EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement, dated and effective as of this 4th day of
November, 1996, by and between Play By Play Toys & Novelties, Inc., a Texas
corporation (the "Company"), and Xxxxxxx X. Xxxxx, an individual whose primary
residence is located in the state of Texas (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to employ Employee on the terms set forth
below, and Employee is willing to accept such employment on such terms.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto do hereby agree:
1. DEFINITIONS. As used in this Agreement, the following terms have
the meanings set forth below:
a. "Board" means the Company's board of directors.
b. "Cause" shall be deemed to exist if, and only if:
i. Employee is convicted in a court of law of any crime (A) that
constitutes a felony relating to the Company or any other
business endeavor or (B) that constitutes a felony which involves
moral turpitude; or
ii. Employee engages in willful misconduct or any breach of or
willful failure to perform his duties and responsibilities
hereunder, which misconduct, breach, or failure shall continue
after the Company, by action of the Board, shall have advised
Employee thereof in writing and shall have afforded Employee a
reasonable opportunity (which shall be at least 30 days from the
date of such written advice or knowledge thereof) to correct the
acts or omissions complained of, and which Employee shall have so
failed to take action to correct within such period.
c. "Disability" means Employee's inability to fully and competently
perform the duties hereunder for a period of at least three (3)
consecutive months by reason of mental or physical illness or other
incapacity.
d. "Notice of Termination" means a notice that sets forth the date
of termination and, in the event of termination for Cause, the facts and
circumstances claimed to provide a basis for termination of Employee's
employment.
2. TERM. Enployee's employment with the Company pursuant to this Agreement
shall commence on January 2, 1997 (the "Commencement Date") and shall continue
until January 2, 2000, unless sooner terminated by Employee or the Company.
3. DUTIES. During the term of his employment as provided in Section 2
above, the Company will employ Employee as its Chief Financial Officer, with
such responsibilities as would typically be associated with such a position and
as the Company may from time to time determine during the term of this
Agreement. Employee will comply with all applicable laws, with all corporate
documents governing the conduct of the Company's business and affairs and
with all of the Company's written policies. Employee agrees to devote
substantially all of his business time to the performance of his duties
hereunder.
4. COMPENSATION.
a. The Company shall pay Employee for all services to be performed
hereunder during the term of this Agreement an annual salary of $175,000
(the "Salary"), which Salary shall begin to accrue on the Commencement
Date and shall be payable in bi-weekly installments or as otherwise agreed
by Employee and the Company.
b. An annual bonus in the form of cash and/or stock of the Company
may be paid to Employee at the discretion of the Board, based on the
performance of the Company and the Employee as determined by the Board.
c. In addition to the payments and awards set forth in Sections 4(a)
and 4(b) above:
i. During the term of this Agreement, upon submission of a
reasonable accounting, the Company shall reimburse Employee for
all reasonable travel, entertainment, and other business expenses
that are in compliance with Company policy related to his
employment hereunder.
ii. During the term of this Agreement, Employee shall be eligible
for the Company's employee benefit programs on the terms on which
the same are extended to the Company's executive officers
generally.
The Company shall have the right to deduct from all payments to be made
under this Agreement any federal, state, or local taxes required by law to
be withheld from such payments.
5. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. Employee agrees that, during his employment by the Company and
for one year thereafter, he will not use or disclose to others, directly
or indirectly, any confidential information relating to the business,
prospects, or plans of the Company or its subsidiaries. Notwithstanding
the previous sentence, Employee shall not be in violation of this section
in the event of a disclosure pursuant to a court action or governmental
rule, regulation, or proceeding (hereinafter referred to as an "Ordered
Disclosure") provided Employee has notified the Company of such Ordered
Disclosure within five business days of being personally served with such
Ordered Disclosure. Employee agrees to cooperate in good faith with the
Company in responding to such Ordered Disclosure in order to prevent,
limit or impose restrictions on such Ordered Disclosure. In no event,
however, shall this section require Employee to take action or otherwise
cause Employee to be in violation of any law or result in contempt of such
Ordered Disclosure.
