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Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of February 26th,
1997, is made by and between Selfix, Inc., a Delaware corporation ("SELFIX"),
Tamor corporation, a Massachusetts corporation (the "COMPANY"), Home Products
International, Inc. ("HPI"), the parent corporation of Selfix, and Xxxxxxx
Xxxxx of Leominster, Massachusetts (the "EXECUTIVE"). Selfix and its affiliates
(including any parent of Selfix), to the extent any of them are conducting the
Business (as defined below) jointly with the Company or to the extent the
Company is involved in any Business involving Selfix products which may be
marketed or used by the Company are collectively referred to as "GREATER
TAMOR." In such case as Selfix and its subsidiaries are reorganized into a
holding company structure, all references to Selfix in this Agreement shall also
be construed to refer to Selfix's parent company.
RECITALS:
A. The company is engaged in the business of designing,
manufacturing, importing, marketing and distributing bathware and houseware
related products (the "BUSINESS").
B. HPI, concurrently with the execution of this Agreement, is
purchasing all the equity in the Company (the "ACQUISITION").
C. Selfix desires for the Executive to continue his employment
with the Company after the Acquisition, and the Executive is willing to continue
such employment.
D. Executive has had and will continue to have access to the
Company's confidential and proprietary information and will have access in the
future to confidential and proprietary information of Greater Tamor. In order
to protect Greater Tamor from unfair competition by the Executive associated
with his relationship with the Company, customers and his access to
confidential and proprietary information, the Company and the Executive wish to
set forth in this Agreement certain restrictive covenants to be adhered to by
the Executive.
CLAUSES:
In consideration of the foregoing, as well as the mutual covenants and
promises set forth herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs Executive to
serve as the Chief Executive Officer of the Company and Executive hereby
accepts such employment. Unless earlier terminated in accordance with this
Agreement, the term of this Agreement will begin on the date of this Agreement
("EFFECTIVE DATE") and will continue for a period of three (3) years (the
"INITIAL TERM"). Unless the Company or the Executive notifies the other party
of its intention to terminate the Term of employment at least sixty days before
the expiration of the Term, Executive's term of employment with the company
shall thereafter be extended for a period of one year. Each one year extension
shall be referred to as a "RENEWAL TERM". Executive and Selfix agree to
negotiate Executive's employment arrangements following the
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Initial Term at least six (6) months before the end of the Initial Term. The
Executive's actual term of employment with the Company under this Agreement,
inclusive of the Initial Term and any Renewal Term, or any shorter period,
shall be referred to as the "TERM".
2. EMPLOYMENT DUTIES.
2.1 TITLE/RESPONSIBILITIES. The Executive shall perform his duties
as Chief Executive Officer of the Company, which duties shall include the
normal and customary duties of such office and such other duties as may be
assigned to him by Selfix's Chief Executive Officer (the "CEO") or the Board of
Directors of Selfix (the "BOARD"). Executive shall oversee the day to day
management of the Company, including but not limited to: (i) hiring and firing;
(ii) subject to the approval of the CEO, directing legal services for patent
work; and (iii) implementing budget decisions relating to marketing, sales,
pricing, product development, product sourcing, billing, and collection. The
Executive shall report to the CEO and provide the CEO with periodic reports
upon request. Executive shall be responsible for the preparation of an annual
capital budget and an annual operating budget in accordance with regular
budgeting procedures of Selfix, which budgets shall be subject to the approval
of the CEO and the Board. Executive shall at all times discharge his duties in
consultation with and subject to the general direction and control of the CEO.
2.2 FULL TIME AND ATTENTION. Executive shall devote his exclusive
and full time attention, energy and skills to the performance of his duties as
Chief Executive Officer of the Company, but nothing in this Agreement shall
preclude Executive from engaging in charitable and community affairs, provided
that such activities do not interfere with the performance of his duties or
responsibilities under this Agreement.
2.3 OFFICE LOCATION. Executive shall be located in the Leominster,
Massachusetts metropolitan area, unless he otherwise consents.
3. COMPENSATION.
3.1 BASE SALARY. During the Initial Term, Executive shall receive
an annual base salary ("BASE SALARY") of Three Hundred Thousand Dollars
($300,000), payable in accordance with the Company's payroll practices for
executive employees (reduced solely by all applicable payroll and withholding
taxes and other legal garnishments). The CEO shall undertake periodic
performance reviews of Executive and the CEO may, with appropriate Board
approval, adjust Base Salary to reflect Executive's performance and/or the
financial position of the Company, provided, however, the Base Salary shall not
be less than Three Hundred Thousand Dollars ($300.000).
