EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "EMPLOYMENT AGREEMENT") effective
the 1st day of September, 1998 (the "EFFECTIVE DATE"), by and between TRISTAR
CORPORATION, a Delaware corporation ("EMPLOYER"), and RICHARD HOWARD
("EMPLOYEE"). This Agreement amends and restated in its entirety the Executive
Employment Agreement between Employer and Employee dated November 26, 1997.
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as President and Chief
Operating Officer for a term of employment as herein provided and Employee
desires to accept such employment as herein provided; and
WHEREAS, the parties desire to establish by contract the terms and
conditions of the employment of Employee by Employer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties agree as follows:
I. TERM OF EMPLOYMENT. The term of Employee's employment under this
Employment Agreement shall commence on the Effective Date and terminate on
August 31, 2000, unless terminated earlier as provided herein (the "TERM").
2. TITLE AND DUTIES OF EMPLOYEE. Employee shall serve as President and
Chief Operating Officer of Employer. Employee agrees to his employment by
Employer and to devote substantially his entire business time to the business of
Employer throughout the period of his employment, provided that Employee may
make personal passive investments and be involved in charitable activities
provided they do not interfere with his activities hereunder. Employee is
employed as President and Chief Operating Officer and shall perform such duties
as directed by the Chief Executive Officer or Board of Directors of Employer.
Employer shall have the right at any time to change or modify the work or duties
to be performed by Employee, provided that such work or duties as so changed or
modified shall include the general powers and duties usually vested in the
office of the Chief Operating Officer of a company of Employer?s size and shall
be commensurate with such position. Subject to the prior sentence, Employer
shall have the exclusive power and authority to determine the matters to be
assigned to Employee and the specific duties to be performed by him. Employee
shall report to only the Board of Directors and Chief Executive Officer of
Employer.
3. SALARY. For all services rendered by him during the Term, Employee
shall be paid a base salary at the rate of Two Hundred Fifty Thousand Dollars
per annum ($250,000) ("SALARY"), payable weekly, subject to standard deductions
for all applicable state and federal taxes and other reasonable bonafide
deductions.
4. ADDITIONAL BENEFITS. During the Term, Employee shall be entitled to the
following other benefits, in addition to his Salary or as otherwise described in
this Employment Agreement:
A. REIMBURSEMENT FOR TRAVEL, ENTERTAINMENT AND OTHER EXPENSES.
During the Term, Employer shall reimburse Employee for any reasonable
travel, entertainment or other necessary expenses incurred in the
performance of his duties under this Employment Agreement, consistent with
the policies of Employer at the time of such reimbursement with respect to
such expenses, as such policy may be modified from time to time.
B. ALL BENEFIT PLANS. During the Term, Employee shall be eligible to
participate in all benefit plans generally available to Employer's
officers, excluding any bonus plans other than as described in PARAGRAPH
4(C) below and shall at a minimum be provided with a health plan, long
term disability benefits (based upon Employee?s inability to do his job
for a consecutive period of 6 months) and life insurance coverage pursuant
to Employer?s benefit plan in existence at the time hereof as such plan
may be enhanced but not diminished during the term hereof.
C. BONUS PLAN. During the Term, Employee shall be eligible for
annual incentive compensation with a targeted maximum benefit of 40% of
Employee's Salary upon Employer achieving certain reasonable financial and
other goals to be agreed to by Employer and Employee and with adjustments
for a lesser bonus than the targeted maximum benefit if certain lesser
financial and other goals are achieved. In the event Employee?s employment
is terminated for reasons other than as set forth in SECTIONS 7(C) or 7(E)
after six (6) months from the commencement date hereof or after the first
six (6) months of any fiscal year of the Employer, Employee shall receive
a prorated bonus for the period of employment based upon the
accomplishment of the financial goals that are met for such period prior
to termination of employment.
D. STOCK OPTIONS. Employer shall be granted stock options pursuant
to a stock option agreement in substantially the form of the Stock Option
Agreement attached hereto as EXHIBIT A.
E. CAR ALLOWANCE. Employer shall pay Employee a car allowance of
$500.00 per month.
F. RELOCATION PACKAGE. Employer shall pay Employee?s temporary
living expenses, moving expenses, relocation expenses, family visitation
expenses and other incidental expenses related to Employee relocating
himself and his family to Employer?s place of business in San Antonio,
Bexar County, Texas. In satisfaction of the provisions of the preceding
sentence, Employer shall pay Employee $4,500 per month during the Term
pursuant to the provisions of this SECTION 4(F) as well as advances for
major expenses. If
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Employee relocates himself and his family to San Antonio, Bexar County,
Texas, within 12 months of the date hereof, Employer shall pay to Employee
$60,000, and upon such payment, no further payments described in the
preceding sentence shall be made to Employee. Employee shall promptly
notify Employer upon Employee's family relocating to San Antonio, Bexar
County, Texas.
5. RESIGNATION. If for any reason other than for Good Reason, as
hereinafter defined, Employee voluntarily resigns his employment prior to the
expiration of the Term, Employee shall forfeit any right to receive any payments
or benefits, including severance benefits, pursuant to this Employment Agreement
and Employer shall be released and discharged from any liability, obligation or
duty arising in connection with this Employment Agreement or in connection with
Employee's employment, except for amounts accrued prior to such termination, a
bonus pursuant to SECTION 4(C), if any is earned, and any right of
indemnification hereunder or under the provisions of Employer's Bylaws and
Articles of Incorporation (the "INDEMNITY OBLIGATION"). Nevertheless, Employer
and Employee shall continue to be bound and obligated by any provision of this
Employment Agreement which is intended by its terms to survive and continue
beyond the resignation of Employee, including, but not limited to, the
provisions of SECTION 9. Employee may terminate his employment hereunder for
Good Reason, upon written notice to Employer setting forth the nature of such
Good Reason in reasonable detail. "GOOD REASON" shall mean (i) the failure of
Employer to provide Employee the salary, incentive and bonus compensation and
benefits in accordance with the terms hereof, (ii) the failure of Employer to
continue Employee in the position of Chief Operating Officer, (iii) the material
diminution in the nature or scope of the Employee?s responsibilities, duties or
authority, (iv) the relocation of Employer's offices from the San Antonio, Texas
area or (v) any other material breach of this Employment Agreement by Employer.
