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Exhibit 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT"), dated as of January 5, 1998
(the "EFFECTIVE DATE"), is made between Home Products International, Inc., a
Delaware corporation ("HPII"), and Stephen R. Brian ("EMPLOYEE").
RECITALS
A. HPII, through its subsidiaries, designs, manufactures, imports, markets
and distributes bathware and houseware related products, and recently acquired
all of the equity of Seymour Sales Corporation ("SEYMOUR"). Seymour is in the
business of manufacturing and supplying laundry-management products,
specializing in ironing tables and ironing pads (HPII's business, including
that of Seymour and HPII's other subsidiaries (whether now owned or acquired
during the Term (as defined below), is collectively referred to as the
"BUSINESS").
B. Employee has been employed by Seymour as its president and chief
executive officer.
C. HPII desires for Employee to continue his employment with HPII as its
president and chief operating officer, and Employee is willing to continue such
employment.
D. Employee has had and will continue to have access to HPII's
confidential and proprietary information. To protect HPII from unfair
competition by Employee associated with his relationship with HPII, HPII's
customers and his access to HPII's confidential and proprietary information,
HPII is willing to offer Employee continued employment only if Employee agrees
and adheres to certain restrictive covenants and other terms that are set forth
in this Agreement. To induce HPII to offer continued employment to Employee,
and to protect HPII as described herein, Employee agrees to adhere to such
restrictive covenants and the other terms of his employment with HPII, as set
forth below.
CLAUSES
In consideration of the foregoing, as well as the mutual covenants and
promises set forth herein, the parties agree as follows:
ARTICLE 1
EMPLOYMENT TERMS
1.1 EMPLOYMENT. Subject to the terms and conditions contained in this
Agreement, HPII employs Employee its the president and chief operating officer
on a full-time basis to devote all his professional time and attention to the
Business, including, until otherwise directed by the CEO (as defined below),
management of Seymour's business, and Employee accepts such employment with
HPII.
1.2 TERM. Unless earlier terminated in accordance with this Agreement,
Employee's employment with HPII under this Agreement will begin on the
Effective Date and will continue for a period of three (3) years (the "INITIAL
TERM"). Employee's term of employment with HPII shall thereafter be subject to
one automatic one-year extension commencing January 5, 2001 ("RENEWAL TERM")
pursuant to the terms of this Agreement, unless one party notifies the other in
writing of its intention not to renew at least sixty (60) days prior to the
date the Renewal Term is scheduled to begin. The Employee's actual term of
employment with HPII under this Agreement, inclusive of the Initial Term and
the Renewal Term, or any shorter period, will be collectively referred to as
the "TERM".
1.3 TITLE AND RESPONSIBILITIES. Employee shall perform his duties as
President and Chief Operating Officer of HPII, which duties will include the
normal and customary duties of such office and
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such other senior executive duties for HPII as HPII's chief executive officer
("CEO") may from time to time assign to Employee, including, until otherwise
directed by the CEO, management of Seymour's business. Employee shall report
to and at all times discharge his duties in consultation with and subject to
the general direction and control of the CEO, and provide the CEO with periodic
reports upon request.
1.4 FULL TIME AND ATTENTION. Employee shall devote his exclusive and full
time attention and skills to the performance of his duties as President and
Chief Operating Officer of HPII, but nothing in this Agreement shall preclude
Employee from engaging in charitable and community affairs and (subject to the
approval of HPII's Board of Directors) serving on the board of directors of a
corporation that does not compete with the Business; provided, however, that
such activities do not interfere with the performance of his duties or
responsibilities under this Agreement.
1.5 OFFICE LOCATION. Employee agrees to perform his obligations under
this Agreement from the HPII's corporate office which is or will be located in
the Chicago metropolitan area, unless Employee otherwise consents.
