EXHIBIT 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "EMPLOYMENT AGREEMENT")
effective the 21st day of September, 2000 (the "EFFECTIVE DATE"), by and between
Tristar Corporation, a Delaware corporation ("EMPLOYER"), and Xxxxxx X. Xxxxx
("EMPLOYEE").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as Senior Executive Vice
President and Chief Financial Officer for a term of employment as herein
provided and Employee desires to accept such employment as herein provided; and
WHEREAS, the parties desire to establish by contract the terms and
conditions of the employment of Employee by Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties agree as follows:
1. TERM OF EMPLOYMENT. The term of Employee's employment under this
Employment Agreement shall commence on the Effective Date and terminate on
September 20, 2003, unless terminated earlier as provided herein (the "TERM").
2. TITLE AND DUTIES OF EMPLOYEE. Employee shall serve as Senior Executive
Vice President and Chief Financial Officer of Employer. Employee agrees to his
employment by Employer and to devote substantially his entire business time to
the business of Employer throughout the period of his employment, provided that
Employee may make personal passive investments, be involved in charitable
activities and engage in business or consulting activities provided they do not
substantially interfere with his activities hereunder. Employee is employed as
Senior Executive Vice President and Chief Financial Officer and shall perform
such duties as directed by the President or Board of Directors of Employer.
Employer shall have the right at any time to change or modify the work or duties
to be performed by Employee, provided that such work or duties as so changed or
modified shall include the general powers and duties usually vested in the
office of the Chief Financial Officer of a company of Employer's size and shall
be commensurate with such position. Subject to the prior sentence, Employer
shall have the exclusive power and authority to determine the matters to be
assigned to Employee and the specific duties to be performed by him. Employee
shall report to only the Board of Directors, the President and the Chief
Executive Officer of Employer.
3. SALARY. For all services rendered by him during the Term, Employee
shall be paid an initial base salary at the rate of Two Hundred Thirty-One
Thousand Dollars ($231,000.00) per annum, payable weekly, subject to standard
deductions for all applicable state and federal taxes and other reasonable
bonafide deductions; PROVIDED, HOWEVER, as of March 1, 2001, and on each March
1st thereafter during the Term, Employee's base salary shall be increased by at
least 5% (the base salary in effect from time to time, "SALARY").
-1-
4. ADDITIONAL BENEFITS. During the Term, Employee shall be entitled to the
following other benefits, in addition to his Salary or as otherwise described in
this Employment Agreement:
(a) REIMBURSEMENT FOR TRAVEL, ENTERTAINMENT AND OTHER EXPENSES.
During the Term, Employer shall reimburse Employee for any reasonable
travel, entertainment or other necessary expenses incurred in the
performance of his duties under this Employment Agreement, consistent with
the policies of Employer at the time of such reimbursement with respect to
such expenses, as such policy may be modified from time to time.
(b) ALL BENEFIT PLANS. During the Term, Employee shall be eligible
to participate in all benefit plans generally available to Employer's
executive officers, excluding any bonus plans other than as described in
SECTION 4(C) below and any car allowance other than as described in
SECTION 4(D) below, and shall at a minimum be provided with (i) a health
plan and (ii) long-term disability benefits providing for monthly payments
to Employee in an amount not less than sixty percent (60%) of Employee's
monthly Salary (based upon Employee's inability to do his job following
disability for a consecutive period of 6 months) pursuant to Employer's
benefit plan in existence at the time hereof as such plan may be enhanced
but not diminished during the Term.
(c) BONUS PLAN. During the Term, Employee shall be eligible for
annual incentive compensation with a targeted maximum benefit of 40% of
Employee's Salary upon Employer achieving certain reasonable financial and
other goals to be agreed to by Employer and Employee and with adjustments
for a lesser bonus than the targeted maximum benefit if certain lesser
financial and other goals are achieved. In the event Employee's employment
is terminated for reasons other than as set forth in SECTION 7(C) or
SECTION 7(E) after six (6) months from the commencement date hereof or
after the first six (6) months of any fiscal year of Employer, Employee
shall receive a prorated bonus for the period of employment based upon the
pro rata accomplishment of the financial goals for such period prior to
termination of employment.
