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EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Amendment"), made and
entered into this 30th day of September, 1996 by and among MAZEL COMPANY L.P.,
a Delaware limited partnership (the "Partnership"), MAZEL STORES, INC., an Ohio
corporation (the "Company"), and XXXXX XXXXX (the "Employee"), is to evidence
the following agreements and understandings:
WITNESSETH:
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WHEREAS, the Employee made and entered into an Employment Agreement
with the Partnership, effective July 14, 1992 (the "Agreement");
WHEREAS, the Company has acquired all of the assets and assumed
substantially all of the liabilities of the Partnership in exchange for all of
the capital stock in the Company; and
WHEREAS, the Company is now contemplating an initial public offering of
its Common Stock (the "Initial Public Offering") and the parties have agreed to
amend and restate the original Agreement to facilitate the Initial Public
Offering.
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NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. TERM. The Company hereby employs the Employee, and the Employee
hereby accepts such employment, for an initial term commencing on the effective
date of the Initial Public Offering (the "Effective Date") and ending on October
31, 2000, unless sooner terminated in accordance with the provisions of Section
4 or Section 5; with such employment to continue in accordance with the terms of
this Agreement from year to year thereafter (subject to termination as
aforesaid) unless either party notifies the other party in writing not less than
thirty (30) days prior to the expiration of the initial term and each annual
renewal thereof (said initial term and any continuation thereof being
hereinafter referred to as the "TERM").
2. DUTIES. The Employee, in his capacity as Executive Vice President --
Wholesale, shall faithfully perform for the Company the duties of said offices
and shall perform such other duties of an executive, managerial or
administrative nature as shall be specified and designated from time to time by
the Board of Directors. The Employee shall devote substantially all of his
business time and effort to the performance of his duties hereunder.
3. COMPENSATION.
3.1 SALARY. The Company shall pay the Employee during the Term a
salary at the rate of Two Hundred Twenty-five Thousand Dollars ($225,000) per
annum (the
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"ANNUAL SALARY"). Commencing on each anniversary of the commencement date of the
Term, the Annual Salary shall be increased by an amount (if a positive number)
equal to the product of (I) the Annual Salary in effect immediately prior to
such date, multiplied by (ii) 1.18 times the percentage, if any, by which the
Consumer Price Index (All Items less Shelter), Urban Wage Earners and Clerical
Workers, for the North Central Region/Population Size B, published by the United
States Government for the month preceding such date exceeds such index for the
comparable month in the preceding year. The Annual Salary shall be payable in
equal semi-monthly installments, less such deductions as shall be required to be
withheld by applicable law and regulations.
3.2 ANNUAL BONUS. During the Term, the Employee shall be entitled
to receive an annual bonus (the "ANNUAL BONUS") based upon the Company's pre-tax
income for each fiscal year of the Company ending during the Term, commencing
with the fiscal year ending January 25, 1997. Subject to the terms, conditions
and limitations set forth below, the maximum Annual Bonus for any fiscal year
shall be an amount equal to sixty-six and seven-tenths percent (66.7%) of the
Annual Salary in effect at the beginning of the relevant fiscal year in the
event that the Company's pre-tax income, calculated in accordance with generally
accepted accounting principles consistently applied, equals or exceeds the
"TARGET AMOUNT" (as hereinafter defined) for such fiscal years; PROVIDED,
HOWEVER, that the maximum Annual Bonus for the fiscal year ending January 25,
1997 ("Fiscal 1996") shall be Seventy- Five Thousand Dollars ($75,000) and the
maximum Annual Bonus for the fiscal year ending January 31, 1998 ("Fiscal 1997")
shall be One Hundred Fifteen Thousand Dollars
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($115,000). If the Company's pre-tax income for any fiscal year is less than the
Target Amount for such fiscal year, the Annual Bonus shall be the amount, if
any, equal to (I) (A) the percentage of the Target Amount that such pre-tax
income represents, minus eighty percent (80%), divided by (B) twenty percent
(20%), multiplied by (ii) sixty-six and seven/tenths percent (66.7%) of the
Employee's Annual Salary in effect at the beginning of such fiscal year (or, in
