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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("the Agreement") dated as of the 7th day of August
2000 (the "Effective Date"), between Party City Corporation, a Delaware
corporation (the "Company"), with principal offices located at 000 Xxxxxxx Xxx,
Xxxxxxxx, Xxx Xxxxxx 00000 and Xxxxxx Xxxxxx, with an address at 0000 Xxxxx
Xxxxx Xxx, Xxxx Xxxxx, Xxxxxxx 00000 (the "Employee").
WITNESSETH
WHEREAS, the Company desires to employ Employee to render such services
under the terms and conditions of this Agreement and has authorized and approved
the execution of same;
WHEREAS, Employee desires to be employed by the Company under the terms
and conditions as provided for herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereby agree as follows:
1. EMPLOYMENT DUTIES AND ACCEPTANCE.
(a) SERVICES.
(i) The Company hereby employs Employee for the Term
(as hereinafter defined in Section 2 herein), to
render exclusive and full-time services to the
business and affairs of the Company as Executive
Vice President of Merchandising/Marketing and,
in connection therewith, shall perform all such
duties as directed by the Board of Directors of
the Company from time to time, in its
discretion, and shall perform all such other
duties as shall be consistent with the
responsibilities of such office.
(ii) During the Term of the Employment, and excluding
any periods of vacation to which the Employee is
entitled, Employee will perform
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activities related to such office as he shall be
directed or requested to so perform by the
Company's Chief Executive Officer, to whom he
shall report, or the Company's Board of
Directors. During the Term of the Employment,
and excluding any periods of vacation to which
the Employee is entitled, the Employee also
agrees to devote full time solely to the
business and affairs of the Company, its
subsidiaries and affiliates and to use his best
efforts, skill and abilities, throughout his
employment, to promote the best interests of the
Company, its subsidiaries and affiliates.
(iii) During the employment period, the Employee shall
not be engaged in any other business activity,
whether or not such business activity is pursued
for profit or other pecuniary advantage. This
provision shall not be construed as preventing
the Employee from passively investing his
personal assets in businesses which do not
compete with the Company and which do not
require any services or time, at all, on the
part of the Employee.
(iv) The Employee acknowledges the high significance
of the position being offered to him and the
fact that he is being provided with an
opportunity to also obtain an equity position
with the Company through the issuance of
options. The Employee acknowledges that these
benefits are predicated upon the Employee's
enthusiastic assumption of all these duties,
cares and responsibilities reasonably and
normally incident to the high office being
granted to him.
(b) ACCEPTANCE. Employee hereby accepts such employment at
the terms herein and agrees to render the services described in Section 1(a)
hereof. In addition, the general personnel policies and procedures of the
Company (e.g. payroll deductions, business ethics, leaves of absence) contained
in the Company's Employee Handbook, as it now exists or as it may exist in the
future, are deemed and made part of this Agreement. Employee agrees he is
subject to and will comply with those personnel policies and procedures
currently in effect and as may be modified from time to time.
2. TERM OF EMPLOYMENT UNDER THIS AGREEMENT.
(a) The Employees' employment with Company is at-will.
Accordingly, this Agreement and/or the term of Employee's employment under this
Agreement is terminable at the
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will of either party, with or without cause. Nothing in this Agreement is
intended to limit or otherwise modify the terms of this provision, which is an
essential and necessary provision of the Agreement.
(b) The initial term of Employee's employment under this
Agreement (the "Initial Term" or "Term") shall commence on the Effective Date
and terminate on August 6, 2001. The period from the Effective Date to August 6,
2001 shall be deemed a "year" of employment. This Agreement shall be
automatically renewed for an additional year(s) on the date of its expiration
unless cither party to this Agreement gives notice, in writing, at least thirty
(30) days prior to the expiration of this Agreement, that it does not seek to
renew the Agreement and/or seeks to alter the terms of the Agreement.
(c) Should both parties agree to renew this Agreement, the
Company reserves the right to amend, modify or otherwise change in any fashion
any term of this Agreement as a proposed, renewed agreement. Any such renewal of
the Agreement shall not be construed as creating any right or obligation
relating to future renewals.
