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EXHIBIT 10.38
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Employment Agreement") is
made and entered into this 26th day of November, 1997, by and between TRISTAR
CORPORATION, a Delaware corporation ("Employer") and RICHARD HOWARD
("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as its Chief Operating
Officer for a term of employment as herein provided and Employee desires to
become an employee of Employer 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:
1. TERM OF EMPLOYMENT. The term of this employment under this
Agreement shall commence on December 8,1997 and terminate on December 7, 1999
unless terminated earlier as provided herein (the "Term").
2. TITLE AND DUTIES OF EMPLOYEE. Employee shall serve as
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 the Chief Operating Officer of Employer with an emphasis on
Employer's operations, finances and management information systems. 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 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, President 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 Thousand
Dollars per annum ($200,000) ("Salary"), payable monthly, subject to standard
deductions for all applicable state and federal taxes and other reasonable bona
fide deductions.
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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 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 Section 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. Upon commencing employment,
Employer shall be granted nonqualified stock options on the terms set
forth on Exhibit A attached hereto.
E. CAR ALLOWANCE. Employer shall pay Employee a car
allowance of $500 per month.
F. RELOCATION PACKAGE. Employer shall reimburse
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 to a maximum of
$75,000. Employer shall pay Employee $5,000 per month for up to eight
months pursuant to the provisions of this Section 4.F as well as
advances for major expenses which will be deducted from the $75,000
available to Employee. Upon the relocation of Employee and his family
to San Antonio, Bexar County, Texas, Employer shall pay to Employee an
amount equal to (i) $75,000, less (ii) amounts paid to Employee
pursuant to the preceding
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sentence, and upon such payment, no further payments described in the
preceding sentence shall be made to Employee.
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
further 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 his 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 such 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 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 PAYMENT 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 Section 7.A., 7.B., 7.C.
or 7.E. of this 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 Payment or
Non-Renewal Payment hereunder.
A. Severance Payment. In the event the employment of Employee
by Employer is terminated prior to November 30, 1999, for any reason
other than the reasons set forth in the preamble to this Section 6,
then, in any such event, the Employer shall be obligated to pay
Employee a severance payment (the "Severance Payment") in an amount
equal to two (2) years Salary payable in twenty-four (24) equal
monthly installments commencing the first of the month following any
such termination. Any Severance Payment hereunder shall be subject to
the following conditions and adjustments:
i. The number of Severance Payments to be paid pursuant to
this Agreement shall be reduced for each month's salary
paid by Employer to Employee prior to the date of
termination hereunder.
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ii. The Severance Payment 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 Payment period
by Employee for any services directly or indirectly
provided to a third party such as salary, bonus or
consulting fees (the "Offset Right"). During the Severance
Payment 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 of
the Agreement at the date of termination, whichever sum is
greater.
B. Non-Renewal Payment. At the end of the Term of this
Agreement, in the event the term of 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 as Non-Renewal
Benefit 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 Benefits 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 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. This 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 Agreement shall
continue until December 7, 1999 unless sooner terminated pursuant to the
provisions of Section 5 or Section 6 above, the parties mutually agree that
employment under this Agreement, and the provisions hereof (except for any
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provision intended by its terms to survive and continue, including, but not
limited to, the provisions of Section 9), in addition 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 if
at any time Employee (i) has engaged in material misconduct with
regard to the Employer, including an act of dishonesty (other than
good faith expense account disputes), or (ii) has violated in any
material respect any material covenant, term or condition contained in
this Employment Agreement or (iii) has willfully violated any
applicable provision of the Company's Code of Conduct which is
currently in effect and a copy of which is attached hereto and marked
Exhibit C 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) or (iii) 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) and
(iii) 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 President,
CEO or Board of Directors of the Company 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 except
as to any provision of this Employment Agreement which is intended by
its terms to survive and continue, including, but not limited to, the
provisions of Section 9.
D. TERMINATION BY THE EMPLOYER WITHOUT CAUSE.
E. TERMINATION BY THE EMPLOYEE WITHOUT GOOD REASON.
F. TERMINATION BY THE EMPLOYEE FOR GOOD REASON.
Upon the occurrence of any of the events described above in Section
7.A. - 7.C. or Section 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
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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.