the case of fiscal 1996 or 1997, $75,000 or $115,000, respectively.) For
example, if the Company's pre-tax income for Fiscal 1997 is ninety-six percent
(96%) of the Target Amount, the Annual Bonus shall be calculated as follows:
(96%-80%)
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20% X $115,000 = $92,000
If the Company's pre-tax income for any fiscal year is less than eighty percent
(80%) of the Target Amount for such fiscal year, no Annual Bonus shall be
payable for such fiscal year. For purposes of this Agreement, the term "TARGET
AMOUNT" shall mean an amount to be determined by the Compensation Committee of
the Board of Directors prior to the end of the first quarter of such year after
consulting with the Employee except that the Target Amount with respect to
Fiscal 1996 shall be $9,500,000, which will be adjusted to reflect both charges
and credits attributable or otherwise resulting from the Initial Public
Offering. The Annual Bonus for each fiscal year shall be paid in full to the
Employee as soon as practicable (but not later than thirty (30) days) after the
Company's audited financial statement for such fiscal year is available to the
Company. In the event Employee's employment terminates due to death, disability
or expiration of the Term as provided in Section 1 hereof, then Employee shall
be entitled to a pro rata share of an Annual Bonus with the percentage equal to
the
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number of full weeks of employment during the fiscal year divided by 52. No
bonus shall be paid for any year during which the Employee is terminated for
"cause" or the Employee voluntarily elects to terminate his employment.
3.3 OPTIONS. On the effective date of the Public Offering, the
Employee shall be granted under the Mazel Stores, Inc. 1996 Stock Option Plan a
non-qualified option to purchase up to 30,000 Common Shares of the Company at an
exercise price equal to the initial public offering price (the "OFFERING
PRICE"). The option shall expire on the tenth (10th) anniversary of the
Effective Date. The option shall vest at a rate of twenty percent (20%) per
year, assuming the Employee remains an employee of the Company, commencing with
the first anniversary of the Effective Date.
3.4 CASH AND STOCK SALARY REDUCTION AWARDS; MAXIMUM ANNUAL BONUS
REDUCTION AWARDS; ADJUSTMENT TO ANNUAL BONUS.
A. In consideration of the salary reductions effected at the time of
the Initial Public Offering, in lieu of the salary amount payable under the
original Agreement: (I) the Company agrees to pay to Employee, on the Effective
Date, an amount in cash equal to the difference between $446,471 (Employee's
current annual salary) and $300,000, prorated for the period between the
Effective Date and July 14, 1997, and discounted at the current rate of interest
charged by The Provident Bank as its prime rate, and (ii) the Company grants
Employee the number of Common Shares as equal (A) 1.25 times the sum of $75,000
times the number of years (rounded to the nearest tenth) in the period between
the Effective Date and October 31, 2000, DIVIDED BY (B) the Offering Price.
B. The award of securities under this Section 3.4 shall be deemed
exempt from
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the registration requirements of the Securities Act of 1933, as amended,
pursuant to Rule 701 promulgated under such Act, but shall be subject to any
lock-up agreement required of officers and directors by the underwriting
agreement between the Company and the underwriters. In addition to the
foregoing, the Company agrees to lend the Employee, if requested, an amount that
will cover the Employee's income tax obligations arising from the grant of the
Common Shares. The loan principal and accrued interest shall be due on the
earlier of (I) five years after the Effective Date or (ii) five (5) days
following the date the Employee first sells any of the Company's Common Stock,
but only to the extent of net proceeds from such sale. Interest on the loan
shall accrue at the applicable federal rate for mid-term loans in effect on the
date of the loans.
3.5 BENEFITS. The Employee shall be permitted during the Term to
participate in any group life, hospitalization or disability insurance plans,
health programs, pension plans or similar benefits that may be available to
other senior executives of the Company generally, on the same terms as such
other executives, in each case to the extent that the Employee is eligible under
the terms of such plans or programs. The Employee shall also be entitled to
receive vacation of six (6) weeks per year.
3.6 EXPENSES. The Company shall pay or reimburse the Employee for
all reasonable expenses actually incurred or paid by the Employee during the
Term in the performance of the Employee's services under this Agreement.