1.6 COMPENSATION.
(A) BASE SALARY. During the Initial Term, Employee shall receive an
annual base salary of Two Hundred Fifty Thousand Dollars ($250,000) (the "BASE
SALARY"), payable in accordance with HPII's payroll practices for executive
employees (reduced solely by all applicable payroll and withholding taxes, and
other legal garnishments). The CEO shall undertake performance reviews of
Employee every two (2) years beginning in January, 1998 in accordance with
HPII's guidelines for executive employees, and the CEO may, in his discretion,
adjust the Base Salary to reflect Employee's performance and/or the financial
position of HPII; provided, however, that the Base Salary shall not be less
than Two Hundred Fifty Thousand Dollars ($250,000).
(B) BONUS. In addition to the Base Salary, Employee shall be eligible
to participate in HPII's senior management bonus program, as such bonus program
may be amended from time to time by HPII's Board of Directors. A copy of the
terms of HPII's senior management bonus program in effect on the Effective Date
has been provided to Employee.
1.7 VACATION. Employee shall be entitled to vacation in accordance with
HPII's vacation policy for senior executives, but in no event shall Employee be
entitled to less than three (3) weeks of vacation per year.
1.8 BENEFIT PLANS. Employee shall be entitled to participate in the
benefit plans HPII now or hereafter makes available to its senior executives
and/or other salaried employees, including without limitation, profit sharing,
retirement plans, group life insurance, hospitalization, surgical and major
medical, vacation, holidays and other fringe benefits in accordance with the
terms of such benefits or plans and subject to eligibility and vesting
requirements, in effect from time to time, provided however, that nothing
herein shall require HPII to create or continue any such plan or benefit. It
is intended that all such benefits and plans be substantially similar to
benefits and plans made available to HPII's senior executives and/or other
salaried employees.
1.9 EXPENSES. HPII shall reimburse Employee for all reasonable and
necessary expenses incurred by him in executing his duties for HPII, provided,
however, that such reimbursement shall be conditioned upon Employee's
compliance with all policies adopted by HPII regarding expense reimbursement,
including without limitation, policies regarding the documentation and timely
submission of such expenses. HPII shall reimburse Employee for weekly round
trip coach airfare between
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Charlotte, North Carolina and Chicago, Illinois, in accordance with the terms
of this paragraph. HPII shall provide relocation assistance to Employee,
consistent with HPII's policy for executive employees, to move Employee's
secondary residence from Sellersburg, Indiana to the Chicago metropolitan area.
1.10 CAR ALLOWANCE. During the Term, HPII shall pay Employee a car
allowance of Eight Hundred Dollars ($800) per month.
1.11 STOCK OPTIONS. HPII has granted Employee One Hundred Thousand
(100,000) options to purchase the common stock of HPII at a price per option
equal to the fair market value of a share of HPII's common stock on the closing
date of HPII's acquisition of Seymour. The grant of options and vesting
thereof is pursuant to HPII's stock option plan. A copy of HPII's stock option
plan in effect on the Effective Date has been provided to Employee. Employee
shall be eligible for additional options each year during the Term as approved
by HPII's Board of Directors.
1.12 TERMINATION.
(A) DEATH. In the event of the death of the Employee during the Term
of this Agreement, this Agreement shall thereupon immediately and automatically
terminate in its entirety, provided, however, that all amounts which accrued to
Employee prior to the date of his death in accordance with the terms of this
Agreement shall be paid to his estate in accordance with HPII's standard
payroll practice.
(B) DISABILITY. In the event that the Employee becomes "DISABLED"
(defined below) for a period of 90 consecutive days, or for 120 days
(irrespective or whether such days are consecutive) during any six-month
period, HPII may, at its option and in its sole discretion, terminate the
Employee's employment by giving written notice to Employee, to be effective as
of the date set forth in such notice, which shall in no event be less than
thirty (30) days after the giving of such notice.
For purposes of this Agreement, Employee shall be deemed to have become
"DISABLED" if, because of physical or mental disability or drug or alcohol
dependency or abuse or other incapacitation, he shall have been unable to
perform his duties hereunder. So long as this Agreement is in effect, and
during such period in which he is Disabled, Employee shall be entitled to all
compensation, benefits, rights and entitlements under this Agreement; provided,
however, that Employees compensation under Section 1.6 hereof shall be reduced
by the amount of any disability benefits which Employee receives from
HPII-sponsored disability plans, if any.
