates related to salary, bonus or
severance (the “Restricted Period”),
Executive shall not directly or indirectly through another Person (i) induce or
attempt to induce anyone who was engaged or employed by


 


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the Company or any Affiliate
of the Company to leave the employ or engagement of the Company or such
Affiliate, or in any way interfere with the relationship between the Company or
any such Affiliate, on the one hand, and any such person thereof, on the other
hand, (ii) hire any person who was engaged or employed by the Company or any
Affiliate of the Company at any time until twenty-four (24) months after such
individual’s employment relationship or engagement with the Company or such
Affiliate has been terminated, or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company or any
Affiliate of the Company to cease doing business with the Company or such
Affiliate, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation, on the one hand, and the
Company or any Affiliate, on the other hand. 
Executive further agrees that, during the period of his employment and
thereafter during the restricted period, Executive will not disparage the
Company or any of its Affiliates or any of employee of the Company or its
Affiliates in any manner whatsoever


 


(b)           Executive acknowledges that in the course of his
employment with the Company and/or its Affiliates and their predecessors, he
has become familiar, or will become familiar, with the Company’s and its
Affiliates’ and their predecessors’ trade secrets and with other Confidential
Information concerning the Company, its subsidiaries or Affiliates and their
respective predecessors and that his services have been and will be of special,
unique and extraordinary value to the Company, its subsidiaries and its
Affiliates.  Therefore, Executive agrees
that, during the Restricted Period, Executive shall not directly or indirectly,
engage in the production, sale or distribution of any product produced, sold or
distributed by the Company, its subsidiaries or its or Affiliates on the
Effective Date or during the Restricted Period in the same geographic areas in
which the Company, its subsidiaries or any of its Affiliates is doing
business.  For purposes of this
Agreement, the phrase “directly
or indirectly engage in” shall include any direct or indirect
ownership or profit participation interest in such enterprise, whether as an
owner, stockholder, partner, principal, manager, agent, consultant, officer,
investor, lender, joint venturer of or otherwise in any capacity whatsoever,
and shall include any direct or indirect participation in such enterprise as an
employee, consultant, licensor of technology or otherwise.  Nothing herein shall prohibit Executive from
being a passive owner of not more than two (2%) percent of the outstanding
stock or ownership interest of any class of a corporation or other entity which
is publicly traded, so long as Executive has no active participation in the
business or management of such corporation or other entity.


 


(c)           Executive understands that the foregoing restrictions may
limit his ability to earn a livelihood in a business similar to the business of
the Company and any of its subsidiaries and Affiliates, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Company and as otherwise provided
hereunder or as described in the recitals hereto to clearly justify such
restrictions which, in any event (that given his education, skills and
ability), Executive does not believe would prevent him from otherwise earning a
living.  Executive has carefully
considered the nature and extent of the restrictions placed upon him by this
Agreement, and hereby acknowledges and agrees that the same are reasonable in
time and territory and do not confer a benefit upon the Company
disproportionate to the detriment of Executive.


 


Section 7.               Enforcement.


 


Because Executive’s services
are unique and because Executive has access to Confidential Information and
Work Product, and because Executive acknowledges that any breach of the
covenants contained in Section 6 would irreparably injure the Company, the
parties hereto agree that money damages would be an inadequate remedy for any
breach of this


 


9





















 


Agreement.  Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor at law or
in equity, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof (without posting a bond or other
security) or require Executive to account for and pay over to the Company all
compensation, profits, moneys, accruals, increments or other benefits derived
from or received as a result of any transactions constituting a breach of the
covenants contained herein in this Agreement, if and when final judgment of a
court of competent jurisdiction is so entered against Executive.


 


Section 8.               Severance Payments.


 


In addition to the
foregoing, and not in any way in limitation thereof, or in limitation of any
right or remedy otherwise available to the Company, if Executive violates any
provision of the foregoing Section 5 or 6, any severance payments then or
thereafter due from the Company to Executive under Section 4 or otherwise shall
be terminated forthwith, and the Company’s obligation to pay, and Executive’s
right to receive, such severance payments shall terminate and be of no further
force or effect, if and when determined by a court of competent jurisdiction,
in each case without limiting or affecting Executive’s obligations under such
Sections 5 and 6 or the Company’s other rights and remedies available at law or
equity.