Upon Employer's receipt of written notice of Employee's termination for Good
Reason hereunder, such termination shall be effective thirty (30) days after
receipt of such notice if a cure for such event has not been effected.
6. SEVERANCE AND NON-RENEWAL PAYMENT. Notwithstanding anything to the
contrary herein contained, the provisions of this SECTION 6 shall not be
applicable to a termination of employment pursuant to SECTIONS 7(A), 7(B), 7(C)
or 7(E) of this Employment Agreement. In addition, there shall be no obligation
of Employee to mitigate his damages and seek employment following the
termination of Employee's employment in order to receive the Severance or
Non-Renewal Payment hereunder.
A. SEVERANCE. In the event the employment of Employee by Employer is
terminated prior to the end of the Term, for any reason other than the
reasons set forth in the preamble to this SECTION 6, Employer shall be
obligated to pay Employee a severance payment (the ?SEVERANCE?) in an
amount equal to two (2) years Salary payable in twenty-four (24) equal
monthly installments of $20,833.33 (each a ?SEVERANCE PAYMENT?) commencing
the first of the month following any such termination. Any Severance
hereunder shall be subject to the following conditions and adjustments:
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(i) The Severance shall be reduced by the number of
months salary paid by Employer from the Effective Date to the date
of termination hereunder multiplied by $20,833.33, and the number of
Severance Payments to be paid shall be reduced by the number of
months salary paid by Employer to Employee since the Effective Date
to the date of termination hereunder.
(ii) The Severance shall be reduced and offset on a
dollar for dollar basis in an amount equal to any sums earned and/or
received during the Severance period by Employee for any services
directly or indirectly provided to a third party such as salary,
incentive payments, bonus or consulting fees (the ?OFFSET RIGHT?).
During the Severance period Employee shall immediately give Employer
written notice upon Employee?s engagement by a third party for
Employee to directly or indirectly provide any type of employment,
advice or consulting services.
(iii) The first nine (9) months of Severance Payments
under this Section shall not be subject to the Offset Right.
(iv) Subject to Subsections (ii) and (iii) above, the
parties agree that notwithstanding any other provisions to the
contrary herein contained, the Employee shall be entitled to receive
Severance Payments equal to the greater of twelve (12) months or the
remaining balance of the Term at the date of termination, whichever
sum is greater.
B. NON-RENEWAL PAYMENT. At the end of the Term of this Employment
Agreement, provided this Employment Agreement has not been terminated, if
the Agreement is not renewed and extended on a basis that is mutually
acceptable to both Employer and Employee, then in such event, Employee
shall be entitled to receive twelve (12) months salary in equal monthly
installments over a 12-month period beginning on the first day of the
first month following the expiration of the Term as non-renewal benefit
(?NON-RENEWAL PAYMENT?) subject to the following conditions and
adjustments:
(i) The Non-Renewal Payment hereunder shall be subject to the Offset
Right.
(ii) The first nine (9) months Non-Renewal Payment shall not be
subject to the Offset Right.
C. SURVIVAL OF CERTAIN PROVISIONS. Upon any such termination, this
Employment Agreement shall be terminated and Employer shall be released
from all obligations to Employee with respect to this Employment
Agreement, except for the compensation obligations set forth herein and
the indemnification obligation. Nevertheless, Employer and Employee shall
continue to be bound
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and obligated by any provision of this Employment Agreement which is
intended by its terms to survive and continue beyond the termination of
this Employment Agreement, including, but not limited to, the provisions
of SECTION 9. The right of Employer to terminate Employee in Employer's
discretion prior to the end of the Term is an independent and absolute
right, and may be applied and enforced separately by Employer at its
election and in its sole discretion, notwithstanding any other provision
contained in this Employment Agreement to the contrary.
7. TERMINATION EARLIER THAN BY EXPIRATION OF TERM.
Although the parties expressly intend that employment under this
Employment Agreement shall continue until August 31, 2000, unless sooner
terminated pursuant to the provisions of SECTION 5 or SECTION 6 above, the
parties agree that employment under this Employment Agreement, and the
provisions hereof (except for any provision intended by its terms to survive and
continue, including, but not limited to, the provisions of SECTION 9), shall be
terminated in advance of the expiration of the Term upon the occurrence of any
one of the following events:
A. DEATH. The death of Employee;
B. DISABILITY. The physical or mental disability of Employee that
has prevented him from performing effectively the duties of his employment
for a time period greater than six (6) consecutive months;
C. TERMINATION FOR CAUSE. Employer also reserves the right at its
election to terminate the employment of Employee for Cause. ?CAUSE? exists
if Employee (i) has engaged in a wilful act of dishonesty (other than good
faith expense account disputes), or (ii) has willfully violated any
material provision of Employer?s Code of Conduct which is currently in
effect, as the same may be modified, amended or restated from time to
time, and a copy of which is attached hereto and marked EXHIBIT B and
incorporated herein by reference. Upon the occurrence of any event
described in clause (i) of this SECTION 7(C), regardless of whether such
event is also described in clause (ii) of this SECTION 7(C), notice of
termination for cause of the employment of Employee may be given in
writing by Employer to Employee and such termination shall be effective
immediately upon the delivery of such notice. Upon the occurrence of any
event described in clause (ii) of this SECTION 7(C), notice of termination
for cause of the employment of Employee setting forth the grounds for such
termination shall be given to Employee by Employer in writing within sixty
(60) days of receiving actual knowledge of such default by the Chief
Executive Officer or Board of Directors of Employer and such termination
shall be effective thirty (30) days thereafter if a cure for such event
has not been effected. The giving of such notice shall also effect a
termination of the obligations under this Employment Agreement, including
without limitation SECTION 3, 4, and 6, except as to any provision of this
Employment Agreement which is intended by its
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terms to survive and continue, including, but not limited to, the
provisions of SECTION 9.
