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Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AND
NON-COMPETITION AGREEMENT
BY AND BETWEEN
DECORATIVE HOME ACCENTS, INC.
AND
XXXXXX X. XXXXXXXX
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INDEX TO DEFINED TERMS
TERM SECTION REFERENCED
---- ------------------
"Agreement".......................................................Introduction
"Annual Bonus".....................................................Section 2.2
"Base Salary"......................................................Section 2.1
"Budget EBITDA"....................................................Section 2.2
"Board"............................................................Section 1.2
"Business"................................................Preliminary Recitals
"Company".........................................................Introduction
"Confidential Information"...........................................Section 5
"EBITDA"...........................................................Section 2.2
"EBITDA Ratio".....................................................Section 2.2
"Employee"........................................................Introduction
"Employment Period"................................................Section 1.3
"Good Cause".......................................................Section 1.4
"HII".....................................................Preliminary Recitals
"Initial Period"...................................................Section 1.3
"Permitted Investments"........................................... Section 4.2
"Renewal Periods"..................................................Section 1.3
"Restricted Period"................................................Section 4.2
"Restrictive Covenants"..............................................Section 8
"Territory"........................................................Section 4.2
"Total Disability".................................................Section 1.4
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
The EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement"), by and
between DECORATIVE HOME ACCENTS, INC., a Delaware corporation (the "Company"),
and XXXXXX X. XXXXXXXX ("Employee") is hereby amended and restated effective as
of February 28, 1997.
PRELIMINARY RECITALS
A. The Company, through its subsidiaries, is engaged in the business of
the manufacturing, marketing, distribution and sale of bedding, bath and other
home textile and gift products (the "Business"), with principal offices in Xxx
Xxxx, Xxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx and Mooresville, North Carolina. For
purposes of this Agreement, the term "Company" shall include the Company, its
subsidiaries, affiliates, and assignees and any successors in interest of the
Company and its subsidiaries and/or affiliates.
B. The Company has employed Employee, as its Chief Executive Officer
pursuant to the Agreement.
C. The Company desires to continue Employee's employment, and Employee
desires to continue his employment with the Company, pursuant to the terms and
conditions of this Amended and Restated Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Employment.
1.1 Engagement of Employee. The Company agrees to employ Employee and
Employee agrees to accept employment as the President and Chief Executive
Officer of the Company, all in accordance with the terms and conditions of this
Agreement.
1.2 Duties and Powers. During the Employment Period, Employee will
serve as the President and Chief Executive Officer of the Company and will
have such responsibilities, duties and authorities, and will render such
services of an executive and administrative character or act in such other
executive capacity for the Company and its affiliates as the Company's board of
directors (the "Board") shall from time to time direct. The Employee shall
devote his best efforts, energies and abilities and his full business time,
skill and attention (except for permitted vacation periods and reasonable
periods of illness or other incapacity) to the business and affairs of the
Company. The Employee shall perform the duties and carry out the
responsibilities assigned to him, to the best of his ability, in a diligent,
trustworthy, businesslike and efficient manner for the purpose of advancing the
business of the Company. The Employee acknowledges that his duties and
responsibilities will require his full-time business efforts and agrees that
during the Employment Period he will not engage in any other business activity
or have any business pursuits or interests which interfere or conflict with the
performance of Employee's duties hereunder, provided, that nothing in this
SECTION 1.2 shall be deemed to prohibit Employee from making Permitted
Investments (as defined in SECTION 4.2). Employee further acknowledges that
Employee's duties hereunder shall require him to travel between the Company's
offices in New York, North Carolina and South Carolina at the direction of the
Board. Employee shall have use of
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a Company leased apartment while he is in New York and will be reimbursed for
his out of pocket business expenses while in New York in accordance with
Section 2.5.
1.3 Employment Period. Employee's employment under this Agreement
shall begin on the date hereof and shall continue through and until February
28, 2000 (the "Initial Period"). This Agreement shall be automatically
extended for additional consecutive one-year periods ("Renewal Periods") unless
one of the parties hereto provides a written notice at least 90 days prior to
the expiration of the Initial Period or any Renewal Period that such party does
not desire to extend the Agreement. The Initial Period and the Renewal Periods
are hereinafter referred to collectively as the "Employment Period."
