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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of October 5,
1999, to be effective as of October 25, 1999 (the "Effective Date"), by Kathleen
Brown Oher, an individual resident in Dallas County, Texas (the "Executive") and
Craftmade International, Inc., a Delaware corporation ("Craftmade").
RECITALS
This Agreement provides for the employment of Executive as Chief
Financial Officer of Craftmade upon the terms and subject to the conditions set
forth herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I.
"Basic Compensation"--Salary and Benefits.
"Board of Directors"--the board of directors of Craftmade.
"Change of Control"--
(a) there shall be consummated any consolidation or merger of Craftmade
into or with another corporation or other legal person, and as a result of such
consolidation or merger less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person immediately after such
transactions are held in the aggregate by holders of Voting Stock (as defined in
subsection (d) below) of Craftmade immediately prior to such transactions;
(b) any sale, lease, exchange or other transfer, whether in one
transaction or any series of related transactions, of all or significant
portions of the assets of Craftmade to any other corporation or other legal
person, less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person immediately after such
sale, lease, exchange, or transfer is held in the aggregate by the holders of
Voting Stock of Craftmade immediately prior to such sale, lease, exchange, or
transfer;
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(c) the shareholders of Craftmade approve any plan for the liquidation
or dissolution of Craftmade;
(d) any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")), becomes,
either directly or indirectly, the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of securities representing more than 50% of the
combined voting power of the then-outstanding securities entitled to vote
generally in the election of directors of Craftmade ("Voting Stock"); or
(e) if at any time during a fiscal year a majority of the Board of
Directors shall be replaced by persons who were not recommended for those
positions by at least two-thirds of the directors of Craftmade who were
directors of Craftmade at the beginning of the fiscal year.
Notwithstanding the preceding, a "Change of Control" shall not be
deemed to have occurred with respect to any of the foregoing transactions
conducted by any employee benefit plan (or related trust) sponsored or
maintained by Craftmade, any corporation controlled by Craftmade, James Ridings,
or any affiliate of James Ridings.
"Confidential Information"--information that is used in Craftmade's
business and
(a) is proprietary to, about or created by Craftmade;
(b) gives Craftmade some competitive advantage, the opportunity of
obtaining such advantage or the disclosure of which could be detrimental to the
interests of Craftmade;
(c) is not typically disclosed to non-employees by Craftmade, or
otherwise is treated as confidential by Craftmade; or
(d) is designated as Confidential Information by Craftmade or from all
the relevant circumstances should reasonably be assumed by the Employee to be
confidential to Craftmade.
Confidential Information shall not include information publicly known (other
than as a result of a direct or indirect disclosure by the Executive). The
phrase "publicly known" shall mean readily accessible to the public in a written
publication.
"Employee Invention"--any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not) and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the Employment Period,
that relates in any way to the business then being conducted or proposed to be
conducted by Craftmade, and any such item created by the Executive, either
solely or in conjunction with others, following termination of the Executive's
employment with Craftmade, that is based upon or uses Confidential Information.
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"Employment Period"--the term of the Executive's employment under this
Agreement.
"Fiscal Year"--Craftmade's fiscal year, as it exists on the Effective
Date or as changed from time to time.
"person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"Post-Employment Period"--for purposes of Section 8.2, the two-year
period beginning on the date of termination of the Executive's employment with
Craftmade.
ARTICLE II
EMPLOYMENT TERMS AND DUTIES
2.1 Employment. Craftmade hereby employs the Executive commencing as of
the Effective Date, and the Executive hereby accepts employment by Craftmade
commencing as of the Effective Date, upon the terms and conditions set forth in
this Agreement. All of Executive's rights shall be vested immediately upon the
execution of this Agreement by the parties hereto.
2.2 Term. Subject to the provisions of Article VI, the term of the
Executive's employment under this Agreement will initially be three years,
beginning on the Effective Date and ending on the third anniversary of the
Effective Date (the "Initial Term"). After the Initial Term, the Agreement shall
be extended for two additional one-year terms (the "First Additional Term" and
the "Second Additional Term," respectively), unless the Executive provides
written notice of election not to renew at least 45 days before the commencement
of the First Additional Term and the Second Additional Term, respectively.
