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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of April 24, 1997 (the
"Effective Date"), by and between Xxxxx X. Xxxxxx (the "Executive") and Horizon
Group, Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement pertaining to the
employment of the Executive by the Company; and
WHEREAS, the Company and Executive desire to specify the terms of the
Executive's employment with the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby agreed by the Executive and the Company as
follows:
1. Performance of Services. The Executive's employment with the Company shall
be subject to the following:
(a) The Company, on the Effective Date of April 24, 1997, hereby agrees to
employ the Executive as its President and Chief Operating Officer. It is
the intent of the Board of Directors of the Company (the "Board") that on
or before December 31, 1997, it will consider, but shall not be obligated
to employ the Executive as President and Chief Executive Officer, and to
elect the Executive to be a member of the Board. The Company agrees to
promptly take all necessary action to execute the terms of this agreement.
Should, for some unforeseen reason, the Company not create these titles,
this agreement shall nevertheless bind the Company. Executive shall have
those duties generally associated with a chief operating officer position
including, without limitation, direct responsibility for the day to day
operations of the entire company. Material to the Company in agreeing to
employ the Executive in these positions is the Executive's representation
of his skills, abilities and background including, but not limited to, the
Executive's education and employment as such is set forth in the
Executive's resume and in the letter of introduction from Xxxxxxxx
Partners which were submitted to the Company.
(b) The Executive agrees that he shall perform his duties, as such are
described in the bylaws of the Company, faithfully, diligently and
efficiently. The Executive will have such authority and power as are
inherent to his position as set forth in the bylaws of the Company.
(c) The Executive shall devote his full time, energies and talents to
serving in the positions which he may hold pursuant to paragraph 1(a).
Notwithstanding the foregoing provisions of this paragraph 1, during the
Agreement Term (as defined below), the Executive may
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devote reasonable time to activities other than those required under this
Agreement, including activities involving professional, charitable,
educational, religious and similar types of organizations, speaking
engagements, membership on the boards of directors of other organizations,
and similar type activities, to the extent that such other activities do
not, in the judgement of the Board, inhibit or prohibit the performance of
the Executive's duties under this Agreement, or conflict in any material
way with the business of the Company; provided, however, that the
Executive shall not serve on the board of any business, or hold any other
position with any business without the prior written consent of the Board.
(d) The "Agreement Term" shall be the period beginning on the Effective Date
and ending on April 30, 2000.
2. Compensation and Benefits. The Company shall compensate Executive for
his services as follows:
(a) The Executive shall receive, for each 12-consecutive month period
commencing on the Effective Date, or any portion thereof on a pro rata
basis beginning on the Effective Date and each anniversary thereof, an
annual base salary of not less than $360,000. The Executive's salary
shall be payable on a semimonthly basis.
(b) The Executive shall receive incentive compensation from 0 to 100 percent
of his annual base salary. The Executive's bonus will be determined and
paid no later than the end of the first quarter of the calendar year
following the calendar year in which it is earned. The Executive will
receive a performance review in December 1997.
(c) The Executive's base salary (paragraph 2(a)) and incentive compensation
(paragraph 2(b)) shall be reviewed annually by the Compensation Committee
of the Board based on the Executive's performance as measured against
predetermined performance criteria.
(d) As an inducement essential to causing the Executive to enter into this
Agreement, the Executive will be issued 50,000 shares of Company stock
without payment of additional consideration by the Executive to the
Company as follows:
(1) 15,000 shares on April 15, 1998.
(2) 15,000 shares on April 15, 1999.
(3) 20,000 shares on April 15, 2000.
These shares will only be issued if the Executive is employed on the
dates specified in this paragraph or if the Executive's employment is
terminated under paragraphs 5(a),(b),(e), and (f).
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With respect to paragraphs 2(d) and 3(a), (b) and (c), the Executive
acknowledges that (i) such stock has not been registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities
laws, (ii) such stock may not be transferred unless registered in
accordance with the Act and applicable state securities laws or unless an
exemption from such registration is available, and (iii) the certificate
or certificates evidencing such stock shall bear a legend indicating the
foregoing restriction on transferability of such stock. The Executive
represents and warrants to the Company that he is acquiring such stock for
investment purposes only for his account and not on behalf of other
persons or with a view to any resale or distribution thereof.