(d) CAR ALLOWANCE. Employer shall pay Employee a car allowance of
$600.00 per month, subject to adjustment during the Term in accordance
with the executive car allowance policy in effect from time to time.
(e) RELOCATION PACKAGE. In the event that (i) the Compensation
Committee and Employee agree that Employee should relocate from Employer's
global marketing offices at 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx
Xxxx 00000, to Employer's place of business in San Antonio, Bexar County,
Texas, or (ii) in the event that Employer relocates its global marketing
offices more than fifty (50) miles from its current location at 000 Xxxx
00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Employer shall reimburse
Employee for all of Employee's reasonable out-of-pocket expenses incurred
in connection with such relocation, including, without limitation,
reasonable expenses incurred in connection with (w) the sale of Employee's
current residence, including without limitation, brokers' fees and other
closing costs, (x) Employee's relocation, (y) Employee's purchase of a new
residence
-2-
at the new location, including without limitation, brokers' fees and other
closing costs, and (z) an amount equal to the tax liability of Employee in
connection with the amounts paid to Employee pursuant to this SECTION
4(E).
(f) LIFE INSURANCE. Each year during the Term of this Employment
Agreement, Employer shall pay to Employee the sum of $5,000.00 PLUS an
amount equal to the tax liability of Employee in connection with the
amounts paid to Employee pursuant to this SECTION 4(F), with which
Employee shall purchase a policy of insurance upon the life of Employee.
Employee shall have the right to designate the beneficiary of such policy.
5. RESIGNATION. If for any reason other than for Good Reason, as
hereinafter defined, Employee voluntarily resigns his employment prior to the
expiration of the Term, Employee shall forfeit any right to receive any payments
or benefits, including severance benefits, pursuant to this Employment Agreement
and Employer shall be released and discharged from any liability, obligation or
duty arising in connection with this Employment Agreement or in connection with
Employee's employment, except for amounts accrued prior to such termination, a
bonus pursuant to SECTION 4(C), if any is earned, and any right of
indemnification hereunder or under the provisions of Employer's Bylaws and
Articles of Incorporation (collectively, the "INDEMNITY OBLIGATION").
Nevertheless, Employer and Employee shall continue to be bound and obligated by
any provision of this Employment Agreement which is intended by its terms to
survive and continue beyond the resignation of Employee, including, but not
limited to, the provisions of SECTION 9. Employee may terminate his employment
hereunder for Good Reason, upon written notice to Employer setting forth the
nature of such Good Reason in reasonable detail. "GOOD REASON" shall mean (i)
the failure of Employer to provide Employee the salary, incentive and bonus
compensation and benefits in accordance with the terms hereof, (ii) the failure
of Employer to continue Employee in the position of Chief Financial Officer,
(iii) the material diminution in the nature or scope of Employee's
responsibilities, duties or authority, (iv) the relocation of Employee's offices
from the New York, New York area or (v) any other material breach of this
Employment Agreement by Employer. Upon Employer's receipt of written notice of
Employee's termination for Good Reason hereunder, such termination shall be
effective thirty (30) days after receipt of such notice if a cure for such event
has not been effected.
6. SEVERANCE AND NON-RENEWAL PAYMENT. Notwithstanding anything to the
contrary herein contained, the provisions of this SECTION 6 shall not be
applicable to a termination of employment pursuant to SECTIONS 7(A), 7(B), 7(C)
or 7(E) of this Employment Agreement. In addition, there shall be no obligation
of Employee to mitigate his damages and seek employment following the
termination of Employee's employment in order to receive the Severance or
Non-Renewal Payment hereunder.
