Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is dated as of
December 12, 2001, by and between REGAL GREETINGS & GIFTS CORPORATION, a
corporation existing under the laws of Canada (the "Company"), and Xxxxxx Xxxxx,
an individual ("Employee").
WHEREAS, Employee is currently serving as the President of the
Company; and
WHEREAS, the Company wishes to continue to employ the services
of Employee as the President and Chief Executive Officer of the Company and
Employee wishes to accept such employment, all on the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the mutual obligations
herein set forth, the parties agree as follows:
ARTICLE I
EMPLOYMENT
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1.1 EMPLOYMENT. The Company hereby agrees to employ Employee,
and Employee agrees to be employed by the Company on a full-time basis and
perform the services specified herein, on the terms and conditions set forth in
this Agreement.
1.2 SERVICES. Employee shall act as the President and Chief
Executive Officer of the Company, and shall do and perform all services, acts,
and/or things necessary or advisable to manage and conduct the business of the
Company consistent with such positions subject to such policies and procedures
as are established by the Board of Directors of the Company. Employee shall
serve the Company and its shareholders and affiliates faithfully and to the best
of her ability. Employee shall report to the Board of Directors of the Company.
Employee shall be
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required to devote her full business time and attention to the
performance of her obligations hereunder.
1.3 OFFICE. The principal office for the performance of
Employee's services shall be the offices of the Company located in the Xxxxxxx
Xxxxxxx area.
1.4 INITIAL TERM; RENEWAL. The term of this Agreement shall be
for a period of three years from the commencement date hereof and shall renew
automatically for additional one year periods unless written notice of intention
not to renew is provided by the Company to the employee or by the employee to
the Company 90 days before the end of the initial term or any extension
thereafter.
ARTICLE II
COMPENSATION AND BENEFITS
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2.1 BASE SALARY. During the term of this Agreement, the
Company shall pay Employee a base salary ("Base Salary") at a rate per annum
equal to $235,000 (Canadian). The Base Salary shall be increased at least
annually and more frequently if deemed appropriate by the Board of Directors.
Base Salary shall be paid in arrears in equal bi-monthly installments in
accordance with the normal payroll policies of the Company in effect from time
to time.
2.2 BONUS. During the term of this Agreement, the Company
should pay Employee an annual bonus in accordance with a bonus plan adopted by
the Board of Directors payable to members of the Company's senior management;
provided, however, that the Company acknowledges that the current bonus plans
for the fiscal year ended December 31, 2001 shall be renewed without any expense
or other adjustments arising as a result of the change of control of the Company
on the date hereof.
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2.3 BENEFIT PLANS. During the term of this Agreement, the
Company shall allow Employee to participate in all benefit, pension, retirement,
savings, welfare and other employee benefit plans and policies in which the
members of the Company's senior management generally are entitled to
participate, in accordance with their respective terms as in effect from time to
time; provided, however, that such benefits shall, in the aggregate, be no less
favourable to the Employee then heretofore provided to her.
2.4 FRINGE BENEFITS. During the term of this Agreement, the
Company shall allow Employee to receive all fringe benefits and perquisites
generally maintained by the Company from time to time for the members of senior
management, in accordance with the respective terms and normal policies of the
Company with regard to such benefits and perquisites as in effect from time to
time; provided, however, that such benefits shall, in the aggregate, be no less
favourable to the Employee then heretofore provided to her. Initially such
fringe benefits shall be those fringe benefits enumerated on SCHEDULE 2.4
attached hereto.
2.5 VACATION. During the term of this Agreement, the Company
shall provide Employee with paid vacation each year, subject to the needs of the
Company, and in accordance with the Company's policies for members of senior
management in effect from time to time, but in no event less than five (5) weeks
paid vacation for each calendar year.
2.6 MANAGEMENT INCENTIVE PLAN. During the term of this
Agreement, the Company shall allow Employee to participate in any equity
incentive plans in which the members of the Company's senior management
generally are entitled to participate, in accordance with their respective terms
as in effect from time to time, including that certain Stock Bonus Plan dated
December 14, 2001.
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2.7 WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such federal or provincial taxes and other
statutory remittances as shall be required by law to be so withheld.
