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EXHIBIT 10.4
2000 EMPLOYMENT AGREEMENT
2000 EMPLOYMENT AGREEMENT dated February 25, 2000, effective
as of November 1, 2000, by and between MAZEL STORES, INC., an Ohio corporation,
with its principal place of business at 31000 Aurora Road, Solon, Ohio 44139
(hereinafter referred to as the "COMPANY"), and Jerry D. Sommers, an individual
residing at 8634 Pickerington Road, Pickerington, Ohio 43147-9663 (hereinafter
referred to as the "EMPLOYEE").
WHEREAS, the Company wishes to employ the Employee, and the
Employee wishes to accept such employment, on the terms contained herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. TERM. The Company hereby employs the Employee, and the
Employee hereby accepts such employment, for a term commencing as of the
effective date hereof and ending on October 31, 2003, unless sooner terminated
in accordance with the provisions of Section 4 or Section 5 (the "TERM").
2. DUTIES. The Employee, in his capacity as Executive Vice
President-Mazel Retail Division (or such other and comparable titles and
position as shall be given the Employee by the board of directors of the Company
(the "BOARD")), shall faithfully perform for the Company the duties of said
offices and shall perform such other duties of an executive, managerial or
administrative nature as shall be specified and designated from time to time by
the Board. The Employee shall devote substantially all of his business time and
effort to the performance of his duties hereunder. The Employee shall have the
right (after consultation with the President of the Company) to hire and
terminate all employees of the Company's Retail Division who are subordinate to
the Employee.
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3. COMPENSATION.
3.1 SALARY. The Company shall pay the Employee for the Term a
salary at the rate of Three Hundred Eighty Four Thousand Eight Hundred Seventy
One ($384,871) per annum (the "ANNUAL SALARY"); PROVIDED, that on each of
November 1, 2001 and November 1, 2002, the Annual Salary shall be increased by
four percent (4%) from the Annual Salary in effect for the preceding 12-month
period.
3.2 BENEFITS. The Employee shall be permitted during the Term
to participate in any group life, hospitalization or disability insurance plans,
health programs, pension plans or similar benefits that may be available to
other senior executives of the Company generally, on the same terms as such
other executives, in each case, to the extent that the Employee is eligible
under the terms of such plans or programs.
3.3 EXPENSES - IN GENERAL. The Company shall pay or reimburse
the Employee for all reasonable out-of-pocket expenses actually incurred or paid
by the Employee during the Term in the performance of the Employee's services
under this Agreement; PROVIDED that the Employee submits proof of such expenses,
with the properly completed forms, as prescribed from time to time by the
Company, no later than thirty (30) days after such expenses have been so
incurred.
3.4 ANNUAL BONUS. During the Term, the Employee shall be
entitled to receive an annual bonus (the "ANNUAL BONUS") based upon the
Company's pre-tax income for each fiscal year of the Company (a "FISCAL YEAR")
ending during the Term, commencing with the Fiscal Year ending January 31, 2001.
The Annual Bonus shall be an amount equal to fifty percent (50%) of the Annual
Salary in effect at the end of the relevant Fiscal Year in the event that the
Company's pre-tax income, calculated in accordance with generally accepted
accounting principles consistently applied, equals or exceeds the "TARGET
AMOUNT" (as hereinafter defined) for such Fiscal Year. If the Company's pre-
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tax income for any Fiscal Year is less than the Target Amount for such Fiscal
Year, the Annual Bonus shall be the amount, if any, equal to (i) (A) the
percentage of the Target Amount which such pre-tax income represents, minus
eighty percent (80%), divided by (B) twenty percent (20%), multiplied by (ii)
fifty percent (50%) of the Employee's Annual Salary in effect at the end of such
Fiscal Year. For example, if the Company's pre-tax is ninety percent (90%) of
the Target Amount for the Fiscal Year ending January 1, 2001, the Annual Bonus
shall be calculated as follows:
(90%-80%)
_________ X $192,435.50 = $96,217.75
20%
If the Company's pre-tax income for any Fiscal Year is less than eighty percent
(80%) of the Target Amount for such Fiscal Year, no Annual Bonus shall be
payable for such Fiscal Year. For purposes of this Agreement, the term "TARGET
AMOUNT" shall mean an amount to be determined by the compensation committee of
the Board after consulting with the Employee (if the Employee is then employed
hereunder). The Annual Bonus for each Fiscal Year shall be paid in full to the
Employee as soon as practicable after (but not later than thirty (30) days) the
Company's audited financial statement for such Fiscal Year is available to the
Company. The Employee hereby (i) acknowledges that the Annual Bonus payable
hereunder with respect to the Fiscal Year ending January 31, 2001 is in lieu of
any annual bonus payable with respect to such Fiscal Year pursuant to to the
Employment Agreement dated November 1, 1995 (as amended from time to time) by
and between Mazel Company L.P. (the "PARTNERSHIP"), the Employee and, pursuant
to an Amendment to Employment Agreement made and entered into on September 30,
1996, the Company (the "1995 AGREEMENT"), and (ii) irrevocably waives any right
to an annual bonus with respect to such Fiscal Year under the 1995 Agreement.