D. TERMINATION BY EMPLOYER WITHOUT CAUSE. Employer terminates
Employee's employment with Employer during the Term without Cause.
E. TERMINATION BY EMPLOYEE WITHOUT GOOD REASON. Employee terminates
his employment with Employer during the Term without Good Reason.
F. TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee terminates his
employment with Employer during the Term for Good Reason.
Upon the occurrence of any of the events described above in SECTIONS 7(A)
through 7(C) or SECTION 7(E), Employer shall be released and discharged from any
liability, obligation or duty arising in connection with this Employment
Agreement or in connection with Employee?s employment except as otherwise
provided herein and further, provided that upon the occurrence of any event
described in SECTION 7(A), Employee shall be entitled to receive the proceeds of
the life insurance policy maintained by Employer on the life of Employee or upon
the occurrence of an event described in SECTION 7(B), Employee shall be entitled
to the benefits of any disability policy of Employer covering such event to the
extent provided in such policy. In all cases the indemnification obligation
shall continue.
8. EMPLOYEE OWNERSHIP. During the Term, Employee will not directly or
indirectly, on his own behalf or as a partner, officer, consultant, principal,
agent, stockholder (except by ownership of five percent (5%) or less of the
outstanding stock of any publicly held corporation) or in any other capacity,
invest or engage in, or devote any material endeavor or effort to any other
business other than the business of Employer other than the charitable
activities as permitted in SECTION 2 hereof.
9. RECORDS; CONFIDENTIAL INFORMATION; NON-COMPETITION AGREEMENT; TANGIBLE
PROPERTIES.
A. OWNERSHIP. All business records, data and information (?RECORDS?)
are and shall remain the exclusive property of Employer. Employee shall
not under any circumstances whatsoever permanently remove any Records from
the premises of Employer without prior written consent of Employer.
B. RETURN OF RECORDS. Upon request, Employee shall immediately
return to Employer all Records and copies thereof in Employee?s
possession.
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C. CONFIDENTIAL AND PROPRIETARY INFORMATION. To the extent not
otherwise provided for in this Employment Agreement, except as reasonably
desirable in Employee's performance of his duties hereunder, Employee
agrees to maintain the confidentiality of all confidential and proprietary
information relating to the business or internal operation of Employer
both during and after his employment by Employer, provided that if
Employee becomes legally compelled to disclose any such information,
Employee will (i) promptly notify Employer so that Employer may seek a
protective order or other appropriate remedy and/or waive compliance under
this SECTION 9(C) and (ii) comply with all reasonable requests of Employer
in seeking a protective order or other appropriate remedy. If such
protective order or other remedy is not timely obtained, or if Employer
waives compliance with the provisions of this SECTION 9(C), Employee will
furnish only that portion of such information that is legally required.
Employee understands and agrees that this SECTION 9 is a material part of
this Employment Agreement, his acceptance of which is an inducement to
Employer to enter into this Employment Agreement.
D. NON-COMPETITION AGREEMENT. Employee covenants and agrees that for
the period beginning the date of Employee?s termination of his employment
with Employer, however such termination is brought about (the "TERMINATION
DATE"), and ending on the second (2nd) anniversary of said date (the
"RESTRICTED PERIOD"), Employee will not, directly or indirectly, on his
own behalf or as a partner, officer, consultant, principal, agent,
stockholder (except by ownership of five percent (5%) or less of the
outstanding stock of any publicly held corporation) or in any other
capacity, invest or engage in, or devote any endeavor or effort to the
alternative designer fragrances or cosmetics segment of the perfume or
toiletries business, of the type currently sold by the persons set forth
on EXHIBIT C attached hereto and not mass brands of the types sold by
Proctor and Gamble, Unilever, Colgate-Palmolive, L'Oreal or Revlon (the
"BUSINESS"), in the United States or other countries the Employer or its
subsidiaries are doing business at the time of the termination of this
Employment Agreement (the "TERRITORY"). During the Restricted Period, in
the event Employee is employed by or consults with a Conglomerate, as
herein defined, and such Conglomerate?s primary business is not the
Business, as long as Employee is not directly or indirectly involved in
employment with or consulting in the Business, then in such event, that
employment is not prohibited from employment by such Conglomerate;
however, Employer shall be prohibited from being involved directly or
indirectly with the Business. Employee shall be prohibited from working
for a Conglomerate whose primary business is the Business. For the
purposes of this SECTION 9, "CONGLOMERATE" shall be defined as any
business which is comprised of entities or groups (e.g., divisions) with
multiple lines of business. Nothing herein shall prohibit Employee owning
an investment of less than ten percent (10%) of a Conglomerate.
E. NON-SOLICITATION AGREEMENT. During the Restricted Period,
Employee shall not, whether for his own account or for the account of
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any other individual, partnership, firm, corporation or other business
organization, intentionally solicit, endeavor to entice away from Employer
or any entity controlled by or under common control with Employer, or
otherwise interfere in a material fashion with the relationship with, any
person who is employed by or otherwise engaged to perform services for
Employer or any person or entity who is as of the Termination Date, or
within the then most recent 12-month period, a customer or client of
Employer. The giving of references shall not be deemed a violation of this
Section.
F. REFORMATION. Each of the parties hereto recognizes the time
limitations and territorial restrictions contained in this SECTION 9 are
properly required for the adequate protection of the business and goodwill
of Employer and agrees in the event any covenant or provision contained
herein shall be deemed to be illegal, unenforceable, or unreasonable by a
court or other tribunal of competent jurisdiction with respect to the time
limitation or any part of the Territory, such provision or covenant should
be modified to extend to the maximum time and territory that is reasonable
and submits to the reduction of said time limitations and territorial
restriction to such a time or an area as said court or tribunal shall deem
reasonable.