3.2 BONUS. In addition to the Base Salary, Executive shall receive
discretionary annual incentive compensation to be determined by the CEO, with
appropriate approval of the Board. Such determination shall be reached using
the substantially similar method, formula and
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analysis utilized by the Board with respect to determining the discretionary
annual incentive compensation of the CEO, consistent with past practices.
4. EXPENSE ALLOWANCES AND FRINGE BENEFITS.
4.1 VACATION. Executive shall be entitled to vacation in accordance
with the Company's vacation policy for senior executives which policy shall be
substantially similar to that of Selfix for its executives.
4.2 EMPLOYMENT BENEFIT PLANS. Executive will be entitled to participate
in the employee and executive benefit plans the Company now or hereafter makes
available to executives and/or other salaried employees, including, without
limitation, retirement plans, group life insurance, hospitalization, surgical
and major medical, vacations and holidays and other fringe benefits, in
accordance with the terms of such plans, if applicable, and subject to
eligibility and vesting requirements in effect from time to time, provided
however, that nothing herein shall require the Company to create or continue
any such plan or benefit. It is intended that all such benefits and plans be
substantially similar to benefits and plans made available to Selfix executives.
4.3 BUSINESS/AUTOMOBILE EXPENSE REIMBURSEMENT. The Company shall
reimburse Executive for all reasonable and proper expenses incurred by him in
executing his duties for the Company. Reimbursement shall be conditioned upon
Executive's compliance with all policies adopted by the Company regarding
expense reimbursement including, without limitation, policies regarding the
documentation and timely submission of such expenses. At his option, Executive
may during the Term either have the use of a Company automobile or a $500 per
month automobile allowance (exclusive of any reimbursement for costs of
operating and maintaining the automobile).
5. TERMINATION.
5.1 DEATH. In the event of the death of the Executive during the Term
of this Agreement, this Agreement shall terminate in its entirety, provided,
however, that all amounts which accrued to Executive prior to the date of his
death shall be paid to his estate in accordance with the Company's standard
payroll practice.
5.2 DISABILITY. In the event the Executive becomes "Disabled" (defined
below) for a period of 90 consecutive days, or for 120 days (irrespective of
whether such days are consecutive) during any six-month period, the Company
may, at its option, terminate the Executive's employment. Such option shall be
exercised by the Company giving notice to Executive of its intention to
terminate Executive's employment, to be effective on the date set forth in the
notice, which in no event shall be less than 30 days after the date of the
notice.
For purposes of this Agreement, Executive shall be deemed to have
become "Disabled" if,
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because of physical or mental disability or drug or alcohol dependency or abuse
he shall have been unable to perform his duties hereunder. So long as this
Agreement is in effect and during any such period in which he is Disabled,
Executive shall be entitled to all compensation, benefits, rights and
entitlement under the Agreement. Compensation shall, however, be reduced by any
amount paid to Executive by any long-term disability insurance policy or
coverage provided by the Company or for which the Company paid the premiums, if
applicable.
5.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company shall have the
option of terminating Executive's employment immediately for "Cause" (as
defined below). The term "Cause", as used herein, shall mean (a) dishonesty,
fraud, embezzlement, theft, conviction of a felony or any crime involving moral
turpitude, (b) gross dereliction or gross neglect of duties hereunder, or a
material breach of Sections 8 or 9 of this Agreement, (c) willful refusal to
perform the duties hereunder, or (d) willful misconduct materially and
demonstrably injurious to Selfix or the Company.
5.4 VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement prior to the end of the Term upon ninety (90) days prior written
notice to the Company, in which the event the Company shall be obligated only
to pay him his total remuneration and other applicable benefits described in
Sections 3.1 and 4 up to the date of termination set forth in a notice of
termination given to the Company.
5.5 TERMINATION IN THE EVENT OF FILING UNDER CHAPTER 7. In the event
that the Company or Selfix files a petition for liquidation under Title 7 of
the Bankruptcy Code, or has a petition for liquidation under such title filed
involuntarily against it, then Executive shall be released from all obligations
under this Agreement. In addition, if the Company is in Chapter 11
reorganization, Executive shall be released from all obligations under the
Agreement if his compensation benefits under the plan of reorganization is not
equivalent to his compensation and benefits under this Agreement.
