EXHIBIT 10.31
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of January 10, 2003 to be effective as of January 1, 2003 by and between Home
Interiors & Gifts, Inc., a Texas corporation (together with its successors and
assigns permitted hereunder, the "Company"), and Xxxxxxx Xxxxx (the
"Executive").
WHEREAS, the Executive is currently employed by the Company as a Senior
Vice President of International;
WHEREAS, the Company desires to continue to employ the Executive in an
executive capacity with the Company, and the Executive desires to continue to be
employed by the Company in said capacity; and
WHEREAS, the parties hereto deem it desirable and in the best interests
of the Company and its stockholders for the Company to continue to employ the
Executive on the terms and conditions set forth herein.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. Subject to Section 3 hereof, the Company hereby
agrees to employ the Executive, and the Executive hereby agrees to be employed
by the Company, in accordance with the terms and provisions of this Agreement,
for the period commencing as of the date of this Agreement and continuing until
January 1, 2004; provided, however, that such Employment Period shall be
extended for successive terms of one (1) year each unless either party advises
the other, at least one hundred twenty (120) days prior to the end of the
initial term or annual extension, as the case may be, that it will not agree to
extend this Agreement (the "Employment Period").
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the Employment Period, the Executive shall perform
the functions of Senior Vice President of International of the Company and shall
report directly to the President of the Company. The Executive shall have such
powers and duties as may from time to time be prescribed by the President, so
long as such powers and duties are reasonable and customary for a Senior Vice
President of an enterprise comparable to the Company.
(ii) During the Employment Period and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote such time as the President shall deem necessary, up to and including
substantially all of her business time, to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder, to use the Executive's reasonable best efforts to
perform faithfully, effectively and efficiently such responsibilities. During
the term of Executive's employment it shall not be a violation of this Agreement
for the Executive to (1) serve on corporate, civic or charitable boards or
committees, (2) deliver lectures or fulfill
1
speaking engagements, and (3) manage personal investments, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement.
(b) Compensation.
(i) Base Salary. Beginning on January 1, 2003, during the
Employment Period, the Executive shall receive, at such intervals and in
accordance with such Company policies as may be in effect from time to time, an
annual salary (pro rata for any partial year) equal to $214,000, payable in
equal installments no less often than monthly (the "Annual Base Salary"), which
Annual Base Salary shall be subject to appropriate increase, as determined by
the sole discretion of the Board of Directors of the Company.
(ii) Annual Bonus. The Executive shall be eligible to
participate in the Company's Key Employee Bonus Plan applicable to executives of
the Company (the "Annual Bonus") for each fiscal year of the Company commencing
with the fiscal year ending December 31, 2002 as approved by the Board of
Directors of the Company in good faith, and such other criteria as may be
recommended by management and established by the Board of Directors of the
Company from time to time. Each Annual Bonus (or portion thereof) shall be paid
in cash promptly following delivery to the Board of Directors of the Company of
audited financial statements of the Company for the fiscal year for which the
Annual Bonus (or pro rated portion) is earned or awarded, unless electively
deferred by the Executive pursuant to any deferral programs or arrangements that
the Company may make available to the Executive but on the same basis as for
other members of the Senior Executive Management Team;
(iii) Incentive, Savings and Retirement Plans. During the term
of the Executive's employment, the Executive shall be entitled to participate in
all incentive, savings, and retirement plans, practices, policies and programs
applicable generally to other employees of the Company ("Investment Plans") as
determined by and at the discretion of the Board of Directors of the Company.
(iv) Welfare Benefit Plans. During the term of the Executive's
employment, the Executive and/or the Executive's family, as the case may be,
shall be eligible for participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs ("Welfare Plans")
provided by the Company (including, without limitation, medical, prescription,
dental, vision, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs) to the extent
applicable generally to other executives of the Company. In addition, during the
term of the Executive's employment, the Company shall (A) pay all medical,
dental and vision insurance costs for the Executive and the Executive's family,
including all premiums and co-payments and (B) increase the Executive and family
members' annual maximum dental covered expenses from $1,000 to $5,000.
(v) Expenses. During the term of the Executive's employment,
the Executive shall be entitled to receive prompt reimbursement for all
reasonable employment expenses incurred by the Executive in accordance with the
policies, practices and procedures of the Company.
2
(vi) Vacation and Holidays. During the term of the Executive's
employment, the Executive shall be entitled to paid vacation of three weeks per
year and paid holidays in accordance with the policies, practices and procedures
of the Company applicable to other members of the Senior Executive Management
Team.