3. COMPENSATION.
(a) BASE SALARY. As full and complete compensation for all
the services to be rendered by the Employee pursuant to this Agreement during
the Term of this Agreement, the Company agrees to pay Employee a minimum base
salary ("Base Salary") at the annual rate of $275,000. Such Base Salary may be
adjusted upward on a merit basis by the Board of Directors in its sole
discretion. The Employee's performance will be reviewed annually by the Chief
Executive Officer, on or about the effective date of this Agreement, together
with the Company's performance, to determine if Employee's compensation should
be adjusted. The Chief Executive
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Officer's review of the Employee's compensation shall consider both cash and
non-cash (i.e. Stock Options) remuneration. Employee's Base Salary shall be
payable during the term of the Agreement in accordance with the Company's
customary payment practices.
(b) BONUSES. In addition to Base Salary, the Employee shall
receive:
(i) $25,000 as a sign-on bonus, payable at the time
the Employee receives his first payroll check;
(ii) $68,750, payable one (1) year from the date of
this Agreement. The sum due to Employee under
this section is guaranteed, but will be applied
against any additional bonuses provided by the
Company to Employee for the calendar year
governed by this section;
(iii) $16,000 payable two (2) years from the date of
this Agreement. The sum due to Employee under
this section is guaranteed, but will be applied
against any additional bonuses provided by the
Company to Employee for the calendar year
governed by this section; and
(iv) $16,000 payable three (3) years from the date of
this Agreement. The sum due to Employee under
this section is guaranteed, but will be applied
against any additional bonuses provided by the
Company to Employee for the calendar year
governed by this section.
(v) In addition to the above, Employee will be
eligible for an annual bonus each year in an
amount equal to up to 50% of Employee's Base
Salary; provided, however, Employee and the
Company achieve certain performance goals
including: (i) the performance of the Company
based upon performance criteria established by
the Board of Directors and reasonably
articulated to Employee in advance of the Bonus
Year; and (ii) the performance of the Employee
in his position as Executive Vice President of
Merchandising/Marketing as determined by the
Board of Directors and the Chief Executive
Officer of the Company, in their sole and
absolute discretion.
(c) STOCK OPTIONS.
(i) Simultaneously with the execution of this
Agreement, the Company hereby grants options to
purchase an aggregate amount of One-Hundred
Thousand (100,000) shares of the Company's
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common stock, the exercise price of which shall
be the price equal to the fair market value of a
share of Common Stock on the Effective Date
(i.e. $3.40 as of August 7, 2000), provided that
the Employee remains in the employ of the
Company on each such vesting date.
(ii) The vesting schedule for such Stock Options as
follows: (a) 25,000 of the 100,000 shares shall
vest one year from the Effective Date; (b) an
additional 25,000 of the 100,000 shares shall
vest two years from the Effective Date; (c) an
additional 25,000 of the 100,000 shares shall
vest three years from the Effective Date; and
(d) the final 25,000 of the 100,000 shares shall
vest four years from the Effective Date;
provided however, that Employee remains employed
with the Company through the four year period of
the respective vesting dates. Nothing in this
section should be construed to limit Section
2(a).
(iii) Once an option is fully vested, it must be
exercised and paid for within ten (10) years
from the date the option vested ("Option
Period"). Vested Options shall expire on the
last day of the Option Period. If, prior to the
end of any Option Period, Employee's employment
is terminated, whether with or without cause,
all options not yet vested on the date of
Employee's termination shall expire and,
thereupon, be canceled.
(iv) It is intended that all properly exercised
options be paid for in full within ten (10)
years from the Effective Date. In the event of
termination of employment, with or without
cause, the Employee must exercise and pay for
all vested options within three months from the
date his employment was terminated.
(v) It is absolutely understood that what is set
forth above is intended only as a general
statement regarding the options which shall be
issued to the Employee pursuant to the Party
City Corporation 1999 Stock Incentive Plan (the
"Plan"), which, for all intents and purposes
controls. Should there be a contradiction
between the terms of this provision and the
Plan, the Plan fully and completely controls.
4. TERMINATION.
(a) TERMINATION WITH CAUSE.