Notwithstanding anything to the contrary contained herein, the Employment
Period is subject to termination pursuant to SECTION 1.4 and SECTION 1.5 below.
1.4 Termination by the Company. The Company has the right to terminate
Employee's employment under this Agreement, by notice to Employee in writing
(i) for "Good Cause" at any time, (ii) without Good Cause for any or no reason
and (iii) due to the death or Total Disability of Employee. Any such
termination shall be effective upon the date of service of such notice pursuant
to SECTION 16.
"Good Cause" as used herein means the occurrence of any of the
following events:
(a) the failure of Employee to perform his duties or comply with
reasonable directions of the Board which continues for fifteen days after the
Board has given written notice to Employee specifying in reasonable detail the
manner in which Employee has failed to perform such duties or comply with such
directions;
(b) the determination by the Board in the exercise of its
reasonable judgment that Employee has committed an act or acts constituting (i)
a felony, (ii) dishonesty or disloyalty with respect to the Company, or (iii)
fraud;
(c) the determination by the Board in the exercise of its
reasonable judgment that Employee has committed an act that (i) materially and
negatively affects the Company's business or reputation or (ii) indicates
alcohol or drug abuse by Employee that adversely affects his performance
hereunder;
(d) a material breach by Employee of any of the terms and
conditions of this Agreement; provided, however, that if such breach is curable
by Employee, such breach shall not constitute Good Cause hereunder until the
Company notifies Employee of such breach and Employee does not cure such breach
within fifteen days;
(e) Employee's gross negligence or willful misconduct in the
performance of his duties hereunder; provided, however, that if such gross
negligence or willful misconduct is curable by Employee, such gross negligence
or willful misconduct shall not constitute Good Cause hereunder until the
Company notifies Employee of such gross negligence or willful misconduct and
Employee does not cure such gross negligence or willful misconduct within
fifteen days.
Employee shall be deemed to have a "Total Disability" for purposes of this
Agreement if he
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is unable to perform, by reason of physical or mental incapacity, his duties or
obligations under this Agreement, for a total period of 60 days in any 360-day
period. The Board shall determine, according to the facts then available,
whether and when the Total Disability of the Employee has occurred. Such
determination shall not be arbitrary or unreasonable, and the Board shall take
into consideration the opinion of Employee's personal physician, if reasonably
available, but such determination by the Board shall be final and binding on
the parties hereto.
1.5 Termination by Employee. Employee has the right to terminate his
employment under this Agreement for any reason, upon 90 days prior written
notice to the Company.
1.6 Board of Directors and Resignation. For so long as Employee
remains an executive officer of the Company, the Company agrees to use its best
efforts to cause Employee to be elected to the Board. Upon the termination of
Employee's employment with the Company for any reason, Employee shall be deemed
to have automatically resigned from any position he may then hold on the Board.
Such resignation shall be deemed effective immediately without the requirement
that a written resignation be delivered.
2. Compensation and Benefits.
2.1 Base Compensation. During the Employment Period, the Company will
pay Employee a base salary at a rate of $300,000.00 per annum (the "Base
Salary"), which Base Salary may be increased but not decreased during the
Employment Period at the sole discretion of the Board. The Base Salary shall
be payable in accordance with the Company's regular payroll policy for salaried
employees. The Board shall also perform an annual review of the Employee's Base
Salary based on the Employee's performance of his duties and the Company's
other compensation policies. If the Employment Period is terminated pursuant
to SECTION 1.4 OR SECTION 1.5 above, then the Base Salary for any partial year
will be prorated based on the number of days elapsed in such year during which
services were actually performed by Employee.
2.2 Annual Bonus. In addition to his Base Salary, Employee may be paid
a bonus for each calendar year in the Employment Period in accordance with the
terms of the Decorative Home Accents, Inc. Executive Bonus Plan (the "Executive
Bonus Plan") which has been established for senior executives of the Company
(the "Annual Bonus"), provided that Employee is employed at the time bonuses
are paid under such program, which time shall be the first payroll payment date
after the issuance of the Company's audited year-end financial statements.