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 of such information, Employee will promptly notify
Employer so that Employer may seek a protective order or other
appropriate remedy and/or waive compliance under this Section 9.C. 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 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 B
attached hereto and not mass brands of the types sold by Proctor and
Gamble, L'Oreal or Revlon (the "Business"), in the United States or
other
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countries the Employer or its subsidiaries are doing business at the
time of the termination of this 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 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 that the time limitations and territorial restrictions
contained in this Section 9 are properly required for the adequate
protection of the Business and that in the event any covenant or other
provision contained herein shall be deemed to be illegal,
unenforceable, or unreasonable by a court or other tribunal of
competent jurisdiction with respect to any part of the Territory, such
covenant or provisions shall not be affected with respect to any other
part of the Territory, and each of the parties hereto agrees and
submits to the reduction of said time limitations and territorial
restriction to such an area as said court 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 or permanent injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent
injunctions, to prevent a breach or threatened breach of this Section
or to enforce the terms of this provision. This right of
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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 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: Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent, Suite 1500
San Antonio, Texas 78205
Attn: Cecil Schenker, P.C.
For Employee: Mr. Richard Howard
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 of Texas
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 obtaining, 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
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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 Agreement.
13. SEVERABILITY. If any of the provisions of this Employment
Agreement are determined to be invalid or unenforceable in part, the remaining
provisions, and the 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, term sheets or discussions between
the parties. 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 a
contractual indemnity agreement contemporaneously with or promptly after the
execution hereof, which indemnity 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.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
TRISTAR CORPORATION
By: VIREN SHETH
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Name: VIREN SHETH
------------------------------
Title: CEC
------------------------------
/s/ RICHARD HOWARD
-----------------------------------
RICHARD HOWARD
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EXHIBIT A
TERMS AND CONDITIONS OF STOCK OPTIONS
1. Aggregate number of Option 200,000 granted on date Employment
Shares Agreement executed.
2. Type To the fullest extent permitted
under the Stock Option Plan, 100,000
options shall be granted under the
Stock Option Plan and 100,000 options
shall be granted outside the Stock
Option Plan. Employee shall with
regard to the grant of the options
not under the plan be given
registration rights at Employer's
expense. The options under the plan
shall be ISO's to the extent
possible. All other options shall be
non-qualified.
3. Exercise Price Fair market value on the date
Employment Agreement is executed.
4. Expiration Date Ten years from the date of grant.
5. Death, Disability, Retirement, Options, to the extent exercisable
or Other Terminations Not upon occurrence of event shall remain
Covered by 6 exercisable for one year from date of
termination.
6. Termination With Cause Options, to the extent exercisable
upon termination, shall be forfeited.
7. Vesting of Options Options exercisable for 40,000 shares
shall vest at the end of each year
that Employee remains employed with
the Company up to 200,000 shares,
provided, however, that the 40,000
options related to Employee's first
year of employment shall be duly
vested in Employee should his
employment be terminated or Employee
terminates his employment before the
first anniversary date of employment
for any reason other than the reasons
set forth in Section 7.C. (Cause) or
Section 7.E. (By Employee Without
Good Cause).
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8. Stock Options To the extent possible and without
jeopardizing the status of the
Incentive Stock Option Plan, the
parties agree that the first 100,000
options granted under the Plan shall
be deemed Incentive Stock Options.
Such options shall be incentive stock
options within the meaning of Section
422 of the Internal Revenue Code of
1986 to the extent of a maximum
number of options which may so
qualify each year.
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EXHIBIT B
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
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EXHIBIT C
INDEMNIFICATION AGREEMENT
This agreement is made as of the 26th day of November, 1997, 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:
A. The Company desires to employ Indemnitee as an Officer
and employee of the Company and the Indemnitee wishes to continue to
serve in such capacity.
B. 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.
C. 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.
D. 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:
1. 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,
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action, suit or proceeding, (other than actions brought by or in the right of
the 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 limitations)
any excise tax assessed with respect to any employee benefit plan.
2. 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.
3. 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.
4. 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 of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
5. Exclusions. The Company shall not be liable under this Agreement
to pay any Expenses in connection with any claim made against the Indemnitee:
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(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible insurance
policy of the Company;
(b) 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;
(c) 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;
(d) 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
(e) for any judgment, fine or penalty which the Company is
prohibited by applicable law from paying as indemnity or for any other
reason.
6. 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.
7. 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.
8. 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.
9. 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
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incurred without the prior consent of the Company, which consent shall not be
unreasonably withheld.
10. 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 reasonable require and as shall be within the
Indemnitee's power.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
12. 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.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with Delaware Law.
14. 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 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.
(SIGNATURE PAGE FOLLOWS)
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IN 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
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RICHARD HOWARD
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