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Exhibit 10(g)
EMPLOYMENT AGREEMENT made this 11th day of June, 1996, between Amscan
Inc., a New York corporation with offices at 00 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000 (the "Employer" or "Company" and Xxxxx X. Xxxxxxxx, residing at 00
Xxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 (the "Employee").
1. Employment of the Employee.
The Employer employs the Employee to serve as: Chief Financial
Officer and to perform such other duties as may be assigned to him from time to
time, by the Company.
(a) The Employee shall devote his entire working time and
attention to the Employer's business. During the term of this agreement, the
Employee shall not engage in any other business activity, whether or not it is
pursued for gain or profit.
(b) Company may designate Employee as an officer or director without
additional compensation. The Board of Directors may at its will change such
designation.
(c) Employee's responsibilities will be determined by the Company and
may include but not be limited to:
(i) supervision, administration and management of the day
to day financial operations of the Company;
(ii) banking relations and financing as required;
(iii) implementation of investment decisions;
(iv) the orderly and efficient maintenance of the
Company's business records, meeting legal and tax
compliance;
(v) measuring and reporting the Company's financial
results to the Board, as may be requested;
(vi) conducting the financial operations of the Company so
as to meet all current operating expenses, provide
for debt retirement, purchase of new equipment and
the maintenance of the Company's facilities; and
(vii) other services as Employer may require, consistent
with Employee's position as an executive of the
Company.
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2. Term of Employment and Effective Date Thereof.
(a) The initial term of employment of the Employee hereunder
shall start as of January 1, 1997 or earlier upon written mutual consent of the
Company and Employee (the "Commencement Date") and shall continue until
terminated as provided herein.
(b) The Employee's employment hereunder shall terminate upon
the occurrence of any of the following events:
(i) the mutual agreement of the parties;
(ii) the death of the Employee or disability which
shall mean for the purposes of this agreement the mental or physical illness or
disability of the Employee which continues for ninety (90) or more consecutive
days and which prevents him from performing his obligations hereunder as
determined exclusively but in good faith by the Company;
(iii) the termination of the Employee's employment by
the Employer, for "Cause" as defined hereinafter.
(iv) upon thirty (30) days' prior notice the
unilateral cessation or discontinuance by the Employee of his working for or
employment by the Employer;
(v) the election by the Employer to terminate the
Employee's employment at any time and for any reason other than the reasons set
forth in the preceding sub-paragraphs (i), (ii), (iii) and (iv) subject to the
provisions of paragraph 7. hereof.
(c) For the purposes of this agreement, "Cause" shall mean:
(i) the commission by the Employee of any crime
or an intentional act of fraud against the
Employer or;
(ii) any act of gross negligence or willful
misconduct on the part of the Employee with
respect to his duties under this agreement
or;
(iii) any act of willful disobedience on the part
of the Employee in violation of specific and
reasonable directions of the Board of
Directors or;
(iv) a failure of any representation or warranty
made by Employee pursuant to this agreement
to be true when made;
(d) Upon termination of the Employee's employment hereunder,
the Employee shall have no further rights under this Agreement, except as
expressly herein set forth. But such termination shall not preclude the Employer
from enforcing any remedies available to it by law in consequence of a breach by
the
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Employee of his obligations hereunder, including without limitation the
enforcement of any restrictive covenants hereunder.
3. Base Compensation.
(a) For his services hereunder, the Employer shall pay to the
Employee during the term of this agreement, the following base annual salary:
One Hundred and Fifty Thousand ($150,000.00) Dollars. The parties agree that
said base compensation may be modified by their mutual consent.
(b) Employee's base annual salary shall be payable in regular
intervals in accordance with the Company's payroll practices.
(c) All compensation shall be subject to such withholding of
any federal, state or local taxes as may be required by law with respect to
these payments.
(d) In the event of the termination of the Employee's
employment before the end of a Contract Year (any period equaling twelve (12)
months in the aggregate from the Commencement Date), the base yearly salary for
the year of termination shall be prorated to the date of termination.