Notwithstanding anything herein to the contrary, Employee shall be entitled to
receive a bonus with respect to the final calendar year of the Employment
Period if Employee's employment hereunder is terminated (i) by the expiration
of the Employment Period due to the Company's providing Employee notice that it
does not desire to extend the Agreement pursuant to SECTION 1.3 or (ii) by the
Company without Good Cause after the termination of such final calendar year or
after January 1, 1998, as the case may be.. For each calendar year in the
Employment Period, the Board shall establish bonus levels based on the
Company's actual consolidated earnings before interest, taxes, depreciation and
amortization ("EBITDA") as compared to a budgeted level of EBITDA ("Budget
EBITDA").
(a) With respect to 1997, Employee shall be eligible to receive
a bonus payment in the amount of $150,000, provided that either of the
following conditions
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is satisfied:
(i) Employee is employed by the Company on March 31, 1998 and
Employee shall not have given notice of his intention to terminate, or
notice of termination of his employment or commenced discussions
regarding employment with a competitor of the Company; or
(ii) Employee's employment was terminated on or after
January 1, 1998 by the Company without Good Cause.
(b) In addition to the bonus payable pursuant to SECTION 2.2(a),
Employee shall be entitled to a bonus in an amount equal to the amount
determined pursuant to the 1997 Executive Bonus Plan, as amended, a
copy of which is attached hereto as Exhibit 2.2.
2.3 Compensation After Termination.
(a) Except as provided in SECTION 2.3(b), SECTION 2.4 and SECTION
2.9, if Employee's employment hereunder is terminated or expires for any reason,
then the Company shall have no further obligations hereunder or otherwise with
respect to Employee's employment from and after the termination or expiration
date (except payment of Employee's Base Salary accrued through the date of
termination or expiration) and the Company shall continue to have all other
rights available hereunder (including without limitation, all rights under
SECTION 4 at law or in equity).
(b) If the Employment Period is terminated by the Company without
Good Cause during the Initial Period (other than in connection with a Change of
Control which shall be governed by Section 2.9), then the Employee shall be
entitled to receive as severance pay his Base Salary hereunder for the
remainder of the Initial Period, payable in regular installments in accordance
with the Company's general payroll practices for salaried employees. The
Company shall have no other obligations hereunder or otherwise with respect to
Employee's employment from and after the termination date, and the Company
shall continue to have all other rights available hereunder (including, without
limitation, all rights under SECTION 4 at law or in equity). Notwithstanding
the foregoing, the amount of severance pay due hereunder shall be offset and
reduced by any compensation paid to Employee by any new employer of Employee
during the period Employee is receiving such severance payments and amounts
owed by Employee to the Company, if any.
2.4 Profit Sharing, Pension and Salary Deferral Benefits. It is
understood by the parties to this Agreement that, during the Employment Period,
Employee shall be entitled to participate in or accrue benefits under any
pension, salary deferral or profit sharing plan now existing or hereafter
created for employees of the Company upon terms and conditions equivalent to
those which the Company may provide for other key management employees. Without
limiting the generality of the foregoing, Employee shall be entitled to
participate in the HII Retirement Savings Plan and to receive a matching
contribution thereunder, consistent with Company policy and the terms of the
HII Retirement Savings Plan.
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2.5 Fringe Benefits and Expenses. The Company will provide Employee
vacation and other employee fringe benefits substantially comparable to the
vacation and benefits which the Company regularly provides for other key
management employees, including hospitalization, health and disability
insurance, to the extent offered by the Company, and in amounts consistent with
Company policy, for key management employees as reasonably determined by the
Board. Such vacations and benefits shall be no less than those set forth on
Exhibit 2.5, attached hereto. During the Employment Period, the Company will
reimburse Employee in accordance with Company policy for his normal and
reasonable out-of-pocket expenses incurred in the course of performing his
duties hereunder.