2.3 Duties. The Executive will initially serve as Chief Financial
Officer of Craftmade and will have such duties as are typically commensurate
with such position, subject to the assignment or delegation of duties by the
Board of Directors or Chief Executive Officer of Craftmade. The Executive will
devote her entire business time, attention, skill, and energy exclusively to the
business of Craftmade, will use her best efforts to promote the success of
Craftmade's business, and will cooperate fully with the Board of Directors in
the advancement of the best interests of Craftmade. Executive shall operate
primarily out of Craftmade's executive office, currently situated in Coppell,
Texas. If the Executive is elected as a director of Craftmade (although there
can be no assurance that Executive shall at any time be nominated as a director
of Craftmade), or as a director or officer of any of its affiliates, the
Executive will fulfill her duties as such director or officer with the same
compensation as is paid to the other directors that are employees of Craftmade,
if any.
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ARTICLE III
COMPENSATION
3.1 Basic Compensation.
(a) Salary. Commencing on the Effective Date, the Executive will be
paid an annual salary of $156,000.00, subject to adjustment as provided below
(the "Salary"), which will be payable in equal periodic installments according
to Craftmade's customary payroll practices, but no less frequently than monthly.
The Salary will be reviewed by the Board of Directors not less frequently than
annually, and the Board of Directors, subject to its fiduciary obligations,
shall provide for an increase in the Salary proportionate to that of Craftmade's
Chief Executive Officer.
(b) Bonus. The Chief Executive Officer of Craftmade will review the
performance of the Executive not less frequently than annually, and the Chief
Executive Officer of Craftmade shall provide for an annual bonus to the
Executive (the "Bonus") based on the performance of Craftmade; such standards
for the performance of Craftmade shall be comparable to those standards
established concerning the receipt of any bonus by the Chief Executive Officer
of Craftmade with respect to the performance of Craftmade.
(c) Benefits. The Executive will, during the Employment Period, be
entitled to such pension, profit sharing, life insurance, hospitalization, major
medical, disability and other employee benefits as are provided to Craftmade's
Chief Executive Officer, to the extent the Executive is eligible under the terms
of any applicable benefit plan (collectively, the "Benefits").
3.2 Stock Options. The Executive shall be entitled to participate in
any stock option plan, employee stock ownership plan or similar plan of
Craftmade that is provided to Craftmade's Chief Executive Officer, to the extent
the Executive is eligible under the terms of such plan; provided, however, that
in the event that the Board of Directors of Craftmade shall adopt a stock option
plan at any board of directors meeting after the execution of this Agreement and
during the Employment Period, Executive shall be entitled to receive a grant of
options to purchase 50,000 shares of Common Stock, $0.01 par value of Craftmade.
Such stock options shall have an exercise price based on the price of the Common
Stock at the time of approval by the Board of Directors of such stock option
plan, which Craftmade shall use its best efforts to obtain, and shall vest over
five years, in accordance with the terms of any such stock option plan.
Accordingly, 20% of such stock options will be exercisable commencing upon the
approval of the stockholders of Craftmade (which approval Craftmade shall seek
at the annual meeting of the stockholders of Craftmade in October, 2000), and
the remainder of the stock options shall be exercisable each year thereafter in
20% increments. In the event that the stockholders of Craftmade do not approve
such stock option plan, the Executive shall be entitled to receive, in lieu of
such options to purchase 50,000 shares of Common Stock, a one-time cash bonus of
$25,000, which sum shall be payable on or before December 31, 2000.
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ARTICLE IV
FACILITIES AND EXPENSES
Craftmade will furnish the Executive office space, equipment, supplies,
and such other facilities and personnel as Craftmade deems necessary or
appropriate for the performance of the Executive's duties under this Agreement.
Craftmade will pay on behalf of the Executive (or reimburse the Executive for)
reasonable expenses incurred by the Executive at the request of, or on behalf
of, Craftmade in the performance of the Executive's duties pursuant to this
Agreement, and in accordance with Craftmade's employment policies, including
reasonable expenses incurred by the Executive in attending conventions,
seminars, and other business meetings, in appropriate business entertainment
activities, and for promotional expenses. The Executive must file expense
reports with respect to such expenses in accordance with Craftmade's policies.