b. Upon termination of his employment with the Company, Employee
shall surrender to the Company any and all work papers, reports, manuals,
documents, and the like (including all originals and copies thereof) in
his possession which contain
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confidential information relating to the business, prospects, or plans of
the Company or its affiliates.
c. The Company may seek the assistance, cooperation or testimony of
Employee following any such termination in connection with any
investigation, litigation or proceeding arising out of matters within the
knowledge of Employee and related to his position as an officer or
employee of the Company, and in any instance, Employee shall provide such
assistance, cooperation or testimony and the Company shall pay Employee's
reasonable costs and expenses in connection therewith. In addition, the
Company will compensate Employee for such time at a per diem rate derived
from Employee's salary from the Company at the time of Employee's
termination.
6. TERMINATION.
a. This Agreement shall automatically terminate upon Employee's
death or Disability. In addition, this Agreement may be terminated by the
Company or Employee at any time for any reason whatsoever. Any termination
of Employee's employment by the Company or by Employee (other than
termination pursuant to the first sentence of this subsection 6(a)) shall
be communicated by written Notice of Termination to the other party hereto
in accordance with Section 14.
b. Upon termination of this Agreement by the Company for Cause or by
the Employee for any reason, Employee shall be entitled to receive, and
the Company shall pay Employee (or, if such termination is caused by
Employee's death, his estate or as may be directed by the legal
representatives of such estate) within 30 days of the termination date,
any unpaid amounts earned by or payable to Employee through the date of
termination under Sections 4(a), 4(b) (if any), 4(c) and that portion of
the Option exercisable pursuant to Section 7.
c. Upon termination of this Agreement by the Company for any reason
other than Cause, Employee shall be entitled to receive, and the Company
shall pay Employee within 30 days of the termination date, (i) any unpaid
amounts earned by or payable to Employee through the date of termination
under Sections 4(a), 4(b) (if any) and 4(c) above and (ii) an amount equal
to the sum of (x) the Salary as then in effect plus (y) the amount of the
annual bonus, if any, paid in cash to the Employee pursuant to Section
4(b) above for the most recent year during the term of this Agreement,
plus (z) that portion of the Option exercisable pursuant to Section 7.
d. The compensation provided in Section 6(b) or 6(c) above, as
applicable, shall be the only compensation payable as a result of the
termination events described in such subsections and, except as may
otherwise be provided in this Agreement or in any other agreement or the
NQSO Agreement, as defined below, Employee shall not be entitled to any
accrued bonuses, acceleration of vesting with respect to any options or
acceleration of any other rights he may have under any employee benefit
plan or arrangement.
7. OPTIONS.
a. Effective as of the date of this Agreement (the "Date of Grant"),
the Company hereby grants to the Employee pursuant to the terms and
conditions of the Play-By-Play Toys & Novelties, Inc. Nonqualified Stock
Option Agreement (the "NQSO Agreement") attached hereto as Exhibit A, an
option (the "Option") to purchase 200,000
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shares of the Company's Common Stock, no par value ("Common Stock"), at a
price of $8.00 per share (the "Option Price"), the current market price of
the Common Stock. The Option shall be exercisable as set forth in the NQSO
Agreement.
b. The granting of the Option by the Company to the Employee shall
not impose upon the Company any obligation to employ or continue to employ
the Employee; and the right of the Company to terminate the employment of
the Employee with the Company shall not be diminished or affected by
reason of the grant of the Option to the Employee pursuant to the NQSO
Agreement.
8. INDEMNIFICATION. Except to the extent attributable to Employee's
willful misconduct or actions leading to the Company's termination of this
Agreement for Cause, the Company shall indemnify Employee against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with any action, suit, or
proceeding to which Employee has been made a party by reason of his capacity as
an employee of the Company if Employee acted in good faith and in a manner
Employee reasonably believed to be in or not opposed to the best interest of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Employee's conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Employee did not act in good faith and in a manner which
Employee reasonably believed to be in or not opposed to the best interest of the
Company, and with respect to any criminal action or proceeding, had reasonable
cause to believe that Employee's conduct was unlawful.