2.6 Life Insurance. At the request of Employee, the Company will
reimburse Employee in an amount up to the quotient of (i) $70,000.00 and (ii) 1
- (the sum of the Employee's marginal federal income tax rate plus the
Employee's marginal state income tax rate) for each year in the Employment
Period, for premiums paid by Employee on the life insurance policy currently in
force and owned by Employee on Employee's life. Such reimbursement shall be
made in accordance with Company policy at the time that Employee pays such
premium. If Employee's employment hereunder is terminated prior to a calendar
year-end, Employee shall be obligated to repay the Company an amount equal to
the product of (1) the reimbursement made by the Company during the calendar
year and (2) a fraction, the numerator of which shall be twelve minus the
number of complete months which Employee was employed by the Company for such
calendar year and the denominator of which shall be 12.
2.7 Disability. At the request of Employee, the Company will
reimburse Employee in an amount up to the quotient of (i) $10,000 and (ii) 1 -
(the sum of the Employee's marginal federal income tax rate plus the
Employee's marginal state income tax rate) for each year in the Employment
Period, for premiums paid by Employee on the disability policy currently in
force and owned by Employee. Such reimbursement shall be made in accordance
with Company policy at the time that Employee pays such premium. If Employee's
employment hereunder is terminated prior to a calendar year-end, Employee shall
be obligated to repay the Company an amount equal to the product of (1) the
reimbursement made by the Company during the calendar year and (2) a fraction,
the numerator of which shall be twelve minus the number of complete months
which Employee was employed by the Company for such calendar year and the
denominator of which shall be 12.
2.8 Taxes, etc. All compensation payable to Employee hereunder is
stated in gross amount and shall be subject to all applicable withholding
taxes, other normal payroll deductions and any other amounts required by law to
be withheld.
2.9 Change of Control. If Employee's employment with the Company is
terminated within 90 days following a Change of Control of the Company, by (i)
the Company without Good Cause, (ii) a successor to the Company without Good
Cause or (iii) the Employee, then the Company shall pay Employee an amount
equal to $1,800,000 in a single sum in cash within thirty (30) days after such
termination of employment.
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For purposes of this Agreement,
"Change of Control" means any of the following occurring on
or prior to the effective date of a restructuring of the Company's
$125 million of 13% Senior Notes due 2002 (a "Restructuring") or
(ii) in connection with a Restructuring:
(a) the consummation of any transaction (other than the
transactions contemplated by that certain Mutual Release and
Settlement Agreement between the Company, certain of the Company's
stockholders and Xxxxx and Xxxxxxx Xxxxxxxxx), including, without
limitation, any merger or consolidation, the direct result of
which is that any Person (other than TCW Special Credits Fund V -
the Principal Fund ("Fund V")), owns, directly or indirectly, more
than 50% of the voting power of the Company's Board;
(b) the sale, lease, transfer, conveyance or other
disposition, in one or a series of related transactions, of all or
substantially all of the stock or assets of the Company to any
Person (other than Fund V);
(c) the consummation of any transaction (other than the
transactions contemplated by that certain Mutual Release and
Settlement Agreement between the Company, certain of the Company's
stockholders and Xxxxx and Xxxxxxx Xxxxxxxxx), including, without
limitation, any merger or consolidation, the direct result of
which is that any Person (other than Fund V), controls the
issuance of options with respect to the Company's capital stock to
members of management; or
(d) the adoption and implementation of a plan relating to the
liquidation or dissolution of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or any
other entity.
2.10 Indemnification. The parties acknowledge and agree that Employee
shall be fully entitled to indemnification from the Company from liabilities
arising from acts taken by the Employee as an officer or director of the
Company as provided in "Article IX - Indemnification" of the Company's Second
Amended and Restated Certificate of Incorporation.
3. Equity Incentive. If no Change of Control occurs, the Company shall
use its best efforts to grant the Employee stock options, the terms of which
shall be negotiated in good faith by and will be mutually acceptable to the
Company and the Employee. In determining the amount of stock options to be
granted to Employee, consideration shall be given to Employee's past equity
ownership.
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4. Covenant Not to Compete.