ARTICLE V
VACATIONS AND HOLIDAYS
The Executive will be entitled to the amount of paid vacation as is
provided to the Chief Executive Officer of Craftmade, in accordance with the
vacation policies of Craftmade in effect for its executive officers from time to
time. Vacation must be taken by the Executive at such time or times as approved
by the Chairman of the Board or Chief Executive Officer of Craftmade. The
Executive will also be entitled to the paid holidays set forth in Craftmade's
policies. Vacation days and holidays during any Fiscal Year that are not used by
the Executive during such Fiscal Year may not be used in any subsequent Fiscal
Year.
ARTICLE VI
TERMINATION
6.1 Events of Termination. The Employment Period, the Executive's Basic
Compensation, the Executive's Bonus and any and all other rights of the
Executive under this Agreement or otherwise as an employee of Craftmade will
terminate (except as otherwise provided in this Article VI):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section 6.2)
immediately upon notice from either party to the other;
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(c) upon termination of the Executive for Cause (as defined in Section
6.3), immediately upon notice from Craftmade to the Executive, or at such later
time as such notice may specify;
(d) upon termination by the Executive for Good Reason (as defined in
Section 6.4) upon not less than thirty days' prior notice from the Executive to
Craftmade;
(e) upon termination of the Executive without Cause; or
(f) upon termination by the Executive for other than Good Reason.
6.2 Definition of Disability. The Executive will be deemed to have a
"disability" if, for physical or mental reasons, the Executive is unable to
perform the Executive's duties under this Agreement for 120 consecutive days, or
180 days during any twelve month period, as determined in accordance with this
Section 6.2. The disability of the Executive will be determined by a medical
doctor selected by written agreement of Craftmade and the Executive upon the
request of either party by notice to the other. If Craftmade and the Executive
cannot agree on the selection of a medical doctor, each of them will select a
medical doctor and the two medical doctors will select a third medical doctor
who will determine whether the Executive has a disability. The determination of
the medical doctor selected under this Section 6.2 will be binding on both
parties. The Executive must submit to a reasonable number of examinations by the
medical doctor making the determination of disability under this Section 6.2,
and the Executive hereby authorizes the disclosure and release to Craftmade of
such determination and all supporting medical records. If the Executive is not
legally competent, the Executive's legal guardian or duly authorized
attorney-in-fact will act in the Executive's stead, under this Section 6.2, for
the purposes of submitting the Executive to the examinations, and providing the
authorization of disclosure, required under this Section 6.2.
6.3 Definition of "Cause". "Cause" means: (a) the Executive's material
breach of this Agreement; (b) the Executive's failure to adhere to any material
written Craftmade policy if the Executive has been given a reasonable
opportunity to comply with such policy or cure her failure to comply (which
reasonable opportunity must be granted during the ten-day period preceding
termination of this Agreement); (c) the appropriation (or attempted
appropriation) of a material business opportunity of Craftmade, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of Craftmade; (d) the misappropriation (or
attempted misappropriation) of any of Craftmade's funds or property; or (e) the
conviction of or the entering of a guilty plea or plea of no contest with
respect to, a felony or the equivalent thereof.
6.4 Definition of "Good Reason". The phrase "Good Reason" means any of
the following: (a) Craftmade's or Craftmade's material breach of this Agreement;
(b) the assignment of the Executive without her consent to a position,
responsibilities, or duties of a materially lesser status or degree of
responsibility than her position, responsibilities, or duties at the Effective
Date; or (c) the requirement by Craftmade that the Executive be based anywhere
other than Craftmade's principal executive office in Coppell, Texas, without the
Executive's consent; or (d) any material reduction in Benefits.
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6.5 Termination Pay. Effective upon the termination of this Agreement,
Craftmade will be obligated to pay the Executive (or, in the event of her death,
her designated beneficiary as defined below) only such compensation as is
provided in this Section 6.5, and in lieu of all other amounts and in settlement
and complete release of (i) all claims the Executive may have against Craftmade
or Craftmade, or any of its affiliates, arising out of or pursuant to this
Agreement and (ii) all claims Craftmade or Craftmade may have against the
Executive arising out of or pursuant to this Agreement. For purposes of this
Section 6.5, the Executive's designated beneficiary will be such individual
beneficiary or trust, located at such address, as the Executive may designate by
notice to Craftmade from time to time or, if the Executive fails to give notice
to Craftmade of such a beneficiary, the Executive's estate. Notwithstanding the
preceding sentence, Craftmade will have no duty, in any circumstances, to
attempt to open an estate on behalf of the Executive, to determine whether any
beneficiary designated by the Executive is alive or to ascertain the address of
any such beneficiary, to determine the existence of any trust, to determine
whether any person or entity purporting to act as the Executive's personal
representative (or the trustee of a trust established by the Executive) is duly
authorized to act in that capacity, or to locate or attempt to locate any
beneficiary, personal representative, or trustee.
