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EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AND
NON-COMPETITION AGREEMENT
BY AND BETWEEN
DECORATIVE HOME ACCENTS, INC.
AND
JAY N. BAKER
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INDEX TO DEFINED TERMS
TERM SECTION REFERENCED
---- ------------------
"Agreement" .................................................... Introduction
"Annual Bonus"....................................................Section 2.2
"Base Salary".....................................................Section 2.1
"Budget EBITDA"...................................................Section 2.2
"Board"...........................................................Section 1.2
"Business"...............................................Preliminary Recitals
"Company"........................................................Introduction
"Confidential Information"..........................................Section 5
"EBITDA"..........................................................Section 2.2
"EBITDA Ratio"....................................................Section 2.2
"Employee".......................................................Introduction
"Employment Period"...............................................Section 1.3
"Good Cause"......................................................Section 1.4
"HII"....................................................Preliminary Recitals
"Initial Period"..................................................Section 1.3
"Permitted Investments............................................Section 4.2
"Renewal Periods".................................................Section 1.3
"Restricted Period"...............................................Section 4.2
"Restrictive Covenants".............................................Section 8
"Territory".......................................................Section 4.2
"Total Disability"................................................Section 1.4
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
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The EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement"), by and
between DECORATIVE HOME ACCENTS, INC., a Delaware corporation (the "Company"),
and JAY BAKER ("Employee") is hereby amended and restated effective as of
February 28, 1997.
PRELIMINARY RECITALS
A. The Company, through its subsidiaries, is engaged in the business of
the manufacturing, marketing, distribution and sale of bedding, bath and other
home textile products (the "Business"), with principal offices in New York, New
York, Abbeville, South Carolina and Mooresville, North Carolina. For purposes
of this Agreement, the term "Company" shall include the Company, its
subsidiaries, affiliates, and assignees and any successors in interest of the
Company and its subsidiaries and/or affiliates.
B. The Company has employed Employee, as its Executive Vice President and
Chief Financial Officer pursuant to the Agreement.
C. The Company desires to continue Employee's employment, and Employee
desires to continue his employment with the Company, pursuant to the terms and
conditions of this Amended and Restated Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Employment.
1.1 Engagement of Employee. The Company agrees to employ Employee and
Employee agrees to accept employment as the Executive Vice President and Chief
Financial Officer of the Company, all in accordance with the terms and
conditions of this Agreement.
1.2 Duties and Powers. During the Employment Period, Employee will
serve as the Executive Vice President and Chief Financial Officer of the
Company and will have such responsibilities, duties and authorities, and will
render such services of an executive and administrative character or act in
such other executive capacity for the Company and its affiliates as the
Company's board of directors (the "Board") shall from time to time direct.
The Employee shall devote his best efforts, energies and abilities and his
full business time, skill and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the business and
affairs of the Company. The Employee shall perform the duties and carry out
the responsibilities assigned to him, to the best of his ability, in a
diligent, trustworthy, businesslike and efficient manner for the purpose of
advancing the business of the Company. The Employee acknowledges that his
duties and responsibilities will require his full-
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time business efforts and agrees that during the Employment Period he will not
engage in any other business activity or have any business pursuits or
interests which interfere or conflict with the performance of Employee's
duties hereunder, provided, that nothing in this SECTION 1.2 shall be deemed
to prohibit Employee from making Permitted Investments (as defined in
SECTION 4.2). Employee further acknowledges that Employee's duties hereunder
shall require him to travel between the Company's offices in New York,
North Carolina and South Carolina at the direction of the Board.
1.3 Employment Period. Employee's employment under this Agreement
shall begin on the date hereof and shall continue through and until February
28, 2000 (the "Initial Period"). This Agreement shall be automatically
extended for additional consecutive one-year periods ("Renewal Periods")
unless one of the parties hereto provides a written notice at least 90 days
prior to the expiration of the Initial Period or any Renewal Period that such
party does not desire to extend the Agreement. The Initial Period and the
Renewal Periods are hereinafter referred to collectively as the "Employment
Period." Notwithstanding anything to the contrary contained herein, the
Employment Period is subject to termination pursuant to SECTION 1.4 and
SECTION 1.5 below.