9. ADDITIONAL REMEDIES. In the event of a breach or a threatened breach of
the terms of Section 5 by Employee, the Company shall, in addition to all other
remedies, be entitled to a temporary or permanent injunction or a decree for
specific performance, in accordance with the provisions hereof, without showing
any actual damage or that monetary damages would not provide an adequate remedy
and without any bond or other security being required.
10. NONASSIGNMENT. This Agreement is personal to Employee and shall not be
assigned by him. Employee shall not hypothecate, delegate, encumber, alienate,
transfer, or otherwise dispose of his rights and duties hereunder. The Company
may assign this Agreement without Employee's consent to any other entity who, in
connection with such assignment, acquires all or substantially all of the
Company's assets, or into or with which the Company is merged or consolidated.
11. WAIVER. The waiver by the Company of a breach by Employee of any
provision of this Agreement shall not be construed as a waiver of any subsequent
breach by Employee.
12. SEVERABILITY. If any clause, phrase, provision, or portion of this
Agreement or the application thereof to any person or circumstance shall be
invalid or unenforceable under any applicable law, such event shall not affect
or render invalid or unenforceable the remainder of this Agreement and shall not
affect the application of any clause, provision, or portion hereof to other
persons or circumstances.
13. GOVERNING LAW. This Agreement shall be construed by, subject to, and
governed in accordance with the internal laws of the state of Texas.
14. NOTICES. All notices, requests, demands, and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when
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delivered by hand, facsimile, the next business day after depositing for
overnight delivery via a nationally recognized overnight delivery service or 48
hours after mailing at any post office by registered or certified mail, postage
prepaid, addressed as follows, or to such other address as shall have been
designated in writing by the addressee:
a. If to the Company:
Play By Play Toys & Novelties, Inc.
0000 Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: President
b. If to Employee:
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx 00000
15. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
of the parties and supersedes all prior agreements, arrangements, and
communications, whether oral or written, and this Agreement shall not be
modified or amended except by written agreement of the Company and Employee.
16. CONSTRUCTION. Words used in the masculine apply equally to the
feminine, and wherever the context dictates, the plural should be read as the
singular and the singular as the plural. References to Sections are to Sections
of this Agreement. The headings at the beginning of each section are inserted
for convenience only and are not intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
COMPANY:
PLAY BY PLAY TOYS & NOVELTIES, INC.
By_________________________________
Name:______________________________
Title:_____________________________
EMPLOYEE:
___________________________________
Xxxxxxx X. Xxxxx
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made
and entered into as of the 29th day of August, 1997, by and between PLAY BY PLAY
TOYS & NOVELTIES, INC., a Texas corporation (the "Company"), and XXXXXXX X.
XXXXX, an individual whose primary residence is located in the state of Texas
(the "Employee").
W I T N E S S E T H :
WHEREAS, the Company and the Employee entered into that certain Employment
Agreement dated as of the 4th day of November, 1996 (the "Employment
Agreement"), a copy of which is attached hereto as Exhibit "A"; and
WHEREAS, the Company and the Employee, in order to carry out the parties'
original intentions, desire to amend the Employment Agreement by modifying the
Date of Grant for the nonqualified stock options.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Section 7(a) of the Employment Agreement is hereby amended by deleting
the same in its entirety and inserting in lieu thereof the following:
"a. Effective as of the Commencement Date (the "Date of
Grant"), the Company hereby grants to the Employee pursuant to the
terms and conditions of the Play-By-Play Toys & Novelties, Inc.
Nonqualified Stock Option Agreement (the "NQSO Agreement") attached
hereto as Exhibit A, an option (the "Option") to purchase 200,000
shares of the Company's Common Stock, no par value ("Common Stock"),
at a price of $8.00 per share (the "Option Price"). The Option shall
be exercisable as set forth in the NQSO Agreement."
2. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors, executors,
administrators, personal representatives and permitted assigns.
3. All defined terms not defined herein shall have the same meaning as set
forth in the Employment Agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment the day and
year first above written.
COMPANY:
PLAY BY PLAY TOYS & NOVELTIES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
EMPLOYEE:
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Xxxxxxx X. Xxxxx
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