(C) TERMINATION BY HPII FOR CAUSE. HPII shall have the right to
terminate this Agreement and Employee's employment hereunder immediately "FOR
CAUSE." The term "FOR CAUSE" as used herein shall mean: (i) fraud,
embezzlement, theft of money, intangible assets or material property of HPII,
conviction of a felony or any crime involving moral turpitude, (ii) gross
dereliction or gross neglect of duties hereunder that is not corrected within
thirty (30) days following written notice thereof to Employee by HPII (such
notice to state with reasonable specificity the nature of such gross
dereliction or gross neglect); (iii) a material breach of any of the provisions
of Articles 3 or 4 of this Agreement; (iv) willful refusal to perform the
duties hereunder; or (v) willful misconduct materially and demonstrably
injurious to HPII.
(D) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement prior to the end of the Term upon ninety (90) days prior written
notice to HPII, in which event HPII shall be obligated only to pay Employee all
amounts which accrued to Employee up to the date of termination
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in accordance with the terms of this Agreement; provided, however, that this
section does not apply to a Change of Control Termination caused by Employee
(as set forth and defined in Section 2.2 hereof).
(E) TERMINATION IN THE EVENT OF BANKRUPTCY. In the event that HPII
files a petition for liquidation under Chapter 7 of the U.S. Bankruptcy Code,
or has a petition for liquidation under such Chapter filed involuntarily
against it, the Employee shall be released from all obligations under this
Agreement. In addition, if HPII is in Chapter 11 Reorganization, Employee
shall be released from all obligations under this Agreement if his compensation
and benefits under the plan of reorganization is not substantially equivalent
to his compensation and benefits under this Agreement.
(F) SEVERANCE PAYMENT IN THE EVENT OF TERMINATION OF EMPLOYEE WITHOUT
CAUSE. In the event HPII terminates this Agreement and Employee's employment
hereunder other than For Cause, and except as provided in Section 2.2 hereof
with respect to a Change of Control Termination, HPII shall pay Employee a one
(1) time severance payment equal to one hundred percent (100%) of Employee's
yearly Base Salary then in effect, payable in twelve (12) equal monthly
installments following the date of termination. In addition, Employee shall
have the right to exercise those stock options granted to him (as described in
Section 1.11) which have vested in accordance with HPII' stock option plan up
to and including the date of termination. Employee also shall be entitled to
all compensation that would have been payable to him under this Agreement
through the Initial Term (and the Renewal Term if in effect) payable in twelve
(12) equal monthly installments following the date of termination.
ARTICLE 2
CHANGE OF CONTROL.
2.1 DEFINITIONS. For purposes of this Agreement, a "CHANGE OF CONTROL"
shall have occurred if any person or group (as defined in Section 13(d) of the
Exchange Act of 1934) becomes the beneficial owner of shares of stock in HPII
representing fifty percent (50%) or more of the total number of voting shares
that may be cast for the election of directors of HPII.
2.2 TERMINATION FOLLOWING CHANGE OF CONTROL. In the event Employee's
active full-time employment with HPII terminates within one hundred eighty
(180) days after a Change of Control (a "Change of Control Termination"), the
following provisions shall apply and Employee shall be entitled to compensation
set forth in this paragraph: (a) if Employee voluntarily causes the Change of
Control Termination, Employee shall be entitled to receive an amount equal to
one hundred percent (100%) of Employee's yearly Base Salary then in effect, and
all stock options granted by HPII to Employee shall become immediately vested
and exercisable in accordance with their terms; or (b) if HPII causes the
Change of Control Termination, Employee shall be entitled to receive an amount
equal to (i) one hundred percent (100%) of Employee's yearly Base Salary then
in effect, plus (ii) all compensation that would have been payable to him under
this Agreement through the Initial Term (and the Renewal Term, if in effect),
and, all stock options granted by HPII to Employee shall become immediately
vested and exercisable in accordance with their terms. In the case of (a) or
(b) above, all amounts payable to Employee shall be payable in twelve (12)
equal monthly installments following the date of the Change of Control
Termination.