1.4 Termination by the Company. The Company has the right to terminate
Employee's employment under this Agreement, by notice to Employee in writing
(i) for "Good Cause" at any time, (ii) without Good Cause for any or no reason
and (iii) due to the death or Total Disability of Employee. Any such
termination shall be effective upon the date of service of such notice pursuant
to SECTION 16.
"Good Cause" as used herein means the occurrence of any of the following
events:
(a) the failure of Employee to perform his duties or comply with
reasonable directions of the Board which continues for fifteen days after the
Board has given written notice to Employee specifying in reasonable detail the
manner in which Employee has failed to perform such duties or comply with such
directions;
(b) the determination by the Board in the exercise of its
reasonable judgment that Employee has committed an act or acts constituting
(i) a felony, (ii) dishonesty or disloyalty with respect to the Company, or
(iii) fraud;
(c) the determination by the Board in the exercise of its
reasonable judgment that Employee has committed an act that (i) materially and
negatively affects the Company's business or reputation or (ii) indicates
alcohol or drug abuse by Employee that adversely affects his performance
hereunder;
(d) a material breach by Employee of any of the terms and
conditions of this Agreement; provided, however, that if such breach is curable
by Employee, such breach
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shall not constitute Good Cause hereunder until the Company notifies Employee
of such breach and Employee does not cure such breach within fifteen days; or
(e) Employee's gross negligence or willful misconduct in the
performance of his duties hereunder; provided, however, that if such gross
negligence or willful misconduct is curable by Employee, such gross negligence
or willful misconduct shall not constitute Good Cause hereunder until the
Company notifies Employee of such gross negligence or willful misconduct and
Employee does not cure such gross negligence or willful misconduct within
fifteen days.
Employee shall be deemed to have a "Total Disability" for purposes of this
Agreement if he is unable to perform, by reason of physical or mental
incapacity, his duties or obligations under this Agreement, for a total period
of 60 days in any 360-day period. The Board shall determine, according to the
facts then available, whether and when the Total Disability of the Employee has
occurred. Such determination shall not be arbitrary or unreasonable, and the
Board shall take into consideration the opinion of Employee's personal
physician, if reasonably available, but such determination by the Board shall
be final and binding on the parties hereto.
1.5 Termination by Employee. Employee has the right to terminate his
employment under this Agreement for any reason, upon 90 days prior written
notice to the Company.
2. Compensation and Benefits.
2.1 Base Compensation. During the Employment Period, the Company will
pay Employee a base salary at a rate of $225,000.00 per annum (the "Base
Salary"), which Base Salary may be increased but not decreased during the
Employment Period at the sole discretion of the Board. The Base Salary shall
be payable in accordance with the Company's regular payroll policy for
salaried employees. The Board shall also perform an annual review of the
Employee's Base Salary based on the Employee's performance of his duties and
the Company's other compensation policies. If the Employment Period is
terminated pursuant to SECTION 1.4 OR SECTION 1.5 above, then the Base Salary
for any partial year will be prorated based on the number of days elapsed in
such year during which services were actually performed by Employee.
2.2 Annual Bonus. In addition to his Base Salary, Employee may be
paid a bonus for each calendar year in the Employment Period in accordance
with the terms of the Decorative Home Accents, Inc. Executive Bonus Plan (the
"Executive Bonus Plan") which has been established for senior executives of
the Company (the "Annual Bonus"), provided that Employee is employed at the
time bonuses are paid under such program, which time shall be the first
payroll payment date after the issuance of the Company's audited year-end
financial statements. Notwithstanding anything herein to the contrary,
Employee shall be entitled to receive a bonus with respect to the final
calendar year of the Employment Period and with respect to the bonus payable
pursuant to Section 2.2(b) if Employee's employment hereunder is
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terminated (i) by the expiration of the Employment Period due to the
Company's providing Employee notice that it does not desire to extend the
Agreement pursuant to SECTION 1.3 or (ii) by the Company without Good Cause
after the termination of such final calendar year or after January 1, 1998, as
the case may be. For each calendar year in the Employment Period, the Board
shall establish bonus levels based on the Company's actual consolidated
earnings before interest, taxes, depreciation and amortization ("EBITDA")
as compared to a budgeted level of EBITDA ("Budget EBITDA").