(a) Termination by the Executive for Good Reason or Termination by
Craftmade Without Cause. If the Executive terminates this Agreement for Good
Reason or if Craftmade terminates this Agreement without Cause, Craftmade will
pay the Executive (i) the Executive's Salary for the remainder, if any, of the
Initial Term, the First Additional Term or the Second Additional Term, as
applicable, (ii) the value of any accrued but unpaid or unused vacation or sick
leave for the calendar year and (iii) that portion of the Executive's Bonus, if
any, for the Fiscal Year during which the termination is effective, prorated
through the date of termination.
(b) Termination by Craftmade for Cause or Termination by the Executive
Without Good Reason. If Craftmade terminates this Agreement for Cause or if the
Executive terminates this Agreement for other than Good Reason, the Executive
will be entitled to receive her Salary only through the date such termination is
effective, but will not be entitled to any Bonus for the Fiscal Year during
which such termination occurs or any subsequent Fiscal Year.
(c) Termination upon Disability. If this Agreement is terminated by
either party as a result of the Executive's disability, as determined under
Section 6.2, Craftmade will pay the Executive her Salary through the remainder
of the calendar month during which such termination is effective and the period
until disability insurance benefits commence under the disability insurance
coverage furnished by Craftmade to the Executive.
(d) Termination upon Death. If this Agreement is terminated because of
the Executive's death, the Executive will be entitled to receive her Salary
through the end of the calendar month in which her death occurs, and that part
of the Executive's Bonus, if any, for the Fiscal Year during which her death
occurs, prorated through the end of the calendar month during which her death
occurs.
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(e) Termination Following a Change of Control. Notwithstanding anything
in this Section 6.5 to the contrary, if this Agreement is terminated by either
party for any reason within twelve months of a Change of Control, (i) if such
termination occurs during the Initial Term, then Craftmade will pay the
Executive's Salary for the remainder of such Initial Term plus two times the
Executive's Salary, (ii) if such termination occurs during the First Additional
Term, then Craftmade will pay the Executive's Salary for the remainder of such
First Additional Term plus an amount equal to the Executive's Salary, or (iii)
if such termination occurs during the Second Additional Term, then Craftmade
will pay the Executive's Salary for the remainder of such Second Additional
Term.
If the Executive's employment is terminated for other than Cause or the
Executive is removed from office or position with Craftmade in either case
following commencement by one or more representatives of Craftmade of
discussions (authorized by the Board of Directors or the Chief Executive Officer
of Craftmade) with a third party that ultimately results in the occurrence of an
event described in subsections (a), (b), (c), (d), or (e) of the definition of
"Change of Control" (subject to the final paragraph of such definition) and such
termination or removal occurs within the period commencing on the date such
discussions are authorized and ending on the date that is twelve months from the
consummation of such event, regardless of whether such third party is a party to
such occurrence, then such termination or removal shall be deemed to constitute
a termination following a Change of Control for the purposes of the first
paragraph of this Section 6.5(e), and, for the purposes of this Agreement, the
date of the authorization of such discussions shall be deemed to be the date of
the Change of Control of Craftmade.
(f) Benefits. The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of this Agreement, and the Executive will be entitled to accrued Benefits
pursuant to such plans only as provided in such plans. Notwithstanding the
preceding, the Executive shall be entitled to receive all accrued but unpaid
salary, Benefits and vacation pay upon the termination of this Agreement.
ARTICLE VII
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 Acknowledgments by the Executive. The Executive acknowledges that
(a) during the Employment Period and as a part of her employment, the Executive
will be afforded access to Confidential Information; (b) public disclosure of
such Confidential Information could have an adverse effect on Craftmade and its
business; (c) because the Executive possesses substantial technical expertise
and skill with respect to Craftmade's business, Craftmade desires to obtain
exclusive ownership of each Employee Invention, and Craftmade will be at a
substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Employee Invention; and (d) the provisions of this Article VII are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide Craftmade with exclusive ownership of
all Employee Inventions.