2.3 NO DUPLICATION. Notwithstanding anything to the contrary, if the
Employee first becomes entitled to payment pursuant to Section 2.2 above, such
payment shall be in lieu of all other payments he to which he would have been
entitled pursuant to this Agreement, if any.
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ARTICLE 3
RESTRICTIVE COVENANTS
3.1 ACKNOWLEDGMENTS. Employee acknowledges that: (i) HPII would not be
willing to employ him unless Employee agreed to the covenants set forth in this
Agreement; (ii) Employee will develop considerable expertise from association
with the Business; (iii) Employee will have access to HPII's customer lists,
suppliers, internal business organization, financial data, software programs,
marketing plans, specialized requirements of HPII's customers and other highly
confidential and proprietary matters and due to the nature of its business;
(iv) HPII has expended considerable funds to establish and maintain its
business relationship with its customers and has developed a "near permanent
relationship" (as that phrase is utilized in Illinois law) with HPII's
customers (collectively the "PROTECTED CUSTOMERS"); (v) the type, identity,
internal information, quantity, orders, needs and other specific requirements
of the Protected Customers as well as the promotional/marketing programs HPII
devises for and fees HPII charges to the Protected Customers and HPII 's
financial data, employee salaries, supplier lists, whether contained in hard
copy or on disk, and overall concepts for the Business and its expansion, the
terms of this Agreement and all documents, Protected Customer lists, leads for
Protected Customers, records (however kept, whether in hard copy, magnetically,
on compact or floppy disks, electronically or otherwise) and information
concerning the same, all constitute confidential and proprietary information of
HPII provided that they are not generally known in the industry and constitute
trade secrets of HPII, within the meaning of the Illinois Trade Secrets Act
(collectively the "TRADE SECRETS"); (vi) HPII has a proprietary interest in its
Trade Secrets the useful life of which based upon general industry standards is
unlimited; (vii) HPII has invested and will continue to invest considerable
sums of money to obtain and maintain its Trade Secrets; (viii) HPII derives
substantial economic benefit due to the confidentiality of its Trade Secrets;
(ix) HPII 's competitors would obtain unfair economic advantages if the Trade
Secrets were divulged; (x) HPII has instituted procedures to maintain the
confidentiality of its Trade Secrets; (xi) HPII retains its Trade Secrets in a
segregated retention area solely limited in access to those of its employees
who have a specific need to know; and (xii) HPII 's Trade Secrets identified
in this Agreement constitute the most significant factors in HPII 's ability to
conduct the Business profitably. At the time the "Protected Customers" are
being determined for purposes of this Agreement, the term "Protected Customers"
will include all customers of HPII which made a purchase from HPII within the
prior twenty-four (24) month period.
3.2 RESTRICTIONS ON DISCLOSURE, SOLICITATION AND COMPETITION. In
recognition of the importance and sensitivity of the Trade Secrets and to
protect HPII from unfair competition, Employee agrees that during the term of
Employee's employment with HPII, and for a period of two (2) years following
the termination of such employment for any reason, or for no reason, Employee
shall not, directly or indirectly, on behalf of Employee or any corporation,
limited liability company, partnership, joint venture, individual or other
entity: (i) solicit, service or otherwise transact business with any Protected
Customer of HPII if such solicitation, service or business involves products
which HPII or any affiliate sold to such Protected Customer, or was actively
planning to sell to such Protected Customer, during the period of Employee's
employment hereunder, or (ii) solicit, hire, retain or otherwise engage or go
into business with any individual who was an employee of HPII during the period
which commenced twelve (12) months prior to the date upon which such business
relationship commences. In addition, for the term of Employee's employment
with HPII and for two (2) years following termination for any reason; or for no
reason, Employee will not, directly or indirectly, alone or in association with
others, either as a principal, agent, owner, shareholder, officer, director,
partner, employee, lender, investor, consultant, manager or in any other
capacity engage in, have a financial interest in or be in any
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way connected or affiliated with, or render advice or services to any business
which engages in the manufacture, assembly, sale or distribution of any
products which were manufactured, assembled, sold or distributed by HPII or its
affiliates, or which HPII or its affiliates were actively planning to
manufacture, assemble, sell or distribute, during the period of Employee's
employment hereunder; provided, however, that Employee may own less than five
percent (5%) of the outstanding securities of public companies which are
engaged in the same business as HPII or its affiliates. Further, for the term
of Employee's employment with HPII and for an unlimited period of time
following the termination of such employment for any reason or for no reason
whatsoever, with or without cause, Employee shall: (i) hold the Trade Secrets
in a fiduciary capacity for the sole benefit of HPII; and (ii) not directly or
indirectly sell, alienate, transfer, use, assign or divulge any Trade Secrets
or information relating to any Trade Secrets.