6. CHANGE OF CONTROL.
6.1 DEFINITIONS. For purposes of this Agreement, a "Change of Control"
shall have occurred if any person or group (as defined in Section 13(d) of the
Security Act of 1934) other than the Ragir family or their affiliates
(including, without limitation, trusts for their benefit or private foundations
established by them) or Selfix's parent (by virtue of a corporate
reorganization) becomes the beneficial owner of shares of stock in Selfix
representing fifty percent (50%) or more of the total number of voting shares
that may be cast for the election of directors of Selfix.
6.2 TERMINATION FOLLOWING CHANGE OF CONTROL. In the event Executive's
active full-time employment with the Company terminates within one hundred
eighty (180) days after a Change of Control, either voluntarily or
involuntarily, whether by the Company or Executive:
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(i) The Company shall pay Executive on the date of such
termination an amount equal to one hundred percent (100%) of Executive's
yearly Base Salary then in effect; and
(ii) All stock options granted by the Company to Executive under
Section 7 below shall become immediately vested and exercisable in
accordance with their terms.
To the extent that the Board votes to adopt any policies with respect to
so-called "golden parachutes" for senior executives, Executive shall have be
included under any such policies.
6.3 NO DUPLICATION. Notwithstanding anything to the contrary, if the
Executive first becomes entitled to payment pursuant to Section 6.2 above, such
payment shall be in lieu of all other payments he would have been entitled to
pursuant to this Agreement.
7. STOCK OPTIONS
7.1 GRANT. Subject to the conditions identified in Section 7.2 below,
HPI grants the Executive, pursuant to its Stock Option Plan, the following
options to purchase common stock of HPI, at the following strike price
(collectively the "Stock Options"): Fifty Thousand (50,000) shares of HPI's
common stock with a strike price of Four and Three-Eighths Dollars ($4 3/8) per
share. The Stock Options will not begin to vest and the Executive may not
exercise any of the Stock Options until twelve (12) months from the Effective
Date. However, as of the date of the expiration of such twelve (12) month
period, and on the same day of each of the following two years, the Stock
Options shall vest and become exercisable on a prorata basis, so that the
Executive is vested and is entitled to exercise one-third (1/3) of each of the
Stock Options on each such date. If not exercised prior thereto, the Stock
Options shall expire in their entirety on December 31, 2003. If a Change of
Control occurs during the Term, then all of the Stock Options shall vest
immediately and become immediately exercisable, irrespective of whether any of
the aforesaid Stock Option periods have matured.
7.2 TERMINATION OF EMPLOYMENT. (a) Upon the Executive's death, the
Executive's estate, personal representative or executor shall have the option
to exercise that number of vested options eligible for exercise pursuant to
Section 7.1 as of the date of the Executive's death. Such option must be
exercised within 90 days of the appointment of an executor or personal
representative of Executive's estate: (b) Except for those Stock Options which
are exercisable on an accelerated basis following the occurrence of a Change of
Control, if the Executive's employment is terminated other than for Cause, then
any Stock Options which are vested as of the date of the termination of
employment, shall be exercisable by the Executive within 90 days of the
termination of employment; (c) Except as specifically provided in this Section
7.2, upon termination of the Executive's employment any unvested Stock Options
shall terminate in their entirety and be of no further force or effect. If the
Executive's employment is terminated or Cause, he will forfeit all Stock
Options, whether or not vested.
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7.3 NON-ASSIGNABILITY. The Stock Options and related rights set forth
in this Agreement are personal to the Executive. The Executive therefore may
not assign, pledge, alienate, devise or in any other manner transfer
(voluntarily or involuntarily) all or any part of the Stock Options. The
Executive's attempt to do so shall be void ab initio, and shall be without
legal, beneficial or other effect and shall result in the complete termination
of all Stock Options of the Executive as well as the Executive's right to
exercise the same under this Agreement.
