EMPLOYMENT AGREEMENT made and entered into as of January 1, 1998 by
and between Interiors, Inc., ("Interiors") a Delaware corporation with an
office for the transaction of business in New York located at 000 Xxxxxxxxxx
Xxxxxx Xxxxx Xxxxxx, Xxx Xxxx 00000, ("Employer"), and Xxx Xxxx residing at 00
Xxxxxxxx Xxxxxx, Xxxxxxxx-xx-Xxxxxx, Xxx Xxxx 00000 ("Employee").
WHEREAS, Employee has been employed by Interiors as its President,
Chief Executive Officer and as a member of its Board of Directors, and
WHEREAS, the parties wish to enter into an agreement for the
employment of the Employee by the Employer on the terms and conditions
specified below superseding other employment agreements between Employer and
Employee;
Now, therefore, it is mutually agreed as follows:
1. Employment. Employer hereby employs Employee as the President and
Chief Executive Officer of Interiors, and of such current and future
subsidiaries of Interiors for which Employee shall determine from time to time
to act in those capacities. Employee will report only to Employer's Board of
Directors, of which he is and will continue to be a member, and not to any
officer.
2. Compensation. Employee will be paid as salary for his services
hereunder for the Employer, in any capacity during the term hereof, including
without limitation services as an executive, officer, or member of any
committee of the Employer or any subsidiary, affiliate of division hereof, at
the annual rate of $165,000. Employee's salary will be increased by ten percent
over the prior year cumulatively for each year of his employment hereunder.
Employee will also be paid such bonuses from time to time as may be
authorized by Employer's Board of Directors, and will be entitled to
participate in the Employers' pension, profit sharing and all other benefits
and plans as the Company provides to its senior executives.
3. Term. The term of this agreement shall be five years from the date
of this agreement. In the event that the Employer should breach this Agreement,
Employee's salary for the remaining balance of this Agreement will be
accelerated and will be due and payable on Employee's demand, in addition to
Employee's other remuneration and benefits or the value thereof, the provisions
of paragraph 8(b) of this Agreement relating to Employee's stock options shall
apply, and the Employee will not be obligated to reduce the sum of money he is
owed or paid by Employer by reason of any compensation which Employee may earn
after Employer's breach. Employee may be discharged only for
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cause, which is deemed to be solely:(a) for a conviction of the Employee of a
felony for acts of dishonesty against Employer, not reversed by appeal, after
the expiration either of all appeals from the conviction or the time to take
such appeal or appeals if they are not taken, or (b) a determination by an
order or judgment of a court, not reversed by appeal, after the expiration of
all appeals, that Employee has refused, except for reasons of health or breach
by Employer, after written notice given by Employer's Board of Directors to
devote the time he is required to devote to Employer's business in accordance
with paragraph 4 of this Agreement. In the event that Employee will become ill
or disabled, he will nonetheless continue to be paid all of his remuneration
and benefits under this Agreement for a period of up to twelve months and he
will have the right resume his duties upon his recovery within such period of
time.
4. Duties. Employee will devote substantially all of his working time
and attention to Employer's business to the extent it will be necessary for him
to do so, subject to other activities which are similar or comparable to those:
(a) in which he is now engaged, or (b) becomes engaged in the future provided
that it will not interfere with his duties for the Employer.
5. Stock options. (a) Employer hereby grants to Employee options for
a period of 7 years from the date of this Agreement to purchase:(a) 250,000
shares, at 50 cents a Share, of
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either, at Employee's discretion, Interiors, Inc.'s Class A Common
Stock or Class B Common Stock (all of the shares of stock of the
Company referred to in paragraph "5" of this Agreement are referred to
collectively the "Shares") plus; (b) an additional 150,000 Shares for each of
the second through fifth years of this Agreement (a total of 600,000 additional
shares) at 55 cents a Share for the second year, 61 cents a share for the third
year, 68 cents a share for the fourth year and 75 cents a Share for the fifth
year, plus (c) 150,000 shares of Employer's cumulative convertible preferred
stock at $2.50 a share. The options: (a) may be exercised in whole or in part
from the time or times they accrue through 7 years from the date of this
Agreement, and (b) they are assignable by Employee at any time prior to
exercise, by Employee's giving written notice of such assignment or assignments
to Employer. (The Employee's assignee or assignees shall have all of the same
rights with respect to the options and the Shares and their registration and
resale on or after exercise as the Employee.) The options granted hereunder are
subject to the maximum anti-dilution which Employer may grant Employee by law.