3.3 ADEQUATE CONSIDERATION. Employee expressly acknowledges that: (i)
Employee will be able to earn a livelihood in occupations that are both
unrelated and related to the Business, without violating the covenants set
forth in this Agreement; (ii) Employee's ability so to earn a livelihood was a
condition precedent to HPII entering into this Agreement; and (iii) the
restrictive covenants contained in this Agreement are fair and reasonable and
are necessary for the protection of the legitimate business interests of HPII
and Employee has agreed to satisfy such restrictive covenants as a specific
condition precedent to HPII being willing to employ Employee.
3.4 REASONABLE LIMIT. The parties have attempted to limit Employee's
rights to compete only to the extent necessary to protect HPII from unfair
competition. If, however, the geographic scope, time duration or
enforceability of the restrictive covenant contained in this Agreement is
disputed at any time, a court or other trier of fact shall modify and enforce
the covenant to the maximum extent reasonable under the circumstances then
existing.
ARTICLE 4
PROPERTY AND INVENTIONS
4.1 ASSIGNMENT. Employee agrees that all discoveries, inventions, ideas,
concepts, research and other information, processes, products, methods and
improvements (collectively "INVENTIONS") which are conceived, developed or
otherwise made by him alone or jointly with others during the Initial Term or
any Renewal Term and that relate to the Business, shall be the sole property of
HPII. Employee therefore grants, conveys, transfers, alienates and assigns
exclusively to HPII, for and throughout the world, in and for all languages
(including but not limited to computer languages and human languages, whether
now existing or subsequently developed) all rights, titles and interests
(legal, equitable, use or otherwise) which Employee has, may have in the future
or may have the right to claim now or in the future, in all Inventions,
copyrights, patents, trademarks, trade names and servicemarks (whether or not
registered, including all associated applications therefor and the right to
file and register the same in HPII's or any other name), modifications,
improvements, derivative works and/or other work which Employee conceives
solely or jointly with others (collectively the "ASSIGNED INTELLECTUAL
PROPERTY") which: (i) are related to any Trade Secrets or other proprietary
materials of HPII; (ii) relate to work Employee performs for HPII (whether or
not done during normal working hours); or (iii) Employee develops based on
materials, equipment, facilities or information of HPII. The foregoing
assignment by Employee is under any and all foreign or domestic, federal, state
or local copyright, trade secret, trademark, intellectual property, patent or
other laws, and is intended to be all inclusive and without reservation, and
specifically includes the right to sue for and collect and retain all damages
associated with past, present or future infringements of any or all of the
Assigned Intellectual Property.
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4.2 NO RETAINED RIGHTS. Employee's assignment of the Assigned
Intellectual Property to HPII under this Agreement constitutes a complete,
absolute and exclusive transfer of all rights (legal, equitable, use and
otherwise) in the Assigned Intellectual Property, whether such rights are
currently existing or arise in the future. The Employee does not reserve or
retain any right, title or interest in any Assigned Intellectual Property or
any Trade Secrets or related information which concerns any Assigned
Intellectual Property. Employee acknowledges and agrees that the Assigned
Intellectual Property constitutes the sole, exclusive and confidential property
of HPII. Employee shall disclose to HPII, in full, accurate detail and in
writing, all Inventions, derivative works, improvements and/or developments
(whether or not patentable, copyrightable or otherwise protectable under law)
which Employee makes or assists in making either during the course of his
employment with HPII or that in any way concern, relate to or are based upon
the Trade Secrets, Assigned Intellectual Property or any other proprietary
information of HPII, and acknowledges that the same constitutes HPII's sole
property.