-3-
(a) SEVERANCE PAYMENTS. In the event the employment of Employee by
Employer is terminated prior to the end of the Term, for any reason other
than the reasons set forth in the preamble to this SECTION 6, Employer
shall be obligated to pay Employee severance (the "SEVERANCE") in an
amount equal to the sum of (i) one (1) year's Salary (at the rate in
effect at the date of termination) or Salary for the remaining balance of
the Term at the date of termination, whichever sum is greater PLUS (ii) an
amount equal to the product of the fractional number of years for which
the Severance is payable pursuant to (i) above TIMES the average of all
annual incentive bonuses paid to Employee by Employer for the past two (2)
years, regardless of whether such bonuses were paid to Employee pursuant
to this Employment Agreement or otherwise; PROVIDED, HOWEVER, any
Severance payable by Employer hereunder shall be subject to the following
conditions and adjustments:
(i) Severance payable hereunder shall be payable in equal weekly
installments (each a "SEVERANCE PAYMENT") commencing on the first
Friday following the termination;
(ii) Severance Payments payable by Employer hereunder shall be
reduced and offset (the "SEVERANCE OFFSET RIGHT") on a dollar for
dollar basis in an amount equal to any sums earned and/or received
by Employee for any services directly or indirectly provided to a
third party such as salary, incentive payments, bonus or consulting
fees during the period during which the Severance Payments are to be
paid to Employee (the "SEVERANCE PERIOD"). During the Severance
Period, Employee shall immediately give Employer written notice upon
Employee's engagement by a third party for Employee to directly or
indirectly provide any type of employment, advice or consulting
services.
(iii) Severance Payments for the first nine (9) months of the
Severance Period shall not be subject to the Severance Offset Right.
(b) SEVERANCE BENEFITS. In addition to the Severance Payments
required to be paid to Employee pursuant to this SECTION 6, Employer
shall, during the Severance Period, to the extent continuation of such
benefits is not prohibited by applicable state and/or federal law,
continue to provide to Employee, at Employer's cost and expense, the
benefits set forth in SECTION 4(B) other than participation in Employer's
401(k) plan.
(c) NON-RENEWAL PAYMENTS. At the end of the Term of this Employment
Agreement, provided this Employment Agreement has not been terminated, if
this Employment Agreement is not renewed and extended on a basis that is
mutually acceptable to both Employer and Employee, then in such event,
Employee shall be entitled to receive, as a non-renewal benefit, twelve
(12) months' Salary in equal weekly installments over a 12- month period
beginning on the first Friday following the expiration of the Term (each a
"NON-RENEWAL PAYMENT") subject to the following conditions and
adjustments:
-4-
(i) The Non-Renewal Payments payable by Employer hereunder shall be
reduced and offset (the "NON-RENEWAL OFFSET RIGHT") on a dollar for
dollar basis in an amount equal to any sums earned and/or received
by Employee for any services directly or indirectly provided to a
third party such as salary, incentive payments, bonus or consulting
fees during the period during which the Non-Renewal Payments are to
be paid to Employee (the "NON-RENEWAL PERIOD"). During the
Non-Renewal Period, Employee shall immediately give Employer written
notice upon Employee's engagement by a third party for Employee to
directly or indirectly provide any type of employment, advice or
consulting services.
(ii) Non-Renewal Payments for the first nine (9) months of the
Non-Renewal Period shall not be subject to the Non-Renewal Offset
Right.
(d) NON-RENEWAL BENEFITS. In addition to the Non-Renewal Payments
required to be paid to Employee pursuant to this SECTION 6, Employer
shall, during the Non-Renewal Period, to the extent continuation of such
benefits is not prohibited by applicable state and/or federal law,
continue to provide to Employee, at Employer's cost and expense, the
benefits set forth in SECTION 4(B) other than participation in Employer's
401(k) plan.
(e) SURVIVAL OF CERTAIN PROVISIONS. Upon any such termination, this
Employment Agreement shall be terminated and Employer shall be released
from all obligations to Employee with respect to this Employment
Agreement, except for the compensation obligations set forth herein and
the indemnification obligation. Nevertheless, Employer and Employee shall
continue to be bound and obligated by any provision of this Employment
Agreement which is intended by its terms to survive and continue beyond
the termination of this Employment Agreement, including, but not limited
to, the provisions of SECTION 9. The right of Employer to terminate
Employee in Employer's discretion prior to the end of the Term is an
independent and absolute right, and may be applied and enforced separately
by Employer at its election and in its sole discretion, notwithstanding
any other provision contained in this Employment Agreement to the
contrary.
7. TERMINATION EARLIER THAN BY EXPIRATION OF TERM.
Although the parties expressly intend that employment under this
Employment Agreement shall continue until September 20, 2003, unless sooner
terminated pursuant to the provisions of SECTION 5 or SECTION 6 above, the
parties agree that employment under this Employment Agreement, and the
provisions hereof (except for any provision intended by its terms to survive and
continue, including, but not limited to, the provisions of SECTION 9), shall be
terminated in advance of the expiration of the Term upon the occurrence of any
one of the following events:
(a) DEATH. The death of Employee.