(i) The Company may, at any time during the Term of
this Agreement without any prior notice,
terminate this Agreement and discharge Employee
with Cause, whereupon the severance provisions
of
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Section 5(a) shall apply. Nothing in this
provision shall be construed to limit or modify
the terms of Section 2(a).
(ii) As used herein, the term "Cause" shall be deemed
to mean that the Company, acting in good faith,
determines that the Employee has committed or
engaged in: (a) a material breach by Employee of
this Agreement after 30 days' prior notice and
an opportunity to cure, within such period, if
such breach is capable of being cured; (b)
excessive absenteeism, alcoholism or drug abuse;
(c) substantial neglect or inattention by
Employee of or to his duties hereunder after 30
days' prior notice and an opportunity to cure,
within such period, if such breach is capable of
being cured; (d) willful violation of specific
and lawful written or oral direction from the
Chief Executive Officer or the Board of
Directors of the Company after 30 days' prior
notice and an opportunity to cure, within such
period, if such breach is capable of being
cured; (e) fraud, gross negligence, criminal
conduct or embezzlement; (f) sexual or other
forms of illegal harassment; (g) conduct that
reflects adversely upon, or making any remarks
disparaging of, the Company, its Board, officers
and directors that is likely to and which does,
in fact, have the effect of injuring the
reputation, business or a business relationship
of the Company; or (h) violation of any
fiduciary duty; violation of any duty of
loyalty.
(iii) The obligations of the Employee under Section
7(a) and 8 herein shall continue notwithstanding
termination of the Employee's employment
pursuant to this Section 4(a).
(b) TERMINATION WITHOUT CAUSE. The Company may, at any time
during the Term, without prior notice, terminate the Agreement and discharge
Employee without Cause whereupon the severance provisions of Section 5(b) shall
apply. The obligations of the Employee under Sections 7(a) and 8 herein shall
continue notwithstanding termination of the Employee's employment pursuant to
this Section.
(c) DISABILITY. Should Employee become disabled, as
hereinafter defined, during the Term hereunder, this Agreement and the
Employee's employment with the Company shall terminate upon written notice from
the Company to the Employee, and such termination shall be deemed to be for
Cause. As used herein, the term "disabled" is hereby defined as the
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inability of Employee by reason of injury, physical or mental illness or other
similar cause, which would cause to be effected the long term disability
coverage of the Company's insurance policy, to perform his duties and
responsibilities in connection with the conduct of the business and affairs of
the Company, in the manner his duties were rendered immediately prior to the
disability, for a continuous period of three months or more, or for an aggregate
period of four months or more in any twelve month period, whether or not
continuous. The Company reserves the right, in good faith, to make the
determination of disability under this Agreement based upon information supplied
by the Employee and/or his medical personnel (or others) selected by the Company
or its insurers. Should the Company desire, it may have the Employee examined by
a physician of its own choice. Nothing in this paragraph is intended to limit or
modify Employee's obligations as set forth in Sections 7(a) and 8 of this
Agreement.
(d) DEATH. If Employee dies during the Term of this
Agreement, Employee's employment hereunder shall terminate upon his death and
all obligations of the Company hereunder shall terminate on such date, except
that Employee's estate or his designated beneficiary shall be entitled to
payment of any unpaid, accrued Base Salary and pro-rata bonus, car allowance and
unused vacation pay through the date of his death, pursuant to the terms of
Section 5(b). Nothing in this paragraph is intended to limit or modify
Employee's obligations as set forth in Section 7(a) of this Agreement.
5. SEVERANCE.
(a) TERMINATION WITH CAUSE: As set forth in Section 2(a),
Employee acknowledges that his employment with the Company is terminable
at-will, with or without cause. In the event the Company terminates the
Employee's employment at any time during the course of his employment with the
Company, with cause, Employee shall be entitled to receive
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from the Company, in addition to any base salary earned prior to the termination
date, a severance payment in an amount equal to six (6) months of the Employee's
Base Salary applicable at the date of such termination; which amount shall be
paid in biweekly increments during the six (6) month period immediately
following such termination. Nothing in this paragraph is intended to limit or
modify Sections 2(a), 7(a) and 8 of this Agreement.