(e) Except as otherwise specifically provided to the contrary in this
Agreement, the Executive shall be provided with the welfare benefits and
other fringe benefits to the same extent and on the same terms as those
benefits are provided by the Company from time to time to the Company's
other senior management employees.
(f) The Company shall maintain directors and officers liability insurance in
commercially reasonable amounts (as reasonably determined by the Board),
and the Executive shall be covered under such insurance to the same extent
as other senior management employees of the Company.
(g) The Executive is authorized to incur reasonable expenses for
entertainment, travel, meals, lodging and similar items in promoting the
Company's business. The Company will reimburse the Executive for all
reasonable expenses so incurred.
(h) The Company will provide the Executive with a $1 million life insurance
policy of the Executive's choice during his employment payable to the
Executive's designation of beneficiary; provided however, that the Company
is only obligated to provide such insurance if the Executive is insurable
and if the Company can secure the policy at a cost not to exceed $15,000
per year. This policy will be assignable to the Executive upon his
termination with no further financial obligations of the Company.
(i) Within six months prior to April 30, 2000, either party may reopen
negotiations and the Board consider in its sole discretion whether or not
to enhance the Executive's salary, bonus, stock incentives and whether or
not to renew the Executive's employment contract. If it is the intent of
the Board not to renew the Executive's Agreement, it will notify the
Executive not later than December 31, 1999.
(j) All compensation payable to the Executive shall be reduced by Social
Security taxes and withholding taxes for which the Executive is obligated
and any other taxes that may be lawfully levied by any governmental
authority which the Company may be required by law from time to time to
withhold.
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3. Stock Options. The Compensation Committee of the Board has recommended
to the Board to grant the Executive, subject to approval of the Company's 1997
Stock Option Plan (the "Plan") by the Company's shareholders, an option which
shall be in full force on the Effective Date to acquire 400,000 shares of the
Company's common stock (the "Stock"). The price for the Stock shall be the fair
market value of the Stock on the Effective Date of this Agreement or the
earlier of the date the Executive actually begins employment or the date the
Executive executes this Agreement. Formal documentation of the option granted
under the Plan shall be delivered to the Executive on the Effective Date. The
Executive's right to acquire the Stock under the Plan shall be as follows:
(a) The right of the Executive to purchase 200,000 shares of the Stock shall
be vested upon the date of the approval of the Plan by the Company's
shareholders and may be exercised anytime between the date of grant
approval of the Plan through the last day of the month immediately
preceding the tenth anniversary of the date of the approval of the Plan.
(b) The right of the Executive to purchase an additional 100,000 shares of
the Stock shall vest on the earlier of: (i) the date when the reported
closing price of the Stock on the New York Stock Exchange equals or
exceeds $16 per share for twenty consecutive trading sessions; or (ii) the
last day of the month preceding the seventh anniversary of the date of the
approval of the Plan. The Executive must be employed by the Company to
purchase shares of Stock under this subparagraph (b). The right to
purchase the additional 100,000 shares of the Stock may be exercised
anytime between the date of the approval of the Plan by the Company's
shareholders through the last day of the month immediately preceding the
tenth anniversary of the date of the approval of the Plan by the Company's
shareholders.
(c) The right of the Executive to purchase the remaining 100,000 shares of
the Stock shall vest on the earlier of: (i) the date when the reported
closing price of the Stock on the New York Stock Exchange equals or
exceeds $20 per share for twenty consecutive trading sessions; or (ii) the
last day of the month preceding the seventh anniversary of the date of the
approval of the Plan. The Executive must be employed by the Company to
purchase shares of Stock under this subparagraph (b). The right to
purchase the remaining 100,000 shares of the Stock may be exercised any
time between the date of the approval of the Plan by the Company's
shareholders through the last day of the month immediately preceding the
tenth anniversary of the date of the approval of the Plan by the Company's
shareholders.
(d) In the event the Plan is not approved by the Company's shareholders, at
its annual meeting on May 14, 1997 the Executive will be fully compensated
under subparagraphs (a), (b) and (c) above by the use of phantom stock or
some other method acceptable to both parties.
4. Relocation/Cost of Living. The Executive shall receive the following
relocation/cost of living benefits.