4.1 Employee's Acknowledgment. Employee agrees and acknowledges that
in order to assure the Company that it will retain its value and that of the
Business as a going concern, it is necessary that Employee undertake not to
utilize his special knowledge of the Business and his relationships with
customers and suppliers to compete with the Company. Employee further
acknowledges that:
(a) the Company is and will be engaged in the Business;
(b) Employee has occupied and will continue to occupy a position
of trust and confidence with the Company during the period of Employee's
employment under this Agreement, and Employee has become familiar with the
Company's trade secrets and with other proprietary and confidential information
concerning the Company and the Business;
(c) the agreements and covenants contained in this SECTION 4 are
essential to protect the Company and the goodwill of the Business; and
(d) Employee's employment with the Company has special, unique and
extraordinary value to the Company and the Company would be irreparably damaged
if Employee were to provide services to any person or entity in violation of
the provisions of this Agreement.
4.2 Non-Compete. Employee hereby agrees that for a period commencing
on the date hereof and ending on the later of (1) one year following the
termination of his employment with the Company or (2) on such date as the
Company shall cease making severance payments to Employee pursuant to SECTION
2.3(b) above (the "Restricted Period"), he will not, directly or indirectly, as
employee, agent, consultant, stockholder, director, co-partner or in any other
individual or representative capacity, own, operate, manage, control, engage
in, invest in or participate in any manner in, act as a consultant or advisor
to, render services for (alone or in association with any person, firm,
corporation or entity), or otherwise assist any person or entity (other than
the Company) that engages in or owns, invests in, operates, manages or controls
any venture or enterprise that directly or indirectly engages in the Business
anywhere in North America or Western Europe (the "Territory"); provided,
however, that nothing contained herein shall be construed to prevent Employee
from investing in the stock of any competing corporation listed on a national
securities exchange or traded in the over-the-counter market, but only if
Employee is not involved in the business of said corporation and if Employee
and his associates (as such term is defined in Regulation 14(A) promulgated
under the Securities Exchange Act of 1934, as in effect on the date hereof),
collectively, do not own more than an aggregate of two percent of the stock of
such corporation ("Permitted Investments"). With respect to the Territory,
Employee specifically acknowledges that the Company has heretofore conducted
the Business throughout those areas comprising the Territory and the Company
intends to continue to expand the Business throughout the Territory.
4.3 Non-Solicitation. Without limiting the generality of the
provisions of SECTION 4.2 above, Employee hereby agrees that during the
Restricted Period he will not (except on behalf of the Company) for the purpose
of securing business or contracts related to the Business, directly or
indirectly, solicit, or participate as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity in any business which solicits business
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from any person, firm, corporation or other entity which is or was a customer
or supplier of the Business during the two-year period preceding the date of
this Agreement and/or during the term of this Agreement, or from any successor
in interest to any such person, firm, corporation or other entity.
4.4 Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of this Agreement or any particular Restrictive Covenant (as
defined) too lengthy or the Territory too extensive, the other provisions of
this SECTION 4 shall nevertheless stand, the Restricted Period shall be deemed
to be the longest period permissible by law under the circumstances and the
Territory shall be deemed to comprise the largest territory permissible by law
under the circumstances. The court in each case shall reduce the Restricted
Period and/or Territory to permissible duration or size.
5. Confidential Information. During the term of this Agreement and
thereafter, Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of the Board of Directors,
furnish, make available or disclose to any third party or use for the benefit
of himself or any third party, any Confidential Information. As used in this
SECTION 5, "Confidential Information" shall mean any information relating to
the business or affairs of the Company or the Business, including but not
limited to information relating to financial statements, customer identities,
potential customers, employees, suppliers, servicing methods, equipment,
programs, strategies and information, analyses, profit margins or other
proprietary information used by the Company in connection with the Business;
provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known through no wrongful
act on the part of Employee. Employee acknowledges that the Confidential
Information is vital, sensitive, confidential and proprietary to the Company.
In the event that Employee reasonably believes after consultation with counsel
that he is required by law to disclose any Confidential Information, he may do
so provided that he will use his best efforts to (a) provide the Company with
proper notice before such disclosure in order that the Company may attempt to
obtain a protective order or other assurance that confidential treatment will
be accorded such confidential matters and (b) cooperate, at the Company's
expense, with the Company in attempting to obtain such order or assurance.