(vii) Vehicle Allowance. During the term of the Executive's
employment, the Executive shall receive a monthly vehicle allowance of $600.
(viii) Physical Exam. During the term of the Executive's
employment, the Company shall reimburse the Executive for all costs associated
with Executive's physical exam at the Xxxxxx Clinic or a similar facility;
provided, that the Executive shall only be reimbursed for the costs of one such
exam during each calendar year.
(ix) Other Benefits. During the term of the Executive's
employment, the Executive shall be entitled to other perquisites and benefits
applicable to other members of the Senior Executive Management Team in effect
from time to time and in accordance with the policies, practices and procedures
of the Company.
3. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), the Company shall give to the
Executive no less than thirty (30) days written notice in accordance with
Section 11 (b) hereof of its intention to terminate the Executive's employment
based upon Disability, and in the event Executive shall within such 30 day
period become able to perform her duties and obligations under this Agreement,
then Executive's employment shall not be terminated. In such event, the
Executive's employment with the Company shall terminate effective on the receipt
of such notice by the Executive (the "Disability Effective Date"). For purposes
of this Agreement, "Disability" shall mean the Executive's inability to perform
her duties and obligations hereunder for a period of 120 consecutive days or any
120 days in any twelve month period due to mental or physical incapacity as
determined by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Termination by the Company. The Company may terminate the
Executive's employment during the Employment Period either with or without
Cause. For purposes of this Agreement, "Cause" shall mean (i) a breach by the
Executive of the Executive's obligations under Section 2(a) (other than as a
result of physical or mental incapacity) which constitutes a continued material
nonperformance by the Executive of her obligations and duties thereunder, as
reasonably determined by the Board of Directors of the Company, (ii) commission
by the Executive of an act of fraud upon, or willful misconduct toward, the
Company, as reasonably determined by a majority of the disinterested members of
the Board of Directors of the Company (neither the Executive nor members of her
family being deemed disinterested for this purpose), (iii) a material breach by
the Executive of Section 6 or Section 9 hereof, (iv) the conviction of the
Executive of any felony unless the Board of Directors of the Company
3
reasonably determines that the Executive's conviction of such felony does not
materially affect the Executive's business reputation or significantly impair
the Executive's ability to carry out her duties under this Agreement (provided
that the Board of Directors shall have no obligation to make such
determination), or (v) the failure of the Executive to carry out, or comply
with, in any material respect any directive of the President consistent with the
terms of this Agreement, which is not remedied within 30 days after receipt of
written notice from the Company specifying such failure.
(c) Voluntary Termination by Executive. Notwithstanding anything in
this Agreement to the contrary, the Executive's employment may be terminated
during the Employment Period by the Executive for any reason or no reason;
provided that any termination by the Executive pursuant to Section 3(d) on
account of Good Reason shall not be treated as a voluntary termination under
this Section 3(c).
(d) Termination for Good Reason. The Executive may terminate her
employment at any time for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean (i) any reduction or alteration, approved by the Board of
Directors without the Executive's written consent, in the Executive's title,
duties or responsibilities, the Executives' Base Salary and/or target annual
bonus opportunity other than under a circumstance that constitutes Cause and for
purposes of this Section 3(d) only, the Vehicle allowance provided to the
Executive under Sections 2(b)(vii); provided, that any such reduction or
alteration in the Executive's title, duties or responsibilities without the
Executive's consent during the thirty-day cure period applicable to subparagraph
(v) of Section 3(b) shall not constitute Good Reason; provided, further, that
any cure by the Executive during such thirty-day period shall entitle the
Executive to reinstatement of her title, duties and responsibilities and (ii) a
change, without the Executive's written consent, of more than twenty-five (25)
miles in the office or location where the Executive is based. Notwithstanding
the above, the occurrence of any of the events described above will not
constitute Good Reason unless the Company fails to cure any such event within
thirty (30) days after receipt from the Executive of the Notice of Termination
(as defined in Section 3(e)).
(e) Notice of Termination. Any termination by the Company (for Cause or
otherwise), or by the Executive, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 11 (b) hereof.