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(a) The Company will pay the Executive for the following reasonable
relocation costs: the cost to move the Executive's household possessions
from the Dallas, Texas area to the McLean, Virginia area; all commissions,
attorney's fees, and other expenses related to the sale of Executive's
Dallas, Texas residence; all costs related to Executive obtaining a
mortgage on his McLean, Virginia area residence; the cost of temporary
housing for up to one year after the Effective Date and; travel expenses
related to the Executive's relocation including house-hunting visits for
the Executive and spouse.
(b) The Company will reimburse the Executive in an amount not to exceed
$25,000 for miscellaneous house preparation, house set up and moving
expenses. These expenses will be paid by the Company as they are incurred
by the Executive. Any amount not used by the Executive will remain with
the Company.
(c) The Company will reimburse the Executive for any loss on the sale of his
Dallas, Texas residence not to exceed $100,000. For this subparagraph,
loss will be defined as the difference, if any, between the price the
Executive paid to purchase his Dallas, Texas residence and the net
proceeds realized from the sale of his Dallas, Texas residence. If the
sale of the Executive's Dallas, Texas residence will result in a loss as
defined in this paragraph 4(c), the Executive will notify the Company
prior to signing the sale contract to obtain the Company agreement to the
sale price which will not be unreasonably withheld.
(d) The Company will add to the Executive's base salary, for the term of this
Employment Agreement, a housing cost differential allowance determined as
follows:
(i) The rate of interest the Executive pays for the first
mortgage on his new residence will be multiplied by $625,000, or the
actual sale price of the Executive's Dallas, Texas residence,
whichever is less, which will then be multiplied by the index
differential, as determined by Coldwell Banker, between Highland
Park, Texas and Fairfax County, Virginia divided by the index amount
for Highland Park, Texas; plus
(ii) The interest rate differential between the rate of interest
the executive pays on the mortgage for his new home and the interest
on his current mortgage times $425,000.
For instance, if the executive pays 10% interest for his new mortgage and
homes in the Fairfax are valued at 120% of Highland Park, the adjustment
for the first factor would be:
.10 x 625,000 x (1.2-1/1) = 12,500
Likewise, if the interest on the executive's old mortgage was 8% versus
10% on the new mortgage, the adjustment for the second factor would be:
.02 x 425,000 = 8,500.
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(e) The Company will gross up the Executive's benefits under this paragraph
4, except paragraph 4(d), so that all amounts paid net the Executive such
benefits on an after tax basis. With respect to paragraph 4(d), the gross
up will be limited to the amount by which the payments under paragraph
4(d) are not offset by an interest deduction for individual tax purposes.
5. Termination. The Executive's employment with the Company during the
Agreement Term may be terminated by the Company or the Executive under the
circumstances described in paragraphs 5(a) through 5(f):
(a) Death. The Executive's employment and compensation will terminate upon
his death.
(b) Disability. If the Executive is Disabled for ninety days (which need not
be continuous) during a twelve continuous month period (or any shorter
period), the Company may terminate the Executive's employment with the
Company. For purposes of the Agreement, the Executive shall be deemed to
be "Disabled" if he has a physical or mental disability which renders him
incapable, after reasonable accommodation, of performing his duties under
this Agreement. In the event of a dispute as to whether the Executive is
Disabled, the Company may refer the Executive to a licensed practicing
physician of the Company's choice, and the Executive agrees to submit to
such tests and examination as such physician shall deem appropriate.
(c) Cause. The Company may terminate the Executive's employment hereunder at
any time for Cause. For purposes of this Agreement, the term "Cause"
shall mean:
(i) the continued failure by the Executive in the sole opinion of
the Board to substantially perform his duties with the Company
(other than any such failure resulting from the Executive's being
Disabled), within a reasonable period of time after a written demand
for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the
Board believes that the Executive has not substantially performed
his duties;
(ii) the engaging by the Executive in conduct which is materially
injurious to the Company, monetarily or otherwise; or
(iii) the Executive committing acts of moral turpitude that, in
the judgment of the Board, materially impair the Executive's
credibility and reputation.
(d) Mutual Agreement. This Agreement may be terminated at any time by the
mutual agreement of the parties. Any termination of the Executive's
employment by mutual
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agreement of the parties will be memorialized by an agreement which is
reduced to writing and signed by the Executive and a duly appointed
officer of the Company.
(e) Termination by Company. The Company may terminate the Executive's
employment hereunder at any time for any reason or by not renewing the
Executive's employment contract. The Company shall not be required to
specify a reason for the termination.