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7.2 Agreements of the Executive. In consideration of the compensation
and benefits to be paid or provided to the Executive by Craftmade under this
Agreement, the Executive covenants as follows:
(a) Confidentiality.
(i) During and following the Employment Period, the Executive
will hold in confidence the Confidential Information and will not
disclose it to any person except (A) with the specific prior written
consent of Craftmade, (B) as necessary to carry out the Executive's
duties under this Agreement or (C) except as otherwise expressly
permitted by the terms of this Agreement.
(ii) Any trade secrets of Craftmade will be entitled to all of
the protections and benefits under applicable law. If any information
that Craftmade deems to be a trade secret is found by a court of
competent jurisdiction not to be a trade secret for purposes of this
Agreement, such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement. The Executive
hereby waives any requirement that Craftmade submit proof of the
economic value of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other than
as a result of a direct or indirect disclosure by the Executive.
(iv) The Executive will not remove from Craftmade's premises
(except to the extent such removal is for purposes of the performance
of the Executive's duties at home or while traveling, or except as
otherwise specifically authorized by Craftmade) any document, record,
notebook, plan, model, component, device, or computer software or code,
whether embodied in a disk or in any other form (collectively, the
"Proprietary Items"). The Executive recognizes that, as between
Craftmade and the Executive, all of the Proprietary Items, whether or
not developed by the Executive, are the exclusive property of
Craftmade. Upon termination of this Agreement by either party, or upon
the request of Craftmade during the Employment Period, the Executive
will return to Craftmade all of the Proprietary Items in the
Executive's possession or subject to the Executive's control, and the
Executive shall not retain any copies, abstracts, sketches, or other
physical embodiment of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to Craftmade. The Executive acknowledges that all of the Executive's
writing, works of authorship, specially commissioned works and other Employee
Inventions are works made for hire and the property of Craftmade, including any
copyrights, patents or other intellectual property rights pertaining thereto. If
it is determined that any such works are not works made for hire, the Executive
hereby assigns to Craftmade all of the Executive's right, title, and interest,
including all rights of copyright, patent and
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other intellectual property rights, to or in such Employee Inventions. The
Executive covenants that she will promptly:
(i) disclose to Craftmade in writing any Employee Invention;
(ii) assign to Craftmade or to a party designated by
Craftmade, at Craftmade's request and without additional compensation,
all of the Executive's right to the Employee Invention for the United
States and all foreign jurisdictions;
(iii) execute and deliver to Craftmade such applications,
assignments, and other documents as Craftmade may request in order to
apply for and obtain patents or other registrations with respect to any
Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support
of Craftmade's rights to any Employee Invention.
7.3 Disputes or Controversies. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. To
the extent permitted by law, all pleadings, documents, testimony, and records
relating to any such adjudication will be maintained in secrecy and will be
available for inspection by Craftmade, the Executive, and their respective
attorneys and experts, who will agree, in advance and in writing, to receive and
maintain all such information in secrecy, except as may be limited by them in
writing.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 Acknowledgments by the Executive. The Executive acknowledges that:
(a) the services to be performed by her under this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character; (b) Craftmade's
business is international in scope and its products are marketed throughout the
world; (c) Craftmade competes with other businesses that are or could be located
in any part of the world; and (d) the provisions of this Article VIII are
reasonable and necessary to protect Craftmade's business.
