EMPLOYMENT AGREEMENT
AGREEMENT dated as of April 1, 1996 between U.S. Home & Garden, Inc. a
Delaware corporation (the "Employer" or the "Company"), and Xxxxxx X. Xxxxxx
(the "Executive").
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Executive as President and
Chief Executive Officer (CEO) of the Company, and to be assured of his services
as such on the terms and conditions hereinafter set forth; and
WHEREAS, the Executive is willing to accept such employment on such terms
and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound hereby, the Employer
and the Executive hereby agree as follows:
1. Term. Employer hereby agrees to employ Executive, and Executive hereby
agrees to serve Employer as herein provided, commencing effective as of the date
of this Agreement (the "Effective Date") for a term of one (1) year thereafter
(such period being herein referred to as the "Initial Term," and any year
commencing on the Effective Date or any anniversary of the Effective Date being
hereinafter referred to as an "Employment Year"), unless further extended or
sooner terminated as hereinafter provided. After the Initial Term and on the
last day of any Employment Year thereafter, this Agreement shall be
automatically renewed for successive one year periods (each such period being
referred to as a "Renewal Term"), unless, more than ninety (90) days prior to
the expiration of the Initial Term or any Renewal Term, either the Executive or
the Company gives written notice that employment will not be renewed ("Notice of
Non-Renewal"), whereupon (i) if the Executive gives the Notice of Non-Renewal,
the term of the Executive's employment shall terminate upon the expiration of
the Initial Term or the then current Renewal Term, as the case may be, or (ii)
if the Company gives the Notice of Non-Renewal, the term of the Executive's
employment shall be for a final ten (10) year period (the "Final Renewal Term"),
commencing effective at the date of the Notice of Non-Renewal, unless sooner
terminated pursuant to Section 6 hereof.
2. Executive Duties.
(a) During the term of this Agreement, the Executive shall have the duties
and responsibilities of President and Chief Executive Officer of the Company,
reporting to the
Chairman and the Board of Directors of the Employer (the "Board"). It is
understood that such duties and responsibilities shall be reasonably related to
the Executive's position.
(b) The Executive shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability, in furtherance of the business and activities of the Company. The
principal place of performance by the Executive of his duties hereunder shall be
the Company's principal executive offices or such other place as the Board shall
determine, although the Executive may be required to travel outside of the area
where the Company's principal executive offices are located in connection with
the business of the Company.
3. Compensation.
(a) During the term of this Agreement, the Employer shall pay the Executive
a salary (the "Salary") at a rate of $350,000 per annum in respect of each
Employment Year, payable in equal installments bi-weekly, or at such other times
as may mutually be agreed upon between the Employer and the Executive. Such
Salary may be increased from time to time at the discretion of the Board.
(b) In addition to the foregoing, the Executive shall be entitled to such
other cash bonuses as may from time to time be awarded to him by the Board
during or in respect of his employment hereunder.
4. Benefits.
(a) During the term of this Agreement, the Executive shall have the right
to receive or participate in all benefits and plans which the Company may from
time to time institute during such period for its employees and for which the
Executive is eligible. Nothing paid to the Executive under any plan or
arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the salary or any other obligation payable to the Executive
pursuant to this Agreement.
(b) During the term of this Agreement, the Executive shall be granted the
same number of paid holidays, personal days off, vacation days and sick leave
days as are determined by the Company from time to time. Such vacation may be
taken in the Executive's discretion with the prior approval of the Employer, and
at such time or times as are not inconsistent with the reasonable business needs
of the Company.
5. Travel Expenses. All travel and other expenses incident to the rendering
of services reasonably incurred on behalf of the Company by the Executive during
the term of this Agreement shall be paid by the Employer. If any such expenses
-2-
are paid in the first instance by the Executive, the Employer shall reimburse
him therefor on presentation of appropriate receipts for any such expenses.
6. Termination. Executive's employment under this Agreement may be
terminated, effective as of the Date of Termination pursuant to Section 8 of
this Agreement, without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Executive's employment under this Agreement shall
terminate upon his death.