(f) Change of Control. The Executive's employment will terminate if there is
a change of control at the Company. For purposes of this Agreement
"Change of Control" shall mean a merger, acquisition or other corporate
transaction where substantially all of the Company's assets or controlling
interest in the stock are acquired and where the Executive is not retained
in the positions in paragraph 1(a), or another position acceptable to the
Executive.
(g) Notice of Termination. Any termination of the Executive's employment by
the Company (other than a termination pursuant to paragraph 5(a) or
paragraph 5(e)) must be communicated by a written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a dated notice which indicates the specific termination
provision in this Agreement relied on and which sets forth in reasonable
detail the facts and circumstances, if any, claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
6. Rights Upon Termination. The Executive's right to payment and benefits
under this Agreement for periods after his date of termination shall be
determined as follows:
(a) If the Executive's date of termination occurs during the Agreement Term
for any reason, the Company shall pay to the Executive:
(i) The Executive's Salary for the period ending on the date of
termination.
(ii) Payment for unused vacation days, as determined in accordance
with Company policy as in effect from time to time.
The final Salary payable in accordance with this paragraph 6(a)(i)
and payment for unused vacation days in accordance with paragraph
6(a)(ii) shall be paid as soon as practicable (in no event later
than 45 days) after the date of termination.
(iii) Any other payments or benefits to be provided to the
Executive by the Company pursuant to any employee benefit plans or
arrangements adopted by the Company, to the extent such amounts are
due from the Company.
Except as may otherwise be expressly provided to the contrary in this
Agreement or by operation of law, nothing in this Agreement shall be
construed as requiring the Executive
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to be treated as employed by the Company for purposes of any employee
benefit plan or arrangement following the date of the Executive's date of
termination.
(b) If the Executive's date of termination occurs during the Agreement Term
under circumstances described in paragraph 5(a) (relating to the
Executive's death), paragraph 5(b) (relating to the Executive being
Disabled), paragraph 5(d) (relating to the termination by mutual
agreement), or if the Executive's employment with the Company terminates
after the end of the Agreement Term then, except as otherwise expressly
provided in this Agreement or otherwise agreed in writing between the
Executive and the Company, the Company shall have no obligation to make
payments under the Agreement for periods after the Executive's date of
termination. If the Executive's date of termination occurs during the
Agreement Term under paragraphs 5(a) (relating to Executive's death) or
5(b) (relating to Executive being disabled), the Executive or his
beneficiary will receive the 50,000 shares of Company stock provided in
paragraph 2(d), the options to purchase 200,000 shares of Company stock
provided in paragraph 3(a) and the options to purchase 200,000 shares of
Company stock provided in paragraphs 3(b) and 3(c).
(c) If the Executive's date of termination occurs during the Agreement Term
under circumstances described in paragraph 5(f) (change of control), the
Executive shall receive the greater of the base salary, and maximum bonus
(as described in paragraphs 2(a) and (b)) remaining under the Agreement or
the amount of the Executive's base salary and bonus actually paid to him
for the most recently completed twenty-four month period. In addition,
the Executive will receive the 50,000 shares of Company Stock and the
option to purchase the 200,000 shares of Company stock (provided in
paragraph 3(a)). The options for shares of Company stock provided in
paragraphs 3(b) and (c) will also vest even if the conditions specified in
those paragraphs have not occurred.
(d) If the Executive's date of termination occurs during the Agreement Term
under circumstances described in paragraph 5(e) (termination by Company),
paragraph 5(c)(i) (termination for cause/nonperformance), or if the
Agreement is not renewed after May 31, 2000 the Executive shall receive
the greater of the remaining base salary and bonus equal to the last bonus
the Company paid to the Executive for each year of base salary remaining
under the Agreement or twelve months of base salary and a bonus equal to
the last bonus the Company paid to the Executive. The Executive will also
receive the 50,000 shares of Company stock provided in paragraph 2(a), the
options to purchase the 200,000 shares of Company stock provided in
paragraph 3(a), and the options to purchase the 200,000 shares of Company
stock in paragraphs 3(b) and 3(c) only if the conditions specified in
paragraphs 3(b) and 3(c) have occurred.