-5-
(b) DISABILITY. The physical or mental disability of Employee that
has prevented him from performing effectively the duties of his employment
for a time period greater than six (6) consecutive months.
(c) TERMINATION FOR CAUSE. Employer also reserves the right at its
election to terminate the employment of Employee for Cause. "CAUSE" exists
if Employee (i) has engaged in a wilful act of dishonesty (other than good
faith expense account disputes), or (ii) has willfully violated any
material provision of Employer's Code of Conduct which is currently in
effect, as the same may be modified, amended or restated from time to
time, and a copy of which is attached hereto and marked EXHIBIT A and
incorporated herein by reference. Upon the occurrence of any event
described in clause (i) of this SECTION 7(C), regardless of whether such
event is also described in clause (ii) of this SECTION 7(C), notice of
termination for cause of the employment of Employee may be given in
writing by Employer to Employee and such termination shall be effective
immediately upon the delivery of such notice. Upon the occurrence of any
event described in clause (ii) of this SECTION 7(C), notice of termination
for cause of the employment of Employee setting forth the grounds for such
termination shall be given to Employee by Employer in writing within sixty
(60) days of receiving actual knowledge of such default by the Chief
Executive Officer or Board of Directors of Employer and such termination
shall be effective thirty (30) days thereafter if a cure for such event
has not been effected. The giving of such notice shall also effect a
termination of the obligations under this Employment Agreement, including
without limitation SECTIONS 3, 4, and 6, except as to any provision of
this Employment Agreement which is intended by its terms to survive and
continue, including, but not limited to, the provisions of SECTION 9.
(d) TERMINATION BY EMPLOYER WITHOUT CAUSE. Employer terminates
Employee's employment with Employer during the Term without Cause.
(e) TERMINATION BY EMPLOYEE WITHOUT GOOD REASON. Employee terminates
his employment with Employer during the Term without Good Reason.
(f) TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee terminates his
employment with Employer during the Term for Good Reason.
Upon the occurrence of any of the events described above in SECTIONS 7(A)
through 7(C), inclusive, or SECTION 7(E), Employer shall be released and
discharged from any liability, obligation or duty arising in connection with
this Employment Agreement or in connection with Employee's employment except as
otherwise provided herein and further, provided that upon the occurrence of any
event described in SECTION 7(A), Employee shall be entitled to receive the
proceeds of the life insurance policy maintained by Employer for the benefit of
Employee on the life of Employee or upon the occurrence of an event described in
SECTION 7(B), Employee shall be entitled to the benefits of any disability
policy of Employer covering such event to the extent provided in such policy. In
all cases the indemnification obligation shall continue.
-6-
Notwithstanding the foregoing, should Employee at any time within twelve
(12) months of the occurrence of a "change of control" (as defined below) cease
to be an employee of Employer (or its successor), by reason of (i) termination
by Employer (or its successor) other than for "cause" (as defined below) or (ii)
voluntary termination by Employee for "good reason upon change of control" (as
defined below), then in any such event, (1) Employer shall at the election of
Employee either (x) continue to pay Employee his then effective Salary under
SECTION 3 through the later to occur of (A) the expiration of the Term or (B)
twelve (12) months after such termination or (y) pay Employee, within 45 days of
the severance of employment described in this paragraph, a lump-sum payment
equal to (without discounting to present value) his then effective Salary under
SECTION 3 through the later to occur of (A) the expiration of the Term or (B)
twelve (12) months after such termination and (2) all outstanding stock options
and other incentive awards held by Employee shall become fully vested and shall
be exercisable, to the extent not prohibited by any applicable stock option plan
of Employer, within twelve (12) months after such termination. In addition,
regardless of the election made by Employee pursuant to (1)(x) or (y) above,
Employer shall continue all benefits under SECTION 4 (except participation in
Employer's 401(k) plan), through the later to occur of (X) the expiration of the
Term or (Y) twelve (12) months after such termination, to the extent
continuation of such benefits is not prohibited by applicable state and/or
federal law.