G. DOCUMENTS WRITTEN MATERIALS AND TANGIBLE PROPERTIES. To the
extent not otherwise provided for in this Employment Agreement, Employee
agrees that all documents, written materials and other tangible property,
including copies thereof, relating in any way to the business of Employer,
shall be and remain the exclusive property of Employer and shall be
returned to Employer by Employee immediately upon termination of his
employment by Employer or at the request of Employer.
H. INJUNCTIVE RELIEF. Employee hereby acknowledges and agrees that
Employer could not be fully compensated for damages resulting from a
continuing and material breach of any of the provisions of this SECTION 9
and, accordingly, that Employer shall be entitled to temporary and
permanent injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, to prevent a breach or
threatened breach of this SECTION 9 or to enforce the terms of this
SECTION 9. This right of Employer with respect to the obtaining of
injunctive relief shall not, however, diminish any right of Employer to
claim and recover monetary damages or to obtain any other remedy.
I. SURVIVAL. The provisions of this SECTION 9 shall continue in
effect notwithstanding the termination of, or resignation from, the
employment of Employee by Employer.
10. WAIVER OF BREACH. A waiver by a party of a breach of any provision of
this Employment Agreement shall not operate or be construed as a waiver of any
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subsequent breach by the other party of the same or any other provision of this
Employment Agreement.
11. NOTICES. Any notice required to be given under this Employment
Agreement shall be deemed sufficient, if in writing, and sent by certified mail,
return receipt requested, or hand delivered, or via overnight delivery service
to the other party at the address shown below:
For Employer: Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attn: Mr. Viren Sheth
With a copy to: Fulbright & Jaworski L.L.P.
300 Convent, Suite 2200
San Antonio, Texas 78205
Attn: Phillip M. Renfro, Esq.
For Employee: Mr. Richard Howard
6 Woods End Road
Rumson, New Jersey 07760
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attn: Michael S. Sirkin, Esq.
Either party may change its or his address for notices under this section by
giving notice of the change to the other pursuant to this section.
12. GOVERNING LAW; FORUM. This Employment Agreement shall be governed by
and construed in accordance with the laws of the State where Employer has its
corporate and administrative offices without regard to the conflicts of laws
rules thereof and is made and entered into in San Antonio, Bexar County, Texas.
Any and all controversies between the Employer and Employee shall be settled by
arbitration, in accordance with the Commercial Arbitration rules, then existing,
of the American Arbitration Association. Any arbitration hereunder shall be
before one arbitrator associated with the American Arbitration Rules of the
American Arbitration Association. The award of the arbitrator shall be final,
and judgment upon the award rendered may be entered in Bexar County, Texas. The
arbitrator may award attorneys' fees and costs to the prevailing party pursuant
to the terms of this Employment Agreement.
13. SEVERABILITY. If any of the provisions of this Employment Agreement is
determined to be invalid or unenforceable in part, the remaining provisions, and
the
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enforceable portions of any partially unenforceable provisions, shall
nevertheless be binding and enforceable.
14. BINDING EFFECT; EFFECTIVE DATE; ENTIRE AGREEMENT. Subject to SECTION
15 below, this Employment Agreement shall inure to the benefit of and shall be
binding upon Employer and its successors and assigns, and upon Employee and his
heirs, legatees, executors, administrators, successors and beneficiaries. This
Employment Agreement shall be effective as of the date hereof. This Employment
Agreement contains the entire agreement between the parties and supersedes any
prior agreements, letter agreements, term sheets or discussions between the
parties, including the letter agreement between the parties dated November 4,
1997. This Employment Agreement may not be amended except by a written agreement
signed by the parties.
15. ASSIGNMENT. This Employment Agreement shall not be assignable by
Employee without the prior written consent of Employer. This Employment
Agreement may only be assigned by Employer in connection with a sale of all or
substantially all of the assets of the Employer. In such event a written
assumption agreement shall be promptly delivered to Employee by the buyer of
such assets.
16. CAPTIONS. Captions of Sections are inserted only as a matter of
convenience and reference and in no way define, limit or describe the substance
or scope of this Employment Agreement or the intent of any of its provisions.
17. RULES OF CONSTRUCTION. This Employment Agreement has been negotiated
by the parties and is to be interpreted according to its fair meaning as if the
parties had prepared it together and not strictly for or against any party. All
references in this Employment Agreement to "parties" refer to parties in this
Employment Agreement unless expressly indicated otherwise. References in this
Employment Agreement to sections are to sections of this Employment Agreement
unless expressly indicated otherwise. References in this Employment Agreement to
"provisions" of this Employment Agreement refer to the terms, conditions and
promises contained in this Employment Agreement. At each place in this
Employment Agreement where the context so requires, the masculine, feminine or
neuter gender includes the others and the singular or plural number includes the
other. Forms of the verb "including" mean "including without limitation". The
word "or" is inclusive and includes "and".
18. INDEMNITY. Employer and Employee will enter into an Indemnity
Agreement in substantially the form attached hereto as EXHIBIT D
contemporaneously with or promptly after the execution hereof, which will
provide that the Employer will provide, subject to a customary limits and
exclusions, for the payment of legal fees and expenses related to the defense of
Employee of an action brought against Employee for which he is entitled to be
indemnified hereunder. The Employer will have the obligation to maintain and
continue in full force and effect an officer and directors insurance policy with
terms generally consistent with the officer and director insurance policy
currently in place.
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19. REIMBURSEMENT OF EMPLOYEE'S ATTORNEY'S FEES. Employer shall pay
Employee for the legal fees of Employee?s attorneys, Proskauer Rose LLP,
incurred in connection with the negotiation and execution of this Employment
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
TRISTAR CORPORATION
By: /s/ VIREN SHETH
Name: VIREN SHETH
Title: CHIEF EXECUTIVE OFFICER
/s/ RICHARD HOWARD
--------------------------------------------
RICHARD HOWARD
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EXHIBIT A
LONG-TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of the Grant Date (the "Grant Date") set
forth on Schedule I hereto, between TRISTAR CORPORATION, a Delaware corporation
(the "Company"), and the employee of the Company or of a subsidiary of the
Company identified on Schedule I hereto (the "Employee").
