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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of the 12th day of April,
2000 between Party City Corporation, a Delaware corporation (together with its
successors and assigns referred to herein as the "Company"), with principal
executive offices located at 000 Xxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
Xxxxxx X. Xxxx with an address at 0 Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxxxxx, XX 00000
(the "Employee").
W I T N E S S E T H
WHEREAS, the Company desires to employ Employee to engage in such
activities and to render such services under the terms and conditions hereof and
has authorized and approved the execution of this Agreement; and
WHEREAS, Employee desires to be employed by the Company under the terms
and conditions hereinafter provided:
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto hereby agree as follows:
1. Employment, Duties and Acceptance.
1.1 Services. The Company hereby employs Employee, for the Term
(as hereinafter defined in Section 2 hereof), to render exclusive and full-time
services to the business and affairs of the Company as Senior Vice President --
Administration and Franchise and, in connection therewith, shall perform such
duties as directed by the Board of Directors of the Company from time to time,
in its reasonable discretion, and shall perform such other duties as shall be
consistent with the responsibilities of such office. Employee shall perform
activities related to such office as he shall reasonably 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
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Directors. Employee shall use his best efforts, skills and abilities to promote
the interests of the Company and its subsidiaries.
1.2 Acceptance. Employee hereby accepts such employment and
agrees to render the services described in Section 1.1 hereof.
2. Term of Employment.
The term of Employee's employment under this Agreement (the
"Term") shall commence on April 12, 2000 (the "Effective Date") and shall
terminate on April 12, 2002, unless sooner terminated pursuant to Section 8 of
this Agreement; provided, however, this Agreement may be extended for additional
periods of one (1) year if, on or before the thirtieth (30th) day prior to the
then applicable termination date, both parties hereto enter into a written
agreement to extend the Term of this Agreement for a period of one (1) year. Any
reference in this Agreement to time periods or matters to occur after April 12,
2002 (other than as described in Section 9 hereof) are provisional and are only
applicable to the extent the Agreement is renewed in accordance with the
provisions of this Section 2. Notwithstanding anything to the contrary contained
herein, the pro visions of this Agreement governing Protection of Confidential
Information shall continue in effect as specified in Section 9 hereof.
3. Base Salary/Bonus.
3.1 During the Term, as compensation for all services to be
rendered by Employee pursuant to this Agreement the Company agrees to pay
Employee a minimum base salary ("Base Salary") at the annual rate of
$218,400.00. All payments of Base Salary shall be prorated during any partial
calendar year during the Term. Such Base Salary may be adjusted upward on a
merit basis by the Board of Directors in its sole discretion. The Employee will
be reviewed annually on or about the anniversary of the Effective Date by the
Chief Executive
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Officer to determinate if Employee's compensation (including Base Salary) should
be adjusted. The Chief Executive 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 this Agreement in
accordance with the Company's customary payment practices.
3.2 Bonuses. In addition to Base Salary. the Employee shall be
entitled to an annual bonus each year based on the attached bonus plan;
provided, however, Employee achieves certain performance goals including: (i)
the performance of the Company based upon performance criteria established by
the Board of Directors; and (ii) the performance of the Employee in his function
as Senior Vice President -- Administration and Franchise of the Company as
determined by the Board of Directors and the Chief Executive Officer of the
Company, in their sole and absolute discretion.
4. Severance. In the event that Employee's employment hereunder shall
be terminated by the Company without Cause (as such term is defined Section 8.2
hereof) at any time prior to April 12, 2002 or prior to any extended term or if
Employee elects to terminate his employment because Employee ceases to report
directly to the Chief Executive Officer of the Company, Employee shall be
entitled to receive from the Company, in addition to Base Salary earned to the
date of termination, 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) months following
such termination.
5. Expenses.
Upon submission to, and approval by an officer of the Company
designated by the Board of Directors of the Company, of a statement of expenses,
which approval shall be granted or withheld based on the Company's policies in
effect at such time, the
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Company shall pay or reimburse Employee for all reasonable expenses actually
incurred or paid by him during the Term in the performance of his services under
this Agreement, including, but not limited to, expenses for entertainment and
travel. Subject to such approval, the Company will reimburse Employee for such
expenses only 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.
6. Additional Benefits.
(a) Automobile Allowance. The Company shall provide to Employee
an automobile allowance of $675.00 per month, or reimburse Employee for such
amount on a monthly basis, in accordance with Company policy.