4. Bonus.
Employee shall receive a bonus of Fifty Thousand ($50,000.00)
Dollars due and payable only upon the Employee being employed by Employer at the
completion of the initial Contract Year. Payment of said bonus shall be subject
to such withholding of any federal, state or local tax as may be required by law
with respect to such payment and payment thereof shall be made within thirty
(30) days after the end of the Contract Year.
5. Fringe Benefits.
As additional consideration for the services of the Employee
under this Agreement, the Employer shall provide to the Employee so long as he
is employed by the Company, the following fringe benefits if said benefits are
generally provided by the Employer to its other executive employees, including:
group insurance life, accidental death and dismemberment, hospitalization, major
medical and dental, long-term disability, profit-sharing and/or 401(k).
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6. Business Expenses.
The Employee may incur, for the benefit of the Company and in
furtherance of the Company's business, various expenses included but not limited
to travel, entertainment and promotion expenses. The Employer, at its option,
shall either pay such necessary expenses to the Employee directly, advance sums
to be used for payment of such necessary expenses or on submission by the
Employee of proper vouchers therefor, reimburse the Employee for such necessary
expenses actually incurred by him.
7. Termination of Agreement at Employer's Option.
A. In the event of termination of the Employee's employment at
any time after the Commencement Date, the Employer shall make the following
payments to the Employee:
(i) The balance of base yearly salary (but not the
bonus) payable to the Employee in accordance with
paragraph 3. hereof, pro-rated to the date of
termination.
B. In addition to the foregoing in the event of termination
pursuant to paragraph 2.(b)(v), the Employer shall pay to the Employee the
following amount: One Hundred and Fifty Thousand ($150,000.00) Dollars payable
within thirty (30) days following termination of Employee's employment.
8. Special Circumstances.
A. If as provided herein in paragraph 2.(a) the parties
mutually agree to an early Commencement Date, the Employer hereby reserves the
right if X.X. Xxxxxx Co. commences any action or proceeding or threatens to
bring any action or proceeding claiming breach of any non-competition covenant
by which the Employee may be bound, to suspend this contract and the employment
of Employee hereunder with the following effect:
(i) During such period of suspension the Employee
shall not be entitled to any monies or payments other
than those referenced in paragraph 7.A.(i).
(ii) During said period of suspension the Employee
shall not receive any of the benefits as specified in
paragraph 5.
(iii) During the period of suspension, all other
terms and provisions of this agreement shall remain
in full force and effect including the restrictive
covenant provisions contained in paragraph 9. hereof;
provided that nothing herein contained is
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intended to prohibit Employee from being employed as
long as said employment is not in conflict with the
provisions of paragraph 9.
B. If on or before January 31, 1997, any proceeding, action or
claim by X.X. Xxxxxx Co. as provided in the preceding paragraph 8.A. shall have
been resolved, then Employer agrees to annul the suspension and to restore his
employment pursuant to the terms and provisions of this agreement. For the
purposes of this agreement, the matter shall be deemed to have been resolved if
the claim by X.X. Xxxxxx shall be fully and completely withdrawn or
alternatively, if an action or proceeding shall have been commenced, such action
and proceeding shall have been fully determined permitting the employment of
Employee by the Company without any further right of appeal.
9. Restrictive Covenant.
In consideration of his special and unique services and his
position, which by its nature exposes him to trade secrets, proprietary
information and other confidential material related to the Company and with full
recognition by the Employee that this restrictive covenant is essential to
protect the business of the Company, developed by it at great expense and with
great effort, the Employee covenants and agrees as follows with the Employer:
(a) Except as herein provided, the Employee covenants and
agrees with the Employer that for a period of one (1) year after the termination
of his employment hereunder or the suspension of the Employee's employment
pursuant to paragraph 8. above without the annulment of such suspension and the
restoration of the Employee's employment, the Employee will not, directly or
indirectly, as proprietor, partner, shareholder, officer, director, employee or
consultant, or in any other capacity for his own benefit or for or with any
other person or entity, engage in or perform services in any business or
activity involved in or related to the business in which the Employer or any of
its Affiliates, (as defined in sub-paragraph (b) of this paragraph) are now
engaged or may hereafter become engaged, in any trading area in which the
Employer or any of its Affiliates may be engaged in business or trade; provided
however that the ownership by the Employee of less than 5% of the issued and
outstanding capital stock of a publicly traded corporation shall not be deemed
to be in violation of this provision.
