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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of February 26th,
1997, is made by and between Selfix, Inc., a Delaware corporation ("SELFIX"),
Tamor Corporation, a Massachusetts corporation (the "COMPANY"), Home Products
International, Inc., ("HPI"), the parent corporation of Selfix, and Xxxxxxx X.
Xxxxx of Leominster, Massachusetts (the "EXECUTIVE"). Selfix, the Company, and
any subsidiaries of Selfix and the Company are collectively hereinafter
referred to as the "COMPANIES". In such case as Selfix and its subsidiaries are
reorganized into a holding company structure, all references to Selfix in this
Agreement shall also be construed to refer to Selfix's parent company.
RECITALS:
A. The Company is engaged in the business of designing,
manufacturing, importing, marketing and distributing bathware and houseware
related products (the "BUSINESS").
B. Selfix, concurrently with the execution of this Agreement, is
purchasing all the equity in the Company (the "ACQUISITION").
C. Selfix desires for the Executive to continue his employment
with the Company after the Acquisition, and the Executive is willing to
continue such employment.
D. Executive has had and will continue to have access to the
Company's confidential and proprietary information and will have access in the
future to confidential and proprietary information of the Companies. In order
to protect the Companies from unfair competition by the Executive associated
with his relationship with the Companies, customers and his access to
confidential and proprietary information, the Companies and the Executive wish
to set forth in this Agreement certain restrictive covenants to be adhered to
by the Executive.
CLAUSES:
In consideration of the foregoing, as well as the mutual covenants and
promises set forth herein, the parties agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs Executive to
serve as the Vice President, Operations, of the Company and Executive hereby
accepts such employment. Unless earlier terminated in accordance with this
Agreement, the term of this Agreement will begin on the date of this Agreement
("EFFECTIVE DATE") and will continue for a period of two (2) years (the
"INITIAL TERM"). Unless the Company or the Executive notifies the other party
of its intention to terminate the Term of employment at least sixty days before
the expiration of the Term, Executive's term of employment with the Company
shall thereafter be extended for a period of one year. Each one year extension
shall be referred to as a "RENEWAL TERM". Executive and Selfix agree to
negotiate Executive's employment arrangements following the Initial Term at
least six (6) months before the end of the Initial Term. The Executive' actual
term of employment with the Company under this Agreement, inclusive of the
Initial Term and any Renewal Term, or any shorter period, shall be referred to
as the "TERM."
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2. EMPLOYMENT DUTIES.
2.1 TITLE/RESPONSIBILITIES. The Executive shall perform his duties
as Vice President, Operations, of the Company, which duties shall include the
normal and customary duties of such office and such other duties as may be
assigned to him by the Company's Chief Executive Officer (the "CEO") or the
Chief Executive Officer of Selfix (the "Selfix CEO"). The Executive shall report
to the CEO and perform such duties as directed by the CEO, and provide the CEO
with periodic reports upon request. Executive shall at all times discharge his
duties in consultation with and subject to the general direction and reasonable
control of the CEO.
2.2 FULL TIME AND ATTENTION. Executive shall devote his exclusive
and full time attention, energy and skills to the performance of his duties as
Vice President, Operations, of the Company, but nothing in this Agreement shall
preclude Executive from engaging in charitable and community affairs, provided
that such activities do not interfere with the performance of his duties or
responsibilities under this Agreement.
2.3 OFFICE LOCATION. Executive shall be located in the Leominster,
Massachusetts metropolitan area, unless he otherwise consents.
3. COMPENSATION.
3.1 BASE SALARY. During the Initial Term, Executive shall receive
an annual base salary ("BASE SALARY") of One Hundred Seventy-Eight Thousand
Dollars ($178,000), payable in accordance with the Company's payroll practices
for executive employees (reduced solely by all applicable payroll and
withholding taxes and other legal garnishments). The CEO shall undertake
periodic performance reviews of Executive and the CEO may, with appropriate
Selfix CEO approval, adjust Base Salary to reflect Executive's performance
and/or the financial position of the Company, provided, however, the Base
Salary shall not be less than One Hundred Seventy-Eight Thousand Dollars
($178,000).