8.2 Covenants of the Executive. In consideration of the acknowledgments
by the Executive, and in consideration of the compensation and benefits to be
paid or provided to the Executive by Craftmade, the Executive covenants that she
will not, directly or indirectly:
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(a) during the Employment Period, except in the course of her
employment hereunder, directly or indirectly, engage or invest in, own, manage,
operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend the Executive's name or any similar name to, lend
Executive's credit to or render services or advice to, any business whose
products compete in whole or in part with the products or market areas of
Craftmade; provided, however, that the Executive may purchase or otherwise
acquire up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Exchange Act;
(b) during the Post-Employment Period, directly or indirectly, engage
or invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Executive's name or
any similar name to, lend Executive's credit to or render services or advice to,
any business whose products compete in whole or in part with the product lines
and the market areas utilized by Craftmade and Craftmade on the last day of the
Employment Period; provided, however, that the Executive may purchase or
otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Exchange Act;
(c) whether for the Executive's own account or for the account of any
other person, at any time during the Employment Period and the Post-Employment
Period, solicit business of the same product lines being carried by Craftmade in
the same market areas as Craftmade, from any person known by the Executive to be
a customer of Craftmade, whether or not the Executive had personal contact with
such person during and by reason of the Executive's employment with Craftmade;
(d) whether for the Executive's own account or the account of any other
person (i) at any time during the Employment Period and the Post-Employment
Period, solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is an employee of Craftmade or in any
manner induce or attempt to induce any employee of Craftmade to terminate her
employment with Craftmade; or (ii) at any time during the Employment Period and
the Post- Employment Period, interfere with Craftmade's relationship with any
person, including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of Craftmade; or
(e) at any time during or after the Employment Period, disparage
Craftmade or any of its shareholders, directors, officers, employees, or agents.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
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jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to Craftmade, within ten days after accepting any other
employment, of the identity of the Executive's employer. Craftmade or Craftmade
may notify such employer that the Executive is bound by this Agreement and, at
Craftmade's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
ARTICLE IX
GENERAL PROVISIONS
9.1 Injunctive Relief and Additional Remedy. The Executive acknowledges
that the injury that would be suffered by Craftmade as a result of a breach of
the provisions of this Agreement (including any provision of Articles VII and
VIII) would be irreparable and that an award of monetary damages to Craftmade
for such a breach would be an inadequate remedy. Consequently, Craftmade will
have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and Craftmade will not be
obligated to post bond or other security in seeking such relief.
9.2 Covenants of Articles VII and VIII Are Essential and Independent
Covenants. The covenants by the Executive in Articles VII and VIII are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, Craftmade would not have entered into this Agreement or employed
the Executive. Craftmade and the Executive have independently consulted their
respective counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to the
nature of the business conducted by Craftmade.
The Executive's covenants in Articles VII and VIII are independent
covenants and the existence of any claim by the Executive against Craftmade
under this Agreement or otherwise, or against Craftmade, will not excuse the
Executive's breach of any covenant in Articles VII or VIII.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Articles VII and
VIII.
9.3 Representations and Warranties by the Executive. The Executive
represents and warrants to Craftmade that the execution and delivery by the
Executive of this Agreement do not, and
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the performance by the Executive of the Executive's obligations hereunder will
not, with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Executive is a party or by which the Executive
is or may be bound.
9.4 Obligations Contingent on Performance. The obligations of Craftmade
hereunder, including its obligation to pay the compensation provided for herein,
are contingent upon the Executive's performance of the Executive's obligations
hereunder.
9.5 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
9.6 Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs, and legal representatives,
including any entity with which Craftmade may merge or consolidate or to which
all or substantially all of its assets may be transferred. The duties and
covenants of the Executive under this Agreement, being personal, may not be
delegated.
9.7 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
Executive:
Kathleen Brown Oher
4414 Bluffview
Dallas, Texas 75203
Facsimile No.:
-------
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<PAGE> 14
with a copy to:
Cole Halliburton
5949 Sherry Lane
Suite 1622
Dallas, Texas 75225
Facsimile No.: (214) 987-1630
Craftmade:
Craftmade International, Inc.
650 South Royal Lane
Suite 100
P.O. Box #1037
Coppell, Texas 75019-1037
Attention: James Ridings
Facsimile No.: (972) 304-3754
with a copy to:
Brian D. Barnard
Haynes and Boone, LLP
201 Main Street
Suite 2200
Fort Worth, Texas 76102
Facsimile No.: (817) 347-6650
9.8 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
9.9 Governing Law. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
9.10 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement shall be
brought against any of the parties in the courts of the State of Texas, County
of Dallas, or, if it has or can acquire jurisdiction, in the United States
District Court for the Northern District of Texas, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world.
9.11 Section and Article Headings, Construction. The headings of
Sections and Articles in this Agreement are provided for convenience only and
will not affect its construction or
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<PAGE> 15
interpretation. All references to "Section" or "Sections" and "Article" or
"Articles" refer to the corresponding Section or Sections and Article or
Articles of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
9.12 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
* * * * *
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<PAGE> 16
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EXECUTIVE:
/s/ Kathleen Brown Oher
--------------------------------------
Kathleen Brown Oher
CRAFTMADE INTERNATIONAL, INC.
By: /s/ James Ridings
--------------------------------------
Name: James Ridings
Title: President, Chairman of the Board
and Chief Executive Officer
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