1
EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and
entered into as of June 4, 1998, by and between Home Interiors & Gifts, Inc., a
Texas corporation (hereinafter, together with its successors, referred to as the
"COMPANY"), on the one hand, and Donald J. Carter (hereinafter referred to as
the "EXECUTIVE"), on the other hand.
W I T N E S S E T H :
---------------------
WHEREAS, the Company is party to an Agreement and Plan of
Merger (the "MERGER AGREEMENT"), dated as of April 13, 1998, between the Company
and Crowley Investments, Inc., a Texas corporation ("NEWCO");
WHEREAS, pursuant to the terms of the Merger Agreement, Newco
will be merged (the "MERGER") with and into the Company, with the Company being
the surviving corporation of the Merger;
WHEREAS, upon the consummation of the Merger, the Company
desires to employ the Executive in an executive capacity with the Company, and
the Executive desires to be employed by the Company in said capacity; and
WHEREAS, the parties hereto desire to set forth in writing the
terms and conditions of their understandings and agreements.
NOW THEREFORE, in consideration of the foregoing, of the
mutual promises contained herein and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS.
-----------
"ACCRUED BENEFITS" means (i) all salary earned or
accrued through the date the Executive's employment is terminated; (ii)
reimbursement for any and all monies advanced in connection with the
Executive's employment for reasonable and necessary expenses incurred
by the Executive through the date the Executive's employment is
terminated and (iii) all other payments and benefits to which the
Executive or the Executive's family or other beneficiaries may be
entitled under the terms of any applicable compensation arrangement,
benefit plan, program or policy of the Company.
"ACT" shall mean the Securities Exchange Act of 1934,
as amended.
1
2
"AFFILIATE" shall have the meaning given such term in
Rule 12b-2 of the Act.
"AGREEMENT" shall have the meaning set forth in the
introductory paragraph.
"BASE SALARY" has the meaning set forth in Section
4(a).
"BOARD" shall mean the board of directors of the
Company.
"COMPANY" shall have the meaning set forth in the
introductory paragraph.
"COMPETITIVE ACTIVITIES" shall have the meaning set
forth in Section 10(c).
"EMPLOYMENT DATE" has the meaning set forth in
Section 2.
"EMPLOYMENT PERIOD" shall mean the period during
which the Executive is employed by the Company.
"EXECUTIVE" shall have the meaning set forth in the
introductory paragraph.
"MERGER" shall have the meaning set forth in the
recitals.
"MERGER AGREEMENT" shall have the meaning set forth
in the recitals.
"NEWCO" shall have the meaning set forth in the
recitals.
"OFFICE ARRANGEMENTS" shall have the meaning set
forth in Section 3.
"PERSON" shall mean any "person," within the meaning
of Sections 13(d) and 14(d) of the Act, including a "group" as therein
defined.
"SUBSIDIARY" shall mean, with respect to any Person,
any other Person of which such first Person owns the majority of the
economic interest in such Person or owns or has the power to vote,
directly or indirectly, securities representing a majority of the votes
ordinarily entitled to be cast for the election of directors or other
governing Persons.
2
3
SECTION 2. TERM OF EMPLOYMENT. Unless earlier terminated in
accordance with the terms of this Agreement, the Executive's Employment Period
shall commence on the date hereof (the "EMPLOYMENT DATE") and shall end on June
4, 2003.
SECTION 3. DUTIES. During the Employment Period, the
Executive (i) shall serve as Chairman Emeritus of the Company and (ii) subject
to and in accordance with the authority and direction of the Board and the
Chairman of the Board of the Company, shall have such authority and perform in a
diligent and competent manner such duties as may be assigned to him from to time
by the Chief Executive Officer of the Company. In connection with the
performance of his duties hereunder, the Executive shall be entitled, in his
sole discretion, to maintain his office suite, parking and secretarial
arrangements (the "OFFICE ARRANGEMENTS") as in existence immediately prior to
the date hereof; provided, however, that upon the reasonable request of the
Executive, the Company shall provide alternative Office Arrangements to the
Executive which shall be satisfactory to the Executive in his sole discretion.