With respect to 1997, Employee shall be eligible to receive bonus payments
as follows:
(a) On March 31, 1998, Employee shall receive a
bonus in an amount equal to $112,500, provided that
either of the following conditions is satisfied:
(i) Employee is employed by the Company on March
31, 1998 and Employee shall not have given notice of
his intention to terminate, or notice of termination
of his employment or commenced discussions regarding
employment with a competitor of the Company; or
(ii) Employee's employment was terminated by the
Company without Good Cause.
(b) In addition to the bonus payable pursuant to
SECTION 2.2(A), Employee shall be entitled to a bonus
in an amount equal to the amount determined pursuant
to the 1997 Executive Bonus Plan, as amended, a copy
of which is attached hereto as Exhibit 2.2.
2.3 Compensation After Termination.
(a) Except as provided in SECTION 2.3(B), SECTION 2.4, SECTION 2.6
and SECTION 2.9, if Employee's employment hereunder is terminated or expires for
any reason, then the Company shall have no further obligations hereunder or
otherwise with respect to Employee's employment from and after the termination
or expiration date (except payment of Employee's Base Salary accrued through
the date of termination or expiration) and the Company shall continue to have
all other rights available hereunder (including without limitation, all rights
under SECTION 4 at law or in equity).
(b) If the Employment Period is terminated by the Company without
Good Cause during the Initial Period (other than in connection with a Change of
Control which shall be governed by Section 2.9), then the Employee shall be
entitled to receive as severance pay his Base Salary hereunder for the
remainder of the Initial Period, payable in regular installments in accordance
with the Company's general payroll practices for salaried employees. The
Company
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shall have no other obligations hereunder or otherwise with respect to
Employee's employment from and after the termination date, and the Company
shall continue to have all other rights available hereunder (including, without
limitation, all rights under SECTION 4 at law or in equity). Notwithstanding
the foregoing, the amount of severance pay due hereunder shall be offset and
reduced by any compensation paid to Employee by any new employer of Employee
during the period Employee is receiving such severance payments and amounts
owed by Employee to the Company, if any.
2.4 Profit Sharing, Pension and Salary Deferral Benefits. It is
understood by the parties to this Agreement that, during the Employment Period,
Employee shall be entitled to participate in or accrue benefits under any
pension, salary deferral or profit sharing plan now existing or hereafter
created for employees of the Company upon terms and conditions equivalent to
those which the Company may provide for other key management employees.
2.5 Fringe Benefits and Expenses. The Company will provide Employee
vacation and other employee fringe benefits substantially comparable to the
vacation and benefits which the Company regularly provides for other key
management employees, including hospitalization, health and disability
insurance, to the extent offered by the Company, and in amounts consistent with
Company policy, for key management employees as reasonably determined by the
Board. Such vacations and benefits shall be no less than those set forth on
Exhibit 2.5, attached hereto. During the Employment Period, the Company will
reimburse Employee in accordance with Company policy for his normal and
reasonable out-of-pocket expenses incurred in the course of performing his
duties hereunder.
2.6 1995 Bonus. In addition to his Base Salary and Annual Bonus, the
Company shall pay Employee a bonus in the amount of $100,000 with respect to
1995. Such bonus shall be payable in four equal quarterly installments on
March 31, 1997, June 30, 1997, September 30, 1997 and December 31, 1997.
2.7 Disability. At the request of Employee, the Company will reimburse
Employee in an amount up to the quotient of (i) $10,000 and (ii) 1 - (the sum
of the Employee's marginal federal income tax rate plus the Employee's marginal
state income tax rate) for each year in the Employment Period, for premiums
paid by Employee on the disability policy currently in force and owned by
Employee. Such reimbursement shall be made in accordance with Company policy
at the time that Employee pays such premium. If Employee's employment
hereunder is terminated prior to a calendar year-end, Employee shall be
obligated to repay the Company an amount equal to the product of (1) the
reimbursement made by the Company during the calendar year and (2) a fraction,
the numerator of which shall be twelve minus the number of complete months
which Employee was employed by the Company for such calendar year and the
denominator of which shall be 12.