6. Interference with Relationships. During the Restricted Period Employee
shall not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity:
(i) without the prior written consent of the Company, employ or engage, recruit
or solicit for employment or engagement, any person who is (or was within six
months of the date such employment, engagement or solicitation commences or
occurs, as the case may be) employed or engaged by the Company, or otherwise
seek to influence or alter any such person's relationship with the Company, or
(ii) solicit or encourage any present or future customer or supplier of the
Company to terminate or otherwise adversely alter his, her or its relationship
with the Company.
7. Effect on Termination. If the Company or the Employee should terminate
Employee's employment pursuant to SECTION 1, then, notwithstanding such
termination, those provisions contained in SECTIONS 2.3, 2.4, 2.7, 2.9, 2.10,
4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18 AND 19 hereof shall remain in
full force and effect for the duration of the Restricted Period.
8. Remedies. Employee acknowledges and agrees that the covenants set
forth in
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SECTIONS 4, 5 AND 6 of this Agreement (collectively, the "Restrictive
Covenants") are reasonable and necessary for the protection of the Company's
business interests, that irreparable injury will result to the Company if
Employee breaches any of the terms of the Restrictive Covenants, and that in
the event of Employee's actual or threatened breach of any such Restrictive
Covenants, the Company will have no adequate remedy at law. Employee
accordingly agrees that in the event of any actual or threatened breach by him
of any of the Restrictive Covenants, the Company shall be entitled to immediate
temporary injunctive and other equitable relief, without the necessity of
showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of any damages which it is able to
prove.
9. Income Tax Treatment. Employee and the Company acknowledge that it is
the intention of the Company to deduct all amounts paid under SECTION 2 hereof
as ordinary and necessary business expenses for income tax purposes. Employee
agrees and represents that he will treat all amounts paid hereunder as ordinary
income for income tax purposes, and should he report such amounts as other than
ordinary income for income tax purposes, he will indemnify and hold the Company
harmless from and against any and all taxes, penalties, interest, costs and
expenses, including reasonable attorneys' and accounting fees and costs, which
are incurred by Company directly or indirectly as a result thereof.
10. Key Man Insurance. Employee shall cooperate with the Company if the
Company decides to procure "Key Man" insurance covering the life of Employee
and Employee shall, at the request of the Company, submit to such medical
examinations, supply such information and execute such documents as may be
required by the insurance company to which the Company has applied for
insurance. Employee shall use his best efforts to qualify for the standard
premium category of such insurance company. Employee shall have no interest
whatsoever in any "Key Man" insurance policy procured by the Company.
11. Prior Agreement. Employee represents that he is not a party to any
agreement, oral or written, which would preclude Employee's acceptance of
employment under this Agreement.
12. Assignment. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto, provided, however, that, whether or not Employee consents, the Company
shall have the right to assign all or any part of its rights and obligations
under this Agreement to (i) any affiliate of the Company to which the Business
is assigned at any time or (ii) the purchaser of substantially all or all of
the assets of the Company. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
13. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of
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which shall be deemed an original, but all of which taken together shall
constitute one and the same Agreement.
15. Descriptive Headings; Interpretation. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way
of example rather than by limitation.
16. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iii) transmitted by
telecopy to the recipient with a confirmation copy to follow the next day to be
delivered by overnight carrier. Such notices, demands and other communications
shall be sent to the addresses indicated below:
(a) If to Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Hope, Esq.
Facsimile: (000) 000-0000
(b) If to the Company:
Decorative Home Accents, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Board of Directors
with copies to:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
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and:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxxxx, Esq.
and:
Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
Date of service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one business day after the date of delivery to the
overnight courier if sent by overnight courier or (z) the next business day
after the date of transmittal by telecopy.
17. Preamble; Preliminary Recitals. The Preliminary Recitals set forth in
the Preamble hereto are hereby incorporated and made part of this Agreement.
18. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and
agreements, with respect to the subject matter hereof.
19. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of North Carolina, without giving effect to provisions thereof
regarding conflict of laws.
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14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
DECORATIVE HOME ACCENTS, INC.
By: ______________________________
Xxxxx X. Xxxxxx, Chairman
EMPLOYEE:
____________________________________
Xxxxxx X. Xxxxxxxx
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