4.3 DUTY TO ASSIST. If at any time (during or after the Term) HPII deems
it necessary or appropriate, the Employee shall execute and deliver any and all
instruments and documents and shall provide such assistance (including
testifying in court or other judicial or administrative proceeding) which HPII
believes are reasonably necessary either to evidence or register the assignment
of rights made by the Employee in this Agreement, or to apply for, obtain,
register or enforce any copyright, patent or trademark or otherwise protect or
enforce HPII's interests therein; provided, however, that Employee shall not be
required to warrant any intellectual property or the nature of HPII's interest
therein and, should his assistance be required subsequent to the Term, Employee
shall be reimbursed for reasonable expenses associated with such assistance.
In addition, if such assistance is required after the Term and would require
Employee to spend at least one full business day providing such assistance to
HPII, Employee shall be paid for his services at a daily rate equal to the Base
Salary as in effect on the date of termination of his employment divided by
270. HPII shall reimburse Employee as set forth herein within thirty (30) days
of presentment by Employee to HPII of his documented expenses and time, so long
as Employee has complied with the requirements of Section 1.9 of this
Agreement.
4.4 WORKS MADE FOR HIRE. HPII and Employee acknowledge that in the course
of Employee's employment with HPII, Employee may from time to time create for
HPII copyrightable works. Such works may consist of manuals, pamphlets,
instructional materials, computer programs, films, tapes, marketing plans,
facility layouts, promotional schemes, customer lists, customer prospect lists,
or other copyrightable material or portions thereof, and may be created within
or without HPII's facilities and before, during or after normal business hours.
Both Employee and HPII specifically intend that all such works which in any
way are related to or useful in the Business of HPII constitute "works made for
hire" by Employee for HPII as that phrase is understood under the Federal
Copyright Act, as amended from time to time. Employee therefore shall
cooperate fully with HPII in the protection of HPII 's copyrights in such
materials and, to the extent HPII deems the same desirable, shall assist HPII
in registering such copyrights and executing any documents associated therewith
as HPII may designate and prepare. Moreover, Employee through this instrument,
assigns to HPII, any and all such materials Employee may develop during the
term of Employee's employment with HPII.
4.5 RIGHTS TO MATERIALS AND RETURN OF DATA. All records, files,
memoranda, reports, price lists, customer lists, drawings, plans, sketches,
documents and the Trade Secrets (together with all copies or abstracts thereof,
however stored whether in electronic media, magnetic media, compact disk,
floppy disk, hard copy or otherwise) relating to the Business which Employee
uses or prepares or comes in contact with in the course of or as a result of
Employee's employment, shall remain the sole property of HPII. Upon the
termination of Employee's employment with HPII for any reason or for no reason,
or upon HPII 's demand, Employee immediately shall return to HPII all notes,
data, reference materials, memoranda, documents, instruments, records, all
other information and all abstracts thereof which in
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any way incorporate or reflect the Trade Secrets or other proprietary
information of HPII, shall not thereafter cause the removal of any such items
from the premises of HPII and shall retain no copies or abstracts of the same
in any form or media.
ARTICLE 5
REMEDIES
5.1 DAMAGES AND INJUNCTIVE RELIEF. Employee acknowledges that upon
breaching or threatening to breach the restrictive covenants contained in this
Agreement, Employee will cause damage of an irreparable and continuing nature
to HPII, for which money damages alone will not provide adequate relief.
Therefore, Employee agrees that in addition to money damages, which only
compensate HPII for harm it has suffered or lost profits it reasonably expects
to suffer, HPII also is entitled to have all Employee's obligations,
undertakings or agreements under this Agreement specifically performed, and to
have an immediate injunction (including but not limited to a temporary
restraining order) issued for the remainder of the period specified in the
restrictive covenant which Employee breached or threatened to breach. HPII
shall have the right to obtain such injunctive relief without having to post
any bond or prove any damages. The non-prevailing party in any enforcement
action taken against Employee hereunder for breach of the restrictive covenants
contained in this Agreement agrees to indemnify and reimburse the prevailing
party for any and all costs, expenses (including but not limited to reasonable
attorney's fees, whether or not a lawsuit is filed), losses and damages paid or
incurred thereunder.
