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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") by and between Party City
Corporation, a Delaware corporation (the "Company"), and Xxxxx Xxxx (the
"Executive"), dated as of the 10th day of December, 1999.
W I T N E S S E T H:
1. Employment Period. The Company shall employ the
Executive and the Executive shall serve the Company, on the terms and conditions
set forth herein, for the period commencing on December 8, 1999 (the "Effective
Date") and ending on the third anniversary of the Effective Date (the
"Employment Period"), provided that (a) the Employment Period will automatically
renew for additional one year periods upon the terms and conditions set forth
herein, unless either party gives the other party written notice of such party's
intention not to renew this Agreement at least three months prior to the end of
the original three-year Employment Period or any one-year extension of the
Employment Period, and (b) the Employment Period may be terminated earlier as
provided in Section 3 hereof.
2. Terms of Employment. (a) Position and Duties. (i)
Commencing on the Effective Date and for the remainder of the Employment Period,
the Executive shall serve as the Company's Chief Executive officer. Executive
shall report exclusively to the Company's Chairman of the Board of Directors
(the "Board") and shall have such duties, responsibilities and authority as
shall be determined by the Chairman of the Board in good faith, without any
limitation, and as are similar in nature to those duties, responsibilities and
authority customarily associated with the position of Chief Executive Officer.
The Executive shall be based at the Company's offices in Rockaway, New Jersey;
provided that the Executive shall perform such duties and responsibilities not
involving a permanent transfer of his base of operations outside of Rockaway,
New Jersey at such other places as shall from time to time be necessary to
fulfill his obligations hereunder.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote full time during normal business hours to the business and
affairs of the Company and to use the Executive's best efforts to perform
faithfully and efficiently such responsibilities. During the Employment Period
the Executive shall not be engaged in any other business activity whether or not
such business activity is pursued for gain, profit or other pecuniary advantage,
but this shall not be construed as preventing the Executive from investing his
personal assets in businesses which do not compete with the Company in such form
or manner as will not require any services on the part of the Executive in the
operation of the affairs of the companies in which such investments are made and
in which his participation is solely that of a passive investor, and except that
the Executive may purchase securities in any corporation whose securities are
regularly traded provided that such purchase shall not result in his owning
beneficially at any time, other than through a registered investment company,
one percent (1%) or more of the equity securities of any corporation engaged in
a business competitive with that of the Company.
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(b) Compensation. (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") of
$350,000, subject to annual review and adjustment at the discretion of the
Board. The Annual Base Salary shall be paid in accordance with the normal
payroll practices of the Company.
(ii) Incentive Compensation. In addition to Annual Base
Salary, the Executive shall be eligible to receive a cash performance bonus (a
"Performance Bonus") for each "Fiscal Year" (as defined below) during the
Employment Period (with proration based on days worked during the initial fiscal
year), provided the Company shall have achieved the performance objectives for
such Fiscal Year established by the Compensation Committee. The target amount of
the Performance Bonus for each Fiscal Year during the Employment Period shall be
fifty percent (50%) of Executive's Annual Base Salary, at the rate in effect as
of the last day of the Fiscal Year for which such bonus is paid. The actual
bonus may be more or less than 50% of Annual Base Salary, based on actual
performance according to the reasonable performance objectives established,
provided that the maximum bonus may not exceed 75% of Annual Base Salary. The
actual amount of the Performance Bonus for any Fiscal Year shall be payable as
soon as practicable after completion of the Company's audited financial
statements, but in no event later than 90 days following the end of the Fiscal
Year for which such Performance Bonus relates. For purposes of this Agreement,
"Fiscal Year" means each twelve month period ending June 30 or such other date
as hereinafter adopted.