SECTION 4. COMPENSATION. During the Employment Period, the
Executive shall be compensated as follows:
(a) the Executive shall receive an annual salary (pro
rata for any partial year) equal to Two Hundred Thousand and No/100
Dollars ($200,000) ("BASE SALARY"), which Base Salary shall be payable
in equal monthly installments;
(b) the Executive shall be reimbursed, at such
intervals and in accordance with such Company policies as may be in
effect from time to time, for any and all reasonable business expenses
incurred by him in the business interests of the Company, including but
not limited to travel expenses, direct operating costs and helicopter
expenses (including reimbursement of a portion of the liability
insurance premiums, based on the percentage of business use, for a Bell
430 helicopter or equivalent) incurred in connection with the
transportation of the Executive to such locations as may be designated
by the Chief Executive Officer of the Company from time to time or as
may be reasonably necessary for the performance of the Executive's
duties hereunder, including transportation to and from the Executive's
home;
(c) the Executive shall be entitled to participate in
all incentive, savings, retirement and death benefit plans, practices,
policies and programs on a basis no less favorable than that basis
available to similarly-situated senior executives of the Company as
determined by the Board from time to time;
(d) the Executive and/or the Executive's family, as
the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies
and programs generally provided by the Company to
3
4
similarly-situated senior executives of the Company (including, without
limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs), in each case at the most
favorable level of participation and providing the highest levels of
benefits available to them; and
(e) the Executive shall be entitled to the use of a
passenger truck (or other similar vehicle as may reasonably be
designated by the Executive from time to time) and shall be reimbursed,
at such intervals and in accordance with such Company policies as may
be in effect from time to time, for any and all reasonable expenses
incurred by him in connection with the use of such vehicle in the
performance of his duties hereunder, including but not limited to
cellular phone service and automobile insurance.
SECTION 5. TERMINATION OF EMPLOYMENT BY EXECUTIVE. Notwith-
standing anything in this Agreement to the contrary, the Executive may, upon not
less than thirty (30) days written notice to the Company, voluntarily terminate
his employment for any reason.
SECTION 6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
Upon termination of the Executive's employment with the Company, the Company
shall have the following obligations:
(a) Death. If the Executive's employment is
terminated by reason of the Executive's death, all Accrued Benefits
shall be paid to the Executive, his beneficiaries, or his estate, as
applicable, in a lump sum in cash within thirty (30) days after the
date of termination. In addition, the Executive's (i) beneficiaries or
his estate shall be entitled to receive the Base Salary that would have
been paid to the Executive from the date of termination through June 4,
2003 if the date of termination had not occurred and (ii) family shall
be entitled to receive benefits generally available to the surviving
families of other senior executive officers of the Company.
(b) Other Termination. If the Executive's employment
is terminated by the Company for any reason other than death, the
Executive and the Executive's spouse shall be entitled to continue to
participate in or be covered under the Company's health and life
insurance benefit plans generally applicable to similarly situated
senior executives of the Company or, at the Company's option, to
receive equivalent benefits by alternate means, at least equal to such
health and life insurance benefits. Unless otherwise directed by the
Executive, the Executive shall also be paid all Accrued Benefits in a
lump sum in cash within thirty (30) days after the date of termination.
In addition, the Executive shall receive the Base Salary that would
have been paid to the Executive from the date of termination through
June 4, 2003 if the date of termination had not occurred; provided,
however, that the Company shall not be obligated to make such payment
to the extent that such payment reduces the
4
5
disability benefits to which the Executive is entitled from an insurer
by an equal or greater amount. Such payment is to be made within thirty
(30) days after the date of termination.
(c) Voluntary Termination by Executive. If the
Executive's employment is voluntarily terminated by the Executive, the
Company shall pay the Executive the Accrued Benefits in a lump sum in
cash within thirty (30) days after the date of termination.
(d) Any amounts payable to the Executive pursuant to
this Section 6 shall be in full and complete satisfaction of the
obligations of the Company to the Executive in connection with the
termination of the Executive.