3.2 BONUS. In addition to the Base Salary, Executive shall be
eligible to participate in the Company's senior management bonus program, which
program shall be substantially similar to that of the Companies' for its
senior management.
4. EXPENSE ALLOWANCES AND FRINGE BENEFITS.
4.1 VACATION. Executive shall be entitled to vacation in accordance
with the Company's vacation policy for senior executives which policy shall be
substantially similar to that of the Companies for its executives, provided,
however, Executive shall be entitled to a minimum of five (5) weeks paid
vacation each year during the Term.
4.2 EMPLOYMENT BENEFIT PLANS. Executive will be entitled to
participate in the employee and executive benefit plans the Company now or
hereafter makes available to executives and/or other salaried employees,
including, without limitation, retirement plans, group life insurance,
hospitalization, surgical and major medical, including salary continuation
arrangements in the event of long-term disability, vacations and holidays and
other fringe benefits, in accordance with the terms of such plans and subject
to eligibility and vesting requirements in effect from time to time, provided
however, that nothing herein shall require the Company to create or continue
any such plan or benefit. It is intended that all such benefits and plans be
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substantially similar to benefits and plans made available to the Companies'
executives.
4.3 BUSINESS EXPENSE REIMBURSEMENT. The Company shall reimburse
Executive for all reasonable and proper expenses incurred by him in executing
his duties for the Company. Reimbursement shall be conditioned upon Executive's
compliance with all policies adopted by the Company regarding expense
reimbursement including, without limitation, regarding, the documentation and
timely submission of such expenses. The Company shall also provide the
Executive with the use of the Company automobile which he presently is using,
and any comparable replacement at such times as the Company's policy provides.
5. TERMINATION.
5.1 DEATH. In the event of the death of the Executive during the Term
of this Agreement, this Agreement shall terminate in its entirety, provided,
however, that all amounts which accrued to Executive prior to the date of his
death shall be paid to his estate in accordance with the Company's standard
payroll practice.
5.2 DISABILITY. In the event the Executive becomes "DISABLED" (defined
below) for a period of 90 consecutive days, or for 120 days (irrespective or
whether such days are consecutive) during any six-month period, the Company
may, at its option, terminate the Executive's employment. Such option shall be
exercised by the Company giving notice to Executive of its intention to
terminate Executive's employment, to be effective on the date set forth in the
notice, which in no event shall be less than 30 days after the date of the
notice.
For purposes of this Agreement, Executive shall be deemed to have
become "DISABLED" if, because of physical or mental disability or drug or
alcohol dependency or abuse he shall have been unable to perform his duties
hereunder. So long as this Agreement is in effect, and during such period in
which he is Disabled, Executive shall be entitled to all compensation,
benefits, rights and entitlements under this Agreement; provided, however,
Compensation shall be reduced by the amount of any disability benefits which
Executive receives from Company sponsored disability plans.
5.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company shall have the
option of terminating Executive's employment immediately for "Cause" (as
defined below). The term "CAUSE", as used herein, shall mean (a) dishonesty,
fraud, embezzlement, theft, conviction of a felony or any crime involving moral
turpitude, (b) gross dereliction or gross neglect of duties hereunder, or a
material breach of Sections 8 or 9 of this Agreement, (c) willful refusal to
perform the duties hereunder, or (d) willful misconduct materially and
demonstrably injurious to Selfix or the Company.
5.4 VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement prior to the end of the Term upon ninety (90) days prior written
notice to the Company, in which event the Company shall be obligated only to
pay him his total remuneration and other applicable benefits described in
Sections 3.1 and 4 up to the date of termination set forth in a notice of
termination given to the Company.