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3.5 AUTOMOBILE. During the Term, the Employee shall be
entitled to usage of an automobile of his choice which shall be leased by the
Company, provided that the monthly lease payments thereon do not exceed Five
Hundred Dollars ($500) and the Company shall be responsible for the insurance,
gasoline and maintenance required for such automobile.
4. TERMINATION UPON DEATH OR DISABILITY. If the Employee dies
during the Term, the obligations of the Company to or with respect to the
Employee shall terminate in their entirety except as otherwise provided under
this Section 4. If the Employee by virtue of ill health or other physical or
mental disability is unable to perform substantially and continuously any
material portion of the duties assigned to him for ninety (90) days in the
aggregate during any twelve (12) month period, or for any sixty (60) consecutive
days, the Company shall have the right to terminate the employment of the
Employee upon notice in writing to the Employee; provided that (i) after receipt
of notice from the Company, the Employee shall have the right within ten (10)
days after such notice to dispute the Company's ability to terminate him under
this Section 4, (ii) within ten (10) days after exercising such right he shall
submit to a physical examination by the Chief of Medicine of any major hospital
in the metropolitan Columbus, Ohio area, and (iii) unless such physician shall
issue his written statement to the effect that in his opinion, based on his
diagnosis, the Employee is capable of resuming his employment and devoting his
full time and energy to discharging his duties within ten (10) days after the
date of such statement the Company shall have the right to terminate the
Employee under this Section 4 without further dispute. Upon termination under
this Section 4, the Employee (or the Employee's estate or beneficiaries in the
case of the death of the Employee) shall be entitled to receive any Annual
Salary, Annual Bonus and other benefits earned and accrued under this Agreement,
and reimbursement under this Agreement for expenses incurred, prior to the date
of termination (for these purposes, if such termination occurs during a fiscal
year, the Annual Bonus
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for such fiscal year shall be prorated based upon the number of days in such
fiscal year which elapsed before such termination and shall be paid at the time
provided for in Section 3.4); thereafter, the Company shall have no further
liability to the Employee. No provision of this Agreement shall limit any of the
Employee's (or his beneficiaries') rights under any insurance, pension or other
benefit programs of the Company for which the Employee shall be eligible at the
time of such death or disability.
5. CERTAIN TERMINATIONS OF EMPLOYMENT.
5.1 TERMINATION FOR CAUSE. "CAUSE" shall be deemed to exist if
the Employee (i) is convicted of (or pleads nolo contendere to) a felony, a
crime of moral turpitude or any crime involving the Company (other than pursuant
to actions taken at the direction or with the approval of the Board), (ii) is
found by reasonable determination of the Board, made in good faith, to have
engaged in (A) willful misconduct, (B) willful or gross neglect, (C) fraud, (D)
misappropriation or (E) embezzlement in the performance of his duties hereunder,
or (iii) breaches in any material respect the terms and provisions of this
Agreement (including, but not limited to, any termination by the Employee of his
employment hereunder otherwise than as described in Section 5.2). The Company
may terminate the Employee's employment hereunder for Cause on written notice
(which notice shall specify the reasons for such termination) given to the
Employee at any time following the occurrence of any of the events described in
clauses (i) through (iii) of the foregoing sentence. Upon such termination, the
Employee shall be entitled to receive any Annual Salary, Annual Bonus and other
benefits earned and accrued under this Agreement, and reimbursement under this
Agreement for expenses incurred, prior to the date of such termination (provided
that, for these purposes and for all other purposes of this Agreement, if such
termination occurs after the last day of a fiscal year then the unpaid Annual
Bonus (if any) otherwise payable under Section 3.4 for such
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fiscal year shall be deemed to have been earned and accrued, but in no event
shall any portion of any other subsequent Annual Bonus be deemed to have been
earned or accrued); thereafter, the Company shall have no further liability to
the Employee.