4. TERMINATION UPON DEATH OR DISABILITY. If the Employee dies during
the term, this Agreement shall terminate as of the date of the Employee's death.
If the Employee by
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virtue of ill health or other disability is unable to perform substantially and
continuously the duties assigned to him for more than 180 consecutive or
non-consecutive days out of any consecutive 12 month period, the Company shall
have the right to terminate the employment of the Employee upon notice in
writing to the Employee. Upon termination, the Employee (or the Employee's
estate or beneficiaries in the case of the death of the Employee) shall be
entitled to receive any Annual Salary, Annual Bonus and other benefits earned
and accrued under this Agreement, and reimbursement under this Agreement for
expenses incurred, prior to the date of termination. No provision of this
Agreement shall limit any of Employee's rights under any insurance, pension or
other benefit programs of the Company for which the Employee shall be eligible
at the time of such death or disability.
5. TERMINATION FOR CAUSE. If the Employee (I) is convicted of a felony,
a crime of moral turpitude or any crime involving the Company (other than
pursuant to actions taken at the direction or with the approval of the Board of
Directors); (ii) is found by reasonable determination of the Board of Directors
made in good faith, to have engaged in (A) willful misconduct, (B) willful or
gross neglect, (C) fraud, (D) misappropriation or (E) embezzlement in the
performance of his duties hereunder; or (iii) breaches in any material respect
the terms and provisions of this Agreement and fails to cure such breach within
ten days following written notice from the Company specifying such breach, the
Company may terminate the Employee's employment hereunder on written notice
given to the Employee at any time following the occurrence of any of the events
described in clauses (I) and (ii) above and on written notice given to the
Employee at any time not less than 30 days following the
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occurrence of any of the events described in clause (iii) above. The Employee
shall have no right to receive any compensation or benefit hereunder on and
after the effective date of the notice provided in the preceding sentence other
than Annual Salary, Annual Bonus and other benefits earned and accrued under
this Agreement, and reimbursement under this Agreement for expenses incurred,
prior to the effective date of such notice.
6. COVENANT OF THE EMPLOYEE.
6.1 COVENANT AGAINST COMPETITION. The Employee acknowledges that
(I) the principal businesses of the Company and its affiliates are the retail
and wholesale sales of closeout merchandise (collectively, the "COMPANY
BUSINESS"); (ii) the Employee is among only a limited number of persons who have
developed the Company Business; (iii) the Company Business is, in part, national
in scope; (iv) the Employee's work for the Company and its affiliates has given
and will continue to give him access to the confidential affairs and proprietary
information of the Company; (v) the agreements and covenants of the Employee
contained in this Section 6 are essential to the business and goodwill of the
Company; (vi) the Company would not have entered into this Agreement but for the
covenants and agreements set forth in this Section 6; and (vii) the cash and
stock compensation to be received by Employee under this Agreement is, in part,
in payment for the covenants and agreements set forth in this Section 6.
Accordingly, the Employee covenants and agrees that:
(a) During the period commencing on the Effective Date and
ending on the later of (I) two year following the date upon which
the Employee shall cease to be an employee of the Company and
(ii) October 31, 2000 (the
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"RESTRICTED PERIOD"), the Employee shall not in the United States
of America, directly or indirectly, (1) engage in the Company
Business for the Employee's own account; (2) render any services
to any person (other than the Company) engaged in such
activities; or (3) become interested in any such person (other
than the Company) as a partner, shareholder, principal, agent
consultant or in any other relationship or capacity; PROVIDED,
HOWEVER, that notwithstanding the above, the Employee may own,
directly or indirectly, solely as an investment, securities of
any such person that are traded on any national securities
exchange or the NASDAQ National Market if the Employee (A) is not
a controlling person of, or a member of a group which controls,
such person and (B) does not, directly or indirectly, own four
percent (4%) or more of any class of securities of such person.
Notwithstanding the foregoing, in the event Employee's employment
is terminated by the Company other than for "cause" (as defined
in Section 5), the Restricted Period will terminate on the date
one year following the date of termination.