8. RESTRICTIVE COVENANTS
8.1 ACKNOWLEDGMENTS. Executive acknowledges that: (i) during the
course of his association and employment with the Company, and due to his
position, from time to time, as the Chief Executive Officer of the Company, he
will be in contact with suppliers and customers of the Company and will have
access to Greater Tamor's respective confidential and proprietary information
including without limitation, its properties, research and development,
accounts, books and records, sales, know-how, software, technology, inventions,
techniques, profits, products, customer lists, requirements, suppliers, cost
data, memoranda, devices, processes, methods, procedures, formulas, prices,
pricing and other corporate activities, whether or not in written form or
marked "Confidential", whether developed by Executive or others, which relate
to the business operations, research and development, engineering, products or
activities of the Company or Greater Tamor (collectively "Confidential
Information"); (ii) the Confidential Information constitutes trade secrets of
Greater Tamor, within the meaning of the applicable state trade secrets laws;
(iii) all documents, electronic, magnetic or other media and information which
concern the Confidential Information are highly confidential and also
constitute trade secrets as identified above; (iv) Greater Tamor has invested
and will continue to invest considerable sums of money to obtain and maintain
its Confidential Information; (v) Greater Tamor derives substantial economic
benefit due to the confidentiality of its Confidential Information and
inventions; (vi) Greater Tamor's competitors would obtain unfair economic and
competitive advantages of its Confidential Information or inventions were
divulged; (vii) Greater Tamor has instituted procedures to maintain the
confidentiality of its Confidential Information; and (viii) the Confidential
Information constitutes a highly significant factor in Greater Tamor's ability
to conduct its businesses profitably. The term "Confidential Information," with
respect to the Executive, shall include only that Confidential Information of
which the Executive has or should have knowledge.
8.2 NONDISCLOSURE. Recognizing that the disclosure or improper use of
Confidential Information will cause serious and irreparable injury to Greater
Tamor, Executive agrees that he will not at any time, before or for five (5)
years after the termination of his employment, directly or indirectly: (i)
disclose, divulge, alienate, transfer assign or sell Confidential Information
to any third party or otherwise use Confidential Information (not otherwise
excluded below) for his own benefit or the benefit of others unless previously
authorized, in writing, by Selfix to do so; (ii) attack, take any action or
fail to take any action which could vitiate any of Greater Tamor's rights,
titles or interests in any of its trade secrets, Confidential Information,
inventions or "Assigned Intellectual Property" (as defined in Section 9.1
below); or (iii) disassemble or reverse engineer
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any of the Confidential Information, inventions or Assigned Intellectual
Property for himself or others.
8.3 NONSOLICITIATION. In order to protect the secrecy of the
Confidential Information and the goodwill associated with Greater Tamor's
relationship with its customers, the Executive covenants and agrees that,
during the Term and for a period of five (5) years following the termination of
his employment for any reason whatsoever, he will not, directly or indirectly,
through one or more intermediaries or affiliates or otherwise:
(i) solicit anyone who was a customer of Greater Tamor
during the term of Executive's employment with the Company with respect to
business which competes with the Business as it is then being conducted;
(ii) solicit any prospective customer of Greater Tamor with
whom Executive has contact during his employment with the Company during the
preceding twelve (12) months with respect to business which competes with the
Business as it is then being conducted; and/or
(iii) divert, take away, solicit or seek to induce employment
of any the employees of Greater Tamor or its Affiliates.
8.4 NON-COMPETITION. Executive, as part of the Acquisition and in
further consideration for his future employment with the Company, has entered
into a Non-Competition Agreement with Greater Tamor as of the same date as this
Agreement.
8.5 ENFORCEMENT OF COVENANTS. The parties have attempted to limit
Executive's rights to compete only to the extent necessary to protect Greater
Tamor from unfair competition. If, however, the restrictive covenants contained
in this Agreement are held to be unenforceable at any time, the parties
specifically direct the court, arbitrator or other trier of fact to modify and
enforce said covenants to the extent that it believes is reasonable under the
circumstances existing at that time, rather than deleting or rendering
unenforceable such restriction(s).
9. PROPERTY; INVENTIONS
9.1 ASSIGNMENT. Executive agrees that all discoveries, inventions,
ideas, concepts, research and other information, processes, products, methods
and improvements which are conceived, developed or otherwise made by him alone
or jointly with others during the Initial Term or any Renewal Term
(collectively, "INVENTIONS"), shall be the sole property of the Company.