5.2. TERMINATION BY THE COMPANY WITHOUT CAUSE; CERTAIN
TERMINATIONS BY THE EMPLOYEE. During the Term, the Company may terminate the
Employee's employment hereunder for any reason on at least thirty (30) days'
written notice given to the Employee. If (i) the Company so terminates the
Employee during the Term, and such termination is not described in Section 4 or
5.1, or (ii) at a time at which no Cause exists, the Employee terminates his
employment hereunder during the Term and such termination (A) is described in
Section 5.3 or (B) is because of any material adverse modification or diminution
of the Employee's duties or material diminution in the Employee's authority,
title or office, which modification or diminution is not cured by the Company
within fifteen (15) days' written notice from the Employee, then
(I) the Employee shall be entitled to receive any Annual
Salary, Annual Bonus and other benefits earned and accrued under this Agreement,
and reimbursement under this Agreement for expenses incurred, prior to the date
of such termination;
(II) during the twenty-four (24) month period following such
termination, the Employee shall also be entitled to
(A) continue to receive the Annual Salary payable
in the amounts and at the times provided for in Section 3.1 as if such
employment had not otherwise been so terminated;
(B) continue to receive the Annual Bonus or, if
applicable, Annual Bonuses (if any) payable at the times provided for
in Section 3.4 as if such employment had not otherwise been so
terminated; provided, however, that, for these purposes, and
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notwithstanding Section 3.4, the amount of each Annual Bonus (if any)
otherwise payable under the foregoing provisions of this clause (B)
shall be an amount equal to the average of the Annual Bonuses
(including, but not limited to, Annual Bonuses of $0) actually payable
under Section 3.4 of this Agreement or Section 3.6 of the 1995
Agreement, as applicable, for the three fiscal years ending before such
termination (or if less, the number of fiscal years ending before such
termination); and
(C) continuation of any group life, health and
automobile- related benefits to which the Employee is otherwise
entitled hereunder on substantially the same terms and conditions
(including with respect to the cost, if any, to the Employee), subject
to generally applicable changes to the level (and cost) of coverage
that may be made with respect to senior executives generally; provided
that such continuation shall not be required hereunder to the extent
that the Employee is entitled (absent any individual waivers or other
arrangements) to receive during such period the same type of coverage
from another employer or recipient of the Employee's services;
provided that no amounts shall be payable under this clause (II) if the
Employee's employment is terminated by the Company or by him after the issuance
of a court order that restricts the Employee's ability to work for the Company.
Thereafter, the Company shall have no further liability to the
Employee.
5.3 CHANGE IN CONTROL. (a) The Company shall make its best
efforts to give the Employee notice of a Change in Control at least thirty (30)
days before the Change in Control is consummated; provided that such notice may
be given at such time as the Company becomes aware of the proposed Change in
Control within such thirty (30) day period. If the Employee elects to terminate
his employment hereunder effective upon the consummation of such Change in
Control,
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then such termination shall be deemed for purposes of this Agreement to
be described by Section 5.2 if (i) the termination occurs at a time at which no
Cause exists and (ii) the Employee has reasonably determined, after a diligent
and good-faith review of all relevant, objective facts and circumstances, that
his authority has been adversely modified or diminished (provided that in no
event shall there be deemed to have occurred such a modification or diminution
solely because the business of the Company becomes part of a larger business,
and the Employee's responsibilities do not extend to the other aspects of such
larger business). For these purposes, "CHANGE IN CONTROL" means: (i) the first
purchase of shares pursuant to a tender offer or exchange for all or 20% or more
of the Company's Common Shares of any class or any securities convertible into
such Common Shares; (ii) the receipt by the Company of a Schedule 13D or other
advise indicating that a person (other than ZS Fund, L.P., Mazel/D&K, Inc.,
Reuven Dessler and/or any affiliate thereof) is the "beneficial owner" (as that
term is defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
thirty percent (30%) or more of the Company's Common Shares calculated as
provided in paragraph (d) of said Rule 13d-3; (iii) the date of consummation of
any consolidation or merger of the Company in which the Company will not be the
continuing or surviving corporation or pursuant to which shares of capital
stock, of any class or any securities convertible into such capital stock, of
the Company would be converted into cash, securities or other property, other
than a merger of the Company in which holders of common stock of all classes of
the Company immediately prior to the merger would have the same proportion of
ownership of common stock of the surviving corporation immediately after the
merger; (iv) the date of consummation of any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all the assets of the Company; (v) the adoption of any plan or
proposal for the liquidation (but not a partial liquidation) or dissolution of
the Company; (vi) the date (the "MEASUREMENT DATE") on which the
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individuals who at the beginning of a two-consecutive-year period ending on the
Measurement Date, cease, for any reason, to constitute at least a majority of
the Board, unless the election, or the nomination for election by the Company's
shareholders, of each new director during such two-year period was approved by
an affirmative vote of the directors then still in office who were directors at
the beginning of said two-year period.