5.5 TERMINATION IN THE EVENT OF FILING UNDER CHAPTER 7. In the event
that the Company or Selfix files a petition for liquidation under Chapter 7 of
the U.S. Bankruptcy Code, or has a petition for liquidation under such Chapter
filed involuntarily against it, then Executive
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shall be released from all obligations under this Agreement. In addition, if
the Company is in Chapter 11 reorganization, Executive shall be released from
all obligations under the Agreement if his compensation and benefits under the
plan of reorganization is not equivalent to his compensation and benefits under
this Agreement.
6. CHANGE OF CONTROL.
6.1 DEFINITIONS. For purposes of this Agreement, a "CHANGE OF CONTROL"
shall have occurred if any person or group (as defined in Section 13(d) of the
Security Act of 1934) other than the Ragir family or their affiliates
(including, without limitation, trust for their benefit or private foundations
established by them) or Selfix's parent (by virtue of a corporate
reorganization) becomes the beneficial owner of shares of stock in Selfix
representing fifty percent (50%) or more of the total number of voting shares
that may be cast for election of directors of Selfix.
6.2 TERMINATION FOLLOWING CHANGE OF CONTROL. In the event Executive's
active full-time employment with the Company terminates within one hundred
eighty (180) days after a Change of Control, either voluntarily or
involuntarily, whether by the Company or Executive, the Company shall pay
Executive on the date of such termination an amount equal to one hundred
percent (100%) of Executive's yearly base Salary then in effect.
6.3 NO DUPLICATION. Notwithstanding anything to the contrary, if the
Executive first becomes entitled to payment pursuant to Section 6.2 above, such
payment shall be in lieu of all other payments he would have been entitled to
pursuant to this Agreement.
7. RESTRICTIVE COVENANTS.
7.1 ACKNOWLEDGEMENTS. Executive acknowledges that: (i) during the
course of his association and employment with the Company, and due to his
position, from time to time, as the Vice President, Operation, of the Company,
he will be in contact with suppliers and customers of the Companies and will
have access to the Companies and their affiliates' respective confidential and
proprietary information including without limitation, its properties, research
and development, accounts, books and records, sales, know-how, software,
technology, inventions, techniques, profits, products, customer lists,
requirements, suppliers, cost data, memoranda, devices, processes, methods,
procedures, formulas, prices, pricing and other corporate activities, whether
or not in written form or marked "Confidential", whether developed by Executive
or others, which relate to the business operations, research and development,
engineering, products or activities of the Companies or their affiliates
(collectively "CONFIDENTIAL INFORMATION"); (ii) the Confidential Information
constitutes trade secrets of the Companies, within the meaning of the
applicable state trade secrets laws; (iii) all documents, electronic, magnetic
or other media and information which concern the Confidential Information are
highly confidential and also constitute trade secrets as identified above; (iv)
the Companies have invested and will continue to invest considerable sums of
money to obtain and maintain its Confidential Information; (v) the Companies
derive substantial economic benefit due to the confidentiality of their
Confidential Information and inventions; (vi) the Companies' competitors would
obtain unfair economic and competitive advantages if its Confidential
Information or inventions were divulged; (vii) the Companies have instituted
procedures to maintain the confidentiality of its Confidential Information; and
(viii) the Confidential Information constitutes a highly significant factor in
the Companies' ability to conduct its businesses profitably. The term
"Confidential Information,"
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with respect to the Executive, shall include only that Confidential Information
of which the Executive has or should have knowledge.
7.2 NONDISCLOSURE. Recognizing that the disclosure or improper use of
Confidential Information will cause serious and irreparable injury to the
Companies, Executive agrees that he will not at any time, before or for
eighteen (18) months after the termination of his employment, directly or
indirectly; (i) disclose, divulge, alienate, transfer assign or sell
Confidential Information to any third party or otherwise use Confidential
Information (not otherwise excluded below) for his own benefit or the benefit
of others unless previously authorized, in writing, by Selfix to do so; (ii)
attack, take any action or fail to take any action which could vitiate any of
the Companies' rights, titles or interests in any of its trade secrets,
Confidential Information, inventions or "Assigned Intellectual Property" (as
defined in Section 8.1 below); or (iii) disassemble or reverse engineer any of
the Confidential Information, inventions or Assigned Intellectual Property for
himself or others.