2.8 Taxes, etc. All compensation payable to Employee hereunder is
stated in gross amount and shall be subject to all applicable withholding
taxes, other normal payroll deductions and any other amounts required by law
to be withheld.
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2.9 Change of Control.
If Employee's employment with the Company is terminated within 90
days following a Change of Control of the Company, by (i) the Company
without Good Cause, (ii) a successor to the Company without Good Cause
or (iii) the Employee, then the Company shall pay Employee an amount
equal to $675,000 in a single sum in cash within thirty (30) days
after such termination of employment.
For purposes of this Agreement,
"Change of Control" means any of the following
occurring (i) on or prior to the effective date of a
restructuring of the Company's $125 million of 13%
Senior Notes due 2002 (a "Restructuring") or (ii) in
connection with a Restructuring:
(a) the consummation of any transaction (other
than the transactions contemplated by that certain
Mutual Release and Settlement Agreement between the
Company, certain of the Company's stockholders and
Henry and Barbara Scharling), including, without
limitation, any merger or consolidation, the direct
result of which is that any Person (other than TCW
Special Credits Fund V - the Principal Fund ("Fund
V")), owns, directly or indirectly, more than 50% of
the voting power of the Board;
(b) the sale, lease, transfer, conveyance or
other disposition, in one or a series of related
transactions, of all or substantially all of the stock
or assets of the Company to any Person (other than
Fund V);
(c) the consummation of any transaction (other
than the transactions contemplated by that certain
Mutual Release and Settlement Agreement between the
Company, certain of the Company's stockholders and
Henry and Barbara Scharling), including, without
limitation, any merger or consolidation, the direct
result of which is that any Person (other than Fund
V), controls the issuance of options with respect to
the Company's capital stock to members of management;
or
(d) the adoption and implementation of a plan
relating to the liquidation or dissolution of the
Company.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or any
other entity.
2.10. Indemnification. The parties acknowledge and agree that Employee
shall be fully entitled to indemnification from the Company from liabilities
arising from acts taken by the Employee as an officer of the Company as
provided in "Article IX - Indemnification" of the Company's Second Amended and
Restated Certificate of Incorporation.
3. Equity Incentive. If no Change of Control occurs, the Company shall
use its best efforts to grant the Employee stock options, the terms of which
shall be negotiated in good faith by and will be mutually acceptable to the
Company and the Employee. In determining the amount of stock options to be
granted to Employee, consideration shall be given to Employee's past equity
ownership.
4. Covenant Not to Compete.
4.1 Employee's Acknowledgment. Employee agrees and acknowledges that in
order to assure the Company that it will retain its value and that of the
Business as a going concern, it is necessary that Employee undertake not to
utilize his special knowledge of the Business and his relationships with
customers and suppliers to compete with the Company. Employee further
acknowledges that:
(a) the Company is and will be engaged in the Business;
(b) Employee has occupied and will continue to occupy a position
of trust and confidence with the Company during the period of Employee's
employment under this Agreement, and Employee has become familiar with the
Company's trade secrets and with other proprietary and confidential
information concerning the Company and the Business;
(c) the agreements and covenants contained in this SECTION 4 are
essential to protect the Company and the goodwill of the Business; and
(d) Employee's employment with the Company has special, unique and
extraordinary value to the Company and the Company would be irreparably damaged
if Employee were to provide services to any person or entity in violation of
the provisions of this Agreement.