(b) Notwithstanding any other provision of this Agreement, in
the event that any payment or benefits provided by the Company (or any entity
directly or indirectly controlling or controlled by the Company or any of its
subsidiaries, any such entity, an "AFFILIATE") to the Employee under or outside
of the terms of this Agreement would constitute a "parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"CODE"), the payments or benefits provided hereunder shall be reduced to the
extent necessary so that no portion thereof shall be subject to the excise tax
imposed by Section 4999 of the Code, but only if, by reason of such reduction,
the Employee's net after tax benefit shall exceed the net after tax benefit if
such reduction were not made. "NET AFTER TAX BENEFIT" for purposes of this
Section 5.3 shall mean the sum of
(i) the total amount payable to the Employee
under this Agreement, PLUS
(ii) all other payments and benefits which
the Employee receives or is then entitled to receive from the Company
and any of its Affiliates that would constitute a "parachute payment"
within the meaning of Section 280G of the Code, LESS
(iii) the amount of federal income taxes payable with
respect to the payments and benefits described in clauses (i) and (ii)
above calculated at the maximum marginal income tax rate for each year
in which such payments and benefits shall be paid to
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the Employee (based upon the rate in effect for such year as set forth
in the Code at the time of the first payment of the foregoing), LESS
(iv) the amount of excise taxes imposed with respect
to the payments and benefits described in clauses (i) and (ii) above by
Section 4999 of the Code.
All calculations under this Section 5.3(b) shall be made by
the Company in consultation with its outside auditors.
6. COVENANT OF THE EMPLOYEE.
6.1. COVENANT AGAINST COMPETITION. The Employee acknowledges
that (i) the principal businesses of the Company and its subsidiaries and other
Affiliates are the "WHOLESALE BUSINESS" (as defined below) and the "RETAIL
CLOSEOUT BUSINESS" (as defined below) (such businesses, and any and all other
businesses that, after the effective date hereof and from time to time during
the Term, are engaged in by the Company or its subsidiaries or other Affiliates,
herein being collectively referred to as the "COMPANY BUSINESS"); (ii) the value
of all goodwill resulting from the operation of the Company Business of the
Company and its subsidiaries and other Affiliates should properly belong to the
Company and its subsidiaries and other Affiliates; (iii) upon the termination of
the Employee's employment, the Employee will have no right or interest to such
goodwill; (iv) the covenants and agreements of the Employee in this Section 6
are necessary to preserve the value of such goodwill for the benefit of the
Company and its subsidiaries and other Affiliates; (v) the Employee has had and
will have access to Confidential Company Information (as defined below); (vi)
the Company Business is the same business in which the Employee has and will
participate in and for which he has and will have responsibility while at the
Company; (vii) the length of the Restricted Period (as defined below) is
necessary and appropriate to protect the legitimate business interests of the
Company because, among other reasons, the Confidential Company Information he
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has had and will have access to will continue to have competitive significance
throughout the Restricted Period; and (vii) the Company would not have entered
into this Agreement but for the covenants and agreements set forth in this
Section 6. Accordingly, the Employee covenants and agrees that:
(a) During the period commencing on the Effective Date and
ending on the date twelve (12) months following the expiration of the Term (the
"RESTRICTED PERIOD"), the Employee shall not in the United States of America (1)
engage in the Company Business, whether as part of a division or otherwise, for
the Employee's own account; (2) render any services to any person or entity
(other than the Company or its subsidiaries) engaged in such activities, whether
as part of a division or otherwise; or (3) become interested in any such person
or entity (other than the Company or its subsidiaries) as a partner, officer,
director, shareholder, principal, agent, employee, consultant or in any other
relationship or capacity; provided, however, that notwithstanding the above, the
Employee may own, directly or indirectly, solely as an investment, securities of
any such person or entity which are traded on any national securities exchange
or the National Association of Securities Dealers, Inc. Automated Quotation
System if the Employee (A) is not a controlling person of, or a member of a
group which controls, such person or entity and (B) does not, directly or
indirectly, own four percent (4%) or more of any class of securities of such
person or entity.