(e) Except as specifically provided in this Agreement, payment of all
remuneration and benefits including, but not limited to, the Executive's
insurance policy (paragraph 2(h)), payments under paragraph 4(d), and the
issuance of shares under paragraph 2(d), shall cease upon the Executive's
termination.
(f) Except as may be otherwise specifically provided in an amendment of
this paragraph (f) adopted in accordance with paragraph 14, payments
under this paragraph 6 shall be in
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lieu of any benefits that may be otherwise payable to or on behalf of
the Executive pursuant to the terms of any severance pay arrangement of
the Company.
7. Duties on Termination. Subject to the terms and conditions of this
Agreement, during the period beginning on the date of delivery of a Notice of
Termination, and ending on the date of termination, the Executive shall
continue to perform his duties as set forth in this Agreement, and shall also
perform such services for the Company as are necessary and appropriate for a
smooth transition to the Executive's successor, if any. Notwithstanding the
foregoing provisions of this paragraph 7, the Company may suspend the Executive
from performing his duties under this Agreement following the delivery of a
Notice of Termination providing for the Executive's resignation, or delivery by
the Company of a Notice of Termination providing for the Executive's
termination of employment for any reason; provided, however, that during the
period of suspension (which shall end on the date of termination), the
Executive shall continue to be treated as employed by the Company for other
purposes, and his rights to compensation or benefits shall not be reduced by
reason of the suspension.
8. Noncompetition. While the Executive is employed by the Company, and
for a period of one year after the Executive's date of termination for cause
(as described in paragraph 5(c)), the Executive agrees that he will not
directly or indirectly engage in, assist, perform services for, establish or
open, or have any equity interest (other than ownership of 5% or less of the
outstanding stock of any corporation listed on the New York or American Stock
Exchange or included in the National Association of Securities Dealers
Automated Quotation System) in any person, firm, corporation, or business
entity (whether as an employee, officer, director, agent, security holder,
creditor, consultant, or otherwise) that engages in any activity in any state
in which the Employer is conducting or has reasonable expectation of commencing
business activities at date of termination, which activity is the same as,
similar to, or competitive with factory outlet centers. For one year after the
Executive's date of termination, the Executive agrees not to solicit employees
of the Company to leave its employ or to otherwise interfere with the Company's
business relations in any respect. Nothing in this paragraph 8 or paragraph 9
shall be construed as limiting the Executive's duty of loyalty to the Company
while he is employed by the Company, or any other duty he may otherwise have to
the Company while he is employed by the Company.
9. Confidential Information. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, or except to the extent
that the Executive has express authorization from the Company, the Executive
agrees to keep secret and confidential indefinitely all non-public information
(including, without limitation, information regarding litigation and pending
litigation) concerning the Company which was acquired by or disclosed to the
Executive during the course of his employment with the Company, or during the
course of his consultation with the Company following his termination of
employment, and not to disclose the same, either directly or indirectly, to any
other person, firm, or business entity, or to use it in any way. The Executive
agrees that, to the extent that any court or agency seeks to have him disclose
Confidential Information, he shall promptly inform the Company, and he shall
take such reasonable steps to prevent disclosure of Confidential Information
until the Company has been informed of such requested disclosure, and the
Company has an opportunity to respond to such court or agency. To the extent
that the Executive obtains information on behalf of the Company
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that may be subject to attorney-client privilege as to the Company's
attorneys, the Executive shall take reasonable steps to maintain the
confidentiality of such information and to preserve such privilege. Nothing in
the foregoing provisions of this paragraph 9 shall be construed so as to
prevent the Executive from using, in connection with his employment for himself
or an employer other than the Company, knowledge which was acquired by him
during the course of his employment with the Company, and which is generally
known to persons of his experience in other companies in the same industry.
10. Non-Disparagement. The Executive agrees that, while he is employed by
the Company, and after his date of termination, he shall not make any false,
defamatory or disparaging statements about the Company, the officers or
directors of the Company. While the Executive is employed by the Company, and
after his date of termination, the Company agrees that neither the officers nor
the directors of the Company or the Subsidiaries shall make any false,
defamatory or disparaging statements about the Executive.