SECTION 7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this
Agreement shall prevent or limit the Executive's continuing or future
participation, during the term of Executive's employment, in any benefit bonus,
incentive or other plan or program provided by the Company and for which the
Executive may qualify, nor shall anything herein limit or otherwise prejudice
such rights as the Executive may have under any other agreements with the
Company. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company at or subsequent to
the date of termination shall be payable in accordance with such plan or
program.
SECTION 8. FULL SETTLEMENT. The Company's obligation to make
the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against the Executive or others whether by
reason of the subsequent employment of the Executive or otherwise. In no event
shall the Executive be obligated to seek other employment by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement.
SECTION 9. LEGAL FEES AND EXPENSES. The Company shall pay or
cause to be paid any and all reasonable attorneys' fees and expenses incurred by
the Executive in connection with the preparation and negotiation of this
Agreement promptly following receipt of an invoice therefor (together with
reasonable supporting documentation) from the Executive.
SECTION 10. FURTHER OBLIGATIONS OF THE EXECUTIVE.
(a) During and following the Executive's employment
by the Company, the Executive shall use commercially reasonable efforts
to hold in confidence and not directly or indirectly disclose any
confidential information or proprietary data of the Company or any of
its Subsidiaries, except to the extent
5
6
authorized by the Board or required by any court or administrative
agency or legal process, other than to an employee of or contractor
with the Company or any of its Subsidiaries, or a Person to whom the
Executive in good faith believes disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of his
duties as an executive of the Company. In determining whether such
disclosure is required, Executive will be entitled to rely on the
written advice of counsel provided to the Company. Confidential
information shall not include any information known generally to the
public or in the industry in which Company is engaged. All records,
files, documents and materials, or copies thereof, relating to the
Company's or any of its Subsidiaries', business which the Executive
shall prepare, or use, or come into contact with during the term of
this Agreement, shall be and remain the sole property of the Company or
any of its Subsidiaries, as the case may be, and shall be promptly
returned by the Executive to the Company or such Subsidiary (as
applicable) upon termination of the Executive's employment with the
Company.
(b) Except with the Board's prior written approval,
during the Employment Period and until the earlier of (i) three (3)
years thereafter or (ii) the date on which a direct descendant of
Donald J. Carter is no longer the Chief Executive Officer of the
Company, the Executive shall not, directly or indirectly (i) solicit,
entice, persuade or induce any employee, displayer, or other
independent contractor of the Company or any of its Subsidiaries to
terminate his employment or relationship with the Company or any of its
Subsidiaries or to become employed or engaged in a similar capacity by
any Person other than the Company or any of its Subsidiaries or (ii)
authorize, solicit or assist in the taking of such actions by any third
party. Notwithstanding the foregoing, nothing herein shall prohibit the
Executive or any affiliate of the Executive from hiring as an employee
or consultant any current employee of the Company or any of its
subsidiaries who has terminated his or her employment with the Company
and requests on an unsolicited basis employment with the Executive.
(c) During the Employment Period and until the
earlier of (i) three (3) years thereafter or (ii) the date on which a
direct descendant of Donald J. Carter is no longer the Chief Executive
Officer of the Company, the Executive shall not, directly or
indirectly, engage, participate, make any financial investment in, or
become employed by or render advisory or other services to or for any
Person or other business enterprise (other than the Company and its
Affiliates) engaged in the business of selling home decorative
accessories within any of the same markets as the Company or any of its
Subsidiaries (any of the foregoing activities being referred to herein
as "COMPETITIVE ACTIVITIES"). The foregoing covenant respecting
Competitive Activities shall not be construed to preclude the Executive
from (a) with the prior consent of the Chief Executive Officer of the
Company (which consent shall not be unreasonably withheld or delayed),
making an investment in any supplier to the Company; provided, however,
that notwithstanding the foregoing, the Company shall
6
7
have the option (but not the obligation), exercisable upon notice to
the Executive, to make such proposed investment in such supplier on the
same terms and conditions as the investment proposed to be made by the
Executive and (b) making any investments in the securities of any
company, and whether or not engaged in competition the Company or any
of its Subsidiaries, to the extent that such securities are actively
traded on a national securities exchange or in the over-the-counter
market in the United States or any foreign securities exchange and such
investment does not exceed five percent (5%) of the issued and
outstanding shares of such company or give the Executive the right or
power to control or participate directly in making the policy decisions
of such company.