(b) During and after the Restricted Period, the Employee shall
keep secret and retain in strictest confidence, and shall not disclose, rely on,
or otherwise use for his benefit or the benefit of others, except in connection
with the business and affairs of the Company and its subsidiaries, all
confidential matters relating to the Company Business and to the Company and its
subsidiaries learned by the Employee on or after the effective date hereof
directly or indirectly from the Company and its subsidiaries, including, without
limitation, information with respect to (a)
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prospective store locations, (b) sales figures (whether per store or otherwise),
(c) profit or loss figures (whether per store or otherwise), and (d) customers,
clients, suppliers, sources of supply and customer lists (the "CONFIDENTIAL
COMPANY INFORMATION") and shall not disclose the Confidential Company
Information to anyone outside of the Company or its subsidiaries except with the
Company's express written consent and except for Confidential Company
Information which (1) is at the time of receipt or thereafter becomes publicly
known through no wrongful act of the Employee, (2) is received from a third
party not under an obligation to keep such information confidential and without
breach of this Agreement or (3) was previously known by the Employee before
being employed by the Company or the Partnership under this Agreement or the
1995 Agreement.
(c) During the Restricted Period, the Employee shall not,
without the Company's prior written consent, directly or indirectly, knowingly
solicit, recruit or encourage to leave the employment of the Company or its
subsidiaries, any employee of the Company or its subsidiaries or hire any
employee who has left the employment of the Company or its subsidiaries after
the effective date of this Agreement within one year of the termination of such
employee's employment with the Company and its subsidiaries.
(d) All memoranda, notes, lists, records and other documents
(and all copies thereof) made or compiled by the Employee or made available to
the Employee concerning the Company Business or the Company and its subsidiaries
shall be the Company's property and shall be delivered to the Company at any
time on request, provided such property is then possessed by the Employee and
can be readily identified as such by him; provided that, notwithstanding the
foregoing, the Employee may retain a copy of his rolodex.
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(e) For purposes hereof, "WHOLESALE BUSINESS" shall mean any
business involving (i) the wholesale distribution of merchandise acquired
through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a
manufacturer or by a retail store, (D) merchandise available in connection with
bankruptcies or other distress situations, (E) merchandise at or below regular
price primarily as a result of the production of the merchandise occurring
during periods in which the production facilities otherwise would be idle or
would have underutilized capacity or (F) buybacks made by a manufacturer of a
competitor's or its own merchandise, or (ii) the importing of types or
categories of merchandise with respect to which, at the time the Employee
terminates employment or at any time during the Term, the Company (A) transacts
(or has transacted) wholesale business, or otherwise sells or purchases (or has
sold or purchased) or (B) has committed to sell or purchase; provided that a
business shall be deemed to be a Wholesale Business only if it has Ten Million
Dollars ($10,000,000) or more in sales from activities described from clauses
(i) and (ii) in the aggregate during either of the following periods: (1) the
twelve (12) most recently completed calendar months prior to the Employee's
involvement with such business or (2) the Restricted Period.
(f) For purposes hereof, "RETAIL CLOSEOUT BUSINESS" shall mean
any retail business (i) fifty percent (50%) or more of the inventory of which,
in the aggregate, is acquired through purchase of (A) overstocks, (B) closeouts,
(C) items liquidated by a manufacturer or by a retail store, (D) merchandise
available in connection with bankruptcies or other distress situations, (E)
merchandise at below regular price primarily as a result of the production of
the merchandise occurring during periods in which the production facilities
otherwise would be idle or would have underutilized capacity or (F) buybacks
made by a manufacturer of a competitor's or its own merchandise, and (ii) which
owns or operates a location within a ten (10) mile radius of any location owned
or operated by the Company or its subsidiaries or other Affiliates; provided
that in no event
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shall the business of operating discount stores, specialty stores or
deep-discount drug store businesses be considered to be a Retail Closeout
Business at any particular time unless (A) the Company is engaged in such
business at such time or (B) the business is part of an operation which, taking
into account such business and the other aspects of the operation in the
aggregate, is a Retail Closeout Business as a result of purchases of merchandise
described in clauses (i) (A) through (i) (F).