(b) During and after the Restricted Period, the Employee shall
not use for his benefit or the benefit of others, except in
connection with the business and affairs of the Company and its
affiliates, any confidential matters relating to the Company
Business and to the Company and its affiliates learned by the
Employee heretofore or hereafter directly or indirectly from the
Company or its predecessors and its affiliates, including,
without limitation,
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information with respect to (1) prospective store locations, (2)
sales figures (whether per store or otherwise), (3) profit or
loss figures (whether per store or otherwise), and (4) customers,
clients, suppliers, sources of supply and customer lists (the
"Confidential Company Information ") and shall not disclose such
Confidential Company Information to anyone outside of the Company
or its affiliates except with the Company's express written
consent and except for Confidential Company Information that (1)
is at the time of receipt or thereafter becomes publicly known
through no wrongful act of the Employee or (2) is received from a
third party not under an obligation to keep such information
confidential and without breach of this Agreement.
(c) During the Restricted Period, the Employee shall not,
without the Company's prior written consent, directly or
indirectly, knowingly solicit or encourage to leave the
employment of the Company, any employee of the Company or hire
any employee who has left the employment of the Company after the
date of this Agreement within one year of the termination of such
employee's employment with the Company.
(d) All memoranda, notes, lists, records and other documents
(and all copies thereof) made or compiled by the Employee or made
available to the Employee concerning the Company Business or the
Company and its affiliates shall be the Company's property and
shall be delivered to the Company at any time on request.
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6.2 RIGHTS AND REMEDIES UPON BREACH. If the Employee breaches, or
threatens to commit a breach of, any of the provisions of Section 6.1 (the
"RESTRICTIVE COVENANTS"), the Company shall have the following rights and
remedies (upon compliance with any necessary prerequisites imposed by law upon
the availability of such remedies), each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of any other rights and
remedies available to the Company under law or in equity:
(a) The right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond) by any court having
equity jurisdiction, including, without limitation, the right to
an entry against the Employee of restraining orders and
injunctions (preliminary, mandatory, temporary and permanent)
against violations, threatened or actual, and whether or not then
continuing, of such covenants, it being acknowledged and agreed
that any such breach or threatened breach will cause irreparable
injury to the Company and that money damages will not provide an
adequate remedy to the Company.
7. EARLY TERMINATION. Notwithstanding any provision of this Agreement
to the contrary, the Company may terminate this Agreement at any time for any
reason other than "cause", provided that the Company shall continue to pay the
Employee his current compensation until the earlier of October 31, 2000 or one
(1) year after the date of termination. The compensation, including an amount
equal to the prior year's bonus, shall
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be payable in twelve (12) equal monthly installments, net of applicable
withholding taxes. Employee shall be entitled to receive all benefits, including
life insurance, payable under this Agreement for the duration of such twelve
(12) months or until October 31, 2000, whichever is earlier. In the event of
termination under this paragraph, the "Restricted Period" under Section 6.1
shall expire one (1) year after the date of such termination.
In the event the Employee elects to terminate this Agreement prior to
the expiration of the Term, his noncompetition covenant shall expire on the
later of October 31, 2000 or two (2) years after the date of such termination.
The Company covenants and agrees with Employee that the Company will
not relocate the Company's corporate headquarters or Employee's principal office
from the Cleveland, Ohio area during the Term. The Company further agrees that
it will maintain and not change the present business hours or policy on business
hours of the Company's wholesale operations, provided that this sentence shall
not apply to any businesses that the Company may acquire in the future.
Accordingly, the Company agrees that should the Company (i) relocate the
corporate headquarters or Employee's principal office from the Cleveland, Ohio
metropolitan area or (ii) modify the business hours or policy or business hours
of the current wholesale operations, at any time during the Term, such
relocation or modification shall entitle Employee, at his sole election and
effective upon notice to the Company, to terminate this Agreement, and such
termination shall be deemed a termination by the Company other than for "cause"
for purposes of this Section 7.
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8. CHANGE OF CONTROL.