(iii) Initial Stock Options. The Executive shall be granted,
on the Effective Date, nonqualified stock options (the "Initial Options") to
acquire 200,000 shares of the common stock of the Company, $0.01 par value per
share (the "Common Stock"), at an exercise price per share equal to $2.00. The
Initial Options shall have a term of ten years from the date of grant and,
subject to Sections 4 (a) (iv) and 8 (a) of this Agreement, shall vest and
become exercisable in equal installments on the first, second and third
anniversaries of the Effective Date, provided Executive remains in the employ of
the Company on each such anniversary date, unless Executive's employment is
terminated by the Company without "Cause" (as defined in Section 3(b)) or by the
Executive for "Good Reason" (as defined in Section 3(c)). All terms and
conditions relating to the Initial Options shall be set forth in a stock option
agreement (attached hereto as Exhibit A) to be executed by the Company and the
Executive on the Effective Date.
(iv) Subsequent Option Grants. The Executive shall be
granted, on each of the first, second and third anniversaries of the Effective
Date (each a "Grant Date"), nonqualified stock options to acquire 25,000 shares
of Common Stock, at an exercise price equal to the fair market value of a share
of Common Stock on such Grant Date ("Subsequent Options") , provided Executive
remains in the employ of the Company on each such Grant Date. The Subsequent
Options shall have a term of ten years from the Grant Date and, subject to
Sections 4(a) (iv) and 8(a) of this Agreement, shall vest in equal installments
on the first, second, third and fourth anniversaries of the Grant Date, provided
Executive remains in the employ of the Company on each such anniversary date,
unless Executive's employment is terminated by the Company without Cause or by
the Executive for Good Reason. All terms and conditions relating to the
Subsequent Options shall be set forth in a stock option agreement, the form of
which shall be identical to the stock option agreement attached hereto as
Exhibit A, to be executed by the Company and the Executive on each Grant Date.
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(v) Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under employee benefit plans
provided by the Company (including, without limitation, medical, prescription,
dental, disability, group life, accidental death and travel accident insurance
plans and programs, and incentive, savings and retirement plans and programs) to
the extent and on the same basis as is applicable generally to other senior
executives of the Company.
(vi) Automobile Allowance. During the Employment Period, the
Executive shall be reimbursed for the actual cost of leasing and insuring an
automobile, up to a maximum of $600.00 per month.
(vii) Expenses. During the Employment Period, the Company
shall pay or promptly reimburse the Executive for all reasonable business
expenses upon presentation of receipts therefor in accordance with the normal
practices of the Company.
(viii) Vacation. During the Employment Period, the Executive
shall be entitled to three weeks of paid vacation per year of employment.
3. Termination of Employment. (a) Death or Disability. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Board determines in good faith that the
Executive is unable to perform his services as a result of "Disability" (as
defined below), it may terminate the Executive's employment on account of such
Disability. For purposes of this Agreement, "Disability" shall mean the absence
of the Executive from the Executive's duties with the Company on a full-time
basis for 90 consecutive days, or 90 out of a 120 consecutive day period, as a
result of incapacity due to mental or physical illness which is determined by
the Board acting in good faith to prevent the Executive from performing his
duties to the Company.
(b) With or Without Cause. The Company may terminate the Executive's
employment during the Employment Period with or without Cause. For purposes of
this Agreement, "Cause" shall mean: (i) Executive's refusal to perform his
duties hereunder (other than a refusal resulting from his incapacity due to
physical and/or mental illness not caused by chronic alcoholism or drug
addiction) which continues for a period of more than thirty days after written
notice by the Company to the Executive of the acts constituting such refusal;
(ii) Executive's willful engaging in gross misconduct intended to harm the
Company which continues for a period of more than ten days after written notice
by the Company to the Executive of the act(s) that have resulted in material
harm to the Company; (iii) Executive's acts of theft, misappropriation,
embezzlement or fraud of the Company's funds; or (iv) Executive's inability to
perform his duties hereunder as a result of chronic alcoholism or drug
addiction.