6.2 RIGHTS AND REMEDIES UPON BREACH. If the Employee breaches,
or threatens to commit a breach of, any of the provisions of Section 6.1 (the
"RESTRICTIVE COVENANTS"), the Company and its subsidiaries shall have the
following rights and remedies (upon compliance with any necessary prerequisites
imposed by law upon the availability of such remedies), each of which rights and
remedies shall be independent of the other and severally enforceable, and all of
which rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company or its subsidiaries under law or in
equity:
(a) The right and remedy to have the Restrictive Covenants
specifically enforced (without posting bond) by any court having equity
jurisdiction, including, without limitation, the right to an entry against the
Employee of restraining orders and injunctions (preliminary, mandatory,
temporary and permanent) against violations, threatened or actual, and whether
or not then continuing, of such covenants, it being acknowledged and agreed that
any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company.
(b) The right and remedy to require the Employee to account
for and pay over to the Company and its subsidiaries all compensation, profits,
monies, accruals, increments or other benefits (collectively, "BENEFITS")
derived or received by him as the proximate result - i.e. actual
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damages - of a breach of the Restrictive Covenants, and the Employee shall
account for and pay over such Benefits to the Company and, if applicable, its
affected subsidiaries.
7. OTHER PROVISIONS.
7.1 SEVERABILITY. The Employee acknowledges and agrees that
(i) he has had an opportunity to seek advice of counsel in connection with this
Agreement and (ii) the Restrictive Covenants are reasonable in geographical and
temporal scope and in all other respects. If it is determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
7.2 BLUE-PENCILLING. If any court determines that any of the
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, then, after such determination
has become final and unappealable, the duration or scope of such provision, as
the case may be, shall be reduced so that such provision becomes enforceable
and, in its reduced form, such provision shall then be enforceable and shall be
enforced.
7.3 ENFORCEABILITY; JURISDICTIONS. The Company and the
Employee intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of
the Restrictive Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
breadth of scope or otherwise, it is the intention of the Company and the
Employee that such determination not bar or in any way affect the Company's
right or the right of its subsidiaries to the relief provided above in the
courts of any other jurisdiction within the geographical scope of such
Restrictive Covenants, as
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to breaches of such Restrictive Covenants in such other respective
jurisdictions, such Restrictive Covenants as they relate to each jurisdiction
being, for this purpose, severable, diverse and independent covenants, subject,
where appropriate, to the doctrine of RES JUDICATA.
7.4 SET-OFF. The Employee acknowledges and agrees that the
Company may set-off against any or all amounts payable to the Employee hereunder
any or all amounts payable by the Employee to the Company in respect of a breach
by the Employee of any of the provisions of Section 6.
7.5 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mails as follows:
(i) If to the Company, to:
Mazel Stores, Inc.
31000 Aurora Road
Solon, Ohio 44139
Attention: Reuven Dessler
with a copy to:
ZS Fund L.P.
120 West 45th Street
Suite 2600
New York, New York 10036
Attention: Robert A. Horne
and
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
The Tower at Erieview, Suite 2600
Cleveland, Ohio 44114-1824
Attention: Marc H. Morgenstern
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(ii) If to the Employee to:
Jerry D. Sommers
8634 Pickerington Road
Pickerington, Ohio 43147-9663
with a copy to:
James G. Ryan, Esq.
Schwartz, Kelm, Warren & Ramirez
41 South High Street
Columbus, Ohio 43215
Any such person may by notice given in accordance with this Section to the other
parties hereto designate another address or person for receipt by such person of
notices hereunder.
7.6 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
7.7 WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such
right, power or privilege.
7.8 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Ohio without regard to
principles of conflicts of law.
7.9 ASSIGNMENT. This Agreement, and the Employee's rights and
obligations hereunder, may not be assigned by the Employee; any purported
assignment by the Employee in
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violation hereof shall be null and void. In the event of any sale, transfer or
other disposition of all or substantially all of the Company's assets or
business, whether by merger, consolidation or otherwise, the Company may assign
this Agreement and its rights hereunder.