As used in the immediately preceding paragraph, (I) "cause" shall be
limited to the conviction of or a plea of NOLO CONTENDERE to the charge of a
felony which, through lapse of time or otherwise, is not subject to appeal, or a
material breach of fiduciary duty to Employer through the misappropriation of
Employer's funds or property and (II) voluntary termination by Employee for
"good reason upon change of control" shall mean (i) removal of Employee from the
office(s) Employee holds on the date of this Employment Agreement, (ii) a
material reduction in Employee's authority or responsibility, (iii) relocation
of Employer's offices from its then current location, (iv) a reduction in
Employee's compensation, or (v) Employer otherwise commits a breach of this
Employment Agreement.
As used herein, a "change of control" shall be deemed to have occurred if
(i) any "Person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than
Transvit Manufacturing Corporation, Starion International Limited, Nevell
Investments S.A., Xxxxxxxxxx X. Xxxxx, Jammadas Xxxxx, Xxxxx Xxxxx or Xxxxxxxx
Xxxxx, is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Employer representing
more than 40% of the combined voting power of Employer's then outstanding
securities, or (ii) the stockholders of Employer approve a merger or
consolidation of Employer with any other corporation, other than a merger or
consolidation that would result in the voting securities of Employer outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 60% of the total voting power represented by the voting
securities of Employer or such surviving entity outstanding immediately after
such merger or consolidation, or (iii) the stockholders of Employer approve a
plan of complete liquidation of Employer or an agreement of sale or disposition
by Employer of all or substantially all of Employer's assets.
-7-
8. EMPLOYEE OWNERSHIP. During the Term, Employee will not directly or
indirectly, on his own behalf or as a partner, officer, consultant, principal,
agent, stockholder (except by ownership of five percent (5%) or less of the
outstanding stock of any publicly held corporation) or in any other capacity,
invest or engage in, or devote any material endeavor or effort to any other
business other than the business of Employer other than the charitable
activities as permitted in SECTION 2 hereof.
9. RECORDS; CONFIDENTIAL INFORMATION; NON-COMPETITION AGREEMENT; TANGIBLE
PROPERTIES.
(a) OWNERSHIP. All business records, data and information
("RECORDS") are and shall remain the exclusive property of Employer.
Employee shall not under any circumstances whatsoever permanently remove
any Records from the premises of Employer without prior written consent of
Employer.
(b) RETURN OF RECORDS. Upon request, Employee shall immediately
return to Employer all Records and copies thereof in Employee's
possession.
(c) CONFIDENTIAL AND PROPRIETARY INFORMATION. To the extent not
otherwise provided for in this Employment Agreement, except as reasonably
desirable in Employee's performance of his duties hereunder, Employee
agrees to maintain the confidentiality of all confidential and proprietary
information relating to the business or internal operation of Employer
both during and after his employment by Employer, provided that if
Employee becomes legally compelled to disclose any such information,
Employee will (i) promptly notify Employer so that Employer may seek a
protective order or other appropriate remedy and/or waive compliance under
this SECTION 9(C) and (ii) comply with all reasonable requests of Employer
in seeking a protective order or other appropriate remedy. If such
protective order or other remedy is not timely obtained, or if Employer
waives compliance with the provisions of this SECTION 9(C), Employee will
furnish only that portion of such information that is legally required.
Employee understands and agrees that this SECTION 9 is a material part of
this Employment Agreement, his acceptance of which is an inducement to
Employer to enter into this Employment Agreement.
(d) NON-COMPETITION AGREEMENT. Employee covenants and agrees that
for the period beginning the date of Employee's termination of his
employment with Employer, however such termination is brought about (the
"TERMINATION DATE"), and ending on the second (2nd) anniversary of said
date (the "RESTRICTED PERIOD"), Employee will not, directly or indirectly,
on his own behalf or as a partner, officer, consultant, principal, agent,
stockholder (except by ownership of five percent (5%) or less of the
outstanding stock of any publicly held corporation) or in any other
capacity, invest or engage in, or devote any endeavor or effort to the
alternative designer fragrances or the cosmetics segment of the perfume or
toiletries business, of the type currently sold by the persons set forth
on EXHIBIT B attached hereto and not mass brands of the types sold by
Xxxxxxx and Xxxxxx,
-8-
Unilever, Colgate-Palmolive, L'Oreal, Benckiser Consumer Products, Inc.,
Xxxxx Xxxxxx, Del Labs or Revlon (the "BUSINESS"), in the United States or
other countries Employer or its subsidiaries are doing business at the
time of the termination of this Employment Agreement (the "TERRITORY").