(c) With or Without Good Reason. Executive may terminate his
employment with or without "Good Reason." For purposes of this Agreement, "Good
Reason" shall mean: (i) without Executive's express consent, any change in his
duties or responsibilities (including reporting responsibilities) that is
inconsistent in any material and adverse respect with his position, duties,
responsibilities or status as Chief Executive Officer immediately prior to such
change (including any material and adverse diminution of such duties or
responsibilities); (ii) any failure by the Company to comply in any material
respect with any of the provisions of Section 2 of this
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Agreement; or (iii) the Company's relocation of the Executive without his
consent to a location other than at the executive offices of the Company;
provided that a termination by the Executive with Good Reason shall be effective
only if, within 30 days following the delivery of a "Notice of Termination" (as
defined in Section 3(d)) for Good Reason by the Executive to the Company, the
Company has failed to cure the circumstances giving rise to Good Reason.
(d) Notice of Termination. Any termination by the Company or by the
Executive shall be communicated to the other party by a "Notice of Termination."
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon and (ii) if the "Date of Termination" (as defined Section 3(e)) is other
than the date of receipt of such notice, specifies the termination date (which
date shall be not more than thirty days after the giving of such notice). The
failure by the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause, whether or not known at
the time, shall not waive any right of the Company or preclude the Company from
asserting such fact or circumstance in enforcing the Company's rights.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for any reason other than
Disability, or if the Executive terminates employment with or without Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein in accordance with Section 3(d), as the case may be; (ii) if
the Executive's employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of death of the Executive or the first
date on which the Board makes the determination that the Executive shall be
terminated as a result of his having been absent from his duties to the extent
required by the definition of Disability, as the case may be; and (iii) if the
Executive's employment is terminated by reason of non-renewal of the Agreement
pursuant to Section 1 hereof, the Date of Termination shall be the last day of
the applicable Employment Period.
4. Obligations of the Company Upon Termination. (a) Other
Than for Cause, Death or Disability; by the Executive for Good Reason. If the
Company shall terminate the Executive's employment other than for Cause or
Disability, or if the Executive shall terminate his employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 60 days after the Date of Termination the sum of (A) the Executive's
Annual Base Salary through the Date of Termination to the extent not previously
paid ("Accrued Salary") and (B) if such termination occurs following the end of
a Fiscal Year and, prior to or following such termination, a Performance Bonus
for such Fiscal Year is determined by the Board to have been earned, the amount
of such Performance Bonus ("Accrued Bonus");
(ii) the Company shall continue to pay to the Executive his
Annual Base Salary, in effect as of the Date of Termination, for a period of (A)
one year following the Date of Termination or (B) the remainder of the
Employment Period, whichever is longer, payable in accordance with the Company's
normal payroll practices;
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(iii) the Company shall continue to provide to the Executive,
for the period of time during which the Executive is receiving his Annual Base
Salary in accordance with paragraph (ii) above, benefits under "employee welfare
plans" (as defined in Section 3(l) of the Employee Retirement Income Security
Act of 1974, as amended), at least equal to those which are provided to the
senior executives of the Company during such period; provided, however, that if
the Executive becomes reemployed with another employer and is eligible to
receive any of such benefits under another employer provided plan at the other
employer's cost, other than reasonable and customary employee contributions
(whether or not he actually elects to receive such benefits), the corresponding
benefits described herein shall be terminated; further, provided, however, that
the Company shall not be required to provide any such benefit if the effect
thereof would be to violate the terms of any law, plan or insurance policy or
jeopardize the tax benefit associated with such benefit to which the Company
otherwise would be entitled, but in such event, the Company shall pay to the
Executive, in cash, an amount equal to the cost of providing such benefit. Any
such benefits provided by another employer shall be promptly reported by the
Executive to the Company as the Executive becomes eligible therefor;
(iv) notwithstanding any provision hereof to the contrary,
all options granted pursuant to this Agreement shall immediately vest and remain
exercisable for the entire original ten-year term of such options.