Executive therefore grants, conveys, transfers, alienates and assigns
exclusively to the Company, for and throughout the world, in and for all
languages (including but not limited to computer languages and human languages,
whether now existing or subsequently developed during the Term) all rights,
titles and interests (legal, equitable, use or otherwise) which Executive has,
may have in the future or may have the right to claim now or in the future
acquired during the
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Term (but not to exceed the Term plus a period of five (5) years after
termination of his employment), in all Inventions and related copyrights,
patents, trademarks, trade names and servicemarks (whether or not registered,
including all associated applications therefor and the right to file and
register the same in the Company's or any other name), modifications,
improvements, derivative works and/or other work which Executive conceives
solely or jointly with others (collectively the "ASSIGNED INTELLECTUAL
PROPERTY") which; (i) are related to any trade secrets, Confidential Information
or other proprietary materials of the Companies; (ii) are predicated upon or
relate to work Executive performs for Greater Tamor (whether or not done during
normal working hours); or (iii) Executive develops based on materials,
equipment, facilities or information Greater Tamor. The foregoing assignment by
Executive is under any and all foreign or domestic, federal, state or local
copyright, trade secret, intellectual property, patent or other laws, is
intended to be all inclusive and without reservation, and specifically includes
the right to xxx for and collect and retain all damages associated with past,
present or future infringements of any or all of the Assigned Intellectual
Property.
9.2 NO RETAINED RIGHTS. Executive's assignment of the Assigned
Intellectual Property to the Company under this Agreement constitutes a
complete, absolute and exclusive transfer of all rights (legal, equitable, use
and otherwise) in the Assigned Intellectual Property. The Executive does not
reserve or retain any right, title or interest in any Assigned Intellectual
Property or any trade secrets, Confidential Information or related information
which concerns any Assigned Intellectual Property. Executive acknowledges and
agrees that the Assigned Intellectual Property constitutes the sole, exclusive
and confidential property of the Company. Executive shall disclose to the
Company, in full, accurate detail and in writing, all Inventions, derivative
works, improvements and/or developments (whether or not patentable,
copyrightable or otherwise protectable under law) which Executive makes or
assists in making either during the course of his employment with the Company
or that in any way concern, relate to or are based upon the Confidential
Information, Assigned Intellectual Property or any other trade secrets of
Greater Tamor, and acknowledges that the same constitutes the Greater Tamor's
sole property.
9.3 DUTY TO ASSIST. If at any time (during or after the Term)
Greater Xxxxx xxxxx it necessary or appropriate, the Executive shall execute
and deliver any and all instruments and documents and shall provide such
assistance (including testifying in court or other judicial or administrative
proceeding) which Greater Tamor believes are reasonably necessary either to
evidence or register the assignment of rights made by the Executive in this
Agreement, or to apply for, obtain, register or enforce any copyright, patent
or trademark or otherwise protect or enforce Greater Tamor's interests therein,
provided, however, Executive shall not be required to warrant any intellectual
property or the value of Greater Tamor's interest therein. If assistance as
described in this Section is required of Executive after the Executive is no
longer employed by the Company, the Company shall reimburse Executive for
reasonable expenses associated with such assistance.
9.4 RETURN OF MATERIALS. If Executive ceases to be employed by the
Company, or at any other time upon request of Greater Tamor, he shall promptly
return to Greater Tamor any
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records, disks, programs, software, agreements, books of account, corporate
memoranda, customer lists or other property which constitute or in any way
relate to Confidential Information or otherwise belong to Greater Tamor or its
customers. The Executive will not retain copies of the foregoing items (in hard
copy or electronically stored).
10. REMEDIES
Executive understands and agrees that his breach of any of the
provisions of Sections 8 or 9 will cause irreparable and continuing damage to
Greater Tamor, that Greater Tamor would not have any adequate remedy at law for
the material breach by Executive of any one or more of the covenants set forth
in this Agreement and that, in the event of any such material breach, in
addition to the other remedies which may be available. Selfix or the Company
may obtain an injunction, or other equitable relief, with bond, to enjoin
Executive from the breach of such covenants, including but not limited to the
right to obtain an immediate temporary restraining order. If Selfix or the
Company institutes legal action for injunctive or other relief as a result of
Executive's violation or breach of any of the provisions of Sections 8 or 9,
the parties agree, upon request of either party, to jointly ask the court to
have the matter then before such court order that the matter be submitted for
determination by arbitration in accordance with the commercial rules of the
American Arbitration Association to be conducted in Boston, Massachusetts. The
remedies described in this Section are in addition to, and not to the exclusion
of, any other damages Selfix or the Company may be able to prove. The Executive
agrees to indemnify and reimburse Greater Tamor for any and all costs,
expenses (including but not limited to attorney's fees), losses and damages
paid or incurred as a result of or arising from the Executive's breach of
Sections 8 or 9 of this Agreement, but only to the extent that Greater Tamor
prevails in any enforcement action taken against Executive in accordance with
this Section.
11. GENERAL PROVISIONS
11.1 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement and the rights of the parties thereunder shall be
interpreted and enforced under Massachusetts law without reference to
principles of conflicts of laws.