At Employee's discretion the options will be converted to options for shares of
stock of any entity with which Employer may merge or be consolidated or which
may acquire all or substantially all of Employer's assets.
The Employee shall have the right to convert, in whole or in part the
options (the "Conversion Right"), at any time from
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time to time after Employee's right to options shall accrue, into Shares by
tendering to the Employer written notice or notices of exercise together with
advice of the delivery of an order to a broker to sell part or all of the
Shares, subject to such exercise notice and an irrevocable order to, and an
irrevocable commitment by, such broker to deliver to the Employer (or its
transfer agent) sufficient proceeds from the sale of such Shares to pay the
aggregate exercise price of the options and any withholding taxes. All
documentation and procedures to be followed in connection with such "cashless
exercise" shall be approved in advance by the Employer, which approval shall be
expeditiously provided and riot unreasonably withheld.
(b) The Employer agrees, at its sole cost and expense, that:
(i) Upon request of the Employee, the Employer shall file a registration
statement with the U.S. Securities & Exchange Commission (the "SEC") with
respect to registration of the Shares. Employee may make such request at any
time, or from time to time, after issuance of the options for the Shares.
(ii) If the Employer determines to file with the SEC a Registration Statement
in connection with the proposed issuance for cash of any of the Employer's
Common Stock (an "Employer Offering"), the Employer will give written or
telegraphic notice of its determination to Employee, at least twenty (20) days
prior to the anticipated filing date. Upon the written request of
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Employee given within ten (10) days after the receipt of any such notice from
the Employer, the Employer will, subject to the limitations set forth below,
use its best efforts to cause such number of the Shares as are set specified in
such written request of Employee to be included in such registration statement
to the extent necessary, to permit the sale or other disposition by the
Employee of the Shares.
(iii) If the Employer's Registration Statement is proposed to be underwritten
in whole or in part, whether or not on a firm commitment or best efforts basis,
the Employee's shares shall be included at Employee's request on the same terms
and conditions as the Employer's Common Stock otherwise, being sold through the
underwriter(s), provided, however, that if in the opinion of the managing
underwriter(s) of such Employer Offering, the inclusion of the Securities would
interfere with the successful marketing of the Employer's Common Stock by the
Employer then the Employer and Employee shall reduce pro rata the amount of the
Shares to be included in the Employer Offering to the extent necessary to
comply with the recommendation of such managing underwriter(s) as to the
maximum number of shares to be registered.
(iv) If and whenever the Employer is required by this paragraph to effect the
registration of the Shares under the Securities Act, the Employer will use all
reasonable efforts to:
(a) Prepare and file with the Commission a registration statement with respect
to the Shares and to cause such registration
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statement to become effective at the earliest possible time and (by preparing
and filing with the Commission such amendments to such registration statement
and supplement to the prospectus contained therein as may be necessary) to
remain effective during the period required for the distribution of the Shares
covered by such registration statement;
(b) Enter into a written underwriting agreement in form and substance
reasonably satisfactory to the Employer and the managing underwriter(s) if an
Employer Offering is to be underwritten solely or in part, whether or not on a
Firm commitment or best efforts basis.