7.10 BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors,
permitted assigns, heirs, executors and legal representatives.
7.11 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts together shall
constitute one and the same instrument. Each counterpart may consist of two
copies hereof each signed by one of the parties hereto.
7.12 HEADINGS. The headings in this Agreement are for
reference only and shall not affect the interpretation of this Agreement.
7.13 CHANGE OF LOCATION. During the Term, the Company's Retail
Division shall be headquartered in the Columbus Metropolitan Area, Ohio. In the
event that the Board shall explicitly, in writing, request or demand to the
Employee that such headquarters be relocated outside of the Columbus
Metropolitan Area, the Employee may on thirty (30) days prior written notice to
the Company elect to terminate his employment hereunder in the event that the
Company does not rescind its request or demand, in which case the Employee's
employment hereunder shall be deemed to have been terminated by the Company
pursuant to Section 5.2 and he shall be entitled to receive the amounts set
forth in such Section, and Section 6 shall no longer apply.
7.14 EXPENSES. In the event that the Employee commences any
legal proceeding against the Company to enforce the Employee's rights under this
Agreement and the Employee prevails in such legal proceeding, the Company shall
reimburse the Employee for the reasonable fees
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and disbursements of the Employee's attorneys incurred with respect to that
portion of the legal proceeding with respect to which the Employee is the
prevailing party.
7.15 INDEMNIFICATION. (a) The Employee represents and warrants
to the Company that: (i) the Employee's execution, delivery and performance of
this Agreement does not and will not violate, conflict with or constitute a
default (with notice or lapse of time or both) under any written agreement or
instrument to which the Employee is a party and (ii) prior to the effective date
of this Agreement, the Employee has disclosed to the Board all material facts
regarding the circumstances concerning the Employee's previous employment with
Consolidated.
(b) Subject to the provisions of this Section 7.15, to the
fullest extent permitted by law, the Company shall indemnify the Employee if he
is a party or is threatened to be made a party to any legal proceeding (other
than a legal proceeding against the Employee by the Company) (a "PROCEEDING"),
threatened or pending, whether civil, criminal, administrative or investigative,
by reason of his service to the Company as a director, officer, trustee,
employee or agent, or service at the written request of the Company as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or enterprise, against the Employee's
reasonable attorneys' fees and disbursements, reasonable out-of-pocket travel
expenses to and from the forum of the Proceeding and judgments, fines and
amounts paid in settlement in connection with the Proceeding. Such attorneys'
fees and expenses shall be paid by the Company as they are incurred upon
receipt, in each case, of an undertaking by the Employee to repay such amounts
if it is ultimately determined, as provided below, that the Employee is not
entitled to indemnification hereunder. The Employee shall not settle any
Proceeding without the prior written consent of the Company unless, as a
condition thereof, the Company receives a full and unconditional release of all
liability in respect of the Proceeding. The Employee shall provide the Company
with prompt
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written notice of any Proceeding in respect of which he is entitled to
indemnification hereunder, provided that the Employee shall not lose his rights
to indemnification hereunder for failure to give such notice unless the Company
is prejudiced by such failure.
(c) The indemnification provided for in Section 7.15(b) (i)
shall apply in all cases except where the Employee did not act or failed to act
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company or where the Employee's action or failure to
act constituted gross negligence or willful misconduct, or, with respect to any
criminal action or proceeding, where he did not have reasonable cause to believe
his conduct was lawful (collectively, the "STANDARD OF CARE") and (ii) may be
denied by the Company only if a court of competent jurisdiction determines that
the Employee did not meet the Standard of Care.
(d) The indemnification provided by this Section shall survive
termination of the Employee's employment with the Company.
(e) The provisions of this Section 7.15 shall not be deemed to
be exclusive of any other rights to which the Employee may be entitled under
applicable law or any other written agreement between the Company and the
Employee.
7.16 WITHHOLDING. The Company shall be entitled to withhold
from any payments or deemed payments any amount of withholding required by law.
7.17 RELEASE. The Employee and the Company will execute a
release (to be agreed upon by the Employee and the Company) at the termination
of the Employee's employment.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have signed their names
as of the day and year first above written.
MAZEL STORES, INC.
By: ___________________________________
Name: Reuven Dessler
Title: Chief Executive Officer
__________________________________________
JERRY D. SOMMERS