Exhibit 10.26
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made as of the 28th day of January, 2000 by and
between Home Products International, Inc., a Delaware corporation (the
"Company"), and Charles Avery, Jr. (the "Employee").
RECITAL
WHEREAS, the Employee is a valuable employee of the Company and the Company
wishes to provide a retention payment to him upon his completion of six (6)
months of employment following a Change of Control pursuant to the terms and
provisions hereof.
CLAUSES
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth below, the parties agree as follows:
1. Retention Payment Following Change of Control. If Employee remains an
active full-time employee with the Company for a period of one hundred eighty
(180) days after a Change of Control (the "Retention Period"), the Company shall
pay the Employee an amount equal to Sixty-five Thousand Dollars ($65,000.00),
payable in one lump sum within seven (7) business days following the earlier of
the completion of the Retention Period or, if such Retention Period does not
apply, termination of employment. For purposes of this Agreement, the Retention
Period requirement does not apply if (a) the termination of employment is due to
the Employee's death; (b) there is an involuntary termination by the Company not
attributable to Cause as defined in Section 3 below; (c) the Company reassigns
Employee's principal place of employment to an area outside of the metropolitan
area of his current employment; or (d) the Company materially diminishes the
duties and responsibilities of Employee.
2. Change of Corporate Control. For purposes of this Agreement, a "Change
of Control" shall have occurred upon notice that (i) any individual or entity
(other than the Company, any subsidiary of the Company, any employee benefit
plan or other compensation program or arrangement of the Company or of any
subsidiary of the Company, or any person holding shares of the Company's common
stock for or pursuant to the terms of any such plan, program or arrangement),
alone, or together with its Affiliates (as defined below) and Associates (as
defined below), shall become an Acquiring Person (as defined below); or (ii) the
shareholders of the Company approve a definitive agreement for a merger or
consolidation involving the Company which would result in the common stock of
the Company outstanding immediately prior to such merger or consolidation
continuing to represent (whether by remaining outstanding or by being converted
into voting securities of the surviving entity) less than fifty percent (50%) of
the combined voting power of the Company and such other entity outstanding
immediately after such merger or consolidation; or (iii) the shareholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or other disposition of all or substantially all of the assets of
the Company; or (iv) the Continuing Directors (as defined below) no longer
constitute a majority of the Board. "Acquiring Person" means any individual or
entity who or which, together with all its Affiliates and Associates, has
acquired 40% or more of the shares of the Company's common stock then
outstanding. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). "Continuing Director" means any individual who
is a member of the Board, while such individual is a member of the Board, who is
not an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or
a representative or nominee of an Acquiring Person or of any such Affiliate or
Associate, and was a member of the Board prior to the occurrence of a Change in
Control, and any successor of a Continuing Director, while such successor is a
member of the Board, who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or representative or nominee of an Acquiring
Person or of any such Affiliate or Associate, and is recommended or elected to
succeed the Continuing Director by a majority of the Continuing Directors.
3. Cause. "Cause" as used in this Agreement shall mean (a) willful
failure by the Employee to perform, or gross neglect by the Employee of, his
material duties (other than any such failure resulting from the Employee's
incapacity due to physical or mental illness); (b) willful misconduct by the
Employee which is injurious to the Company, monetarily or otherwise, including
but not limited to fraud which is injurious to the Company, monetarily or
otherwise; or (c) conviction of a felony or commission of an act involving the
Employee's moral turpitude as determined by the Federal District Court judge who
has most recently retired from the Federal District Court located in the
Northern District of Illinois. For purposes of clauses (a) and (b) of the
foregoing definition, no act, or failure to act, on the Employee's part shall be
deemed "willful" or "gross" unless done, or omitted to be done, by the Employee
not in good faith and without reasonable belief that the Employee's act or
failure to act was in the best interests of the Company.
4. Non-Competition, Non-Solicitation. The Employee agrees that, for a
period of six (6) months following the end of the Retention Period, the Employee
will not, directly or indirectly, alone or in association with others, either as
a principal, agent, owner, shareholder, officer, director, partner, employee,
lender, investor, consultant, manager or in any other capacity, engage in, have
a financial interest in, or be in any way connected or affiliated with, or
render advice or services to, any business which competes with the Company or
its affiliates, including any entity engaged in the manufacture or distribution
of any products which are manufactured, assembled or sold by the Company or its
affiliates; provided, however, that (a) the Employee may own less than five
percent (5%) of the outstanding securities of public companies which are engaged
in the same business as the Company or its affiliates and (b) the Employee may
work for a segment or business unit of a business which competes with the
Company so long as the segment or unit for which he is working does not compete.