The Company and Employee are parties to an employment agreement (the
"Employment Agreement") dated September 1, 1998.
On the Grant Date the Company granted to the Employee the option or
options hereinafter described pursuant to, and subject to and upon the terms and
conditions set forth in, the Tristar Corporation Long-Term Incentive Plan, as
amended from time to time (the "Plan"), and promptly thereafter notified the
Employee of the grant of such option or options.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. GRANT OF OPTION.
(a) On the Grant Date, the Company irrevocably granted to the
Employee, as a matter of separate agreement and not in lieu of salary or
any other compensation for services, the right and option to purchase all
or any part of the aggregate number of shares of its Common Stock, par
value $.01 per share (the "Common Stock"), set forth on Schedule I hereto,
on the terms and conditions herein set forth.
(b) To the extent set forth in Schedule I hereto, the right and
option to purchase shares of Common Stock are intended to be an incentive
stock option (an "ISO") within the meaning of Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"). To the extent such
right and option to purchase shares of Common Stock as set forth on
Schedule I hereto is not identified as being intended to be an ISO, such
right and option will be considered a non-statutory option. In addition,
to the extent that a right and option to purchase shares of Common Stock
intended to be an ISO does not qualify as an ISO, such right and option,
to the extent that it does not so qualify, shall be converted to a
non-statutory option.
(c) The ISOs and non-statutory stock options granted to the Employee
hereunder are each referred to as an "Option" and collectively referred to
as the "Options".
2. TERMS.
(a) EXERCISE PRICE. The exercise price per share for the shares of
Common Stock subject to an Option granted hereunder shall be the per share
amount set forth in Schedule I hereto for such Option (the "Exercise
Price"). With respect to any Option that is intended to be an ISO, the
Exercise Price shall not be less than the fair market value per share
(determined as of the date the Option is granted) of the Common Stock on
such date.
(b) VESTING. Subject to the provisions of Section 4 of this
Agreement and the Plan, the Option or Options granted hereunder shall
become exercisable as to the portions of the aggregate number of shares
covered by such Option as set forth on Schedule I hereto on and after each
of the related dates during the term of such Option set forth on Schedule
I hereto.
(c) TERM AND CONDITIONS OF EXERCISE. An Option granted hereunder
shall be exercisable in whole at any time or in part from time to time
during the term of such Option as to all or any of the shares then
purchasable under such Option.
The term of the Option or Options subject hereto shall be for the
number of years from the Grant Date set forth on Schedule I hereto with respect
to such Option or such shorter period of time as is described in Section 4. In
no event shall the term of the Option exceed ten years from the Grant Date.
Except as provided in Section 4, an Option granted hereunder shall
not be exercisable unless the Employee shall, at the time of exercise, be an
employee of the Company or of a subsidiary of the Company. The holder of such
Option shall have none of the rights of a stockholder with respect to the shares
subject to such Option until such shares are transferred to the holder upon the
exercise of such Option.
3. RESTRICTIONS ON TRANSFER. An Option granted hereunder shall not be
assignable or transferrable by the Employee except by will or by the laws of
descent and distribution, and subject to Section 4(a), such Option is
exercisable, during the Employee?s lifetime, only by the Employee. The
designation of a beneficiary by the Employee shall not constitute a transfer.
More particularly (but without limiting the generality of the foregoing), such
Option may not be assigned, transferred (except as aforesaid), pledged or
encumbered in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. In the event of any
attempted assignment, transfer, pledge, encumbrance or other disposition of such
Option contrary to the provisions hereof, or the levy of any attachment or
similar process upon such Option, such Option shall be null and void and of no
further effect.
4. STATUS OF OPTION UPON CERTAIN EVENTS. If the Employee?s
employment shall terminate prior to the complete exercise of an Option granted
hereunder, then such Option shall thereafter be exercisable solely to the extent
provided in paragraphs (a) through (c) of this Section 4; provided, however,
that such Option may not be exercised after the scheduled expiration date.
(a) DEATH OR DISABILITY OR RETIREMENT. If the Employee shall die, be
subject to Disability (as defined in Section 22(e)(3) of the Code) while
employed by the Company or a subsidiary, retire (as such term is used in
any of the Company?s employee benefit plans), or if his employment is
terminated other than by reason of his retirement and other than pursuant
to Section 7A, 7B, 7C or 7E of the Employment Agreement, an Option granted
hereunder (unless previously terminated pursuant to paragraphs (b) or (c)
below) may be exercised as follows: (i) in the case of death, for the
number of shares for which such Option shall have vested as provided on
Schedule I hereto on the date of Employee?s death by the legatee or
legatees of such Option under the Employee?s last will, or by the personal
representatives or distributees of the Employee, at any time within a
period of one year after the Employee?s death, but in no event after the
expiration of such Option set forth in Section 2(c) herein; (ii) in the
case of Disability while employed by the Company or a subsidiary, for the
number of shares for which such Option shall have vested as provided on
Schedule I hereto on the date of Disability by the Employee or by the
personal representatives of the Employee if the Employee is unable to act
for himself, at any time within a period of one year after the Employee
ceases to be an employee of the Company or one of its subsidiaries, but in
no event after the expiration of such Option set forth in Section 2(c)
herein; (iii) in the case of retirement, for the number of shares for
which such Option shall have vested as provided on Schedule I hereto as of
the date of such retirement so long as the Employee does not become
employed by a ?competitor? of the Company subsequent to such retirement,
by the Employee or by the personal representatives of the Employee if the
Employee is unable to act for himself or herself, at any time within a
period of one year after the date of such retirement, but in no event
after the expiration of the Option set forth in Section 2(c) herein; and
(iv) in the case of termination of employment other than by reason of his
retirement and other than pursuant to Section 7A, 7B, 7C or 7E of the
Employment Agreement, for the number of shares for which such Option shall
have been vested as provided on Schedule I hereto on the date of
termination, at any time within a period of one year after such date of
termination, but in no event after the expiration of the Option set forth
in Section 2(c) herein. A determination as to whether the Employee has
become employed by a ?competitor,? and the definition of ?competitor,?
shall be made by the Compensation Committee (the ?Committee?), in its sole
discretion. If an ISO is exercised more than three months after the
Employee?s retirement and the Employee has not died or incurred a
Disability, such Option will be converted to a non-statutory option.