6.2. Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from his
duties under this Agreement for 150 calendar days during any calendar year,
the Employer may terminate the Executive's employment under this Agreement
by giving the Notice of Termination (as defined in Section 7 below) anytime
after the 150th calendar day.
6.3. Cause. The Employer may terminate the Executive's employment
under this Agreement for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Executive's employment under
this Agreement upon (a) the willful and continued failure by the Executive
to substantially perform his duties under this Agreement (other than any
such failure resulting from the Executive's incapacity due to physical or
mental illness) after demand for substantial performance is delivered by
the Employer, in writing, specifically identifying the manner in which the
Employer believes the Executive has not substantially performed his duties
and the Executive fails to perform as required within 15 business days
after such demand is made, (b) the willful engaging by the Executive in
criminal misconduct (including embezzlement and criminal fraud) which is
materially injurious to the Company, monetarily or otherwise or (c) the
conviction of the Executive of a felony. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Employer.
Notwithstanding anything contained in this Agreement to the contrary,
the Executive shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to the Executive, together with
the Notice of Termination (as defined in Section 7 below), a copy of a
resolution, duly adopted by the affirmative vote of not less than sixty
percent of the entire membership of the Board (other than the Executive) at
a meeting of the Board called and held for such purpose (after reasonable
written notice to the Executive and an opportunity for him, together with
his counsel, to be heard before the Board), finding that in the good faith
opinion of the
-3-
Board, the Executive was guilty of conduct set forth above in clause (a),
(b) or (c), and specifying the particulars thereof in detail.
6.4. Termination by the Executive for Good Reason, Upon a Change of
Control or Because of Ill Health. The Executive may terminate his
employment under this Agreement (a) for Good Reason (as hereinafter
defined), (b) at any time within six months after a Change of Control, or
(c) if his health should become impaired to any extent that makes the
continued performance of his duties under this Agreement hazardous to his
physical or mental health or his life, provided that, in the latter case,
the Executive shall have furnished the Employer with a written statement
from a qualified doctor to such effect and provided, further, that at the
Employer's request and expense the Executive shall submit to an examination
by a doctor selected by the Employer and such doctor shall have concurred
in the conclusion of the Executive's doctor.
6.4.1. Good Reason. For purposes of this Agreement, "Good Reason"
shall mean (a) any assignment to the Executive of any duties or
reporting obligations other than those contemplated by, or any
limitation of the powers of the Executive in any respect not
contemplated by, this Agreement, (b) failure by the Employer to comply
with its material obligations and agreements contained in this
Agreement, or (c) failure of the Employer to obtain the assumption of
the agreement to perform this Agreement by any successor as
contemplated in Section 9(f) of this Agreement. With respect to the
matters set forth in clauses (a), (b) and (c) of this paragraph, the
Executive must give the Employer thirty (30) days prior written notice
of his intent to terminate this Agreement as a result of any breach or
alleged breach of the applicable provision and the Employer shall have
the right to cure any such breach or alleged breach within such thirty
(30) day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously
consented to in writing by the Executive, upon (a) the actual
acquisition or the execution of an agreement to acquire 20% or more of
the voting securities of the Employer by any person or entity not
affiliated with the Executive (other than pursuant to a bona fide
underwriting agreement relating to a public distribution of securities
of the Employer), (b) the commencement of a tender or exchange offer
for more than 20% of the voting securities of the Employer by any
person or entity not affiliated with the Executive, (c) the
commencement of a proxy contest against the management for the
election of a majority of the Board of the Employer if the group
conducting the proxy contest owns, has or gains the power to vote at
least 20% of the voting securities of the Employer, (d) a vote by the
Board to merge, consolidate, sell all or substantially all of the
assets of the Employer to any person or entity not affiliated with the
-4-
Executive, or (e) the election of directors constituting a majority of
the Board of Directors who have not been nominated or approved by the
Executive.