11. Defense of Claims. The Executive agrees that, for the period
beginning the Effective Date, and continuing for a reasonable period after the
Executive's termination of employment with the Company, the Executive will
cooperate with the Company in defense of any claims that may be made against
the Company, and will cooperate with the Company in the prosecution of any
claims that may be made by the Company, to the extent that such claims may
relate to services performed by the Executive for the Company. The Executive
agrees to promptly inform the Company if he becomes aware of any lawsuits
involving such claims that may be filed against the Company. The Company
agrees to reimburse the Executive for all of the Executive's reasonable
out-of-pocket expenses associated with such cooperation, including travel
expenses. For periods after the Executive's employment with the Company
terminates, the Company agrees to provide reasonable compensation to the
Executive for such cooperation. The Executive also agrees to promptly inform
the Company if he is asked to assist in any investigation of the Company (or
its actions) that may relate to services performed by the Executive for the
Company, regardless of whether a lawsuit has then been filed against the
Company with respect to such investigation.
12. Equitable Remedies. The Executive acknowledges that the Company would
be irreparably injured by a violation of paragraph 8 or 9, and he agrees that
the Company, in addition to any other remedies available to it for such breach
or threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, or other equivalent relief, restraining the Executive from
any actual or threatened breach of either paragraph 8 or 9.
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13. Nonalienation. The interests of the Executive under this Agreement
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Executive or the Executive's beneficiary.
14. Amendment. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without the consent of any other person.
So long as the Executive lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
15. Applicable Law. The provisions of this Agreement shall be construed
in accordance with the laws of the State of Texas, without regard to the
conflict of law provisions of any state.
16. Severability. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
17. Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action
by reason of such breach will not deprive such party of the right to take
action at any time while such breach continues.
18. Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
19. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or
sent by facsimile or prepaid overnight courier to the parties at the addresses
set forth below (or such other addresses as shall be specified by the parties
by like notice). Such notices, demands, claims and other communications shall
be deemed given:
(a) In the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
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(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that
are to be delivered by the U.S. mail or by overnight service are to be
delivered to the addresses set forth below:
to the Company:
Chairman of the Board
Horizon Group, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
with a copy to:
Xx. Xxx X. Xxxxxx
Xxxxxxxxx & Xxxx
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
or to the Executive:
Xxxxx X. Xxxxxx
Horizon Group, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
with a copy to:
Mr. Xxxxx Xxxxxxx
The Law Offices of Xxxxx Xxxxxxx, P.C.
0000 X. Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Each party, by written notice furnished to the other party, may modify the
applicable delivery address, except that notice of change of address shall be
effective only upon receipt.
20. Costs of Dispute. Each party shall bear his/its own costs in
connection with any controversy or dispute arising out of or relating to this
Agreement (or the breach thereof).
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21. Survival of Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of the Executive's employment with the Company.
22. Entire Agreement. Except as otherwise noted herein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior and contemporaneous agreements, if any,
between the parties relating to the subject matter hereof. The enforceability
of this Agreement shall not cease or otherwise be adversely affected by the
termination of the Executive's employment with the Company.
23. ACKNOWLEDGMENT BY EXECUTIVE. THE EXECUTIVE REPRESENTS TO THE COMPANY
THAT HE IS KNOWLEDGEABLE AND SOPHISTICATED AS TO BUSINESS MATTERS, INCLUDING
THE SUBJECT MATTER OF THIS AGREEMENT, THAT HE HAS READ THIS AGREEMENT AND THAT
HE UNDERSTANDS ITS TERMS. THE EXECUTIVE ACKNOWLEDGES THAT, PRIOR TO ASSENTING
TO TERMS THE TERMS OF THIS AGREEMENT, HE HAS BEEN GIVEN A REASONABLE TIME TO
REVIEW IT, TO CONSULT WITH COUNSEL OF HIS CHOICE, AND TO NEGOTIATE AT
ARM'S-LENGTH WITH THE COMPANY AS TO THE CONTENTS. THE EXECUTIVE AND THE
COMPANY AGREE THAT THE LANGUAGE USED IN THIS AGREEMENT IS THE LANGUAGE CHOSEN
BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT, AND THAT NO RULE OF STRICT
CONSTRUCTION IS TO BE APPLIED AGAINST ANY PARTY HERETO.
IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
company has caused these presents to be executed in its name and on its behalf,
and its corporate seal to be hereunto affixed, all as of the day and year first
above written.
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Horizon Group, Inc.
By /s/ Xxxxxx X. Xxxxxxxx
Its President
ATTEST:
/s/ Xxxxx X. Xxxxxxx (Seal)
13