(b) TERMINATION BY COMPANY WITH CAUSE OR BY EMPLOYEE WITHOUT GOOD
REASON. If the Employee's employment with the Company or a subsidiary
shall be terminated pursuant to the provisions of Section 7C or 7E of the
Employment Agreement, then any unexercised part of the Option held by the
Employee shall immediately terminate and be forfeited unless the
Committee, in its sole discretion, shall otherwise determine.
(c) CHANGE IN EMPLOYMENT. The Option or Options granted hereunder
shall not be affected by any change of employment (or by any temporary
leave of absence approved by the Committee or by the Board itself), so
long as the Employee continues to be in the employ of the Company or of a
subsidiary of the Company.
5. ADJUSTMENTS. If all or any portion of an Option granted hereunder is
exercised subsequent to any stock dividend, stock split, recapitalization,
combination, exchange of shares, merger, consolidation, liquidation, split-up,
split-off, spin-off or other similar change in capitalization, any distribution
to stockholders, including a rights offering, other than regular cash dividends,
changes in the outstanding stock of the Company by reason of any increase or
decrease in the number of issued shares of Common Stock resulting from a
split-up or consolidation of shares or any similar capital adjustment or the
payment of any stock dividend, any share repurchase at a price in excess of the
closing market price (as determined by the Committee) of the Common Stock at the
time such repurchase is announced or other increase or decrease in the number of
such shares, the Committee may make such appropriate adjustments in the purchase
price paid upon exercise of such Option and the aggregate number and class of
shares or other securities or property issuable upon any such exercise as the
Committee shall, in its sole discretion, determine. In any such event, no
fractional share shall be issued upon any such exercise, and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued; further, the minimum number of full shares which may be purchased upon
any such exercise shall be the minimum number specified on Schedule I hereto
adjusted proportionately.
6. PAYMENT; METHOD OF EXERCISE. Payment of the purchase price of the
shares of Common Stock subject to an Option granted hereunder may be made (i) in
any combination of cash or whole shares of Common Stock already owned by the
Employee or (ii) in shares of Common Stock withheld by the Company from the
shares of Common Stock otherwise issuable to the Employee as a result of the
exercise of such Option (?cashless exercise?). Subject to the terms and
conditions of this Agreement, such Option may be exercised by written notice to
the Company at its principal office, attention of the Secretary. Such notice
shall (a) state the election to exercise such Option, the number of shares in
respect of which it is being exercised and the manner of payment for such shares
and (b) be signed by the person or persons so exercising such Option and, in the
event such Option is being exercised pursuant to Section 4 by any person or
persons other than the Employee, accompanied by appropriate proof of the right
of such person or persons to exercise such Option. If the Option being exercised
is an ISO and non-statutory options have also been granted to the Employee
hereunder, such notice shall also identify whether the Option being exercised is
an ISO and, if so, the number of shares of Common Stock to be purchased pursuant
to such exercise. Such notice shall either (i) elect cashless exercise or be
accompanied by payment of the full purchase price of such shares, in which event
the Company shall issue and deliver a certificate or certificates representing
such shares as soon as practicable after the notice is received, or (ii) fix a
date (not more than 10 business days from the date of such notice) for the
payment of the full purchase price of such shares at the Company?s principal
office, against delivery of a certificate or certificates representing such
shares. Cash payments of such purchase price shall, in case of clause (i) or
(ii) above, be made by cash or check payable to the order of the Company. Common
Stock payments (valued at the closing market price on the date of exercise, as
determined by the Committee), shall be made by delivery of stock certificates in
negotiable form. All cash and Common Stock payments shall, in either case, be
delivered to the Company at its principal office, attention of the Secretary.
Shares of Common Stock withheld pursuant to a cashless exercise election shall
be valued at the closing market price on the date of exercise, as determined by
the Committee. If certificates representing Common Stock are used to pay all or
part of the purchase price of an Option granted hereunder, a replacement
certificate shall be delivered by the Company representing the number of shares
delivered but not so used, and an additional certificate shall be delivered
representing the additional shares to which the holder of such Option is
entitled as a result of the exercise of such Option. The certificate or
certificates for the shares as to which such Option shall have been so exercised
shall be registered in the name of the person or persons so exercising the
Option and shall be delivered as aforesaid to or upon the written order of the
person or persons exercising such Option. All shares issued as provided herein
will be fully paid and nonassessable.
7. ADMINISTRATION. The Committee shall have the power to interpret the
Plan and this Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee shall be final and binding upon the
Employee, the Company and all other interested persons.
8. TAXES. The Company shall have the right to deduct or withhold, or
require the person exercising an Option to remit to the Company, an amount
sufficient to satisfy federal, state and local taxes (including such person?s
FICA obligation) required by law to be withheld with respect to any taxable
event arising or as a result of this Option.
9. RESERVES, ETC. Shares of Common Stock delivered upon the exercise of an
Option granted hereunder shall, in the discretion of the Board or the Committee,
be either shares of Common Stock heretofore or hereafter authorized and then
unissued, or previously issued shares of Common Stock heretofore or hereafter
acquired through purchase in the open market or otherwise, or some of each. The
Company shall be under no obligation to reserve or to retain in its treasury any
particular number of shares of Common Stock at any time, and no particular
shares, whether unissued or held as treasury shares, shall be identified as
those covered by an Option granted hereunder.
10. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement or in the
Plan shall confer upon the Employee any right to continue in the employ of the
Company or shall interfere with or restrict in any way the rights of the
Company, which are hereby expressly reserved, to discharge the Employee at any
time for any reason whatsoever, with or without cause.