(d) If any court determines that any portion of this
Section 10 is invalid or unenforceable, the remainder of this Section
10 shall not thereby be affected and shall be given full effect without
regard to the invalid provision. If any court construes any of the
provisions of this Section 10, or any part thereof, to be unreasonable
because of the duration or scope of such provision, such court shall
have the power to reduce the duration or scope of such provision and to
enforce such provision as so reduced.
(e) The Executive hereby acknowledges and agrees that
damages will not be an adequate remedy for the Executive's breach of
any of his covenants contained in this Section 10, and further agrees
that the Company shall be entitled to obtain appropriate injunctive
and/or other equitable relief for any such breach, without the posting
of any bond or other security.
SECTION 11. SUCCESSORS. The Company may assign its rights
under this Agreement to any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company, but only
if the assignee assumes all obligations of the Company hereunder. Any such
assignment by the Company shall remain subject to the Executive's rights under
this Agreement, including without limitation, Section 5 and Section 6 hereof.
The rights of the Executive under this Agreement may not be assigned or
encumbered by the Executive, voluntarily or involuntarily, during his lifetime,
and any such purported assignment shall be void ab initio. However, all rights
of the Executive under this Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. All amounts payable to the
Executive hereunder shall be paid, in the event of the Executive's death, to the
Executive's estate, heirs or representatives.
SECTION 12. THIRD PARTIES. Except for the rights granted to
the Company and its Subsidiaries pursuant hereto (including, without limitation,
pursuant to Section 10 hereof) and except as expressly set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give any Person other than the
7
8
parties hereto and their successors and permitted assigns any rights or remedies
under or by reason of this Agreement.
SECTION 13. ENFORCEMENT. The provisions of this Agreement
shall be regarded as divisible, and if any of said provisions or any part
thereof is declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remainder of such
provisions or parts hereof and the applicability thereof shall not be affected
thereby.
SECTION 14. AMENDMENT. This Agreement may not be amended or
modified at any time except by a written instrument approved by the Board, and
executed by the Company and the Executive; provided, however, that any attempted
amendment or modification without such approval and execution shall be null and
void ab initio and of no effect.
SECTION 15. WITHHOLDING. The Company shall be entitled to
withhold from any amounts to be paid to the Executive hereunder any federal,
state, local, or foreign withholding or other taxes or charges which it is from
time to time required to withhold. The Company shall be entitled to rely on an
opinion of counsel if any question as to the amount or requirement of any such
withholding shall arise.
SECTION 16. GOVERNING LAW. This Agreement and the rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Texas, without regard to principles of conflicts of law of
Texas or any other jurisdiction.
SECTION 17. NOTICE. Notices given pursuant to this Agreement
shall be in writing and shall be deemed given when received and, if mailed,
shall be mailed by United States registered or certified mail, return receipt
requested, addressee only, postage prepaid:
If to the Company:
-----------------
Home Interiors & Gifts, Inc.
4550 Spring Valley Road
Dallas, Texas 75244
Attention: President
If to the Executive:
-------------------
4761 Frank Luke Drive
Suite 400
Dallas, Texas 75248
8
9
with a copy to:
Jeffrey Fink, Esq.
4761 Frank Luke Drive
Suite 400
Dallas, Texas 75248
or to such other address as the party to be notified shall have given to the
other in accordance with the notice provisions set forth in this Section 17.
SECTION 18. NO WAIVER. No waiver by either party at any time
of any breach by the other party of, or compliance with, any condition or
provision of this Agreement to be performed by the other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at any time.
SECTION 19. HEADINGS. The headings contained herein are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
10
IN WITNESS WHEREOF, the parties have executed this Agreement
in one or more counterparts, each of which shall be deemed one and the same
instrument, as of the day and year first written above.
HOME INTERIORS & GIFTS, INC.
By:
-----------------------------
Donald J. Carter, Jr.
Chief Executive Officer
EXECUTIVE:
----------------------------------
Donald J. Carter