(f) Date of Termination. "Date of Termination" means (i) the date of
receipt of the Notice of Termination or any later date specified therein
pursuant to Section 3(e) hereof, as the case may be, and (ii) if the Executive's
employment is terminated by reason of death or Disability, the date of death of
the Executive or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Termination by the Company. If the Company terminates the Executive
other than for Cause, or in connection with death or disability as covered by
Section 4(b) below, or fails to renew this Agreement beyond the initial term
ending November 1, 2003 or any extension term, or if the Executive terminates
her employment for Good Reason, the Company shall pay to the Executive (i) in a
lump sum in cash within ten days after the Date of Termination
4
(1) the sum of the Executive's applicable Annual Base Salary through the Date of
Termination to the extent not theretofore paid ("Accrued Obligations") and (2)
any amount arising from the Executive's participation in, or benefits under, any
Investment Plans ("Accrued Investments"), which amounts shall be payable in
accordance with the terms and conditions of such Investment Plans, (ii)
severance pay equal to the Executive's Annual Base Salary, payable in a lump-sum
in cash within ten days after the Date of Termination, for twelve (12) months
from the date of termination of employment and (iii) any earned but unpaid
Annual Bonus in respect of any full fiscal year ended prior to the date the
Executive's employment is terminated, payable in a lump sum in cash at such time
as such Annual Bonus otherwise would be payable pursuant to the last sentence of
Section 2(b)(ii) ("Accrued Bonus").
(b) Death or Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, the Company
shall pay to her legal representatives (i) in a lump sum in cash within ten days
after the Date of Termination the aggregate of the Accrued Obligations; (ii) the
Accrued Investments, which shall be payable in accordance with the terms and
conditions of the Investment Plans; (iii) any Accrued Bonus, which shall be
payable at such time as such Annual Bonus otherwise would be payable pursuant to
the last sentence of Section 2(b)(ii); and (iv) an amount equal to the
Executive's Annual Base Salary, payable in accordance with the Company's regular
pay schedule, for twelve (12) months from the date of the Executive's
Disability. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, the Company shall pay to her
legal representatives (i) in a lump sum in cash within ten days after the Date
of Termination the aggregate of the Accrued Obligations; (ii) the Accrued
Investments, which shall be payable in accordance with the terms and conditions
of the Investment Plans; and (iii) any Accrued Bonus, which shall be payable at
such time as such Annual Bonus otherwise would be payable pursuant to the last
sentence of Section 2(b)(ii). The Company shall have no further payment
obligations to the Executive or her legal representatives under this Agreement
as a result of the Executive's death or Disability.
(c) Cause. If the Executive's employment shall be terminated by the
Company for Cause, or by the Executive other than for Good Reason, during the
Employment Period, the Company shall have no further payment obligations to the
Executive other than for payment of Accrued Obligations, Accrued Investments
(which, shall be payable in accordance with the terms and conditions of the
Investment Plans), and Accrued Bonus (which shall be payable at such time as
such Annual Bonus otherwise would be payable pursuant to the last sentence of
Section 2(b)(ii)).
5. FULL SETTLEMENT, MITIGATION. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the, amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment. Neither the Executive nor the Company shall be liable
to the other party for any damages in addition to the amounts payable under
Section 4 hereof arising out of the termination of the Executive's employment
prior to the end of the Employment Period; provided, however, that the Company
shall be entitled to seek damages for any breach of Sections 6, 7, or 9 hereof
or criminal misconduct, and further provided the Executive shall be entitled to
seek damages for any violation by the Company of applicable statutory employment
law or for slander or libel.
5
6. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company and its affiliates have
trade, business, and financial secrets and other confidential and proprietary
information including but not limited to sales and marketing and product
information and strategy, identity of suppliers, displayers (collectively, the
"Confidential Information"). As defined herein, Confidential Information shall
not include (i) information that is generally known to other persons or entities
who can obtain economic value from its disclosure or use and (ii) information
required to be disclosed by the Executive pursuant to a subpoena or court order,
or pursuant to a requirement of a governmental agency or law of the United
States of America or a state thereof or any governmental or political
subdivision thereof; provided, however, that the Executive shall take all
reasonable steps to prohibit disclosure pursuant to subsection (ii) above at the
sole cost and expense of the Company.
(b) During and following the Employment Period, the Executive agrees
(i) to hold such Confidential Information in confidence and (ii) not to release
such information to any person, including, without limitation the Executive's
spouse (other than Company employees and other persons to whom the Company has
authorized the Executive to disclose such information and then only to the
extent that such Company employees and other persons authorized by the Company
have a need for such knowledge).
(c) The Executive further agrees not to use any Confidential
Information for the benefit of any person or entity other than the Company.
7. SURRENDER OF MATERIALS UPON TERMINATION. Upon any termination of the
Executive's employment, the Executive shall immediately return to the Company
all copies, in whatever form, of any and all Confidential Information and other
properties of the Company and its affiliates which are in the Executive's
possession, custody or control.