11. GENERAL RESTRICTIONS.
(a) An Option granted hereunder shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or Federal
law, or (ii) the consent or approval of any governmental regulatory body,
or (iii) an agreement by the recipient of such Option granted pursuant to
this Agreement with respect to the disposition of shares of Common Stock
is necessary or desirable (in connection with any requirement or
interpretation of any Federal or state securities law, rule or regulation)
as a condition of, or in connection with, the granting of such Option or
the issuance, purchase or delivery of shares of Common Stock thereunder,
such Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, approval or agreement shall have
been effected or obtained free of any conditions not acceptable to the
Committee.
(b) The Employee hereby (i) represents and warrants that any shares
of Common Stock issued, transferred or delivered to, or acquired by, the
Employee pursuant to this Agreement shall be acquired solely for the
Employee's own account for investment, and not with a view to any
distribution thereof that would violate the Securities Act of 1933 (the
"Securities Act") or the applicable securities laws of any state, (ii)
agrees that he or she will not distribute any such shares of Common Stock
in violation of the Securities Act or the applicable securities laws of
any state, and (iii) acknowledges that, unless notified to the contrary by
the Company, such shares of Common Stock will not have been registered
under the Securities Act or the securities laws of any state and must be
held indefinitely unless subsequently registered under the Securities Act
and any applicable state securities laws or unless an exemption from such
registration becomes or is available.
12. ENTIRE AGREEMENT; AMENDMENT. This Agreement together with the Plan
constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Agreement supersedes in all respect the provisions of the
Employment Agreement related to stock options, including without limitation
Section 4D of the Employment Agreement. Any term or provision of this Agreement
may be waived at any time by the party which is entitled to the benefits
thereof, except that any waiver of any term or condition of this Agreement must
be in writing.
The Committee shall have the authority to amend this Agreement to include
any provision which, at the time of such amendment, is authorized under the
terms of the Plan; however, an Option granted hereunder may not be revoked or
altered in a manner unfavorable to the holder without the written consent of the
holder.
13. GOVERNING LAW. The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
14. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
15. NOTICES. All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
TO THE EMPLOYEE:
As set forth in Schedule I
TO THE COMPANY:
MAILING ADDRESS:
Tristar Corporation
12500 San Pedro, Suite 500
San Antonio, Texas 78216
Attention: Compensation Committee
16. WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
17. CONSTRUCTION. Titles are provided herein for convenience only and are
not to serve as a basis for interpretation on construction of the Agreement. The
singular form shall include the plural, when the context so indicates. In the
event of an inconsistence between the terms of this Agreement and the terms of
Schedule I hereto, the terms of Schedule I shall prevail. In the event of an
inconsistency between the terms of this Agreement (including Schedule I) and the
terms of the Plan, the terms of the Plan shall prevail.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and the Employee has hereunto
set his or her signature, all as of the Grant Date.
TRISTAR CORPORATION
By:
Viren S. Sheth
Chief Executive Officer
Employee
SCHEDULE I
Employee Name RICHARD HOWARD
Employee Address
Grant Date
Shares of Common Stock underlying Option 50,000
------
Option Term 10 YEARS
Options Considered to be ISO?s within
the meaning of Section 422(b) of the
Code Yes XX No
Exercise Price Per Share $
-
(Closing price on date of Grant
as reported by the Nasdaq SmallCap
Market)
Vesting Schedule:
The Option shall be exercisable according to the following schedule:
(a) shares on ;
------------ -------------------
(b) shares on ;
------------ -------------------
(c) shares on ;
------------ -------------------
(d) shares on ;
------------ -------------------
(e) shares on ; and
------------ -------------------
(f) If, at any time prior to , the Employee?s employment with the Company or a
subsidiary shall be terminated by the Company or such subsidiary for any
reason other than the reasons set forth in Section 7.C of the Employment
Agreement, or if the Employee terminates his employment with the Company
or a subsidiary for any reason other than the reasons set forth in Section
7.E of the Employment Agreement, then the Option granted hereunder may be
exercised in whole or in part by the Employee or by the personal
representatives of the Employee if the Employee is unable to act for
himself, for an aggregate of shares at any time within a period of one
year after the Employee ceases to be an employee of the Company or one of
its subsidiaries. The remaining part of the Option shall immediately
terminate and be forfeited unless the Committee, in its sole discretion,
shall otherwise determine.
EXHIBIT B
CODE OF CONDUCT
B-1
EXHIBIT C
LIST OF COMPETITORS
UNITED STATES CANADA VENEZUELA
Jean Philippe Cartland Glamour, C. A. (Jean Nacris)
Delagar Claude G
Parfums DeCoeur
Fragrance Impressions
Lady in Red
L?Illusions
Yaz
From France to You
Paris Design
Q Perfumes
Deborah
Artmatic
Pavion
Wet n Wild
C-1
EXHIBIT D
INDEMNIFICATION AGREEMENT
This agreement is made as of the __th day of ___________, 199_, by and
between Tristar Corporation, a Delaware corporation (the "COMPANY"), and the
undersigned Officer of the Company (the "INDEMNITEE"), with reference to the
following facts:
18. The Company desires that Indemnitee continue as an officer and
employee of the Company and the Indemnitee wishes to continue to serve in such
capacity.
19. Section 145 of the General Corporation Law of the State of Delaware,
under which Law the Company is organized, empowers corporations to indemnify a
person serving as a director, officer, employee or agent of the corporation and
a person who serves at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise, and said Section 145 specifies that the indemnification set
forth therein shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise.