4.2 Non-Compete. Employee hereby agrees that for a period commencing on
the date hereof and ending on the later of (1) one year following the
termination of his employment with the Company or (2) on such date as the
Company shall cease making severance payments to Employee pursuant to SECTION
2.3(B) above (the "Restricted Period"), he will not, directly or indirectly, as
employee, agent, consultant, stockholder, director, co-partner or in any other
individual or representative capacity, own, operate, manage, control, engage
in, invest in or participate in any manner in, act as a consultant or advisor
to, render services for (alone or
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in association with any person, firm, corporation or entity), or otherwise
assist any person or entity (other than the Company) that engages in or owns,
invests in, operates, manages or controls any venture or enterprise that
directly or indirectly engages in the Business anywhere in North America or
Western Europe (the "Territory"); provided, however, that nothing contained
herein shall be construed to prevent Employee from investing in the stock of
any competing corporation listed on a national securities exchange or traded
in the over-the-counter market, but only if Employee is not involved in the
business of said corporation and if Employee and his associates (as such term
is defined in Regulation 14(A) promulgated under the Securities Exchange Act
of 1934, as in effect on the date hereof), collectively, do not own more than
an aggregate of two percent of the stock of such corporation ("Permitted
Investments"). With respect to the Territory, Employee specifically
acknowledges that the Company has heretofore conducted the Business throughout
those areas comprising the Territory and the Company intends to continue to
expand the Business throughout the Territory.
4.3 Non-Solicitation. Without limiting the generality of the provisions
of SECTION 4.2 above, Employee hereby agrees that during the Restricted Period
he will not (except on behalf of the Company) for the purpose of securing
business or contracts related to the Business, directly or indirectly, solicit,
or participate as employee, agent, consultant, stockholder, director, partner
or in any other individual or representative capacity in any business which
solicits business from any person, firm, corporation or other entity which is
or was a customer or supplier of the Business during the two-year period
preceding the date of this Agreement and/or during the term of this Agreement,
or from any successor in interest to any such person, firm, corporation or
other entity.
4.4 Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of this Agreement or any particular Restrictive Covenant (as
defined) too lengthy or the Territory too extensive, the other provisions of
this SECTION 4 shall nevertheless stand, the Restricted Period shall be deemed
to be the longest period permissible by law under the circumstances and the
Territory shall be deemed to comprise the largest territory permissible by law
under the circumstances. The court in each case shall reduce the Restricted
Period and/or Territory to permissible duration or size.
5. Confidential Information. During the term of this Agreement and
thereafter, Employee shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of the Board, furnish, make
available or disclose to any third party or use for the benefit of himself or
any third party, any Confidential Information. As used in this SECTION 5,
"Confidential Information" shall mean any information relating to the business
or affairs of the Company or the Business, including but not limited to
information relating to financial statements, customer identities, potential
customers, employees, suppliers, servicing methods, equipment, programs,
strategies and information, analyses, profit margins or other proprietary
information used by the Company in connection with the Business; provided,
however, that Confidential Information shall not include any information which
is in the public domain or becomes known through no wrongful act on the part of
Employee. Employee acknowledges that the Confidential Information is vital,
sensitive, confidential and proprietary to the Company.
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In the event that Employee reasonably believes after consultation with counsel
that he is required by law to disclose any Confidential Information, he may do
so provided that he will use his best efforts to (a) provide the Company with
proper notice before such disclosure in order that the Company may attempt to
obtain a protective order or other assurance that confidential treatment will be
accorded such confidential matters and (b) cooperate, at the Company's expense,
with the Company in attempting to obtain such order or assurance.
6. Interference with Relationships. During the Restricted Period Employee
shall not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity:
(i) without the prior written consent of the Company, employ or engage, recruit
or solicit for employment or engagement, any person who is (or was within six
months of the date such employment, engagement or solicitation commences or
occurs, as the case may be) employed or engaged by the Company, or otherwise
seek to influence or alter any such person's relationship with the Company, or
(ii) solicit or encourage any present or future customer or supplier of the
Company to terminate or otherwise adversely alter his, her or its relationship
with the Company.
7. Effect on Termination. If the Company or the Employee should terminate
Employee's employment pursuant to SECTION 1, then, notwithstanding such
termination, those provisions contained in SECTIONS 2.3, 2.4, 2.6, 2.9, 2.10,
4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18 AND 19 hereof shall remain in
full force and effect for the duration of the Restricted Period.