During the Restricted Period, in the event Employee is employed by or
consults with a Conglomerate, as herein defined, and such Conglomerate's
primary business is not the Business, as long as Employee is not directly
or indirectly involved in employment with or consulting in the Business,
then in such event, that employment is not prohibited from employment by
such Conglomerate; however, Employer shall be prohibited from being
involved directly or indirectly with the Business. Employee shall be
prohibited from working for a Conglomerate whose primary business is the
Business. For the purposes of this SECTION 9, "CONGLOMERATE" shall be
defined as any business which is comprised of entities or groups (E.G.,
divisions) with multiple lines of business. Nothing herein shall prohibit
Employee owning an investment of less than ten percent (10%) of a
Conglomerate.
(e) NON-SOLICITATION AGREEMENT. During the Restricted Period,
Employee shall not, whether for his own account or for the account of any
other individual, partnership, firm, corporation or other business
organization, intentionally solicit, endeavor to entice away from Employer
or any entity controlled by or under common control with Employer, or
otherwise interfere in a material fashion with the relationship with, any
person who is employed by or otherwise engaged to perform services for
Employer or any person or entity who is as of the Termination Date, or
within the then most recent 12-month period, a customer or client of
Employer. The giving of references shall not be deemed a violation of this
SECTION 9.
(f) REFORMATION. Each of the parties hereto recognizes the time
limitations and territorial restrictions contained in this SECTION 9 are
properly required for the adequate protection of the business and goodwill
of Employer and agrees in the event any covenant or provision contained
herein shall be deemed to be illegal, unenforceable, or unreasonable by a
court or other tribunal of competent jurisdiction with respect to the time
limitation or any part of the Territory, such provision or covenant should
be modified to extend to the maximum time and territory that is reasonable
and submits to the reduction of said time limitations and territorial
restriction to such a time or an area as said court or tribunal shall deem
reasonable.
(g) DOCUMENTS, WRITTEN MATERIALS AND TANGIBLE PROPERTIES. To the
extent not otherwise provided for in this Employment Agreement, Employee
agrees that all documents, written materials and other tangible property,
including copies thereof, relating in any way to the business of Employer,
shall be and remain the exclusive property of Employer and shall be
returned to Employer by Employee immediately upon termination of his
employment by Employer or at the request of Employer.
-9-
(h) INJUNCTIVE RELIEF. Employee hereby acknowledges and agrees that
Employer could not be fully compensated for damages resulting from a
continuing and material breach of any of the provisions of this SECTION 9
and, accordingly, that Employer shall be entitled to temporary and
permanent injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, to prevent a breach or
threatened breach of this SECTION 9 or to enforce the terms of this
SECTION 9. This right of Employer with respect to the obtaining of
injunctive relief shall not, however, diminish any right of Employer to
claim and recover monetary damages or to obtain any other remedy.
(i) SURVIVAL. The provisions of this SECTION 9 shall continue in
effect notwithstanding the termination of, or resignation from, the
employment of Employee by Employer.
10. WAIVER OF BREACH. A waiver by a party of a breach of any provision of
this Employment Agreement shall not operate or be construed as a waiver of any
subsequent breach by the other party of the same or any other provision of this
Employment Agreement.
11. NOTICES. Any notice required to be given under this Employment
Agreement shall be deemed sufficient, if in writing, and sent by certified mail,
return receipt requested, or hand delivered, or via overnight delivery service
to the other party at the address shown below:
For Employer: Tristar Corporation
000 X. Xx. Xxxx'x Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attn: President and Chief Executive Officer
With a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
For Employee: Xx. Xxxxxx X. Xxxxx
00 Xxxxxxx Xxxxx
X. Xxxxxxxxx, Xxx Xxxx 00000
With a copy to: Xxxx Xxxxxx, P.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxx, Esq.
Either party may change its or his address for notices under this SECTION 11 by
giving notice of the change to the other pursuant to this SECTION 11.
-10-
12. GOVERNING LAW; FORUM. This Employment Agreement shall be governed by
and construed in accordance with the laws of the State where Employer has its
corporate and administrative offices without regard to the conflicts of laws
rules thereof and is made and entered into in San Antonio, Bexar County, Texas.