7.3 NONSOLICITATION. In order to protect the secrecy of the
Confidential Information and the goodwill associated with the Companies'
relationship with its customers, the Executive covenants and agrees that,
during the Term and for a period of eighteen (18) months following the
termination of his employment for any reason whatsoever, he will not, directly
or indirectly, through one or more intermediaries or affiliates or otherwise:
(i) solicit anyone who was a customer of the Companies during the
term of Executive's employment with the Company with respect to business
which competes with the Company's Business as it is then being
conducted;
(ii) solicit any prospective customer of the Companies with whom
Executive has contact during his employment with the Company during the
preceding twelve (12) months with respect to business which competes
with the Business as it is then being conducted; and/or
(iii) divert, take away, solicit or seek to induce employment of
any of the employees of the Companies or their affiliates.
7.4 NON-COMPETITION. Executive, as part of the Acquisition and in
further consideration for his future employment with the Company, has entered
into a NonCompetition Agreement with the Companies as of the same date as this
Agreement.
7.5 ENFORCEMENT OF COVENANTS. The parties have attempted to limit
Executive's rights to compete only to the extent necessary to protect the
Companies from unfair competition. If, however, the restrictive covenants
contained in this Agreement are held to be unenforceable at any time, the
parties specifically direct the court, arbitrator or other trier of fact to
modify and enforce said covenants to the extent that it believes is reasonable
under the circumstances existing at that time, rather than deleting or
rendering unenforceable such restriction(s).
8. PROPERTY: INVENTIONS.
8.1 ASSIGNMENT. Executive agrees that all discoveries, inventions,
ideas, concepts, research and other information, processes, products, methods
and improvements (collectively
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"INVENTIONS") which are conceived, developed or otherwise made by him alone or
jointly with others during the Initial Term or/any Renewal Term and that relate
to the Business shall be the sole property of the Company. Executive therefore
grants, conveys, transfers, alienates and assigns exclusively to the company,
for and throughout the world, in and for all languages (including but not
limited to computer languages and human languages whether now existing or
subsequently developed during the Term) all rights, titles and interests
(legal, equitable, use or otherwise) which Executive has, may have in the
future or may have the right to claim now or in the future, in all Inventions,
copyrights, patents, trademarks, trade names and servicemarks (whether or not
registered, including all associated applications therefor and the right to
file and register the same in the Company's or any other name), modifications,
improvements, derivative works and/or other work which Executive conceives
solely or jointly with others (collectively the "ASSIGNED INTELLECTUAL
PROPERTY") which: (i) are related to any trade secrets, Confidential
Information or other proprietary materials of the Companies; (ii) relate to
work Executive performs for the Companies (whether or not done during normal
working hours); or (iii) Executive develops based on materials, equipment,
facilities or information of the Companies. The foregoing assignment by
Executive is under any and all foreign or domestic, federal, state or local
copyright, trade secret, intellectual property, patent or other laws, is
intended to be all inclusive and without reservation, and specifically includes
the right to xxx for and collect and retain all damages associated with past,
present or future infringements of any or all of the Assigned Intellectual
Property.
8.2 NO RETAINED RIGHTS. Executive's assignment of the Assigned
Intellectual Property to the Company under this Agreement constitutes a
complete, absolute and exclusive transfer of all rights (legal, equitable, use
and otherwise) in the Assigned Intellectual Property. The Executive does not
reserve or retain any right, title or interest in any Assigned Intellectual
Property or any trade secrets, Confidential Information or related information
which concerns any Assigned Intellectual Property. Executive acknowledges and
agrees that the Assigned Intellectual Property constitutes the sole, exclusive
and confidential property of the Companies. Executive shall disclose to the
Companies, in full, accurate detail and in writing, all Inventions, derivative
works, improvements and/or developments (whether or not patentable,
copyrightable or otherwise protectable under law) which Executive makes or
assists in making either during the course of his employment with the Company
or that in any way concern, relate to or are based upon the Confidential
Information, Assigned Intellectual Property or any other trade secrets of the
Companies, and acknowledges that the same constitutes the Companies' sole
property.