ARTICLE III
INTANGIBLE PROPERTY
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3.1 COPYRIGHT, PATENTS, TRADEMARKS. All right, title and
interest, of every kind whatsoever, in the United States, Canada and throughout
the world, in any work, including the copyright thereof (for the full terms and
extensions thereof in every jurisdiction), created by Employee at any time
during the term hereof (and during any prior period that Employee was employed
by the Company or any of its subsidiaries, affiliates or successors in interest)
relating to the business of the Company as it formerly, presently, or hereafter
was, is or may be conducted and all material embodiments of the work subject to
such rights; and all inventions, ideas, trade secrets, discoveries, designs and
improvements, patentable or not, and trademarks made or conceived by Employee at
any time during the term hereof (and during any prior period that Employee was
employed by the Company or any of its subsidiaries or affiliates) relating to
the business of the Company as it formerly, presently, or hereafter was, is or
may be conducted, shall be and remain the sole property of the Company without
the payment to Employee or any other person of any further consideration, and
each such work shall be deemed created by Employee pursuant to her duties under
this Agreement and within the scope of her employment and shall be deemed a work
made for hire. Employee agrees to assign, at the Company's expense, and Employee
does hereby assign, all of her right, title and interest including moral rights
in and to all such works, copyrights, materials, inventions, ideas, discoveries,
designs and improvements, patentable or not, and any copyrights, letters patent,
trademarks, trade secrets,
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and similar rights, and the applications therefor, which may exist or be issued
with respect thereto. For the purposes of this Section 3.1, "works" shall
include all materials created during the term hereof (or during any prior period
that Employee was employed by the Company or any of its members, subsidiaries or
affiliates), whether or not ever used-by or submitted to the Company.
3.2 ASSIGNMENT OF RIGHTS. Whenever the Company shall so
request, whether during or after the term of this Agreement (irrespective of the
date of termination), Employee, at the Company's expense, shall execute,
acknowledge and deliver all applications, assignments or other instruments; make
or cause to be made all rightful oaths; testify in all legal proceedings;
communicate all known facts which relate to such works, copyrights, inventions,
ideas, discoveries, designs and improvements; perform all lawful acts and
otherwise render all such assistance as the Company may deem necessary to apply
for, obtain, register, enforce and maintain any copyrights, letters patent and
trademark registrations of the United States, Canada or any other foreign
jurisdiction or under the Universal Copyright Convention (or any other
Convention or treaty to which the United States or Canada is or may become a
party), or otherwise to protect the Company's interests therein, including any
which the Company shall deem necessary in connection with any proceeding or
litigation involving the same.
ARTICLE IV
NON-COMPETE/NON-DISCLOSURE
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4.1 NON-COMPETE AND NON-SOLICIT. So long as Employee is
employed hereunder, and for a period of one (1) year thereafter, Employee shall
not, without the Company's prior written consent, directly or indirectly: (i)
interfere with or attempt to disrupt any then existing relationship between the
Company, its members, subsidiaries or affiliates and
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any of their customers, suppliers, employees or other persons with whom they do
business; (ii) solicit any customer, supplier, person, firm or business with
which the Company engaged in business, during the period of Employee's
employment hereunder through the date of termination or resignation, (iii)
solicit in any manner an employee of the Company or any person who was employed
by the Company during the period of Employee's employment hereunder, or (iv)
only for so long as Employee is employed hereunder and not for any period of
time thereafter, engage or be interested in any business which is then
competitive with the business of the Company or the business of any of its
shareholders, subsidiaries and affiliates, or the licensed business of any of
its licensees, in the United States or Canada. For the purpose of this Section
4.1, the Employee will be considered to have been directly or indirectly engaged
or interested in such business as an owner, member, stockholder, director,
officer, employee, agent, broker, partner, individual proprietor, lender,
consultant, licensor, independent contractor or otherwise, except that nothing
herein will prevent Employee from owning or participating as a member of a group
which owns a one percent (1%) or smaller block of equity or debt securities of
any company traded on a national securities exchange or in any established
over-the-counter securities market. For the purpose of this Section 4.1, the
term "any business which is then competitive with the business of the Company,
its members, subsidiaries, affiliates, or licensees" shall mean a direct selling
organization principally engaged in the selling of various retail products (of a
type and nature being sold by the Company) directly to individual consumers
through independent sales representatives in the United States and Canada in
which the Company may become principally engaged in the period after the date
hereof so long as Employee is employed hereunder.
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4.2 NON-DISCLOSURE. During the term of this Agreement, and
thereafter without limitation of time, Employee shall not knowingly divulge,
furnish, or make available to any third person, company, corporation or other
organization (including but not limited to customers, competitors or government
officials), without the Company's prior written consent, any trade secrets or
other confidential information concerning the Company or any of its
subsidiaries, affiliates or licensees or the business of any of the foregoing,
including, without limitation, confidential methods of operation and
organization, manufacturing methods and other confidential uses of technology,
any trade secrets or other proprietary information, and confidential sources of
supply and customer lists, but Employee may respond to proper subpoena issued by
governmental agencies or otherwise may be required by law without the Company's
prior written consent but with notice to the Company.