(b) Death, Disability, With Cause, without Good Reason. If the
Executive's employment is terminated by reason of the Executive's death,
Disability, termination by the Company with Cause or termination by the
Executive without Good Reason, this Agreement shall terminate without further
obligations to the Executive or his legal representatives under this Agreement,
other than for payment of Accrued Salary and, in the case of a termination by
reason of death or Disability, payment of any Accrued Bonus, which shall be paid
to the Executive or his estate or beneficiary, as applicable, in a lump sum in
cash within 90 days following the Date of Termination. If the Executive's
employment is terminated for Cause, nothing in this Agreement shall prevent the
Company from pursuing any other available remedies against the Executive.
5. Confidential Information; Nonsolicitation;
Noncompetition; Nondisparagement. (a) The Executive shall hold in a fiduciary
capacity for the benefit of the Company all software, trade secrets,
compilations of information, records, specifications, work product created by
Executive for the Company or any of its affiliates, know-how, ideas, techniques,
theories, discovery, formulas, plans, charts, designs, drawings, lists of
current or prospective clients, business plans and proposals, current or
prospective business opportunities, financial records, research and development,
marketing strategies and programs, reports, products, improvements, methods of
distribution, sales prices, profits, costs, contracts, suppliers, business
methods, techniques and all other proprietary or confidential information,
knowledge or data relating to the Company or any of its affiliates, and their
respective businesses, created or obtained by Executive for the benefit of the
Company during the Executive's employment with the Company (collectively
"Confidential Information") , and which shall not be or become public knowledge
(other than by acts by the Executive or representatives of the Executive in
violation of this Agreement). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior written consent of
the Company or as may otherwise be
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required by law or legal process, communicate or divulge any such Confidential
Information to anyone other than the Company and those designated by it.
(b) The Executive hereby covenants and agrees that for one year
following the termination of the Executive's employment for any reason, or such
longer period as the Executive is receiving payments pursuant to Section
4(a)(ii) above, the Executive shall not, directly or indirectly, employ or seek
to employ any person who is at the Date of Termination, or was at any time
within the six-month period preceding the Date of Termination, an employee of
the Company or any of its subsidiaries or affiliates or otherwise cause or
induce any employee of the Company or any of its subsidiaries or affiliates to
terminate such employee's employment with the Company or such subsidiary or
affiliate for the employment of another company.
(c) The Executive hereby covenants and agrees that during the
Employment Period and for one year following the termination of the Executive's
employment for any reason, or such longer period as the Executive is receiving
payments pursuant to Section 4(a)(ii) above, the Executive will not, without the
prior written consent of the Company, engage in "Competition" (as defined below)
with the Company. For purposes of this Agreement, if the Executive takes any of
the following actions he will be engaged in "Competition:" engaging in or
carrying on, directly or indirectly, any enterprise, whether as an advisor,
principal, agent, partner, officer, director, employee, stockholder, associate
or consultant to any person, partnership, corporation or any other business
entity, that is principally engaged in any business in which the Company is
engaged, or is contemplating becoming engaged, on the Date of Termination, in
any area in which the Company is then engaged, or is then contemplating being
engaged, in such business; provided, however, that "Competition" will not
include ownership of less than one percent (1%) of securities in any enterprise
and exercise of rights appurtenant thereto.
(d) The Executive hereby covenants and agrees that during the
Employment Period and for one year following the termination of the Executive's
employment for any reason, or such longer period as the Executive is receiving
payments pursuant to Section 4(a)(ii) above, the Executive will not assist a
third party in preparing or making an unsolicited bid for the Company, engaging
in a proxy contest with the Company, or engaging in any other similar activity.
(e) During the Employment Period and following the termination of
the Executive's employment for any reason, the parties hereto each agree not to
make disparaging public statements concerning the other, provided that nothing
herein shall prevent either party hereto from enforcing its rights hereunder.