8.3 DUTY TO ASSIST. If at any time (during or after the Term) the
Companies deems it necessary or appropriate, the Executive shall execute and
deliver any and all instruments and documents and shall provide such assistance
(including testifying in court or other judicial or administrative proceeding)
which the Companies believes are reasonably necessary either to evidence or
register the assignment of rights made by the Executive in this Agreement, or
to apply for, obtain, register or enforce any copyright, patent or trademark or
otherwise protect or enforce the Companies' interests therein; provided,
however, that Executive shall not be required to warrant any intellectual
property or the nature of the Companies' interest therein and, should his
assistance be required subsequent to the Term, Executive shall be reimbursed
for reasonable expenses associated with such assistance.
8.4 RETURN OF MATERIALS. If Executive ceases to be employed by the
Company, or at any other time upon request of the Companies, he shall promptly
return to the Companies any records, disks, programs, software, agreements,
books of account, corporate memoranda,
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customer lists or other property which constitute or in any way relate to
Confidential Information or otherwise belong to the Companies or their
customers. The Executive will not retain copies of the foregoing items (in hard
copy or electronically stored).
9. REMEDIES
9.1 EQUITABLE AND OTHER RELIEF. Executive understands and agrees that his
breach of an of the provisions of Sections 7 and 8 will cause irreparable and
continuing damage to the Companies, that the Companies would not have any
adequate remedy at law for the material breach by Executive of any one or more
of the covenants set forth in this Agreement and that, in the event of any such
material breach, in addition to the other remedies which may be available,
Selfix or the Company may obtain an injunction, or other equitable relief to
enjoin Executive from the breach or threatened breach of such covenants,
including but not limited to the right to obtain an immediate temporary
restraining order. Such remedies are in addition to, and not to the exclusion
of, any other damages Selfix or the Company may be able to prove. The Executive
agrees to indemnify and reimburse the Companies for any and all costs, expenses
(including but not limited to attorney's fees, whether or not a lawsuit is
filed), losses and damages paid or incurred as a result of or arising from the
Executive's breach of Sections 7 or 8 of this Agreement, but only to the extent
that the Companies prevail in any enforcement action taken against Executive in
accordance with this Section.
9.2 ARBITRATION. Should either party elect to submit any dispute
hereunder to arbitration, then such party shall notify the other party as to
the demand for arbitration pursuant to the rules of the American Arbitration
Association ("AAA"). Such dispute shall then be determined by binding
arbitration in Boston, Massachusetts, in accordance with the commercial rules
of the AAA.
10. GENERAL PROVISIONS
10.1 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement and the rights of the parties thereunder shall be
interpreted and enforced under Massachusetts law without reference to
principles of conflicts of laws.
10.2 ASSIGNMENTS; SUCCESSORS: BINDING AGREEMENT. Executive may not assign,
pledge or encumber his interest in this Agreement or any part thereof and may
not delegate his duties hereunder. This Agreement shall be binding on and inure
to the benefit of the Companies' successors and assigns. This Agreement shall
inure to the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributee,
devisees and legatees. The obligations of the Executive shall be released if
any of the Companies shall fill a bankruptcy petition or assignment for the
benefit of creditors that results in liquidation or adversely affects the
Executive's wages or benefits hereunder.
10.3 NO WAIVER OR FORBEARANCE OF BREACH. The waiver by any party of the
breach of any provision of this Agreement shall not be deemed to be a waiver of
any subsequent breach. Forbearance of any breach of this Agreement shall not
constitute acceptance or approval of that breach or of any future breach, nor
shall it prejudice the Companies' right to action in response to any breach.