7. Notice of Termination.
Any termination of the Executive's employment by the Employer or by the
Executive (other than termination by reason of the Executive's death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
8. Date of Termination.
The "Date of Termination" shall mean (a) if the Executive's employment is
terminated by his death, the date of his death, (b) if the Executive's
employment is terminated pursuant to Section 6.2 above, the date on which the
Notice of Termination is given, (c) if the Executive's employment is terminated
pursuant to Section 6.3 above, the date specified on the Notice of Termination
after the expiration of any cure periods, (d) if the Executive's employment is
terminated pursuant to a Notice of Non-Renewal given by the Employer, the tenth
(10th) anniversary of the date of such notice unless sooner terminated pursuant
to any of Sections 6.1, 6.2 or 6.3, and (e) if the Executive's employment is
terminated for any other reason, the date on which a Notice of Non-Renewal or a
Notice of Termination is given after the expiration of any relevant cure
periods.
9. Compensation Upon Termination or During Disability.
(a) If the Executive's employment shall be terminated by reason of his
death, the Employer shall pay to such person as he shall designate in a notice
filed with the Employer, or if no such person shall be designated, to his estate
as a lump sum benefit, his full Salary to the date of his death in addition to
any payments the Executive's spouse, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or similar plan or policy then maintained by the Employer, and such
payments shall, assuming the Employer is in compliance with the provisions of
this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Executive, shall remain in effect.
-5-
(b) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive his Salary and other compensation until the
Executive's employment is terminated pursuant to Section 6.2 of this Agreement,
or until the Executive terminates his employment pursuant to Section 6.4(a) of
this Agreement, whichever first occurs. After termination, the Executive shall
be paid, in equal monthly installments, 100% of his Salary and other
compensation, at the rate in effect at the time Notice of Termination is given,
for one year, and thereafter for one additional year at an annual rate equal to
50% of the Salary and other compensation which would have been in effect under
this Agreement, plus, in each case, any disability payments otherwise payable by
or pursuant to plans provided by the Employer; provided, however, that any
payments hereunder becoming due and owing during the Final Renewal Term shall be
limited to that portion of the installments (whether based upon 100% or 50% of
the compensation rate) payable or becoming payable to the Executive on or before
the expiration of the Final Renewal Term. To the extent physically and mentally
capable of so doing without potentially impairing or damaging his health, the
Executive shall provide consulting services to the Employer during the period
that he is receiving payments pursuant to this Section 9(b).
(c) If the Executive's employment shall be terminated for Cause, the
Employer shall pay the Executive his full Salary and other compensation through
the Date of Termination, at the rate in effect at the time Notice of Termination
is given, and the Employer shall, assuming the Employer is in compliance with
the provisions of this Agreement, have no further obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Executive, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the
Executive's employment other than pursuant to Sections 6.2 or 6.3 hereof (it
being understood that a purported termination pursuant to Section 6.2 or 6.3
hereof which is disputed and finally determined not to have been proper shall be
a termination by the Employer in breach of this Agreement), including as a
result of a Change of Control, and/or (B) the Executive shall terminate his
employment for Good Reason or at any time within six months after a Change of
Control, then the Employer shall pay to the Executive:
(i) his full Salary and other compensation through the Date of
Termination at the rate in effect at the time Notice of Termination is
given;
(ii) for periods subsequent to the Date of Termination (in lieu of any
further payments pursuant to Section
-6-
3 of this Agreement), Severance Pay (as hereinafter defined), payable on
the first day following the Date of Termination, as follows:
(1) if prior to and not as a result of a Change of Control, the
Executive's employment is terminated either by the Executive for Good
Reason or by the Employer other than pursuant to Sections 6.2 or 6.3
hereof, a lump sum amount equal to the higher of (a) $350,000 or (b)
the total compensation earned by the Executive from the Employer
during the one-year period prior to such Date of Termination, or
(2) if after or as a result of a Change of Control, the
Executive's employment is terminated by the Executive within six
months after a Change in Control, or by the Employer other than
pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the
higher of (i) $3,500,000 or (ii) the product obtained by multiplying
10 with the average of the total compensation earned by the Executive
during the one-year period prior to such Date of Termination (in case
of either (ii)(1) or (ii)(2), "Severance Pay"); and
(iii) all other damages to which the Executive may be entitled as
result of the termination of his employment under this Agreement, including
all legal fees and expenses incurred by him in contesting or disputing any
such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
(e) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 9 be reduced by
any compensation earned by the Executive as the result of employment by another
employer or business or by profits earned by the Executive from any other source
at any time before and after the Date of Termination. The amounts payable to
Employer under this Agreement shall not be treated as damages but as severance
compensation to which Employer is entitled by reason of his employment in the
circumstances contemplated by this Agreement.