Any and all controversies between Employer and Employee shall be settled by
arbitration, in accordance with the Commercial Arbitration rules, then existing,
of the American Arbitration Association. Any arbitration hereunder shall be
before one arbitrator associated with the American Arbitration Rules of the
American Arbitration Association. The award of the arbitrator shall be final,
and judgment upon the award rendered may be entered in Bexar County, Texas. The
arbitrator may award attorneys' fees and costs to the prevailing party pursuant
to the terms of this Employment Agreement.
13. SEVERABILITY. If any of the provisions of this Employment Agreement is
determined to be invalid or unenforceable in part, the remaining provisions, and
the enforceable portions of any partially unenforceable provisions, shall
nevertheless be binding and enforceable.
14. BINDING EFFECT; EFFECTIVE DATE; ENTIRE AGREEMENT. Subject to SECTION
15 below, this Employment Agreement shall inure to the benefit of and shall be
binding upon Employer and its successors and assigns, and upon Employee and his
heirs, legatees, executors, administrators, successors and beneficiaries. This
Employment Agreement shall be effective as of the date hereof. This Employment
Agreement contains the entire agreement between the parties and supersedes any
prior agreements, letter agreements, term sheets or discussions between the
parties, including the Executive Employment Agreement between Employer and
Employee dated as of September 1, 1998. This Employment Agreement may not be
amended except by a written agreement signed by the parties.
15. ASSIGNMENT. This Employment Agreement shall not be assignable by
Employee without the prior written consent of Employer. This Employment
Agreement may only be assigned by Employer in connection with a sale of all or
substantially all of the assets of Employer. In such event a written assumption
agreement shall be promptly delivered to Employee by the buyer of such assets.
16. CAPTIONS. Captions of sections are inserted only as a matter of
convenience and reference and in no way define, limit or describe the substance
or scope of this Employment Agreement or the intent of any of its provisions.
17. RULES OF CONSTRUCTION. This Employment Agreement has been negotiated
by the parties and is to be interpreted according to its fair meaning as if the
parties had prepared it together and not strictly for or against any party. All
references in this Employment Agreement to "parties" refer to parties in this
Employment Agreement unless expressly indicated otherwise. References in this
Employment Agreement to sections are to sections of this Employment Agreement
unless expressly indicated otherwise. References in this Employment Agreement to
"provisions" of this Employment Agreement refer to the terms, conditions and
promises contained in this Employment Agreement. At each place in this
Employment Agreement where the context so requires, the
-11-
masculine, feminine or neuter gender includes the others and the singular or
plural number includes the other. Forms of the verb "including" mean "including
without limitation". The word "or" is inclusive and includes "and".
18. INDEMNITY. Employer and Employee entered into an Indemnity Agreement
dated September 1, 1998 (the "INDEMNITY AGREEMENT"), a copy of which is attached
hereto as EXHIBIT C. The Indemnity Agreement remains in full force and effect as
of the date hereof and shall not be affected by the execution of this Employment
Agreement.
19. REIMBURSEMENT OF EMPLOYEE'S ATTORNEY'S FEES. Employer shall pay
Employee for the legal fees of Employee's attorneys, Xxxx Xxxxxx, P.C., incurred
in connection with the negotiation and execution of this Employment Agreement.
20. OTHER AGREEMENTS. This Employment Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes prior agreements relating thereto, including, without limitation,
that one certain Employment Agreement dated September 1, 1998 between Tristar
Corporation and Xxxxxx X. Xxxxx.
[SIGNATURES ON NEXT PAGE]
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
TRISTAR CORPORATION
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
------------------------------------------------
XXXXXX X. XXXXX
EXHIBIT A
CODE OF CONDUCT
EXHIBIT B
LIST OF COMPETITORS
UNITED STATES CANADA VENEZUELA
------------- ------ ---------
Inter Parfums Xxxxxxxx Glamour, C. A. (Xxxx Nacris)
Delagar Xxxxxx G
Parfums DeCoeur
L'Illusions
Yaz
From France to You
Paris Design
Q Perfumes
Xxxxxxx
AM Cosmetics
EXHIBIT C
INDEMNIFICATION AGREEMENT