 


Section 9.               Executive’s Representations,
Warranties and Covenants.


 


(a)           Executive hereby represents and warrants to the Company
that:


 


(1)           Executive has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and this Agreement has been duly executed by Executive;


 


(2)           the execution, delivery and performance of this Agreement
by Executive does not and will not, with or without notice or the passage of
time, conflict with, breach, violate or cause a default under any agreement,
contract or instrument to which Executive is a party or any judgment, order or
decree to which Executive is subject;


 


(3)           Executive is not a party to or bound by any employment
agreement, consulting agreement, non-compete agreement, non-solicitation
agreement, confidentiality agreement or similar agreement with any other
Person;


 


(4)           upon the execution and delivery of this Agreement by the
Company and Executive, this Agreement will be a legal, valid and binding
obligation of Executive, enforceable in accordance with its terms;


 


(5)           Executive is a continuing employee of the Company or one
of its Affiliates; and


 


(6)           Executive understands that the Company will rely upon the
accuracy and truth of the representations and warranties of Executive set forth
herein, and Executive consents to such reliance.


 


10





















 


Section 10.             General Provisions.


 


(a)           Severability. 
It is the desire and intent of the parties hereto that the provisions of
this Agreement be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is
sought.  Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable under any present or
future law, and if the rights and obligations of any party under this Agreement
will not be materially and adversely affected thereby, such provision, as to
such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction; furthermore, in lieu of such invalid
or unenforceable provision there will be added automatically as a part of this
Agreement, a legal, valid and enforceable provision as similar in terms to such
invalid or unenforceable provision as may be possible.  Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.


 


(b)           Entire Agreement. 
Each party acknowledges and agrees that, except as expressly set forth
herein, no representations, warranties, promises or statements of any kind or
character have been made to them by each other, or their agents,
representatives or attorneys, to induce the execution of this Agreement.  This Agreement, together with the Executive
Data Sheet annexed hereto as Exhibit A
and such other employee benefits that
Executive has on the Effective Date, constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior agreements, commitments, arrangements, negotiations or undertakings,
whether oral or written, between the parties with respect to its subject
matter.  No changes, amendments, waivers
or modifications to this Agreement shall be valid, unless made by a written
instrument that expressly refers to the relevant provision of this Agreement
and that is executed by all parties in the case of any changes or modifications
and by the party against whom enforcement is sought in the case of any
discharge or waiver and then only to the specific purpose, extent and instance
so provided.  This Agreement shall be
deemed to have been jointly drafted and, in construing and interpreting this
Agreement, no provision shall be construed or interpreted for or against any
party because such party prepared or requested such provision.


 


(c)           Successors and Assigns.


 


(i)            This Agreement is personal to Executive and without the
prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of
and be enforceable by Executive’s legal representatives or estate upon
Executive’s death or, if applicable, Disability.


 


(ii)           This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.  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 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.


 


11





















 


(d)           Governing Law. 
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW JERSEY TO BE APPLIED.  IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW JERSEY WILL
CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER
SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE
LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.


 


(e)           Remedies. 
Each of the parties to this Agreement and any such person or entity
granted rights hereunder whether or not such person or entity is a signatory
hereto shall be entitled to enforce its rights under this Agreement
specifically to recover damages and costs for any breach of any provision of
this Agreement and to exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that the Company may in its sole discretion apply to any
court of law or equity of competent jurisdiction for specific performance
and/or other injunctive relief (without posting any bond or deposit) in order
to enforce or prevent any violations of the provisions of this Agreement.  Each party shall be responsible for paying
its own attorneys’ fees, costs and other expenses pertaining to any such action
for and enforcement, regardless of whether an award or finding or any judgment
or verdict thereon is entered against Executive. [Q-add: except that Executive
shall be entitled to be reimbursed for his reasonable legal fees if he is
successful in enforcing the provisions requiring payment by the Company.]


 


(f)            Amendment and Waiver.  The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive.   The failure of any party to
insist upon strict performance of any provision hereof, irrespective of the
length of time for which such failure continues, shall not be a waiver of such
party’s right to demand strict compliance in the future, and no consent or
waiver, express or implied, to any breach or default in the performance of any
obligation hereunder shall constitute a consent or waiver to any other breach
or default in the performance of the same or any other obligation hereunder.