(f) The Employer 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 Employer, by agreement, in form and reasonably
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Employer in the same amount and on the same
terms as he would be entitled to hereunder
-7-
if he terminated his employment within six months after a Change in Control,
except for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Employer" shall mean the Employer and any successor to its
business and/or assets which executes the Agreement or which otherwise becomes
bound by the terms and conditions of this Agreement by operation of law.
10. Confidentiality; Noncompetition.
(a) The Employer and the Executive acknowledge that the services to be
performed by the Executive under this Agreement are unique and extraordinary
and, as a result of such employment, the Executive will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Executive to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Executive agrees that
he will not, during or for a period of two years after the termination of
employment, except as may be required in the course of the performance of his
duties hereunder, directly or indirectly, use, communicate, disclose or
disseminate to any person, firm or corporation any confidential information
regarding the clients, customers or business practices of the Company acquired
by the Executive, without the prior written consent of Employer; provided,
however, that the Executive understands that Executive will be prohibited from
misappropriating any trade secret (as defined for purposes of Indiana law) at
any time during or after the termination of employment.
(b) The Executive hereby agrees that he shall not, during the period of his
employment and for a period of two (2) years following such employment, directly
or indirectly, within any county (or adjacent county) in any State within the
United States or territory outside the United States in which the Company is
engaged in business during the period of the Executive's employment or on the
date of termination of the Executive's employment, engage, have an interest in
or render any services to any business (whether as owner, manager, operator,
licensor, licensee, lender, partner, stockholder, joint venturer, employee,
consultant or otherwise) competitive with the Company's business activities.
Notwithstanding the foregoing, nothing
-8-
herein shall prevent the Executive from owning stock in a publicly traded
corporation whose activities compete with those of the Company's, provided that
such stock holdings are not greater than 5% of such corporation. The Executive
agrees, during the term of this Agreement, to disclose to the Company all
investments which the Executive has, directly or indirectly, in an entity which
competes with the Company, or an entity which does business with the Company.
(c) The Executive hereby agrees that he shall not, during the period of his
employment and for a period of two (2) years following such employment, directly
or indirectly, take any action which constitutes an interference with or a
disruption of any of the Company's business activities including, without
limitation, the solicitations of the Company's customers, or persons listed on
the personnel lists of the Company. At no time during the term of this
Agreement, or thereafter shall the Executive directly or indirectly, disparage
the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation, the Executive
hereby acknowledges and agrees that the provisions of subparagraphs 10(b) and
(c) above shall serve as a prohibition against him, during the period referred
to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Executive, (but only those suppliers existing during the time of the
Executive's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Executive's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Executive including all copies thereof, shall
be promptly returned to the Company.
(f) (i) The Executive agrees that all processes, technologies and
inventions ("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by Employer shall belong to the Company, provided
that such Inventions grew out of the Executive's work with the Company are
related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Executive shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to
-9-
the Company, without additional compensation, all patent and other rights to
such Inventions for the United States and foreign countries; (c) sign all papers
necessary to carry out the foregoing; and (d) give testimony in support of his
inventorship;
(ii) If any Invention is described in a patent application or is disclosed
to third parties, directly or indirectly, by the Executive within two years
after the termination of his employment by the Company, it is to be presumed
that the Invention was conceived or made during the period of the Executive's
employment by the Company; and
(iii) The Executive agrees that he will not assert any rights to any
Invention as having been made or acquired by him prior to the date of this
Agreement, except for Inventions, if any, disclosed to the Company in writing
prior to the date hereof.