(c) Furnish to the Employee, in connection with an Employer Offering in which
the Employee is participating such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectuses and other
documents as may reasonably be requested;
(d) Register or qualify the Shares under the securities or "blue sky" laws of
such jurisdictions Are within the United States as the Employer and the
managing underwriter(s) reasonably request, provided that the Employer shall
not be required to consent to general service of process for all purposes in
any jurisdiction where it is not then qualified to do business as a foreign
corporation;
(e) Notify the Employee promptly after the Employer shall receive notice
thereof, of the time when such registration statement has
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become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) Notify the Employee, during any period during which the Shares may be
distributed pursuant to a registered offering and a prospectus relating to such
registration statement is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances then
existing, not misleading, and at the request of the Employee, prepare and
furnish to the Employee a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that as thereafter
delivered to the purchasers of such Shares. Such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement truthful in
light of the circumstances then existing, not misleading; and
(g) Furnish, at the request of the Employee, on the date that the Shares are
delivered to the underwriter(s) pursuant to an Underwritten Offering an
opinion, dated such date of the independent counsel representing the Employer
for the purposes of such registration, addressed to the underwriter(s) and to
the
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Employee to the effect that such registration statement has become effective
under the Securities Act and that to the best knowledge of such counsel (A) no
stop order suspending the effectiveness thereof has been instituted or is
pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus, and each amendment or supplement thereto, as
of their respective effective or issue dates, compiled as to form in all
material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to any statistical or other numerical data
or financial statements and notes related thereto contained therein); and (C)
in connection with the preparation of the registration statement, the related
prospectus and each amendment or supplement thereto no facts have come to the
attention of such counsel or that would lead such counsel to believe that
either the registration statement or the prospectus, or any amendment or
supplement thereto, as of their respective effective or issue dates, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statement therein in
light of the circumstances under which they were made, not misleading (except
that such counsel need express no opinion as to any statistical or other
numerical data or financial statements and the notes related thereto contained
therein), and
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(ii) such counsel did not become aware of any pending legal or governmental
proceeding applying to the Employer which was not disclosed in the registration
statement or the prospectus, or any amendment or supplement thereto, which has
or might have a material adverse effect upon the business or financial
condition of the Employer, (iii) any other opinions that the underwriters may
reasonably request, and (iv) a letter, dated such date, from the independent
public accountants of the Employer, addressed to the Underwriter(s) and to the
Employee, stating that they are Independent public accountants within the
meaning of the Securities Act and the rules and regulations of the Commission
thereunder and that in the opinion of such accountants, the financial
statements and other financial data of the Employer included in the
registration statement or the prospectus, or any amendment or supplement
thereto, as of their respective effective or issue dates, complied as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the rules and regulations of the Commission thereunder.
6. Reimbursement. Employer shall reimburse Employee for all reasonable
and necessary expenses incurred by him in performing his duties for the
Employer, including without limitation travel and entertainment expenses. Such
expenses will include the lease of an automobile and a car telephone for his
use, or reimbursement for his use of an automobile, to be
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selected by him at such times he will determine to do so, in addition to
insurance, maintenance and license fees. The automobile shall be of at least
the kind and quality of the Employee's choice. If the Employee is discharged
prior to the conclusion of the automobile's lease, Employer at Employee's
option will continue to make the lease payments or reimburse Employee for the
lease payments on the automobile, or will pay the termination fee under the
lease.
7. Insurance. Employer will furnish Employee and his family with the
same or comparable health insurance as the Employer will provide for its other
senior executive employees. Employer will immediately obtain for Employee and
will pay the premiums on a life insurance policy in the amount of $1,000,000.00
(the type and the beneficiary of which shall be designated by the Employee),
and the cost of a disability insurance policy in the amount of up to two thirds
of Employees salary. Such policies shall be owned by Employee's beneficiaries,
or by any other person or entity which Employee may designate. In the event
that Employee should become totally and permanently disabled, he will look
first to the proceeds of the disability insurance policy for part of his
compensation, and thereafter for the balance of his compensation under this
Agreement to the Employer who will be obligated to continue to honor its
obligations to the Employee for the balance of this Agreement's
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terms. For purposes of this Agreement (but not the disability insurance
policy), the Employee will not be deemed to be totally and permanently disabled
unless he will be unable by reason of disability to perform any services for
Employer for a period of six consecutive months. Employee shall be entitled to
receive his compensation under this Agreement unless he will be deemed totally
and permanently disabled, in accordance with the foregoing provisions of this
paragraph.