10.4 NOTICE. For the purposes of this Agreement, notices and all other
communications
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provided for in this Agreement, shall be provided by all parties of this
Agreement in writing: by (i) actual delivery of the notice into the hands of
the party entitled to receive it; (ii) by mailing the notice by registered or
certified mail, return receipt requested, in which case the notice shall be
deemed to be given two (2) days following on the date of its mailing; (iii) by
Federal Express or other overnight carrier, in which case the notice shall be
deemed to be given on the day following delivery into the hands of such
carrier; or (iv) by facsimile, in which case notice shall be deemed given on
the day sent. Each such notice shall be addressed as follows:
If to Selfix: If to the Executive:
Selfix, Inc. Xxxxxxx Xxxxx
Attn: Chief Executive Officer c/o Tamor Plastics Corp.
0000 X. 00xx Xxxxxx P.O. Box 1186
Chicago, IL 60632 Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
With a copy to: With a copy to:
Much Shelist Freed Xxxxxxxxx Bodanza & Bodanza
Xxxxx Xxxx & Xxxxxxxxxx, P.C. Attn: Xxxx Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxxxxx 00 Xxxxxx Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx Xxxxxxxxxx, XX 00000
Xxxxxxx, XX 00000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
10.5 MODIFICATION; WAIVER; ENTIRE AGREEMENT. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in a writing signed by Executive and
such officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement.
10.6 INDEMNIFICATION/DIRECTORS AND OFFICERS INSURANCE. The Company
shall indemnify the Executive and hold him harmless for all acts or decisions
made by him in good faith while performing services for the Company. The
Companies shall also use their best efforts to obtain coverage for him under
any insurance policy now in force or hereinafter obtained during the term of
this Agreement covering the other Officers and Directors of the Companies
against lawsuits. The Company shall pay for all expenses including attorney's
fees, actually and necessarily incurred by the Executive in connection with
the defense of such act, suit or proceeding covered by this indemnification and
in connection with any related appeal, including the cost of court settlements.
10.7 VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10.8 CONTROLLING DOCUMENT. This Agreement supersedes and replaces any
prior
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employment agreements between the Company and the Executive.
10.9 GUARANTY. Provided Executive is not in default under this
Agreement, HPI guarantees to Executive the prompt performance of this
Agreement.
10.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SELFIX, INC. TAMOR CORPORATION,
BY: /s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxx
------------------------------ ---------------------------------
Its: Chairman & CEO Its: CEO
------------------------------ ---------------------------------
/s/ Xxxxxxx X. Xxxxx HOME PRODUCTS INTERNATIONAL, INC.
------------------------------
Xxxxxxx X. Xxxxx, Individually
BY: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its: Chairman & CEO
---------------------------------
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NON-COMPETITION AGREEMENT
THIS AGREEMENT is made as of the 26th day of February, 1997, by and
among SELFIX, INC., a Delaware corporation with its principal place of business
at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("SELFIX"), TAMOR CORPORATION,
a Massachusetts corporation ("TAMOR") and XXXXXXX X. XXXXX, now residing
at ("XXXXXXX"). In such case as Selfix and its
subsidiaries are reorganized into a holding company structure, all references
to Selfix in this Agreement shall also be construed to refer to Selfix's parent
company.
RECITALS
A. Selfix is engaged in the business of manufacturing and
distributing housewares, bathwares, storage products and systems, children's
products and other items.
X. Xxxxx is also engaged in the business of manufacturing and
distributing housewares, bathwares and storage products.
C. Housewares Sales, Inc. ("HOUSEWARES"), a Massachusetts
corporation, is engaged in the business of marketing and selling housewares,
bathwares and storage products, which products are primarily manufactured by
Tamor.
D. The business of Tamor and Housewares, together with any
business conducted jointly by Tamor, Housewares and/or Selfix, and any business
involving Selfix products which may be marketed or used by Tamor shall be
referred to as the "BUSINESS".
E. Simultaneous with the execution of this Agreement, Selfix is
purchasing all of the equity of Tamor and is merging Housewares with and into
Selfix (collectively the "TRANSACTIONS").