11.2 ASSIGNMENT; SUCCESSORS; BINDING AGREEMENT. Executive may not
assign, pledge or encumber his interest in this Agreement or any part thereof
and may not delegate his duties hereunder. This Agreement shall be binding on
and inure to the benefit of Greater Tamor's successors and assigns; provided,
however that the Executive hereby releases Greater Tamor from any acts by any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) in breach or contravention of this Agreement. Subject to the
limitations imposed by Section 5, this Agreement shall inure to the benefit of
and be enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributee, devises and legatees.
11.3 NO WAIVER OR FORBEARANCE OF BREACH. The waiver by any party of
the breach of
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any provision of this Agreement shall not be deemed to be a waiver of any
subsequent breach. Forbearance of any breach of this Agreement shall not
constitute acceptance or approval of that breach or of any future breach, nor
shall it prejudice Great Tamor's right to action in response to any breach.
11.4 NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement, shall be provided by all
parties of this Agreement in writing: by (I) actual delivery of the notice into
the hands of the party entitled to receive it, (ii) by mailing the notice by
registered or certified mail, return receipt requested, in which case the
notice shall be deemed to be given two (2) days following on the date of its
mailing; (iii) by Federal Express or other overnight carrier, in which case the
notice shall be deemed to be given on the day following delivery into the hands
of such carrier; or (iv) by facsimile, in which case notice shall be deemed
given on the day sent. Each such notice shall be addressed as follows:
If to Selfix If to the Executive
------------------ -------------------
Selfix, Inc. Xxxxxxx Xxxxx
Attn: Chief Executive Officer c/o Tamor Plastics Corp.
0000 X. 00xx Xxxxxx P.O. Box 1186
Chicago, IL 60632 Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
With a copy to: With a copy to:
Much Shelist Freed Xxxxxxxxx Xxxxxxx Law Offices
Xxxxx Xxxx & Xxxxxxxxxx, P.C. Attn: Xxxx Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxxxxx 000 Xxxx Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx Xxxxxxxxxx, XX 00000
Xxxxxxx, XX 00000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
11.5 MODIFICATION; WAIVER; ENTIRE AGREEMENT. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in a writing signed by Executive and the
CEO. No waiver by either party hereto at any time of any breach by the other
party of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement.
11.6 VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall
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remain in full force and effect.
11.7 CONTROLLING DOCUMENT. This Agreement supersedes and replaces
any prior employment agreements between the Company and the Executive.
11.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.9 GUARANTY. Provided Executive is not in default under this
Agreement, HPI guarantees to Executive the prompt performance of this
Agreement.
11.10 INDEMNIFICATION/DIRECTORS AND OFFICERS INSURANCE. The Company
shall indemnify the Executive and hold him harmless for all acts or decisions
made by him in good faith while performing services for the Company. The
Company shall also use its best efforts to obtain coverage for him under any
insurance policy now in force or hereinafter obtained during the term of this
Agreement covering the other Officers and Directors of the Company against
lawsuits. The Company shall pay for all expenses including attorney's fees,
actually and necessarily incurred by the Executive in connection with the
defense of such act, suit or proceeding covered by this indemnification and in
connection with any related appeal, including the cost of court settlements.
SELFIX, INC. TAMOR CORPORATION,
By: /s/ Xxxxx X. Xxxxxxx By: /s/Xxxxxxx X. Xxxxx
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Its: Chairman and CEO It: Treasurer
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/s/ Xxxxxxx X. Xxxxx HOME PRODUCTS INTERNATIONAL, INC.
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Xxxxxxx X. Xxxxx,Individually
By: Xxxxx X. Xxxxxxx
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Its: Chairman and CEO
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NON-COMPETITION AGREEMENT
THIS AGREEMENT is made as of the 27th day of February, 1997, by and
among SELFIX, INC., a Delaware corporation with its principal place of business
at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("SELFIX"), TAMOR PLASTICS
CORP., a Massachusetts corporation ("TAMOR") and XXXXXXX X. XXXXX, now residing
at Leominster Mass ("XXXXXXX").
RECITALS
A. Selfix is engaged in the business of manufacturing and distributing
housewares, bathwares, storage products and systems, children's products and
other items.
X. Xxxxx is also engaged in the business of manufacturing and
distributing housewares, bathwares and storage products.
C. Housewares Sales, Inc. ("HOUSEWARES"), a Massachusetts corporation,
is engaged in the business of marketing and selling housewares, bathwares and
storage products, which products are primarily manufactured by Tamor.
