Exhibit 10.1



 





Exhibit 10.1




CONSULTING SERVICES AGREEMENT




     This Consulting Agreement, dated as of September 30, 2004, is made by and
between WERNER HOLDING CO. (PA), INC., a Pennsylvania corporation, with offices
at 93 Werner Road, Greenville, PA 16125-9499 (“WHPA”) and DRS CONSULTING, INC.,
a corporation with offices at 11137 Harbor Estates Circle, Fort Myers, Florida
33908 (“Consultant”).



WITNESSETH:




     WHEREAS, WHPA desires to retain the services of Consultant, and Consultant
desires to provide certain services, in accordance with the terms of this
agreement;



     NOW THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally bound hereby, the parties agree as follows:




	1.	 	Position and Responsibilities






	a.	 	Consultant shall serve as a consultant for WHPA and/or any of
its subsidiaries (collectively, the “Company”) and shall perform the
duties customarily associated with such capacity from time to time
and at such place or places as the Company’s Board of Directors shall
designate as appropriate and necessary in areas including, but in no
way limited to, (i) providing Dana R. Snyder to serve as the
Company’s Interim President and Chief Executive Officer, (ii)
assisting the Company and its management in developing and executing
its business plans and strategies, (iii) providing advice and
assistance in the areas of sales, operations, technology, strategic
planning, administration, succession planning, shareholder and board
relations and compensation, (iv) representing the Company to
customers, suppliers, shareholders and other investors, and (v)
performing such other duties and activities as may be reasonably
requested by the Board of Directors of the Company during the term of
this Agreement. Consultant shall be deemed an independent contractor
and neither it nor its employees shall be deemed an employee or agent
of the Company. Consultant shall have no authority to bind the
Company in any way or represent the Company, except as authorized by
the Board of Directors of the Company.
	 
	b.	 	Consultant will devote its best efforts to the performance of
its duties hereunder and the business and affairs of the Company for
such time as is mutually agreed to by the parties. Consultant shall
continue to be available to the Company on a part-time basis to
assist in any necessary transition for a period of ninety (90) days
following the termination or expiration of this Agreement for any
reason whatsoever.
	 
	c.	 	Consultant and its employees will duly, punctually and
faithfully perform and observe any and all rules and regulations
which the Company may now or shall hereafter establish generally for
its employees or consultants governing the conduct of its business.






	2.	 	Term of Agreement






	a.	 	The initial term of this Agreement shall be for a period of six
(6) months, commencing September 27, 2004 and ending March 27, 2005,
unless extended or terminated prior thereto as provided herein or as
mutually agreed by the parties hereto in writing. This Agreement
shall automatically renew for successive three (3) month periods
unless either party provides written notice to the other, thirty (30)
days prior to the expiration of the then current period, of such
party’s intention to




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	 	 	terminate this Agreement at the end of the then current period
	 
	b.	 	Notwithstanding the foregoing, the Company may terminate this
Agreement at any time upon thirty (30) days prior written notice to
Consultant. Upon termination of this Agreement for any reason, all
obligations of the Company hereunder shall cease, except with respect
to amounts and obligations accrued to Consultant. As noted in
Section 7 below, Consultant’s confidentiality and non-competition
obligations under Sections 5 and 6 shall survive the termination of
this Agreement.





	3.	 	Compensation and Expenses





	 	 	Consultant shall be compensated at the rate of Thirty-Seven Thousand Five
Hundred Dollars ($37,500) per month, which shall be payable bi-weekly.
The Company shall file a Form 1099 with the Internal Revenue Service with
respect to the compensation paid during the term of this Agreement.
Consultant shall be responsible to pay any applicable taxes (Federal,
state and local). Consultant, upon written request to the Company, may
defer all or any portion of the compensation to be paid hereunder for a
period determined by the Consultant not to exceed the initial term of this
agreement.
	 
	 	 	The Company shall reimburse Consultant promptly for all reasonable and
ordinary business and out-of-pocket expenses incurred by it in connection
with the performance of its duties hereunder, as approved by the Board of
Directors of the Company, including meals, travel, personal automobile and
miscellaneous expenses, provided the expenses are incurred in furtherance
of the Company’s business and at the request of the Company. Consultant
agrees to keep accurate and complete records of the aforesaid expenses as
may be requested by the Company and to account to the Company for the
expenses prior to reimbursement by providing substantiating receipts.
	 
	 	 	The Company agrees to maintain for Consultant’s use in the performance of
its duties hereunder appropriate office facilities in Greenville, PA and
provide support staff to assist Consultant.





	4.	 	Outside Activities During Consulting Agreement





	 	 	Consultant hereby agrees that it and its employees will work exclusively
for the Company on the matters set forth in Section 1(a) and that neither
it, nor its employees will, directly or indirectly, engage in any
activities or become in any way affiliated with (whether as an employee,
consultant, officer, partner or stockholder) any entity, which is in
competition or in conflict with the business or affairs of the Company.





	5.	 	Proprietary Information





	 	 	In order to protect the interests of the Company, Consultant and its
employees shall maintain in strict confidence, not disclose to any third
parties and use only in connection with the performance of its duties
hereunder all proprietary and sensitive information of the Company,
including but not limited to, manufacturing processes, methods, production
data, product drawings, trade secrets, new product development
information, financial information, market research, personnel
information, sales data and related materials, market and pricing
information, customer information and such other confidential and
sensitive information whether written or oral and whether or not marked or
designated as confidential (“Confidential Information”) which is in
Consultant’s possession (whether received prior to or in connection with
this Agreement) or which is developed by it in the course of performing
the duties hereunder. This obligation shall not extend to information
which (i) is or becomes generally available to the public through no fault
of Consultant, (ii) is received by Consultant from another source without
any confidentiality restriction on its disclosure or (iii) is required to
be disclosed by Consultant by applicable




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	 	 	law, rule, regulation or court order, provided however that Consultant
shall give the Company reasonable notice prior to any such disclosure so
that the Company may seek a protective order or other such appropriate
remedy.
	 