4.3 REMEDIES. If Employee shall violate any provision of this
Article IV (all provisions of which paragraph Employee hereby acknowledges are
reasonable and equitable), the Company shall have the right to terminate her
services under this Agreement "for cause" pursuant to Section 5.3, if this
Agreement is then in effect, and such termination shall be in addition to, and
not in substitution for, any and all other rights of the Company at law or in
equity against Employee arising out of any such breach. Employee acknowledges
that her breach or attempted or threatened breach of any provisions of this
Article IV, including but not limited to any disclosure of or unauthorized use
of any technological or other trade secret of the Company, would cause
irreparable injury to the Company not compensable in money damages and that the
Company shall be entitled, in addition to all other applicable remedies, to
obtain a temporary and a permanent injunction and a decree for specific
performance of this Article IV without being required to prove damages or
furnish any bond or other security.
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ARTICLE V
TERMINATION
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5.1 DISABILITY. If the Employee shall become physically or
mentally incapable of performing her duties as provided in Section 1.2 of this
Agreement and such incapacity shall last for a period of at least one hundred
eighty (180) consecutive days out of any twelve (12) consecutive months
("Disability"), the Company may, at its election at any time thereafter while
the Employee remains incapable of performing her duties hereunder, terminate the
Employee's employment hereunder, effective immediately, by giving the Employee
written notice of such termination. In such event, the Company shall have no
other obligation to the Employee or her dependents hereunder other than Base
Salary earned, accrued vacation pay and benefits accrued under Article II prior
to such termination, any bonus earned to date and not yet paid and, for a period
of ninety (90) days after such date, the Employee shall have the right to
exercise any options for stock vested as of such date under the Stock Bonus
Plan, and an assignment of the benefits of the long-term disability policy as it
relates to the Employee and the amounts provided for in Section 5.4.
5.2 DEATH. This Agreement shall terminate automatically upon
the death of Employee without any further payment by the Company other than Base
Salary earned, accrued vacation pay and benefits accrued under Article II prior
to such date of death, any bonus earned to date and not yet paid and, for a
period of ninety (90) days after such date, the Employee shall have the right to
exercise any options for stock vested as of such date under the Stock Bonus
Plan, and an assignment of the benefits (subject to any pledge of such benefits
by the Company
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as security for any loan made by it) of the life insurance policy as it relates
to the Employee and the amounts provided for in Section 5.4.
5.3 FOR CAUSE. The Company shall have the right, at its sole
option, to terminate Employee's employment under this Agreement "for cause" at
any time, without any further payment to Employee other than Base Salary earned,
accrued vacation pay and benefits accrued under Article II prior to the date of
termination, by notice to Employee specifying the reason for such termination.
Employee shall assign any shares of stock or other equity interests in the
Company or its direct or indirect shareholders back to the Company immediately
and shall not be entitled to any bonus compensation for the fiscal year in which
such termination occurred or to any fringe benefit after the date of such
termination. For purposes of this Agreement, "cause" shall mean, without
limitation Employee's willful breach of fiduciary duty or fraud with regard to
the Company or any of its assets or businesses; dishonesty or gross, willful or
persistent disregard of her duties and responsibilities under this Agreement or
under any agreement to which Employee and the direct or indirect shareholders of
the Company is a party; willful failure to follow policies or directives
established by the Board of Directors of the Company; willful breach of any
material provision of this Agreement or any agreement to which Employee and the
direct or indirect shareholders of the Company is a party; Employee's conviction
of a felony or conviction for a criminal offense that would damage the
reputation of the Company; or the breach by Employee of Article IV of this
Agreement (relating to non-competition and non-disclosure).
5.4 TERMINATION WITHOUT CAUSE. The Company may terminate this
Agreement at any time without cause (including, without limitation, upon death
or Disability of the Employee) by providing the Employee with a single lump sum
payment of an amount equal to
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18 monthly payments of the Employee's Base Salary provided for in section 2.1
hereof. The Company shall also pay any bonus earned to date of termination and
not yet paid and, for a period of 30 days after such date, Employee shall have
the right to exercise any options for stock vested as of such date under the
Stock Bonus Plan and (except in the case of death) shall continue to pay for the
Employee's participation in the benefits plans referred to in Sections 2.3 and
2.4. The Employee shall be entitled to purchase the Company-provided automobile
from the Company at the end of the benefits period for an amount not to exceed
the book value of the automobile. Any club memberships then held in the
Company's name shall be transferred to the Employee at no cost to the Employee.
