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EXHIBIT 10.1
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 XXXXXX XXXXXXX (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.
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:
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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 Chairman of the Board and
Chief Executive Officer, 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 Four Hundred Twenty-five Thousand Dollars ($425,000) per
annum (the "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
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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 eighty-eight and two-tenths percent
(88.2%) 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") and the fiscal year ending January 31, 1998
("Fiscal 1997") shall be One Hundred Twenty-Five Thousand Dollars ($125,000). 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
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(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) eighty-eight and two/tenths percent (88.2%) of the Employee's Annual Salary
in effect at the beginning of such fiscal year (or, in the case of fiscal 1996
or 1997, $125,000). For example, if the Company's pre-tax income for Fiscal 1997
is ninety-six percent (96%) of the Target Amount and Employee's Annual Salary is
$425,000, the Annual Bonus shall be calculated as follows:
(96%-80%)
--------- X $125,000 = $100,000
20%
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 number of full weeks of employment during the fiscal year divided by 52. No
bonus shall
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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 75,000 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 $1,451,753 (Employee's
current annual salary) and $500,000, 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.
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B. In consideration of the Annual Bonus reductions effected at the time
of the Initial Public Offering, the Company agrees to grant Employee an
additional number of Common Shares (rounded up to the nearest whole share)
calculated as follows: $298,828.75 divided by the Offering Price. The award of
securities under this Section 3.4 shall be deemed exempt from 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.
C. Notwithstanding anything contained in Section 3.2 to the contrary,
in the event the actual pre-tax income of the Company during either Fiscal 1996
or Fiscal 1997, or in both years, is less than the Target Amount for such fiscal
years, then the actual Annual Bonus to which Employee may be entitled in respect
of Fiscal 1998 shall be reduced, on a dollar for dollar basis, by an amount
(herein referred to as the "Unearned Bonus") equal to the
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unearned bonus, if any, for Fiscal 1996 and Fiscal 1997, in the aggregate. The
Unearned Bonus is determined as follows:
1. If the Fiscal 1996 actual Annual Bonus is not $125,000, then
the Unearned Bonus for such year shall be the difference
between (a) $75,000 and (b) $75,000 times a fraction, the
numerator of which is the actual Annual Bonus earned and the
denominator of which is $125,000. To illustrate the foregoing,
assuming the Example in Section 3.4B above involved Fiscal
1996, the Unearned Bonus for Fiscal 1996 would be:
$75,000 - (100,000 X 75,000) or $15,000
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125,000
2. If the Fiscal 1997 actual Annual Bonus is not $125,000, then
the Unearned Bonus for such year shall be the difference
between (a) $164,063 and (b) $164,063 times the fraction, the
numerator of which is the actual Annual Bonus earned and the
denominator of which is $125,000. To illustrate the foregoing,
using the example in Section 3.4B, the Fiscal 1997 Unearned
Bonus is:
$164,063 - (100,000) X $164,063)
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125,000
In the event the Unearned Bonus exceeds the Fiscal 1998 Annual Bonus, the Annual
Bonuses for future fiscal years shall be reduced until the deficiency is
eliminated. Employee shall have no obligation to reimburse the Company any
Unearned Bonus in the event of his
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termination of employment at the end of the Term, termination due to death or
disability, or an earlier termination by the Company for any reason other than
"cause."
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. Additionally, during the Term, the
Company agrees to continue to pay the premium (approximately $17,200 per annum)
on the current $2 million insurance policy on the life of the Employee and
Employee shall have the right to designate the beneficiary or beneficiaries of
such policy. The Employee shall also have the right, at any time during the Term
or within sixty (60) days of its expiration, to purchase the insurance policy
for its cash value and the Company agrees to continue to make the premium
payments during the Term.
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.
3.7 OTHER EXECUTIVES. The Company agrees that Employee's
Annual Salary at all times during the Term will be at least as high as the
Annual Salary paid or payable to any other executive employee hired directly by
the Company; PROVIDED, HOWEVER; that the
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foregoing shall not apply with respect to executive employees who become
employed by the Company through a merger with any other company; PROVIDED,
FURTHER, that the foregoing will not limit the Company's ability to pay other
executive employees cash bonuses or other non-cash compensation (Stock Options)
as a result of which such other executive employees would receive higher overall
annual compensation than Employee.
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 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
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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 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
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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 "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
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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, 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.
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(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.
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
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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 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
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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.
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
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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
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
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corporation immediately after the merger; (d) the date of the approval
by shareholders of the Company (which shareholder approval did not
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
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
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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.
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,
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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 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
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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
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:
Xxxxxx Xxxxxxx
0000 Xxxxxxx 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
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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 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.
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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.
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, 8.1, 8.2, 8.3 and
8.4 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
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Agreement is deemed null and void, the July 14, 1992 (original) Agreement shall
still be effective.
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.,
its Managing Partner By: /s/ Xxxxx Xxxxxxxx
------------------------
Xxxxx Xxxxxxxx
By: ZS Mazel, Inc., General Partner of Chief Financial Officer
ZS Mazel L.P.
By: /s/ Xxxxxx Xxxxx /s/ XXXXXX XXXXXXX
----------------------------- ----------------------------
Xxxxxx Xxxxx XXXXXX XXXXXXX
Vice President
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