(b) The parties acknowledge that the Employer is associated
with other companies either as an owner, shareholder, co-venturer or otherwise,
which are engaged in businesses similar to or related to the business of the
Employer. These businesses and any other businesses with which the Employer may
hereafter become associated which will conduct business similar to or related
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to the business of the Employer are referred to for the purposes of this
paragraph 9. and the restrictive covenant herein as Affiliates of the Employer.
(c) The Employee further covenants that he will not, at any
time outside the scope of his responsibilities as an Employee, without the prior
written consent of the Employer furnish or disclose to any person who is not
then an officer, employee or agent of the Employer, (i) any trade secret of the
Employer or of any Affiliate, or (ii) any documents, records, plans, models,
customer lists or other tangible property of the Employer or any Affiliate,
regardless of its form, which may come into his possession, custody or control
in consequence of his employment.
(d) In addition to a right to accounting by the Employer
and/or damages and/or any other relief to which the Employer may be entitled as
a result of the Employee's breach of the provisions of this paragraph, the
Employer or the Affiliates will be entitled to injunctive relief restraining any
such breach or threatened breach, or the continuation of such breach, by the
Employee, provided however, that if a court of competent jurisdiction shall
determine that this covenant shall be enforceable only if limited to a shorter
period of time or to a smaller geographical area than is herein expressly
provided, or otherwise limited, then and in such event, this covenant shall be
deemed to be limited to the extent so determined to be enforceable, in the same
manner and to the same extent as if such limits were expressly provided herein.
(e) The rights hereunder by the Employer against the Employee
may be assigned by the Employer and may be enforced by any successors or assigns
of the Employer or any Affiliate as herein defined.
10. Warranties.
Employee warrants and represents that upon the Commencement
Date of this agreement:
(i) Other than his employment contract with X. X.
Xxxxxx Co., there is no agreement written or oral
with any person or entity which shall affect in any
way Employee's right or authority to enter into this
agreement;
(ii) He is not in breach of any provision of the
aforementioned employment agreement with X. X. Xxxxxx
Co. including but not limited to any noncompetition
or restrictive covenant contained therein;
(iii) He does not know of any intention on the part
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of any Company or person to commence any action or
proceeding against him to restrict his employment by
the Company as herein provided nor has any such
action or proceeding been threatened.
11. Notices.
Any notice hereunder shall be sufficient if sent by Certified
Mail, Return Receipt Requested, to the party to be notified at his or its
address set forth below or at such other address as the party to be notified may
have otherwise designated, by notice in writing, with copies to their respective
attorneys as set forth below:
TO AMSCAN OR ANY OF AMSCAN, INC.
ITS AFFILIATES AT: 00 XXXXXXXXXX XXXX
XXXXXXXX, N.Y. 10523
WITH A COPY TO: XXXXXXX & XXXXXXXXX, LLP
XXX XXXXXXXXX, ESQ.
XXX XXXXX XXXXXXXX
XXXXX XXXXXX, X.X. 00000
TO EMPLOYEE: XXXXX X. XXXXXXXX
00 XXXX XXXXXX
XXXX XXXXXXXXX, X.X. 00000
12. Amendments.
No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as herein otherwise
provided.
13. Governing Law.
This Agreement shall be governed in all respects by the laws
of the State of New York.
14. Assignment.
This contract and the rights hereunder may be assigned by the
Company subject to its obligations hereunder.
15. Paragraph Headings.
The paragraph headings used in this Agreement are included
solely for convenience and shall not affect or be used in connection with the
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMSCAN INC. (Employer)
By:/s/XXXX XXXXXXXXXXX
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Xxxx Xxxxxxxxxxx
President
/s/XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
(Employee)
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