The payments provided for in this section shall be inclusive of the Employee's
entitlement to notice and severance pay under the Ontario EMPLOYMENT STANDARDS
ACT the terms of which are adopted herein. If such entitlements are greater than
the amount provided for herein, this agreement shall be amended to reflect such
greater statutory entitlements.
5.5 RESIGNATION BY EMPLOYEE. The Employee shall give the
Company not less than 4 weeks notice of the resignation of the Employee's
employment hereunder. If the Employee resigns the Employee's employment and
terminates this Agreement for any reason, the Company shall have no further
obligations or responsibilities hereunder to the Employee, and nothing herein
contained shall be construed to limit or restrict in any way the Company's
ability to pursue any remedies it may have at law or equity pursuant to the
provisions of this Agreement.
5.6 RESULTS OF TERMINATION. Upon termination or resignation of
the Employee's employment pursuant to this Section 5, this Agreement and the
employment of the Employee shall be wholly terminated with the exception of the
clauses specifically contemplated
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to continue in full force and effect beyond the termination of this Agreement,
including those set out in Article 4.
ARTICLE VI
MISCELLANEOUS
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6.1 NOTICES. Any notice required or permitted under this
Agreement shall be in writing and shall be deemed given when delivered
personally, or five (5) days after being sent by first-class registered or
certified mail, return receipt requested, to the addressee at its or her address
set forth at the beginning of this Agreement (which, in the case of the Company,
shall be sent "Attention: _____________"), or to such other address as either
party may hereafter specify by similar notice to the other.
6.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Ontario governing contracts made and to
be performed in Ontario.
6.3 AMENDMENTS. This Agreement cannot be amended or modified
except by a writing signed by both parties. It may be executed in one or more
counterpart copies, each of which shall be deemed an original, but all of which
shall constitute the same instrument.
6.4 ASSIGNMENTS. This Agreement is personal in nature, and
neither this Agreement nor any rights hereunder may be assigned by Employee
without the prior written consent of the Board of Directors of the Company. Any
purported assignment without said consent shall be void. Any transaction in
which all or a substantial portion of the assets of the Company or the control
of the Company are transferred shall, at the option of the Employee, be deemed
to be termination without cause, as to which the provisions of Section 5.4
shall, at the option of the Employee, be deemed to apply. Absent such
circumstances, the Company may not assign this Agreement without the prior
written consent of Employee.
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6.5 BINDING AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective heirs, executors,
administrators, personal representatives, successors, and permitted assigns. The
term "Company" as used in this Agreement shall include the Company and any legal
successor of the Company by merger, consolidation, or similar legal
reorganization.
6.6 ENFORCEABILITY. If any provision of this Agreement shall
be deemed invalid or unenforceable as written, it shall be construed, to the
extent possible, in a manner which shall render it valid and enforceable, and
any limitations on the scope or duration of any such provision necessary to make
it valid and enforceable shall be deemed to be part thereof; no invalidity or
unenforceability shall affect any other portion of this Agreement unless the
provision deemed to be so invalid or unenforceable is a material element of this
Agreement, taken as a whole.
6.7 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the Employee's employment
by, or compensation due from, the Company or any predecessor to, successor to,
or affiliate of, the Company, and supersedes all prior negotiations,
arrangements or understandings, written oral, with respect thereto.
6.8 RETURN OF COMPANY PROPERTY. Upon the expiration or
termination of this Agreement, the Employee agrees to promptly return to the
Company all of the product, equipment, documents and other materials belonging
to the Company in the Employee's possession.
6.9 ACKNOWLEDGEMENT.
The Employee acknowledges that:
(a) the Employee has had sufficient time to review this Agreement
thoroughly;
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(b) the Employee has read and understands the terms of this
Agreement and the obligations hereunder;
(c) the Employee has been given an opportunity to obtain
independent legal advice concerning the interpretation and
effect of this Agreement; and,
(d) the Employee has received a fully executed counterpart copy of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
REGAL GREETINGS & GIFTS CORPORATION
By:
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Xxxxxx Xxxxxxxxx,
Chairman, Compensation Committee
Agreed to by:
------------------------------------
XXXXXX XXXXX
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Schedule 2.4
Fringe Benefits
1. Use of Company automobile and services as currently provided under
Company automobile policy and not less than a lease allowance of $1,300
Canadian dollars per month.
2. Payment of any current course, club affiliation or membership fee and
any new fees incurred after December __, 2001 as approved by the Board
of Directors.
3. Use of an Executive Outplacement Program following any termination of
employment without cause.
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