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
The failure of any successor of Company to expressly assume to perform this
Agreement in writing shall, at the election of the Executive, be deemed to be
termination of this Agreement without cause, entitling the Executive to payment
of one year's severance. As used in this Agreement, "Company" shall mean the
Company as hereinbefore
6
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
9. NON-COMPETITION AND NON-SOLICITATION.
(a) The term of Non-Competition and Non-Solicitation (herein so called)
shall be for a term beginning on the date hereof and continuing until the first
anniversary of the Date of Termination of this Agreement, by either the Company
or the Executive for any reason.
(b) During the term of Non-Competition and Non-Solicitation, the
Executive will not (other than for the benefit of the Company pursuant to this
Agreement) directly or indirectly, individually or as an officer, director,
employee, shareholder, consultant, contractor, partner, joint venturer, agent,
equity owner or in any capacity whatsoever, (i) engage in any business that
competes with the Company, either by selling similar products in the continental
United States and Mexico or by utilizing a direct sales or multi-level marketing
sales format to sell consumer products in the continental United States (a
"Competing Business"), (ii) hire, attempt to hire, or contact or solicit with
respect to hiring any employee or Independent Contractor Displayers of the
Company, or (iii) divert or take away any customers, including Independent
Contractors, or suppliers of the Company in the continental United States.
Notwithstanding the foregoing, the Company agrees that the Executive may own
less than five percent of the outstanding voting securities of any publicly
traded company that is a Competing Business so long as the Executive does not
otherwise participate in such competing business in any way prohibited by the
preceding clause. As used in this Section 9(b) (and in Section 6 hereof),
"Company" shall include the Company and any of its subsidiaries.
(c) During the term of Non-Competition and Non-Solicitation, the
Executive will not use the Executive's access to, knowledge of, or application
of Confidential Information to perform any duty for any Competing Business; it
being understood and agreed to that this Section 9(c) shall be in addition to
and not be construed as a limitation upon the covenants in Section 9(b) hereof.
(d) The Executive acknowledges that the geographic boundaries, scope of
prohibited activities, and time duration of the preceding paragraphs are
reasonable in nature and are no broader than are necessary to maintain the
confidentiality and the goodwill of the Company's proprietary information, plans
and services and to protect the other legitimate business interests of the
Company.
10. EFFECT OF AGREEMENT ON OTHER BENEFITS. The existence of this Agreement
shall not prohibit or restrict the Executive's entitlement to full participation
in the employee benefit and other plans or programs in which employees of the
Company are eligible to participate.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. Whenever the terms "hereof", "hereby",
"herein", or words of similar import are used in this Agreement they shall be
construed as referring to this Agreement in its entirety rather than to a
particular
7
section or provision, unless the context specifically indicates to the contrary.
Any reference to a particular "Section" or "paragraph" shall be construed as
referring to the indicated section or paragraph of this Agreement unless the
context indicates to the contrary. The use of the term "including" herein shall
be construed as meaning "including without limitation." This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
If to the Company: Xxxxxx X. Xxxxxx, Xx., CEO
Home Interiors & Gifts, Inc.
0000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
With a copy to the Company's General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar-in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation. The Company may not withhold any
sums under any circumstances from any amounts payable under this Agreement as
Accrued Obligations, Accrued Investments or Accrued Bonuses to the Executive
beyond the date due.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
8
(f) The Executive acknowledges that money damages would be both
incalculable and an insufficient remedy for a breach of Section 6 or 9 by the
Executive and that any such breach would cause the Company irreparable harm.
Accordingly, the Company, in addition to any other remedies at law or in equity
it may have, shall be entitled, without the requirement of posting of bond or
other security, to equitable relief, including injunctive relief and specific
performance, in connection with a breach of Section 6 or 9 by the Executive.
(g) The provisions of this Agreement constitute the complete
understanding and agreement between the parties with respect to the subject
matter hereof.
(h) This Agreement may be executed in two or more counterparts.
(i) Sections 6 and 9 of this Agreement shall survive the termination of
this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board of Directors of the Company,
the Company has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
/s/ XXXXXXX XXXXX
--------------------------------
Xxxxxxx Xxxxx
HOME INTERIORS & GIFTS, INC.
By: /s/ XXXXXX X. XXXXXX, XX.
-----------------------------
Xxxxxx X. Xxxxxx, Xx.
Chief Executive Officer
10