20. The Company's Certificate of Incorporation and Bylaws expressly
provide for the indemnification of certain individuals of the Company to the
full extent permitted by applicable law, the advancement of expenses in respect
thereof, and permit the execution of contracts, such as this Agreement,
providing for indemnification in addition to the indemnification obligations of
the Company set forth therein. The Indemnitee has indicated that he does not
regard the indemnities available under the Company's Certificate of
Incorporation and By-Laws as adequate to protect him against the risks
associated with his service to the Company and has noted that the Company does
not currently provide directors' and officers' liability insurance for his
benefit, although the Company intends to do so. In this connection the Company
and the Indemnitee now agree they should enter into this Indemnification
Agreement in order to provide greater protection to Indemnitee against such
risks of service to the Company
21. In order to induce the Indemnitee to continue to serve as an officer
and employee of the Company and in consideration of his continued service, the
Company hereby agrees to indemnify the Indemnitee as follows:
INDEMNITEE. The Company will indemnify and hold harmless the
Indemnitee, his executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally obligated to pay
in connection with any Proceeding. As used in this Agreement the term
"PROCEEDING" shall include any threatened, pending or completed claim,
action, suit or proceeding, (other than actions brought by or in the right
of the
D-1
Company) or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may have been
involved as a party or otherwise, by reason of the fact that Indemnitee is
or was an officer and employee of the Company, by reason of any actual or
alleged error or misstatement or misleading statement made or suffered by
the Indemnitee, by reason of any action taken by him or of any inaction on
his part while acting as such officer or employee, or by reason of the
fact that he was serving at the request of the Company as a director,
trustee, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise; provided, that in each such case
indemnitee acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company,
and, in the case of a criminal proceeding, in addition had no reasonable
cause to believe that his conduct was unlawful. With respect to any action
brought by or in the right of the Company, such Indemnitee shall also be
indemnified, to the extent not prohibited by applicable laws or as
determined by a court of competent jurisdiction, against expenses actually
and reasonably incurred by him in connection with such action if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. As used in this Agreement,
the term "OTHER ENTERPRISE" shall include (without limitation) employee
benefit plans and administrative committees thereof, and the term "FINES"
shall include (without limitation) any excise tax assessed with respect to
any employee benefit plan.
EXPENSES. As used in this Agreement, the term "EXPENSES" shall
include, without limitation, damages, judgments, fines, penalties,
settlements and costs, attorneys' fees and disbursements and costs of
attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
ENFORCEMENT. If a claim or request under this Agreement is not paid
by the Company, or on its behalf, within thirty days after a written claim
or request has been received by the Company, the Indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid
amount of the claim or request and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of prosecuting
such suit. The Company shall have the right to recoup from the Indemnitee
the amount of any item or items of Expenses theretofore paid by the
Company pursuant to this Agreement, to the extent such Expenses are not
reasonable in nature or amounts; provided, however, that the Company shall
have the burden of proving such Expenses to be unreasonable. The burden of
proving that the Indemnitee is not entitled to indemnification for any
other reason shall be upon the Company.
SUBROGATION. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such
rights, including the execution
D-2
of such documents necessary to enable the Company effectively to bring
suit to enforce such rights and providing all assistance requested by the
Company.
EXCLUSIONS. The Company shall not be liable under this Agreement to
pay any Expenses in connection with any claim made against the Indemnitee:
to the extent that payment is actually made to the Indemnitee
under a valid, enforceable and collectible insurance policy of the
Company;
in connection with a judicial action by or in the right of the
Company, in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable for gross
negligence or misconduct in the performance of his duty to the
Company unless and only to the extent that any court in which such
action was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses as such court shall deem proper;
if it is provided by final judgment in a court of law or other
final adjudication to have been based upon or attributable to the
Indemnitee?s in fact having gained any personal profit or advantage
to which he was not legally entitled;
brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder, however, notwithstanding the
foregoing, the Indemnitee shall be protected under this Agreement as
to any claims upon which suit may be brought against him by reason
of any alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee shall establish
that he committed (i) acts of active and deliberate dishonesty, (ii)
with actual dishonest purpose and intent, (iii) which acts were
material to the cause of action so adjudicated; or
for any Expense which the Company is prohibited by applicable
law from paying as indemnity or for any other reason.
INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against any and all Expenses incurred in
connection therewith.
D-3
PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any provision
of this Agreement to the indemnification by the Company for some or a portion of
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such Expenses to which
the Indemnitee is entitled.
ADVANCES OF EXPENSES. Expenses incurred by the Indemnitee in connection
with any Proceeding, except the amount of any settlement, shall be paid by the
Company in advance upon the request of the Indemnitee that the Company pay such
Expenses. The Indemnitee hereby undertakes to repay to the Company the amount of
any Expenses theretofore paid by the Company to the extent that it is ultimately
determined that such Expenses were not reasonable or that the Indemnitee is not
entitled to indemnification.
APPROVAL OF EXPENSES. No Expenses for which indemnity shall be sought
under this Agreement, other than those in respect of judgments and verdicts
actually rendered, shall be incurred without the prior consent of the Company,
which consent shall not be unreasonably withheld.
NOTICE OF CLAIM. The Indemnitee, as a condition precedent to his right to
be indemnified under this Agreement, shall give to the Company notice in writing
as soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Company shall be given at
its principal office and shall be directed to the Corporate Secretary (or such
other address as the Company shall designate in writing to the Indemnitee);
notice shall be deemed received if sent by prepaid mail properly addressed, the
date of such notice being the date postmarked. In addition, the Indemnitee shall
give the Company such information and cooperation as it may reasonably require
and as shall be within the Indemnitee?s power.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnitee?s right to indemnification under
any provision of the Certificate of Incorporation or By-Laws of the Company and
amendments thereto or under law.
GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SAVING CLAUSE. Wherever there is conflict between any provision of this
Agreement and any applicable present or future statute, law or regulation
contrary to which the Company and the Indemnitee have no legal right to
contract, the latter shall prevail, but in such event the affected provisions of
this
D-4
Agreement shall be curtailed and restricted only to the extent necessary to
bring them within applicable legal requirements.
COVERAGE. The provisions of this Agreement shall apply with respect to the
Indemnitee's service as an officer and employee of the Company prior to the date
of this Agreement and with respect to all periods of such service after the date
of this Agreement, even though the Indemnitee may have ceased to be an officer
and employee of the Company.
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the day and year first above written.
TRISTAR CORPORATION
By: /s/ VIREN SHETH
Name: VIREN SHETH
Title: CHIEF EXECUTIVE OFFICER
/s/ RICHARD HOWARD
--------------------------------
RICHARD HOWARD