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EXHIBIT 10.37
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered as of the twelfth day
of November, 1997, by and between HORIZON GROUP, INC., a Michigan corporation
("HGI"), HORIZON/XXXX OUTLET CENTERS LIMITED PARTNERSHIP, a Delaware limited
partnership ("H/G Partnership", together with HGI, "Horizon"), and Xxxx
Xxxxxxxx ("Employee").
WHEREAS, HGI is the sole general partner of H/G Partnership, and H/G
Partnership is a developer, owner and operator of manufacturer outlet centers
throughout the United States;
WHEREAS, Employee is employed by Horizon;
WHEREAS, Employee is willing from and after the Effective Date to continue
his employment with Horizon until the occurrence of a merger or consolidation
between Horizon and another person, the corporate reorganization of Horizon or
the acquisition of a majority or more of the assets of Horizon by another
person (a "Transaction"); and
WHEREAS, Horizon wishes to be assured that it will continue to have the
benefit of Employee's expertise and experience from and after the date of this
Agreement until the closing of a Transaction (the "Effective Date").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereby agree as follows:
1. POSITION. From and after the date of this Agreement, Employee agrees
to continue his employment with Horizon until the occurrence of a Transaction
in order to earn the additional compensation set forth herein.
2. COMPENSATION. Provided that Employee continues his employment with
Horizon until the Effective Date,
(a) Horizon shall pay Employee a bonus for agreeing to continue his
employment with Horizon until the Effective Date in the amount of One
Hundred Ninety-Six Thousand Eight Hundred and Seventy-Five Dollars
($196,875) which shall be paid on the Effective Date. The payment of
such bonus shall be made by Horizon by wire transfer in immediately
available funds on the Effective Date to an account of Employee
designated in writing to Horizon by Employee.
(b) Horizon shall grant Employee options on the day
immediately preceding the Effective Date to purchase 15,000 shares
of HGI common stock under the 1997 Stock Option Plan (the
"Options"). The exercise price per share
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for the Options shall be the fair market value of such share on the last
trading day immediately preceding the Effective Date and the Options
shall be exercised on the terms and conditions set forth in the attached
form of Option. Such Options and any other Options granted under the
1997 Stock Option Plan shall become the obligations of any surviving
entity in a Transaction and the agreement(s) governing such Transaction
shall provide that the Options will be converted into options to purchase
common shares of the surviving entity of any Transaction on a fair and
equitable basis. All outstanding options heretofore granted to Employee
under the 1997 Stock Option Plan are hereby deemed to be amended in the
attached form of Option.
3. EMPLOYMENT ARRANGEMENTS. It is the intention and understanding of
the parties hereto that the rights and obligations of each party under the terms
and conditions of this Arrangement are in addition to any rights and
obligations of the parties under any employment arrangement between them,
including but not limited to that certain Letter Agreement dated June 12, 1997
between Horizon and Employee. The terms of such employment arrangement shall
remain in full force and effect and shall not be affected in any manner by the
terms and conditions set forth in this Agreement.
4. NOTICES. Any notice to Horizon required or permitted under this
Agreement shall be given in writing to Horizon, either by personal service, by
registered or certified mail, postage prepaid, or by facsimile transmission
with answer back confirmation, duly addressed to the Chief Executive Officer of
Horizon at its then principal place of business. Any such notice to Employee
shall be given in a like manner and, if mailed, shall be addressed to Employee
at his/her address then shown in the files of Horizon. For the purpose of
determining compliance with any time limit herein, a notice, if sent by mail,
shall be deemed given on the date it is deposited in the United States mail
plus three (3) days.
5. MISCELLANEOUS PROVISIONS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding on
Horizon and its successors and assigns. The obligations of Horizon under
this Agreement shall be assumed by any other corporation or other
business entity (the "Successor") which succeeds to all or substantially
all of the business of Horizon through merger, consolidation, corporate
reorganization or by acquisition of all or a majority of the assets of
Horizon.
(b) SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other
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jurisdiction. If any court of competent jurisdiction shall find
any provision of this Agreement to be so broad as to be unenforceable,
such provision shall be interpreted to be only so broad as is
enforceable.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan with
regard to conflicts of law principles thereof.
(d) WAIVER. Waiver by any of the parties of any breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision of
this Agreement.
(e) ATTORNEYS' FEES. The prevailing party in any litigation
instituted to enforce this Agreement shall, in addition to any other
remedies, be entitled to be reimbursed by the other party for all
expenses of such litigation, including reasonable attorneys' fees. As
used herein, "attorneys' fees" shall mean the full and actual cots of any
legal services actually rendered in connection with the matters
involved, calculated on the basis of the usual fee charged by the
attorneys performing such services, and shall not be limited to
"reasonable attorneys' fees" as defined by any statute or rule of court.
(f) ENTIRE AGREEMENT. This instrument contains the entire agreement
of the parties with respect to the subject matter of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which taken together shall be deemed to constitute one
original.
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IN WITNESS WHEREOF, the parties hereto have entered into and executed this
Agreement as of the date first above written.
HORIZON GROUP, INC.,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: President
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HORIZON/XXXX OUTLET CENTERS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: HORIZON GROUP, INC., a Michigan
corporation, its sole General
Partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: President
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EMPLOYEE
/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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