A. In the event of a "Change in Control," then the Employee may
elect to terminate his employment hereunder effective upon the
consummation of such Change of Control, and such termination
shall be deemed for purposes of this Agreement as a
termination by the Company without "cause." In lieu of the
compensation payable under Section 7, Employee shall be
entitled to twenty-four (24) equal monthly installments, net
of applicable withholding taxes, the aggregate amount of which
payments equals the sum of his salary on the date of
termination and his prior year's bonus. Additionally, in the
event the Company elects to terminate the Employee's
employment under Section 7 of this Agreement, and a
"Change-of-Control" occurs within six (6) months of Employee's
termination, then Employee shall be entitled to receive the
additional one-year's salary and bonus provided in this
Section 8.A. unless the Company can demonstrate, by clear and
convincing evidence, that such termination did not occur in
contemplation of the Change-in-Control.
B. The term "Change in Control" shall mean, but not be limited
to: (a) the first purchase of shares pursuant to a tender
offer or exchange (other than a tender offer or exchange by
the Company, ZS Fund, Xxxxxx Xxxxxxx, and/or any affiliate
thereof) for all or part of the Company's
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Common Shares of any class or any securities convertible into
such Common Shares and Employee has elected not to tender or
exchange his Common Shares; (b) the receipt by the Company of
a Schedule 13D or other advice indicating that a person (other
than ZS Fund, Mazel/D&K, Inc., Xxxxxx Xxxxxxx and/or any
affiliate thereof) is the "beneficial owner" (as that term is
defined in Rule 13d-3 under the Securities Exchange Act of
1934) of twenty percent (20%) or more of the Company's Common
Shares calculated as provided in paragraph (d) of said Rule
13d-3; (c) the date of approval by shareholders of the Company
(which shareholder approval did not include the affirmative
vote of the Common Shares beneficially owned by Employee) of
an agreement providing for any consolidation or merger of the
Company in which the Company will not be the continuing or
surviving corporation or pursuant to which shares of capital
stock, of any class or any securities convertible into such
capital stock, of the Company would be converted into cash,
securities, or other property, other than a merger of the
Company in which the holders of common stock of all classes of
the Company immediately prior to the merger would have the
same proportion of ownership of common stock of the surviving
corporation immediately after the merger; (d) the date of the
approval by shareholders of the Company (which shareholder
approval did not
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include the affirmative vote of the Common Shares beneficially
owned by Employee) of any sale, lease, exchange, or other
transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the
Company; (e) the adoption of any plan or proposal for the
liquidation (but not a partial liquidation) or dissolution of
the Company, AND Employee shall have voted his Common Shares
against adoption of such plan or proposal; or (f) the date
(the "Measurement Date") on which the individual who at the
beginning of a two consecutive year period ending on the
Measurement Date, cease, for any reason, to constitute at
least a majority of the Board of Directors of the Company,
unless the election, or the nomination for election by the
Company's shareholders, of each new director during such
two-year period was approved by an affirmative vote of the
directors (including Employee) then still in office who were
directors at the beginning of said two-year period.
C. Notwithstanding any other provision of this Agreement, in the
event that any payment or benefits provided by the Company (or
an affiliate) to the Employee under or outside of the terms of
this Agreement would constitute a "parachute payment" within
the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the payments or benefits
provided hereunder shall be reduced to the extent
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necessary so that no portion thereof shall be subject to the
excise tax imposed by Section 4999 of the Code, but only if,
by reason of such reduction, the Employee's net after tax
benefit shall exceed the net after tax benefit if such
reduction were not made. "Net after tax benefit" for purposes
of this Section 8 shall mean the sum of:
(i) the total amount payable to the Employee under this
Agreement, PLUS
(ii) all other payments and benefits which the Employee
receives or is then entitled to receive from the Company
and any of its affiliates that would constitute a
"parachute payment" within the meaning of Section 280G
of the Code, LESS
(iii) the amount of federal income taxes payable with respect
to the payments and benefits described in clauses (i)
and (ii) above calculated at the maximum marginal income
tax rate for each year in which such payments and
benefits shall be paid to the Employee (based upon the
rate in effect for such year as set forth in the Code at
the time of the first payment of the foregoing), LESS
(iv) the amount of excise taxes imposed with respect to the
payments and benefits described in clauses (i) and (ii)
above by Section 4999 of the Code.