(f) The Executive acknowledges that a breach of any of the covenants
contained in Section 5(a), (b), (c), (d) or (e) may result in material
irreparable injury to the Company for which there is no adequate remedy at law,
that it will not be possible to measure damages for such 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 Executive from engaging in such prohibited
activities or such other relief as may be required specifically to enforce any
of the covenants contained therein. 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. The Company and Executive
hereby irrevocably submit
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to the exclusive jurisdiction of the courts of the State of New Jersey and the
Federal courts of the United States of America, solely in respect of the
injunctive remedies set forth in this Section 5(f) and the interpretation and
enforcement of Section 5(a), (b), (c), (d) and (e) solely insofar as such
interpretation and enforcement related to an application for injunctive relief
in accordance with the provisions of this Section 5(f), and the parties hereto
hereby irrevocably agree that (i) the sole and exclusive venue for any suit or
proceeding relating solely to such injunctive relief shall be in such a court,
(ii) all claims with respect to any application solely for such injunctive
relief shall be heard and determined exclusively in such a court, (iii) any such
court shall have exclusive jurisdiction over the person of such parties and over
the subject matter of any dispute relating to an application solely for such
injunctive relief, and (iv) each hereby waives any and all objections and
defenses based on forum, venue or personal or subject matter jurisdiction as
they may relate to an application solely for such injunctive relief in a suit or
proceeding brought before such a court in accordance with the provisions of this
Section 5(f).
(g) The restrictions set forth in Section 5(a), (b), (c), (d) and
(e) are considered by the parties hereto to be reasonable for the purposes of
protecting the business of the Company. However, if any such restriction is
found by a court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it is the intention of the parties that such
restriction shall be interpreted to extend only over the maximum period of time,
range of activities or geographic area as to which it may be enforceable.
(h) In the event of the termination of Executive's employment for
any reason, Executive will deliver to the Company all non-personal documents and
data of any nature and in whatever medium pertaining to Executive's employment
with the Company, or any of its subsidiaries or affiliates and he will not take
with him any such property, documents or data of any description or any
reproduction thereof, or any documents containing or pertaining to any
Confidential Information.
6. Post-Termination Assistance. The Executive agrees that
after his employment with the Company has terminated he will provide, upon
reasonable notice, such information and assistance to the Company as may
reasonably be requested by the Company in connection with any audit,
governmental investigation or litigation in which it or any of its affiliates is
or may become a party; provided, however, that (a) the Company agrees to
reimburse the Executive for any related out-of-pocket expenses, including travel
expenses, and, if the Executive is not then being paid severance pursuant to
Section 4(a)(ii), to pay the Executive reasonable compensation for his time
based on his rate of Annual Base Salary at the time of termination and (b) any
such assistance may not unreasonably interfere with the then-current employment
of the Executive.
7. Successors. (a) This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's heirs and personal and legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
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8. Change in Control. (a) In the event of a "Change in
Control" of the Company, the initial Stock Options and any Subsequent Stock
Options that are not yet vested and exercisable as of the date of the Change in
Control, shall become immediately vested and exercisable.