(b) TERMINATION WITHOUT CAUSE. In the event the Employee's
employment hereunder shall be terminated by the Company without cause, as
provided for herein, the Employee will, in addition to the severance payment as
set forth in 5(a) above, additionally be entitled to a continuation of his
health/life benefits and car allowance ($675 per month) for a period of six (6)
months following such termination plus payment for any unused vacation and the
pro-rata portion of any bonus due for that portion of the employment year prior
to the date of termination. In addition, any Stock Options scheduled to vest
within such employment year shall immediately vest. Nothing in this paragraph is
intended to limit or modify Sections 2(a), 7(a) and 8 of this Agreement.
(c) CHANGE IN CONTROL. In the event of a Change in Control,
Employee shall receive severance as set forth in 5(b) above. For purposes of
this Agreement, a "Change of Control" shall occur if (i) any person or group of
persons (within the meaning of Section 13 or Section 14 of the Securities
Exchange Act of 1934, as amended) shall acquire (other than directly from the
Company) beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of 50% or more of the
outstanding shares of common stock of the company, (ii) during any period of 12
consecutive calendar months, individuals who were directors of the Company on
the first day of such period (or who were appointed or nominated for election as
directors of the Company by at least a majority of the
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individuals who were directors on the first day of such period or who were so
elected or appointed other than in connection with an actual or threatened proxy
contest) (the "Incumbent Board") shall cease to constitute a majority of the
Board of Directors of the Company, or (iii) there is consummation of a complete
liquidation or dissolution of the Company or a merger, consolidation or sale of
all or substantially all of the Company's assets (collectively, a "Business
Combination") other than a Business Combination in which all or substantially
all of the stockholders of the Company receive 50% or more of the stock of the
company resulting from the Business Combination, at least a majority of the
Board of Directors of the resulting company were members of the Incumbent Board.
(d) EXCLUSIVE REMEDY. Employee agrees that the payments
contemplated by this Agreement shall constitute the exclusive and sole remedy
for any termination of his employment and Employee agrees not to assert or
pursue other remedies, at law or in equity, with respect to any termination of
employment.
6. EXPENSES.
(a) REIMBURSEMENTS. Employee shall be entitled to receive
prompt reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures of the Company in effect
generally with respect to other executives of the same level of the Company.
Subject to such approval, the Company will reimburse Employee for such expenses
upon presentation of expense statements or vouchers or such other supporting
information as the Company may require and as may be required for tax purposes.
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(b) RELOCATION ASSISTANCE. The Company shall reimburse
Employee for all home search trips including airfare, lodging, car, meals and
other miscellaneous expenses for the Employee, his wife and son, with a maximum
of three such trips. The Company shall also reimburse Employee for additional
relocation costs as follows: (i) home sale costs including a broker's commission
up to 6% and customary fees; (ii) payment of the lesser of the two (2) mortgage
payments for a period not to exceed twelve (12) months, provided the former home
does not sell prior to the closing on the new home; (iii) home purchase costs
including two (2) points, all reasonable and customary fees associated with the
sale of a home, including charges, closing costs and attorneys' fees; (iv) all
reasonable costs associated with moving to a new location, such as utility
installation fees, auto registration; (v) moving costs including packing,
moving, unpacking, temporary storage (if necessary), furniture
disassembly/assembly, installation fees; and (vi) the Company shall also
reimburse Employee for the cost of local housing until such time as the Employee
obtains permanent housing in accordance with the policies, practices and
procedures of the Company in effect generally with respect to other executives
of the same level of the Company; (vi) all reasonable costs associated with
relocating (2) automobiles; (vii) all relocation expenses incurred by the
Employee will be grossed up, for tax effect, and paid on that basis.