The Employee further agrees that for a period of six (6) months following the
end of the Retention Period, he will not, directly or indirectly, divert, take
away, solicit or interfere with any of the customers, accounts or employees of
the Company or its affiliates existing as of the date of his termination of
employment. If, however, the restrictive covenants contained in this Agreement
are held to be unenforceable at any time, the parties specifically direct the
court, arbitrator or other trier of fact to modify and enforce said covenants to
the extent that it believes is reasonable under the circumstances existing at
that time, rather than deleting or rendering unenforceable such restriction(s).
5. Termination of Employment Prior to Change of Control. If Employee's
termination of employment occurs prior to a Change of Control and such
termination of employment is attributable to one of the four (4) exceptions to
the Retention Period set forth in
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Section 1 above, Employee shall still be entitled to the payment in Section 1 so
long as Employee's termination of employment occurs (a) within three (3) months
of the Change of Control or (b) after a letter of intent has been executed with
a third party which results in a Change of Control with such party or affiliate
of such party. The payment due under Section 1 shall be payable in one lump sum
within seven (7) business days following the Change of Control.
6. Remedies. If the Company fails to timely pay any amounts due
hereunder, the Company hereby agrees to reimburse the legal fees and expenses
incurred by Employee in collecting such amount. The Employee understands the
Company would not have any adequate remedy at law for the material breach or
threatened breach by Employee of any one or more of the covenants set forth in
this Agreement and agrees that, in the event of any such material breach or
threatened breach, the Company may, in addition to the other remedies which may
be available to it, file a suit in equity to enjoin Employee from the breach or
threatened breach of such covenants, including but not limited to the right to
obtain an immediate temporary restraining order.
7. Modification. This Agreement constitutes the full and complete
understanding and agreement of the parties regarding the retention payment upon
a Change of Control and the covenants for non-competition and non-solicitation,
supersedes any prior understanding and agreement, and cannot be changed or
terminated except in writing signed by the parties to be bound thereby.
8. Assignment. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. The rights and obligation of the Employee hereunder
may not be assigned or delegated.
9. Severability. Each provision of this Agreement shall be severable. If,
for any reason, any provision herein is finally determined to be invalid and
contrary to, or in conflict with, any existing or future law or regulation of a
court or agency having valid jurisdiction, such determination shall not impair
the operation or affect the remaining provisions of this Agreement, and such
remaining provisions will continue to be given full force and effect and bind
the Company and the Employee.
10. Waiver. The waiver by either party of any breach of this Agreement by
the other will not operate or be construed as a waiver of any other breach by
the other which is not specifically waived in writing.
11. Notice. Any notice or other communication required or permitted to be
given to a party pursuant to this Agreement shall be in writing and shall be
determined to have been duly given when delivered personally or deposited in
United States certified or registered mail, return receipt requested, postage
prepaid, at the parties last known address. Either party may change his or its
address for the purpose of this section by written notice given in the manner
provided above.
12. Illinois Law. This Agreement shall be interpreted and construed in
accordance with Illinois Law.
The parties have executed this Agreement as of the date stated above.
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EMPLOYEE: COMPANY:
/s/ Charles F. Avery, Jr. By: /s/ James E. Winslow
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Charles Avery, Jr., individually Its: Exec VP & CFO
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AMENDMENT TO
RETENTION AGREEMENT
This Amendment to Retention Agreement (this "Amendment"), dated as of
January 17, 2002, is made by and between Home Products International, Inc., a
Delaware corporation (the "Company"), and Charles Avery, Jr. (the "Employee").
WHEREAS, the parties hereto entered into that certain Retention Agreement,
dated January 28, 2000 (the "Retention Agreement").
WHEREAS, the parties desire to amend the Retention Agreement as set forth
herein.
WHEREAS, in accordance with Section 7 of the Retention Agreement, this
Amendment is made in writing by all the parties to the Retention Agreement
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Amendments. The words "Sixty-five Thousand Dollars ($65,000.00)"
contained in Section 1 of the Agreement are hereby deleted and replaced with
"Seventy-one Thousand Five Hundred Dollars ($71,500).
2. No Other Amendments. Except as amended hereby, all terms and provisions
of the Retention Agreement shall continue in full force and effect as stated
therein.
3. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement on this 17th day of January, 2002.
Company:
HOME PRODUCTS INTERNATIONAL, INC.
By: /s/ James E. Winslow
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Name: James E. Winslow
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Title: Exec. VP & CFO
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Employee:
/s/ Charles F. Avery Jr.
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Charles F. Avery Jr.