(b) For purposes of this Agreement, a "Change in Control" shall
mean:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 50% or more (on a fully diluted basis) of either (x) the then outstanding
shares of Common Stock, taking into account as outstanding for this purpose such
shares issuable upon the exercise of options or warrants, the conversion of
convertible shares or debt, and the exercise of any similar right to acquire
shares (the "Outstanding Company Common Stock") or (y) the combined voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors or member managers (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of this
Section 8(b)(i), the following acquisitions shall not constitute a Change in
Control: (A) any acquisition by the Company or any "affiliate" of the Company,
within the meaning of 17 C.F.R. Section 230.405 (an "Affiliate"), (B) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Affiliate of the Company, (C) any acquisition
by any corporation pursuant to a transaction which complies with clauses (x),
(y) and (z) of Section 8(b)(ii), or (D) any acquisition by any entity in which
the Executive has a direct or indirect equity interest of greater than five
percent; or
(ii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (x) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then outstanding shares of common stock or
interests and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation or other entity resulting from such Business
Combination (including, without limitation, a corporation or entity which as a
result of such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, and (y) no Person (excluding (A)
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any Affiliate of the Company, or such corporation resulting from such
Business Combination or any Affiliate of such corporation, or (B) any entity in
which the Executive has a direct or indirect equity interest of greater than
five percent or any Affiliate of such entity) beneficially owns, directly or
indirectly, 50% or more (on a fully diluted basis) of, respectively, the then
outstanding shares of common stock or interests of the corporation or entity
resulting from such Business Combination, taking into account as outstanding for
this purpose such common stock or interests issuable upon the exercise of
options or warrants, the conversion of convertible stock, interests or
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debt, and the exercise of any similar right to acquire such common stock or
interests, or the combined voting power of the then outstanding voting
securities of such corporation or other entity except to the extent that such
ownership existed prior to the Business Combination and (z) at least a majority
of the members of the board of directors or equivalent governing body of the
corporation or other entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(iii) Approval by the shareholders or equityholders of the
Company of a complete liquidation or dissolution of the Company.
9. Indemnification. (a) The Company shall indemnify and
advance "Expenses" (as defined below) to the Executive to the fullest extent
permitted by applicable law in effect on the date hereof and to such greater
extent as applicable law may thereafter from time to time permit. The Company
shall advance all Expenses incurred by the Executive or on his behalf in
connection with any "Proceeding" (as defined below) within twenty (20) days
after the receipt by the Company of a statement or statements from the Executive
requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by the Executive and shall include or
be preceded or accompanied by an undertaking by the Executive or on his behalf
to repay any Expenses advanced if it shall ultimately and finally be determined
by a court of competent jurisdiction that the Executive is not entitled to be
indemnified against such Expenses. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that the Executive has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
(b) For purposes of this Section 9, "Expenses" means all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding. "Proceeding" means any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, including,
without limitation, any action or conduct occurring prior to the Effective Date.
10. Miscellaneous. (a) Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
Jersey, without reference to principles of conflict of laws.
(b) Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
(c) Stipulation. Executive hereby stipulates to the company that on
the date of this Agreement, neither Executive nor his affiliates has any claim
of any type against the Company, except claims that may arise under this
Agreement, and represents and warrants that this Agreement does not conflict
with any other agreement to which Executive is a party.
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(d) Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(c) Notices. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Xxxxx Xxxx
000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Company:
Party City Corporation
000 Xxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Chairman of the Board of Directors and Chief
Financial Officer
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Tel: 000 000-0000
Fax: 000 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(f) 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.
(g) Withholding. The Company shall withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as may be
required to be withheld pursuant to any applicable law or regulation.
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(h) No Waiver. The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement. No waiver of any provision of
this Agreement by the Company or the Executive shall be effective unless it is
in a writing signed by the party against whom enforcement is sought.
(i) Entire Agreement. Except as otherwise expressly provided herein,
this Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and all promises, representations,
understandings, arrangements and prior agreements relating to such subject
matter (including those made to or with Executive by any other person or entity)
are merged herein and superseded hereby.
(j) Amendments. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is approved
by the Board or a person authorized thereby and is agreed to in writing by
Executive and such officer as may be specifically designated by the Board. No
waiver by any party hereto at any time of any breach by any other party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a wavier of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
waiver of any provision of this Agreement shall be implied from any course of
dealing between or among the parties hereto or from any failure by any party
hereto to assert its rights hereunder on any occasion or series of occasions.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of Directors,
the Company has caused this Agreement to be executed in its name an its behalf,
all as of the day and year first above written.
This instrument may be executed in any number of counterparts,
each of which shall be deemed to be an original, and such counterparts together
shall constitute one and the same instrument.
XXXXX XXXX
/s/ Xxxxx Xxxx
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PARTY CITY CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Chairman and CEO
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