F. Richard is presently employed as a senior executive of Tamor.
In light of Richard's experience in managing and expanding the business of
Tamor and creating its products, and in recognition of the acknowledged
importance and sensitivity of the confidential information to which Xxxxxxx has
had access and the legitimate need of Tamor to protect and
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enjoy its goodwill and customer relationships, Selfix was not willing to
consummate the Transactions without the protection against unfair competition
this Agreement affords.
X. Xxxxxxx has agreed that during the term of his employment and
following termination of employment with Tamor (or Selfix or any affiliated
entity conducting or operating the Business) for any reason, he will not engage
in any business which competes with the Business pursuant to the terms of this
Agreement.
CLAUSES
1. NOW, THEREFORE, in consideration of the premises and the
following covenants and agreements, the parties agree as follows:
ACKNOWLEDGMENTS. Xxxxxxx acknowledges and agrees that: (i) he
has been an officer, director, shareholder and an employee of Tamor for a
number of years; (ii) the past and future services rendered, or to be rendered,
by Xxxxxxx to Xxxxx were and are of extraordinary merit and constitute a
necessary and valuable contribution to the general growth and development of
Tamor; (iii) during the course of his employment with and relationship to
Tamor, he has and may acquire special knowledge of its relationships and
business techniques, internal business organization, financial data, marketing
plans, intellectual property and other proprietary matters; and (iv) Selfix
would not be willing to consummate the Transactions without the protection
against unfair competition this Agreement affords.
2. RESTRICTIONS ON COMPETITION. During the term of his employment
with Tamor or Selfix or any affiliate of Selfix conducting or operating the
Business (any such entity together with Tamor is referred to as "Greater
Tamor"), and for a period of eighteen (18) months following the termination of
Richard's employment with Greater Tamor, for any reason (the "RESTRICTIVE
PERIOD"), Xxxxxxx shall not directly or indirectly, own, manage, operate,
control, be employed by, participate in, or be connected in any manner with the
ownership (except for minor ownership in a public company), management,
operation, or control of any business (i) which is located within any state or
country in which Greater Tamor does
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Business, and (ii) which competes with the Business of Greater Tamor. Xxxxxxx
agrees that his breach of any of the covenants contained in this Section 2 will
result in irreparable harm and continuing damages to Greater Tamor and the
Business and that Greater Tamor's remedy at law for any such breach or
threatened breach will be inadequate and, accordingly, in addition to such
other remedies as may be available to Greater Tamor at law or in equity in such
event, any court of competent jurisdiction may issue a decree of specific
performance and a temporary or permanent injunction, without bond, enjoining
and restricting the breach, or threatened breach, of any such covenant. If
Greater Tamor institute legal action for injunctive or other relief as a result
of Richard's violation or breach of any restrictive covenants in Section 2 of
this Agreement, the parties, at the request of either party, agree to jointly
ask the relevant court of competent jurisdiction to have the matter then before
such court order that the matter be submitted for determination by arbitration
in accordance with the commercial rules of the American Arbitration
Association, to be conducted in Boston, Massachusetts. Furthermore, Greater
Tamor may seek any and all other remedies to which it may be entitled.
3. NON-SOLICITATION. During the Restrictive Period, Xxxxxxx will
not, directly or indirectly, through one or more intermediaries or affiliates
or otherwise:
(i) solicit anyone who was a customer of
Greater Tamor during the term of Richard's employment
with Greater Tamor with respect to business which
competes with the Business as it is then being
conducted;
(ii) solicit any prospective customer of
Greater Tamor with whom Xxxxxxx has contact during his
employment with Greater Tamor during the preceding
twelve (12) months with respect to business which
competes with the Business as it is then being
conducted; and/or
(iii) divert, take away, solicit or seek to
induce employment of any of the employees of Greater
Tamor.
4. CONSIDERATION. In consideration of Richard's agreement to not
compete as set forth in this Agreement, Selfix agrees to pay or cause Tamor to
pay Xxxxxxx the sum of Ten Thousand Dollars ($10,000.000) at the closing of the
Transactions.