Housewares is owned by Xxxxxxx and his family.
D. The business of Tamor and Housewares, together with any business
conducted jointly by Tamor, Housewares and/or Selfix in which Xxxxxxx may be
involved during his employment by Tamor (as described below), and any business
involving Selfix products which may be marketed or used by Tamor shall be
referred to as the "BUSINESS".
E. Simultaneous with the execution of this Agreement, Selfix is
purchasing all of the equity of Tamor and is merging Housewares with and into
Selfix (collectively the "TRANSACTIONS").
X. Xxxxxxx is presently employed as the Chairman and Chief Executive
Officer of Tamor and President of Housewares. In light of Xxxxxxx'x experience
in managing and expanding the business of Tamor and creating its products,
Selfix desires that Tamor continue to employ Xxxxxxx in the same capacity as he
is presently employed.
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G. In recognition of the acknowledged importance and sensitivity of
the confidential information to which Xxxxxxx has access and the legitimate
need of Tamor to protect and enjoy its goodwill and customer relationships,
Selfix was not willing to consummate the Transactions without the protection
against unfair competition this Agreement affords.
X. Xxxxxxx has agreed that during the term of his employment and
following his termination of employment with Tamor (or Selfix or any affiliated
entity conducting or operating the Business) for any reason, with or without
cause, he will not engage in any business which competes with the Business
pursuant to the terms of this Agreement.
CLAUSES
1. NOW, THEREFORE, in consideration of the premises and the following
covenants and agreements, the parties agree as follows:
ACKNOWLEDGEMENTS. Xxxxxxx acknowledges and agrees that: (i) he has
been an officer, director, shareholder and an employee of Tamor and Housewares
for a number of years; (ii) the past and future services rendered, or to be
rendered, by Xxxxxxx to Xxxxx and Housewares were and are of extraordinary
merit and constitute a necessary and valuable contribution to the general
growth and development of Tamor; (iii) during the course of his employment with
and relationship to Tamor and Housewares, he has and may acquire special
knowledge of their relationships and business techniques, internal business
organization, financial data, marketing plans, intellectual property and other
proprietary matters; and (iv) Selfix would not be willing to consummate the
Transactions without the protection against unfair competition this Agreement
affords.
2. RESTRICTIONS ON COMPETITION. During the term of his employment
with Tamor (or Selfix or any affiliate of Selfix conducting or operating the
Business, any such entity, together with Tamor is referred to as "Greater
Tamor"), and for a period of five (5) years following the termination of
Xxxxxxx'x employment with Tamor, for any reason (the "RESTRICTIVE PERIOD"),
Xxxxxxx shall not directly or indirectly, own, manage, operate, control,
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be employed by, participate in, or be connected in any manner with the
ownership (except for minor ownership in a public company), management,
operation, or control of any business (i) which is located within any state or
country in which Greater Tamor does business, and (ii) which competes with the
Business or Greater Tamor. Xxxxxxx agrees that his breach of any of the
covenants contained in this Section 2 will result in irreparable harm and
continuing damages to Greater Tamor and the Business and that Greater Tamor's
remedy at law for any such breach or threatened breach will be inadequate and,
accordingly, in addition to such other remedies as may be available to Greater
Tamor at law in equity in such event, any court of competent jurisdiction may
issue a decree of specific performance and a temporary or permanent injunction,
with bond, enjoining and restricting the breach, or threatened breach, of any
such covenant. If Greater Tamor institute legal action for injunctive or other
relief as a result of Xxxxxxx'x violation or breach of any restrictive
covenants in Section 2 of this Agreement, the parties agree, upon request of
either party, to jointly ask the relevant court of competent jurisdiction to
have the matter then before such court order that the matter be submitted for
determination by arbitration in accordance with the commercial rules of the
American Arbitration Association to be conducted in Boston, Massachusetts.
Furthermore, Greater Tamor may seek any and all other remedies to which it may
be entitled.
3. NON-SOLICITATION. During the Restrictive Period, Xxxxxxx will
not, directly or indirectly, through one or more intermediaries or affiliates
or otherwise:
(i) solicit anyone who was a customer of
Greater Tamor during the term of Xxxxxxx'x employment
with Greater Tamor with respect to business which
competes with the Business as it is then being
conducted;
(ii) solicit any prospective customer of
Greater Tamor with whom Xxxxxxx has contact during his
employment with Greater Tamor during the preceding
twelve (12) months with respect to business which
competes with the Business as it is then being
conducted; and/or
(iii) divert, take away, solicit or seek to
induce employment of any of the employees of Greater
Tamor.