5.2 CUMULATIVE REMEDIES. The remedies contained in this Agreement are in
addition to any of HPII's other remedies whether specified in this Agreement,
available at law, in equity or otherwise.
5.3 SURVIVAL OF COVENANTS. Employee's duties and obligations under this
Agreement shall survive the termination of this Agreement or any of its
provisions.
ARTICLE 6
GENERAL PROVISIONS
6.1 APPLICABLE LAW. The laws of the State of Illinois (other than those
pertaining to conflicts of law) shall govern the interpretation of this
Agreement, irrespective of the fact that one or more of the parties now is or
may become a resident of a different state. The parties shall submit all
disputes which arise under this Agreement to state or federal courts located in
the City of Chicago, Illinois for resolution. The parties acknowledge that the
aforesaid courts shall have exclusive jurisdiction over this Agreement, and
specifically waive any claims they may have which involve jurisdiction or
venue, including but not limited to forum non conveniens. If service of
process is made as aforesaid, the party served agrees that such service shall
constitute valid service, and specifically waives any objections the party
served may have for invalid service. The aforesaid method of service of
process shall be in addition to and not to the exclusion of any other method of
service of process legally available.
6.2 SEVERABILITY. If a court of competent jurisdiction holds that any one
or more of this Agreement's provisions are invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any of this Agreement's other provisions, and this Agreement shall be construed
as if it had never contained such invalid, illegal or unenforceable provision.
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6.3 NOTICES. The parties shall provide any notices which this Agreement
requires in writing as follows: (i) by actual delivery of the notice into the
hands of the party entitled to receive it, in which case the notice shall be
deemed given on the date of delivery; (ii) by mailing the notice by registered
or certified mail, return receipt requested, in which case the notice shall be
deemed given four (4) days after it is deposited in the mail; (iii) by Federal
Express or any other overnight carrier, in which case the notice shall be
deemed given the day following the date it is deposited with such carrier; or
(iv) by facsimile, telecopy or any other same day electronic or telephonic
delivery system, in which case the notice shall be deemed given on the day it
is transmitted. The parties shall address all notices as follows:
To Employee: To HPII:
Stephen R. Brian Home Products International, Inc.
7216 Seton House Lane Attn: Chief Executive Officer
Charlotte, NC 28277 4501 West 47th Street
Chicago, IL 60632
6.4 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of Employee and HPII, as well as their respective heirs, personal
representatives, successors and assigns, provided that Employee's services
under this Agreement are personal, and therefore Employee may not assign any of
his rights or duties under this Agreement.
6.5 COMPLETE UNDERSTANDING. This Agreement constitutes the complete
understanding between the parties and supersedes any prior understanding
between the parties whether written or oral. No alteration or modification of
any of this Agreement's provisions shall be valid unless made in writing and
signed by both the parties.
6.6 WAIVER OF DEFAULT. The waiver by either party of any breach of this
Agreement by the other will not operate or be construed as a waiver of any
other breach by the other which is not specifically waived in writing.
6.7 DIRECTORS AND OFFICERS INSURANCE. HPII shall indemnify Employee to
the full extent permitted by applicable law for liabilities arising in
Employee's good faith performance of his duties hereunder. Employee shall be
covered by the Directors and Officers insurance obtained by HPII under
substantially the same terms and with substantially the same coverage as
currently provided by HPII to its senior executives.
6.8 MODIFICATION. With respect to the terms of Employee's employment,
this Agreement constitutes the full and complete understanding and agreement of
the parties, supersedes any prior understanding and agreement, and cannot be
changed or terminated except in writing signed by the parties to be bound
thereby.
6.9 ASSIGNMENT. The rights and obligations of HPII under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of HPII. The rights and obligation of Employee hereunder may not be
assigned or delegated.
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6.10 VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
The parties have executed this Agreement as of the Effective Date.
HOME PRODUCTS INTERNATIONAL,
EMPLOYEE INC., a Delaware corporation
By:
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Its: -----------------------------------
STEPHEN R. BRIAN, individually