7. ADDITIONAL BENEFITS.
(a) LOAN. The Company will provide to Employee a $50,000
interest-bearing loan (approximately 10% interest), which interest will be
forgiven if Employee remains employed by the Company for three years from the
date of this Agreement. If Employee's employment with the Company is terminated,
whether with or without Cause, prior to three years from the date of this
Agreement, the interest due to Company with respect to said loan will not
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be forgiven. If Employee is terminated, whether with or without cause, prior to
his repayment of this loan, he shall repay such loan to the Company within six
(6) months from the date employment ceases, together with all interest which may
then be due. Any monies due the Employee at the time employment ceases shall be
applied against the outstanding loan in proportion to the severance payout.
Nothing in this paragraph is intended to limit or otherwise modify Section 2(a)
of this Agreement relating to the Term of this Agreement, which is terminable at
the will of either party, with or without cause.
(b) VACATION. The Employee is entitled to three (3) weeks
vacation per year. Employee shall take into consideration the needs of the
Company in establishing vacation periods.
(c) AUTOMOBILE ALLOWANCE. The Company shall provide to
Employee an automobile allowance of $675 per month, or reimburse Employee for
such amounts on a monthly basis, in accordance with Company policy.
(d) TELEPHONE. The Company will issue the Employee a
cellular telephone, which bills shall be paid by the Company in accordance with
the Company's policy.
(e) In addition to the compensation, expenses and other
benefits to be paid herein, Employee will be entitled to all rights and benefits
for which he shall be eligible under any health insurance, dental, 401(k),
incentive, bonus, pension or other extra compensation or "fringe" benefit plan
of the Company now existing or hereafter adopted for the benefit of the
executives or employees generally of the Company.
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(f) The Company agrees to waive any customary waiting period
for the Employee with respect to medical and dental benefit coverage.
(g) The Company reserves the right to modify, suspend or
discontinue any and all of the above plans, practices, policies and programs, at
any time, without recourse by Employee, so long as such action is taken
generally with respect to similarly-situated executives of the same level of the
Company.
8. PROTECTION OF CONFIDENTIAL INFORMATION. Employee acknowledges
that his position with the Company makes him privy to certain information, which
the Company deems confidential and secrets of its trade. Employee also
acknowledges that such confidential information is critical to the satisfactory
functioning, development and growth of the Company. Based on the foregoing
considerations, Employee agrees that, throughout the term of his employment with
Company, and for a reasonable period of time, thereafter:
(a) SECRECY. Employee shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge or
data relating to the Company or any of its affiliated companies and their
respective businesses. Employee agrees to maintain the strictest confidence all
confidential matters of the Company, including, without limitation, trade
"know-how" and trade secrets, customer lists, pricing policies, sales and
marketing plans, technical processes, financial data, formulae, management,
administrative, production, distribution and sales information, data
specifications and processes, inventions and research projects, and other
business affairs of the Company, and not to disclose them to anyone except (i)
in the course of performing his duties hereunder, (ii) with the express written
consent of the Chief Executive Officer or the Board of Directors of the Company,
(iii) except to the extent such
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information is already known to the general public, or (iv) to the extent
required by lawful Order of a court of competent jurisdiction.
(b) NONCOMPETITION. Employee agrees that at all times while
he is employed by the Company and, regardless of the reason for termination of
his employment or this Agreement, for a period of six (6) months thereafter, he
will not, directly or indirectly, without the prior written consent of the Board
of Directors of the Company:
(i) engage or participate in any business whose
products or services are competitive in any
material fashion with that of the Company;
(ii) assist or counsel any other person, firm,
operation, business entity to do any of the
above;
(iii) become employed by a firm, corporation,
partnership or joint venture or any other entity
which competes in a material fashion with the
business of the Company;
(iv) approach, solicit business from or otherwise do
business with any customer of the Company in
connection with any competitive service or
product provided by the Company.
(c) ANTISOLICITATION.
(i) Employee acknowledges that his position with the
Company requires the performance of services
which are unique and extraordinary in character
and places him a position of confidence and
trust with the customers and employees of the
Company, through which he shall obtain knowledge
of the Company's technical information and data
and become acquainted with customers and with
matters in which the Company has substantial
proprietary interests and, therefore, the
restrictive covenants set forth above are
necessary to protect the Company's legitimate
and proprietary business interests, and the
Company would not have entered into this
Agreement if such covenants were not included
herein.