	 	 	If, during or as a result of the performance of Consultant’s duties
hereunder, Consultant or any of its employees makes an invention,
improvement, idea or work relating to the subject matter of the duties
under this Agreement, Consultant hereby agrees to promptly disclose, or
cause its employees to disclose, the same to the Company and it shall be
the Company’s property. Consultant agrees to execute, and cause its
employees to execute, any applications for patents, trademarks or
copyrights thereon which the Company sees fit to have prepared, together
with an assignment to the Company of Consultant’s entire interest in such
invention, improvement, idea or work and such applications. Consultant
and its employees also agree to take all other reasonable actions as the
Company may deem necessary to assist the Company in obtaining such
patents, trademarks or copyrights.
	 
	6.	 	Non-Competition.






	a.	 	During the term of this Agreement and for a period following
the termination or expiration of this Agreement, for whatever reason,
equal to two (2) years, Consultant and its employees will not,
without the Company’s prior written consent, directly or indirectly
engage in activities similar or reasonably related to those in which
Consultant shall have engaged hereunder for, nor render services
similar or reasonably related to those which Consultant shall have
rendered hereunder to, any person or entity whether now existing or
hereafter established which directly competes with (or proposes or
plans to directly compete with) the Company (“Direct Competitor”) in
any line of business engaged in or under development by the Company.
	 
	b.	 	No provision of this Agreement shall be construed to preclude
Consultant from performing the same services which the Company hereby
retains it to perform for any person or entity which is not a Direct
Competitor of the Company upon the expiration or termination of this
consulting relationship with the Company (or any post-agreement
consultation) so long as Consultant and its employees do not thereby
violate any term of this Agreement. Consultant agrees to be
responsible for any breach of this Agreement by its employees.






	7.	 	Remedies
	 
	 	 	Consultant’s obligations under the provisions of Sections 5 and 6 of this
Agreement (as modified by Section 9, if applicable) shall survive the
expiration or termination of this consulting relationship with the
Company. Consultant acknowledges that a remedy at law for any breach or
threatened breach by it or by its employees of the provisions of Sections
5 or 6 hereof would be inadequate and therefore, Consultant agrees that
the Company shall be entitled to injunctive relief in case of any such
breach or threatened breach.
	 
	8.	 	Assignment
	 
	 	 	This Agreement and the rights and obligations of the parties hereto shall
bind and inure to the benefit of any successor or successors of the
Company by reorganization, merger or consolidation (including any
subsidiary, affiliate, or related entity of the Company) and any assignee
of all or substantially all of its business and properties. Neither this
Agreement nor any rights, obligations, or benefits hereunder may be
assigned by Consultant without the prior written consent of the Company.




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	9.	 	Interpretation
	 
	 	 	IT IS THE INTENT OF THE PARTIES THAT in case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of
this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
MOREOVER, IT IS THE INTENT OF THE PARTIES THAT in case any one or more of
the provisions contained in this Agreement shall for any reason be held to
be excessively broad as to duration, geographical scope, activity or
subject, such provision shall be construed by limiting and reducing it, so
as to be enforceable to the maximum extent compatible with applicable law.
	 
	10.	 	Notices
	 
	 	 	All demands, notices, payments or other writings to be sent by either
party to the other party under or pursuant to this Agreement will be given
in writing, and will be deemed to have been given when delivered in
person, or on the date of delivery of such notice by registered or
certified mail, return receipt requested, by a major overnight delivery
service such as Federal Express, or by telecopy with a hard copy delivered
promptly by one of the methods described above, and: (a) if to Consultant,
at its address of record with the Company, (b) if to the Company, at
Werner Holding Co. (PA), Inc., 93 Werner Road, Greenville, PA 16125,
Attention: Eric J. Werner, General Counsel, Fax: 724-588-0618, or at such
other place as the parties may from time to time designate in writing.
	 
	11.	 	Waivers
	 
	 	 	No waiver of any right under this Agreement shall be deemed effective
unless contained in a writing signed by the party charged with such
waiver, and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any preceding breach or of any
future such right or of any other right arising under this Agreement.
	 
	12.	 	Complete Agreement; Amendments
	 
	 	 	The foregoing constitutes the entire agreement of the parties with respect
to the subject matter hereof, superseding any previous oral or written
communications, representations, understandings, discussions, or
agreements with the Company or any officer or representative thereof. Any
amendment or modification to this Agreement or waiver shall be effective
only if evidenced by a written instrument executed by the parties hereto.
	 
	13.	 	Headings
	 
	 	 	The headings of the Sections hereof are inserted for convenience only and
shall not be deemed to constitute a part hereof nor to affect the meaning
of this Agreement.
	 
	14.	 	Counterparts
	 
	 	 	This Agreement may be signed in any number of counterparts, each of which
shall be deemed an original and all of which shall together constitute one
agreement.
	 
	15.	 	Governing Law
	 
	 	 	This Agreement shall be governed by and construed under the laws of the
Commonwealth of Pennsylvania.





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



	 	 	 
	

	COMPANY:
	 
	 	 
	

	WERNER HOLDING CO. (PA), INC.
	 
	 	 
	

	By: 


Title: 	/s/ ERIC J WERNER


Vice President, Secretary and General Counsel
	 
	 	 
	

	CONSULTANT:
	 
	 	 
	

	DRS CONSULTING, INC.
	 
	 	 
	

	By: 


Title: 	/s/ DANA R. SNYDER


President








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