8. Remedies. Employee acknowledges and agrees that the covenants set
forth in SECTIONS 4, 5 AND 6 of this Agreement (collectively, the "Restrictive
Covenants") are reasonable and necessary for the protection of the Company's
business interests, that irreparable injury will result to the Company if
Employee breaches any of the terms of the Restrictive Covenants, and that in
the event of Employee's actual or threatened breach of any such Restrictive
Covenants, the Company will have no adequate remedy at law. Employee
accordingly agrees that in the event of any actual or threatened breach by him
of any of the Restrictive Covenants, the Company shall be entitled to immediate
temporary injunctive and other equitable relief, without the necessity of
showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of any damages which it is able to
prove.
9. Income Tax Treatment. Employee and the Company acknowledge that it is
the intention of the Company to deduct all amounts paid under SECTION 2 hereof
as ordinary and necessary business expenses for income tax purposes. Employee
agrees and represents that he will treat all amounts paid hereunder as ordinary
income for income tax purposes, and should he report such amounts as other than
ordinary income for income tax purposes, he will indemnify and hold the Company
harmless from and against any and all taxes, penalties, interest, costs and
expenses, including reasonable attorneys' and accounting fees and costs, which
are incurred by the Company directly or indirectly as a result thereof.
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10. Key Man Insurance. Employee shall cooperate with the Company if the
Company decides to procure "Key Man" insurance covering the life of Employee
and Employee shall, at the request of the Company, submit to such medical
examinations, supply such information and execute such documents as may be
required by the insurance company to which the Company has applied for
insurance. Employee shall use his best efforts to qualify for the standard
premium category of such insurance company. Employee shall have no interest
whatsoever in any "Key Man" insurance policy procured by the Company.
11. Prior Agreement. Employee represents that he is not a party to any
agreement, oral or written, which would preclude Employee's acceptance of
employment under this Agreement.
12. Assignment. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto, provided, however, that, whether or not Employee consents, the Company
shall have the right to assign all or any part of its rights and obligations
under this Agreement to (i) any affiliate of the Company to which the Business
is assigned at any time or (ii) the purchaser of substantially all or all of
the assets of the Company. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
13. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
15. Descriptive Headings; Interpretation. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way
of example rather than by limitation.
16. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iii) transmitted by
telecopy to the recipient with a confirmation copy to follow the next day to be
delivered by overnight
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carrier. Such notices, demands and other communications shall be sent to the
addresses indicated below:
(a) If to Employee:
Jay N. Baker
107 Stratton Lane
Anderson, South Carolina 29621
Facsimile: (864) 261-8155
(b) If to the Company:
Decorative Home Accents, Inc.
295 Fifth Avenue
Suite 1414
New York, New York 10016
Facsimile: (212) 779-0149
Attention: Board of Directors
with copies to:
Howard Industries, Inc.
136 Main Street
Westport, Connecticut 06880
Facsimile: (203) 227-3314
Attention: Peter H. Howard
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and:
Katten Muchin & Zavis
525 West Monroe Street
Chicago, Illinois 60661
Facsimile: (312) 902-1061
Attention: David R. Shevitz, Esq.
James D. Harrington, Esq.
and:
Oaktree Capital Management, LLC
550 South Hope Street
22nd Floor
Los Angeles, California 90071
Facsimile: (213) 694-1593
Attention: Richard J. Goldstein
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
Date of service of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one business day after the date of delivery to the
overnight courier if sent by overnight courier or (z) the next business day
after the date of transmittal by telecopy.
17. Preamble; Preliminary Recitals. The Preliminary Recitals set forth in
the Preamble hereto are hereby incorporated and made part of this Agreement.
18. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and
agreements, with respect to the subject matter hereof.
19. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of South Carolina, without giving effect to provisions thereof
regarding conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
DECORATIVE HOME ACCENTS, INC.
By: /s/ Peter H. Howard
-------------------------------
Peter H. Howard, Chairman
EMPLOYEE:
/s/ Jay N. Baker
-------------------------------
Jay N. Baker
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EXHIBIT 2.5
FRINGE BENEFITS AND EXPENSES
- Four (4) weeks vacation annually
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