8. Change of Control. In the event that there shall be a Change of
Control (as hereinafter defined) of Interiors, Inc. or Employer or of any of
their material subsidiaries, Employee will have the right with or without good
reason, within two years after the occurrence of such Change of Control, on 10
days notice to terminate his obligations under this Agreement and Employer will
then be required at the time of termination: (a) to pay the Employee a lump sum
equal to three times Employee's then current annual compensation and all
benefits as if the Agreement had not been terminated, and (b) to deliver to
Employee without cost to him all of the shares of stock which Employee would
have been entitled to receive for the full term of this Agreement if the
Employee had not terminated his obligations; exercised all of the stock options
referred to in paragraph "5" of this Agreement, and paid for the shares of
stock on exercise. Change of Control for purposes of this paragraph shall be
deemed to occur upon (i) the election of one or more individuals to the Board
of Directors of the Employer which election results in the election of
directors, the majority of whom were nominated by a party other than the
management of the Employer, (ii) a board of directors election
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which results in the election of a Chairman of the Board other than the
Employee, (iii) the sale by the Employer of all or substantially all of its
assets in one transaction or a series of transactions, (iv) the merger or
consolidation of the Employer as a result of which the Employee does not remain
the President and Chief Executive Officer of the surviving or consolidated
entity, or (v) an other act or occurrence which may reasonably be deemed to
indicate that there was a change of control. (Nothing contained in this
definition shall limit or restrict the right of the Employee from participating
in any discussions or voting on any matter referred to in this definition at
any meeting of the Employer's Board of Directors.
9. Vacation. Employee shall be entitled to paid vacations which are
appropriate for persons of his status, annually, to be taken by him at such
times as shall be appropriate in light of his position and which will not
interfere with the performance of his duties. Such vacations will not be less
than 4 weeks a year.
10. Notices. Notices to be given under or with respect to this
agreement will be sufficient if given in writing and forwarded by Federal
Express to the parties at their addresses specified above, or to such other
addresses as they may give notice of, with copies by Federal Express to the
attorney whose
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name appears below:
Interiors, Inc. and its subsidiaries:
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Xxx Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx-xx-Xxxxxx, Xxx Xxxx 00000
Xxxxx Xxxxxxxx, Esq. 00
Xxxx 00xx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000
11. Execution and delivery. This agreement may be executed in
counterparts, each one of which will be deemed to be an original.
12. Modification. This agreement contains the entire understanding of
the parties hereto with respect to the subject matter herein contained, and no
amendment or modification or termination thereof shall be valid unless
expressed in a written instrument signed by the party or parties to be charged.
13. Successors and assigns. This agreement shall not be assignable by
the Employee but it is binding upon and shall enure to the benefit of the
parties hereto and Employee's heirs and personal representative and binding
upon and to the benefit of Employer's successors and assigns.
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14. Legal Fees and indemnification. In the event that a dispute, shall
arise between Employer and Employee with respect to any provision of this
Agreement and the Employee shall prevail, Employer will pay or reimburse
payment of Employee's attorneys' fees and costs and expenses related to such
dispute. In addition, Employer will indemnify and hold Employee harmless to the
fullest extent permitted by law from any claims, lawsuits and judgments,
including the costs and attorneys fees emanating therefrom, arising out of his
employment hereunder or all other matters related to the Employer and its
subsidiaries.
15. Employers, Joint and Several obligation. Each of the entities
which constitute the Employer shall be jointly and severally liable to Employee
under this agreement. 11
16. Applicable Law and Forum Selection. This agreement shall be
governed by the law of Delaware. Litigation under or with respect to this
Agreement must be brought exclusively in Federal Court located in New York
State, or, if there should be no jurisdiction in Federal Court located in New
York, litigation must be brought exclusively in the Supreme Court of the State
of New York. Employer and Employee waive their rights to a jury in any such
litigation. if any provision of this will be determined to be unenforceable, it
will not effect the enforceability of the agreements other terms and
provisions. The State Courts of the
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Xxxxx xx Xxx Xxxx will have exclusive jurisdiction in the event of litigation
between Employer and Employee.
Interiors, Inc.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxx
Vice President-Operations
/s/ Xxx Xxxx
--------------------------------
Xxx Xxxx
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