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5. UNENFORCEABLE PROVISION. If any court of competent jurisdiction
shall determine that any of the restrictions contained in Section 2 or 3 hereof
are unreasonable, invalid or unenforceable, it is the intention of the parties
that the restrictive covenant shall not be terminated or invalidated, but shall
be deemed amended to the extent required to render it reasonable, valid or
enforceable, such amendment to apply only with respect to the operation of
Section 2 or 3 hereof in the jurisdiction of the court which has made such
adjudication.
6. SEVERABILITY. If a court of competent jurisdiction rules that
any one or more of this Agreement's provisions are invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of this Agreement's other provisions, and this Agreement
shall be construed as if it has never contained such invalid, illegal or
unenforceable provision.
7. ATTORNEY'S FEES AND COSTS. In any dispute under this Agreement
the prevailing party in litigation or arbitration shall pay to the
non-prevailing party the reasonable legal fees and costs incurred by such party.
8. NO ASSIGNMENT. Xxxxxxx shall not have the right to assign this
Agreement or any of his rights or obligations hereunder to another party or
parties.
9. APPLICABLE LAW. The laws of the Commonwealth of Massachusetts
shall govern the interpretation of this Agreement, irrespective of the fact
that one or more of the parties now or may become a resident of a different
jurisdiction.
10. NO WAIVER. No waiver by Greater Tamor of Richard's breach of
any covenant or obligation hereof shall be considered to be a continuing waiver
of any such covenant or provision, or a waiver of any other or future breach
thereof.
11. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement, shall be provided by all
parties of this Agreement in writing: by (i) actual delivery of the notice into
the hands of the party entitled to receive it, (ii) by mailing the notice by
registered or certified mail, return receipt requested in
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which case the notice shall be deemed to be given two (2) days following on the
date of its mailing; (iii) by Federal Express or other overnight carrier, in
which case the notice shall be deemed to be given on the day following delivery
into the hands of such carrier; or (iv) by facsimile, in which case notice
shall be deemed given on the day sent. Each such notice shall be addressed as
follows:
If to Selfix or Tamor: If to Xxxxxxx:
Selfix, Inc. Xxxxxxx X. Xxxxx
Attention: Xxxxx X. Xxxxxxx 000 Xxxxxx Xxxxx
0000 X. 00xx Xxxxxx Xxxxxxxxxx, XX 00000
Xxxxxxx, XX 00000
With a copy to: With a copy to:
Much Shelist Freed Xxxxxxxxx Xxxxxxx & Xxxxxxx
Xxxxx Xxxx & Xxxxxxxxxx, P.C. Attn: Xxxx X. Xxxxxxx
Attn: Xxxxxxx X. Xxxxxxxxxx 00 Xxxxxx Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx Xxxxxxxxxx, XX 00000
Xxxxx 0000
Xxxxxxx, XX 00000-0000 Fax: (000)000-0000
Fax: (000)000-0000
12. TERMINATION IN THE EVENT OF FILING BANKRUPTCY. In the event of a
bankruptcy filing or assignment for the benefit of creditors which results in
the liquidation of the assets of Selfix, its parent company or Tamor, or
affects the wages of Xxxxxxx adversely, then Xxxxxxx shall be released from all
obligations under this Agreement.
13. COMPLETE UNDERSTANDING. This Agreement contains all of the
agreements and understandings between the parties hereto with respect to the
restrictive covenant, and no oral agreements or written correspondence shall be
held to affect the provisions hereof. All
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subsequent changes and modifications, to be valid, shall be by written
instrument executed by Tamor, Selfix and Xxxxxxx.
/s/ Xxxxxxx X. Xxxxx SELFIX, INC., A Delaware corporation
------------------------------
XXXXXXX X. XXXXX, individually
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx, President
TAMOR CORPORATION, a Massachusetts
corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Its: CEO
-------------------------------
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