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4. CONSIDERATION. In consideration of Xxxxxxx'x agreement to not
compete as set forth in this Agreement, Selfix agrees to pay or cause Tamor to
pay to Xxxxxxx the sum of Fifty Thousand Dollars ($50,000.00) at the closing of
the Transactions.
5. UNENFORCEABLE PROVISION. If any court of competent jurisdiction
shall determine that any of the restrictions contained in Section 2 or 3 hereof
are unreasonable, invalid or unenforceable, it is the intention of the parties
that the restrictive covenant shall not be terminated or invalidated, but shall
be deemed amended to the extent required to render it reasonable, valid or
enforceable, such amendment to apply only with respect to the operation of
Section 2 or 3 hereof in the jurisdiction of the court which has made such
adjudication.
6. SEVERABILITY. If a court of competent jurisdiction rules that
any one or more of this Agreement's provisions are invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of this Agreement's other provisions, and this Agreement
shall be construed as if it has never contained such invalid, illegal or
unenforceable provision.
7. ATTORNEY'S FEES AND COSTS. In any dispute under this Agreement
brought before a court of competent jurisdiction, the prevailing party shall
pay to the non-prevailing party the reasonable attorney's fee and costs
incurred by such party.
8. NO ASSIGNMENT. Xxxxxxx shall not have the right to assign this
Agreement or any of his rights or obligations hereunder to another party or
parties without the written consent of Selfix. Selfix may assign this Agreement
and any of its rights or obligations hereunder to any of its affiliates or
successor entities as part of any reorganization or as part of the sale or
transfer of assets (by merger or otherwise) to which this Agreement pertains.
9. APPLICABLE LAW. The laws of the Commonwealth of Massachusetts
shall govern the interpretation of this Agreement, irrespective of the fact
that one or more of the parties now or may become a resident of a different
jurisdiction.
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10. NO WAIVER. No waiver by Greater Tamor of Xxxxxxx'x breach of
any covenant or obligation hereof shall be considered to be a continuing waiver
of any such covenant or provision, or a waiver of any other or future breach
thereof.
11. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement, shall be provided by all
parties of this Agreement in writing: by (i) actual delivery of the notice into
the hands of the party entitled to receive it, (ii) by mailing the notice by
registered or certified mail, return receipt requested, in which case the
notice shall be deemed to be given two (2) days following on the date of its
mailing; (iii) by Federal Express or other overnight carrier, in which case the
notice shall be deemed to be given on the day following delivery into the hands
of such carrier; or (iv) by facsimile, in which case notice shall be deemed
given on the day sent. Each such notice shall be addressed as follows:
If to Selfix or Tamor: If to Xxxxxxx:
Selfix, Inc. Xxxxxxx X. Xxxxx
Attention: Xxxxx X. Xxxxxxx c/o Tamor Plastics Corp.
0000 X. 00xx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
With a copy to: With a copy to:
Much Shelist Freed Xxxxxxxxx Bodanza & Bodanza
Xxxxx Xxxx & Xxxxxxxxxx, P.C. Attn: Xxxx X. Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxxxxx 00 Xxxxxx Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx Xxxxxxxxxx, XX 00000
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
12. TERMINATION IN THE EVENT OF FILING UNDER CHAPTER 7. In the
event that Selfix, the Company or the parent of Selfix files a petition for
liquidation under Title 7 of the Bankruptcy Code, or has a petition for
liquidation under such title filed involuntarily against it, then Xxxxxxx shall
be released from all obligations under this Agreement.
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13. COMPLETE UNDERSTANDING. This Agreement contains all of the
agreements and understandings between the parties hereto with respect to the
restrictive covenant, and no oral agreements or written correspondence shall be
held to affect the provisions hereof. All subsequent changes and modifications,
to be valid, shall be by written instrument executed by Tamor, Selfix and
Xxxxxxx.
XXXXXXX X. XXXXX, individually SELFIX, INC., a Delaware corporation
Xxxxxxx X. Xxxxx by: Xxxxx X. Xxxxxxx
----------------------------- --------------------------------
Xxxxx X. Xxxxxxx, President
TAMOR PLASTICS CORP., a Massachusetts
corporation
By: Xxxxx X. Xxxxxxx
-------------------------------
Its: Chairman
-------------------------------
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