 


(g)           Notices.  All
notices, requests, demands, claims, consents and other communications required
or permitted to be given in this Agreement must be in writing and must be
either personally delivered, transmitted via telecopier, mailed by certified or
registered mail (postage prepaid and return receipt requested) or sent by
reputable overnight courier service (charges prepaid) to the recipient at the
address below indicated or at such other address or to the attention of such
other person as the recipient party has specified by prior written notice to
the sending party.  Notices will be
deemed to have been given hereunder and received when delivered personally,
when received if transmitted via telecopier, five (5) days after deposit in the
U.S. mail and one (1) day after deposit with a reputable overnight courier
service.


 


If to the Company, to:


 


AEP
Industries Inc.

125 Phillips Avenue

South Hackensack, NJ 07606-1546

Facsimile: (201) 807-6801

Attention: Paul M. Feeney

Executive Vice President, Finance


 


12





















 


with a copy (which shall not
constitute notice) to:


 


Warshaw
Burstein Cohen Schlesinger & Kuh, LLP

555 Fifth Avenue

New York, New York 10017

Facsimile: (212) 972-9150

Attention: Paul E. Gelbard, Esq.


 


If to Executive, to
Executive’s address set forth on the signature page hereto.


 


(h)           Survival of Representations, Warranties and Agreements.  All representations, warranties and
agreements contained herein shall survive the consummation of the transactions
contemplated hereby indefinitely.


 


(i)            Descriptive Headings; Counterparts.  The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this Agreement.  This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.


 


(j)            Construction. 
Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates.  The
language used in this Agreement shall be deemed to be the language chosen by
the parties to express their mutual intent, and no rule of strict construction
shall be applied against any party.


 


(k)           Nouns and Pronouns. 
Whenever the context may require, any pronouns used herein shall include
the corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice-versa.


 


(l)            Further Assurances. Executive agrees to do such further acts and things, and to
execute and deliver such additional conveyances, assignments, agreements and
instruments, as the Company may at any time reasonably request in connection
with the administration and enforcement of this Agreement or in order better to
assure and confirm unto the Company its rights and remedies hereunder.


 


(m)          Acknowledgements.  Executive has carefully read and considered
all of the terms and conditions of the Agreement, including the restraints and
obligations imposed upon Executive under Sections 5 and 6 of this Agreement.  Executive agrees that said restraints and obligations
are necessary for the reasonable and proper protection of the Company and its
Affiliates, and that each and every one of the restraints and obligations is
reasonable in respect to subject matter, length of time and otherwise.


 


Executive has had an opportunity to consult
with independent counsel with respect to the execution of this Agreement and
Executive has made such investigation of the facts pertaining to this Agreement
and of all the matters pertaining hereto as Executive deem necessary or appropriate.


 


(n)           Acceptance
of Offer; Reservation of Rights to Withdraw Offer.  By executing the enclosed counterpart of this
Agreement where indicated and returning it to the Company, Executive hereby
accepts the Company’s offer of continued employment and agrees to all terms and
conditions of this Agreement. 
Until such execution, the Company hereby reserves all rights to withdraw
its offer of employment to Executive pursuant to this Agreement.


 


13





















 


(o)           Waiver of
Jury Trial.  EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written above.


 


	
   

  	
  AEP INDUSTRIES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Paul M. Feeney

  	
   

  
	
   

  	
   

  	
  Name: Paul M. Feeney

  
	
   

  	
   

  	
  Title: Executive Vice President, Finance and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Lawrence R. Noll, Executive

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature

  	
   /s/ Lawrence R. Noll

  	
   

  
						



 


14





















 


EXHIBIT A


 


Executive Data Sheet for Signature Page


 


	
  Name

  	
  Lawrence R. Noll

  
	
   

  	
   

  
	
  Address

  	
  65 Haddenfield Road,
  Clifton, NJ 07013

  
	
   

  	
   

  
	
  Annual Base Salary (Fiscal
  2005)

  	
  $171,037.68

  
	
   

  	
   

  
	
  Position

  	
  Vice President, Controller,
  Secretary and director

  
	
   

  	
   

  
	
  Reports to

  	
  Paul M. Feeney

  
	
   

  	
   

  
	
  Vacation Days

  	
  20 days

  



 


15