(ii) Employee agrees that during the term of his
employment hereunder, and, thereafter for a
period of one (1) year, he will not, as a
principal, agent, employer, employee,
consultant, director or partner of any person,
firm, corporation or business entity other
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than the Company, or in any individual capacity,
without the prior, express written consent of
the Company approach, counsel or attempt to
induce any person who is then in the employ of
the Company, and who earned annually $30,000 or
more as a Company employee, to leave the employ
of the Company or attempt to employ any such
person or persons who at any time during the
preceding six (6) months he was in the employ of
the Company.
(d) RETURN OF PROPERTY. Employee hereby agrees to deliver
promptly to the Company on termination of his employment, or at any other time
as the Chief Executive Officer or the Board of Directors of the Company may so
request, all memoranda, notes, records, reports, manuals, drawings,
correspondence, records, books, designs, blueprints and any other documents (and
all copies of same) relating to the Company's business, which he may then
possess or have under his control.
(e) Employee acknowledges and represents that the
enforcement of the covenants set forth in Section 8 will not prevent Employee
from earning a livelihood or impose undue hardship upon him. The Employee also
acknowledges that his position requires furnishing him with confidential
information and it is reasonable and appropriate that he not divulge this
information to other parties. By approving this Agreement, and becoming a
signatory to it, the Employee is confirming that there is a reasonable and valid
reason that he not divulge this confidential information to any third party who
is in a position to use such information to the detriment of the Company.
(f) INJUNCTIVE RELIEF. It is expressly agreed that the
Company will or would suffer material, irreparable injury if the Employee were
to compete with the business of the Company or any subsidiary or affiliate of
the Company in violation of this Agreement for which there is no adequate remedy
at law and that it would not be possible to measure damages for such
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injury precisely and that, in the event of such a breach or threat thereof, the
Company shall be entitled to a temporary restraining order and/or a preliminary
or permanent injunction, restraining the Employee from engaging in such
prohibited activities or to such other relief as may be required specifically to
enforce any of the covenants contained herein. Employee consents and stipulates
to the entry of such injunctive relief in such a court prohibiting him from
competing with the Company or any subsidiary or affiliate of the Company in
violation of this Agreement. The Employee, therefore, acknowledges that there
would be reasonable basis upon which he could assert a valid objection to the
granting of such relief. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies for such breach or threatened breach.
These injunctive remedies are cumulative and in addition to any other rights and
remedies the Company may have, which may include a request for damages if the
facts and circumstances render such relief appropriate.
9. ARBITRATION. The Employee acknowledges that he has discussed and
considered the subject of arbitration with the Company and with his attorney.
The Employee also acknowledges that resolving differences and issues through
arbitration is more rapid and less costly than through litigation. Taking all
relevant factors into consideration, therefore, the Parties hereby agree that:
(a) Upon request by either party, Employee and Company
hereby agree to submit to final and binding arbitration in Xxxxxx County, New
Jersey, in accordance with the rules of the American Arbitration Association
then applicable, any controversy or claim arising out of or relating in any
fashion to their employment relationship, including, among other things and only
by way of example: (i) this Agreement, including, among other things, and only
by way of example, its enforcement, or interpretation, alleged breach, default
or misrepresentation(s) in
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connection with any of its provisions; (ii) the employment of the Employee,
including the termination thereof; (iii) any Federal, State, and City
antidiscrimination law, including, among others and only by way of example,
claims pursuant to Title VII of the Civil Rights Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, or any other similar
laws, rules, or regulations; (iv) and other tort, contractual or statutory
claims.
(b) Any party requesting arbitration shall do so within 30
days of the action or omission giving rise to the claim subject to arbitration.
(c) Judgment upon the award rendered by the arbitrator may
be entered in any court of competent jurisdiction. In reaching a decision, the
arbitrator shall have no authority to ignore, change, modify, add to or delete
from any provision of this Agreement, but instead is limited solely to
interpreting this Agreement in accordance with the laws of the State of New
Jersey.
(d) In the event either party institutes arbitration under
this Agreement, the party prevailing in any such proceeding shall be entitled,
in addition to all other relief, to reasonable attorneys fees and costs relating
to such arbitration.