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All calculations under this Section 8 shall be made by the Company in
consultation with its outside auditors.
9. OTHER PROVISIONS.
9.1 SEVERABILITY. The Employee acknowledges and agrees that
(I) he has had an opportunity to seek advice of counsel in connection with this
Agreement and (ii) the Restrictive Covenants are reasonable in geographical and
temporal scope and in all other respects. If it is determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
9.2 BLUE-PENCILLING. If any court determines that any of the
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, the duration or scope of such
provision, as the case may be, shall be reduced so that such provision becomes
enforceable and, in its reduced form, such provision shall then be enforceable
and shall be enforced.
9.3 ENFORCEABILITY; JURISDICTIONS. The Company and the
Employee intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
the Restrictive Covenants. If the courts of any one or more of such jurisdiction
hold the Restrictive Covenants wholly unenforceable by reason of breadth of
scope or otherwise, it is the intention of the Company and the Employee
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that such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdictions being, for this purpose,
severable, diverse and independent covenants, subject, where appropriate, to the
doctrine of RES JUDICATA.
9.4 SET-OFF. The Employee acknowledges and agrees that the
Company may set-off against any or all amounts payable to the Employee hereunder
any or all amounts payable by the Employee to the Company in respect of a breach
by the Employee of any of the provisions of Section 6.
9.5 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States mails as follows:
(i) If to the Company, to:
Mazel Stores, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: President
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with a copy to:
ZS Fund L.P.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxx
(ii) If to the Employee to:
Xxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
Suite 2600
The Tower at Erieview
Xxxxxxxxx, Xxxx 00000-0000
Any such person may by notice given in accordance with this Section to the other
parties hereto designate another address or person for receipt by such person of
notices hereunder.
9.6 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto,
including, but not limited to, the original Agreement, which shall become null
and void and of no further force and effect on the Effective Date. Without
limiting the generality of the preceding sentence, the Employee hereby waives
any and all rights to compensation which he has or may have had under the
original Agreement in respect of the fiscal year ending January 31, 1997;
PROVIDED, HOWEVER, that such waiver shall not become effective until the
Effective Date and shall be inoperative
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until such date.
9.7 WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any rights, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such
right, power or privilege.
9.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio without regard to
principles of conflicts of law.
9.9 ASSIGNMENT. This Agreement, and the Employee's rights and
obligations hereunder, may not be assigned by the Employee; any purported
assignment by the Employee in violation hereof shall be null and void. In the
event of any sale, transfer or other disposition of all or substantially all of
the Company's assets or business, whether by merger, consolidation or otherwise,
the Company may assign this Agreement and its rights hereunder.
9.10 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
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9.11 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts together shall
constitute one and the same instrument. Each counterpart may consist of two
copies hereof each signed by one of the parties thereto.
9.12 SURVIVAL. Anything contained in this Agreement to the
contrary notwithstanding, the provisions of Sections 6.1, 6.2, 9.1, 9.2, 9.3 and
9.4 shall survive termination of this Agreement.
9.13 HEADINGS. The headings in this Agreement are for
reference only and shall not affect the interpretation of this Agreement.
9.14 INVALIDITY. This Agreement shall be deemed void and of no
effect if the Initial Public Offering fails to occur prior to December 31, 1996.
In the event this Agreement is deemed null and void, the July 14, 1992
(original) Agreement shall still be effective.
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IN WITNESS WHEREOF, the parties hereto have signed their names as of
the day and year first above written.
MAZEL COMPANY L.P. MAZEL STORES, INC.
By: ZS Mazel L.P., /s/ Xxxxxx Xxxxxxx
its Managing Partner By: ______________________________
Xxxxxx Xxxxxxx
By: ZS Mazel, Inc., Chairman
General Partner of
ZS Mazel L.P.
/s/ XXXXX XXXXX
______________________________
XXXXX XXXXX
/s/ Xxxxxx Xxxxx
By: _________________________
Xxxxxx Xxxxx,
Vice President
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