(g) The Company shall be the sole owner of all products and proceeds of the
Executive's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Executive may acquire,
obtain, develop or create in connection with and during the term of the
Executive's employment hereunder, free and clear of any claims by the Executive
(or anyone claiming under the Executive) of any kind or character whatsoever
(other than the Executive's right to receive payments hereunder). The Executive
shall, at the request of the Company, execute such assignments, certificates or
other instruments as the Company may from time to time deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce or defend
its right, or title and interest in or to any such properties.
(h) The parties hereto hereby acknowledge and agree that (i) the Company
would be irreparably injured in the event of a breach by the Executive of any of
his obligations under this Section 10, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the Company shall be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
(i) The parties hereto hereby acknowledge that, in addition to any other
remedies the Company may have under Section 10(h) hereof, the Company shall have
the right and remedy to require the Executive to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by the Executive as the
result of any transactions constituting a breach of any of the provisions of
Section 10, and the Executive hereby agrees to account for any pay over such
Benefits to the Company.
-10-
(j) Each of the rights and remedies enumerated in Section 10(h) and 10(i)
shall be independent of the other, and shall be severally enforceable, and all
of such 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.
(k) If any provision contained in this Section 10 is hereafter construed to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions.
(l) If any provision contained in this Section 10 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such determination shall have the right to reduce such
extent, duration, scope or other provision and in its reduced form any such
restriction shall thereafter be enforceable as contemplated hereby.
(m) It is the intent of the parties hereto that the covenants contained in
this Section 10 shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought
(the Executive hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 10 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
11. Indemnification. The Employer shall indemnify and hold harmless the
Executive against any and all expenses reasonably incurred by him in connection
with or arising out of (a) the defense of any action, suit or proceeding in
which he is a party, or (b) any claim asserted or threatened against him, in
either case by reason of or relating to his being or having been an employee,
officer or director of the Company, whether or not he continues to be such an
employee, officer or director at the time of incurring such expenses, except
insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable
-11-
to periods prior to the Effective Date, and to matters attributable to his
employment hereunder, without regard to when asserted.
12. General. This Agreement is further governed by the following
provisions:
(a) Notices. All notices relating to this Agreement shall be in writing and
shall be either personally delivered, sent by telecopy (receipt confirmed) or
mailed by certified mail, return receipt requested, to be delivered at such
address as is indicated below, or at such other address or to the attention of
such other person as the recipient has specified by prior written notice to the
sending party. Notice shall be effective when so personally delivered, one
business day after being sent by telecopy or five days after being mailed.
To the Employer:
U.S. Home & Garden Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Operating Officer
To the Executive:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
With, in either case, a copy in the same manner to:
Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) Parties in Interest. Executive may not delegate his duties or assign
his rights hereunder. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Any modification or termination of this Agreement will be
effective only if it is in writing signed by the party to be charged.
-12-
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(e) Warranty. Executive hereby warrants and represents as follows:
(i) That the execution of this Agreement and the discharge of
Executive's obligations hereunder will not breach or conflict with any
other contract, agreement, or understanding between Executive and any other
party or parties.
(ii) Executive has ideas, information and know-how relating to the
type of business conducted by Employer, and Executive's disclosure of such
ideas, information and know-how to Employer will not conflict with or
violate the rights of any third party or parties.
(f) Severability. In the event that any term or condition in this Agreement
shall for any reason be held by a court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other term or condition of this Agreement,
but this Agreement shall be construed as if such invalid or illegal or
unenforceable term or condition had never been contained herein.
(g) Execution in Counterparts. This Agreement may be executed by the
parties in one or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Employer: U.S. HOME & GARDEN, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx, Chief
Operating Officer
Employee:
/s/ Xxxxxx X. Xxxxxx
-------------------------
XXXXXX X. XXXXXX
-13-