(e) In addition to the foregoing, the Employee fully
understands and recognizes that by agreeing to arbitration, he waives his right
to a jury and such other benefits as may be otherwise available through
litigation.
10. NOTICES. All notices, requests, consents and other
communications required or permitted to be given hereunder, shall be in writing
and shall be deemed to have been duly given if delivered personally or sent by
prepaid telegram, telecopy (with confirmation of receipt) or
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mailed first-class, postage prepaid, by registered or certified mail (notice
sent by telegram or mailed shall be deemed to have been given on the date sent),
to the parties at their respective addresses set forth above or to such other
address as either party shall designate by notice in writing to the other in
accordance herewith.
11. GOVERNING LAW. This Agreement shall be governed by and
constructed and enforced in accordance with the local laws of the State of New
Jersey applicable to agreements made and to be performed entirely in New Jersey,
without regard to principles of conflict of laws.
12. ENFORCEABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
13. COMPLETE AGREEMENT. This Agreement is intended by the parties as
a complete and exclusive statement of the terms of their agreement and
constitutes and contains the entire agreement and final understanding between
the parties concerning Employee's employment with the Company and all other
subject matters addressed herein. This Agreement supercedes and replaces all
prior negotiations and all prior or contemporaneous representations, promises
and agreements, proposed or otherwise, whether written or oral, concerning
Employee's employment with the Company. Any representation, promise or agreement
not specifically included in this Agreement shall not be binding upon or
enforceable against either party.
14. CONSTRUCTION. Each party has cooperated in the drafting and
preparation of this Agreement. Hence, in any construction to be made of this
Agreement, the same shall not be
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construed against any party on the basis that the party was the drafter. The
captions of this Agreement are not part of the provisions herein and shall have
no force and effect.
15. ASSIGNABILITY. This Agreement, and Employee's rights and
obligations hereunder, may not be assigned by Employee. The Company may assign
its rights, together with its obligation, herewith in connection with any sale,
transfer or other dispositions of all or substantially all of its business or
assets; in any event the rights and obligation of the Company hereunder shall be
binding on its business or assets.
16. AMENDMENTS. This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto. No
superseding instrument, amendment, modification, cancellation, renewal or
extension hereof shall require the consent or approval of any person other than
the parties hereto. The failure of either party at any time or times to require
performance of any provision hereof shall in no matter affect the right at a
later time to enforce the same. No waiver by either party of the breach of any
term or covenant contained in this Agreement, whether by conduct or otherwise,
in any one or more instance, shall be deemed to be, or constructed as, a further
or continuing waiver of any such breach of any other term or covenant contained
in this Agreement.
17. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. The Employee
represents and warrants that he is free to enter into this Agreement and assume
the obligations stated therein. The Employee also represents and warrants that
he is under no other implied, actual, statutory and/or common law contractual
obligations and/or any other
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restrictions that are inconsistent with or would be breached or violated by the
execution of this Agreement and/or the performance of the Employee's duties and
obligations therein.
18. LEGAL COUNSEL. The Employee and the Company recognize that this
is a legally binding contract and acknowledge and agree that they have had the
opportunity to consult with legal counsel of their choice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY WITNESSED BY:
------- ------------
/s/ Xxxxx Xxxx /s/ Xxxxxx X. Xxxxxx, CFO 8/22/00
---------------------------------- ---------------------------------------------------
PARTY CITY CORPORATION Name/Title Date
By: Xxxxx Xxxx, CEO 8/22/00 /s/ Xxxxxx X. Xxxx, General Counsel 8/22/00
----------------------------- ---------------------------------------------------
Name/Title Date Name/Title Date
EMPLOYEE WITNESSED BY:
-------- ------------
/s/ Xxxxxx Xxxxxx 8/22/00 /s/ Xxxxxx X. Xxxxxx, CFO 8/22/00
---------------------------------- ---------------------------------------------------
XXXXXX XXXXXX Date Name/Title Date
/s/ Xxxxxx X. Xxxx, General Counsel 8/22/00
---------------------------------------------------
Name/Title Date
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