(b) In addition to the compensation, expenses and other
benefits to be paid under Section 3, Section 5 and Section 6(a) hereof, 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.
The provisions of this Section 6(b) are subject to the provisions of Section 7.
(c) Vacation. Employee shall be entitled to four (4) weeks paid vaction during
the Term of this Agreement.
7. Company's Benefits.
The provisions of this Agreement which incorporate the employee
benefit package described in Paragraph 6(b) shall change as and when such
employee benefit package changes.
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8. Termination.
8.1 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 through the date of his death.
8.2 Termination for Cause. The Company may at any time during
the Term, without any prior notice, terminate this Agreement and discharge
Employee for Cause, whereupon the Company's obligation to pay compensation or
other amounts payable hereunder to or for the benefit of Employee shall
terminate on the date of such discharge except that Employee shall be paid any
accrued Base Salary owed. As used herein the term "Cause" shall be deemed to
mean and include: (i) a material breach by Employee of this Agreement including
without limitation a breach by Employee of his obligation set forth in Section 9
hereof; (ii) excessive absenteeism, alcoholism or drug abuse following thirty
(30) days prior notice and failure to cure; (iii) substantial neglect or
inattention by Employee of or to his duties hereunder following thirty (30) days
prior notice and failure to cure; (iv) willful violation of specific and lawful
written or oral direction from the Chief Executive Officer or the Board of
Directors of the Company following thirty (30) days prior notice and failure to
cure; provided such direction is not inconsistent with the Executive's duties
and responsibilities as the Senior Vice President -- Administration and
Franchise of the Company and provided further that said direction does not
require substantial and burdensome travel out of the New York metropolitan area
or relocation out of the New York metropolitan area; or (v) fraud, criminal
conduct or embezzlement. The
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obligations of the Employee under Section 9 shall continue notwithstanding
termination of the Employee's employment pursuant to this Section.
8.3 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 inability of Employee, by reason or injury, physical or mental illness or
other similar cause to perform a major part of his duties and responsibilities
in connection with the conduct of the business and affairs of the Company 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. In the
event of a dispute as to the existence of any such disability, Employee agrees
to submit to a medical and psychiatric examination conducted by a physician
mutually acceptable to the Employee and the Company and to be bound by any
determination made by such physician.
8.4 Termination Without Cause. The Company may at any time
during the Term, upon two (2) weeks prior notice, terminate the Agreement and
discharge Employee without Cause provided, however, that the severance
provisions of Section 4 shall apply.
9. Protection of Confidential Information.
In view of the fact that Employee's work for the Company will
bring him into close contact with confidential information and plans for future
developments, Employee agrees to the following:
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9.1 Secrecy. To keep secret and retain in the strictest
confidence all confidential matters of the Company, including, without
limitation, trade "know how" and trade secrets, customer lists, pricing
policies, marketing plans, technical processes. formulae, inventions and
research projects, and other business affairs of the Company, learned by him
heretofore or hereafter, and not to disclose them to anyone inside or outside of
the Company, except (i) in the course of performing duties hereunder, (ii) with
the express written consent of the Chief Executive Officer or Board of Directors
of the Company, (iii) except to the extent such information is already known to
the general public, or (iv) to the extent required by lawful order of a court of
competent jurisdiction.
9.2 Return Memoranda, etc. 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, blueprints and other documents (and
all copies thereof) relating to the Company's business and all property
associated therewith, which he may then possess or have under his control.
9.3 Non-competition. A. 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, as a principal, agent, employee, employer, consultant, stockholder
(excluding a five (5%) percent or less ownership of shares in a publicly traded
company), investor, director or co-partner of any person, firm, corporation or
business entity other than the Company, or in any individual representative
capacity whatsoever, directly or Indirectly, without the express prior written
consent of the Company:
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(a) engage or participate in any business whose products or
services are competitive with that of the Company, which business is exclusively
the sale of party goods, and which conducts or solicits business, or transacts
with suppliers or customers located within the United States, Canada or Puerto
Rico;
(b) aid or counsel any other person. firm, corporation or
business entity to do any of the above;
(c) become employed by a firm, corporation, partnership or
joint venture which competes with the business of the Company within the United
States, Canada or Puerto Rico;
(d) approach, solicit business from, or otherwise do
business or deal with any customer of the Company in connection with any product
or service competitive to any provided by the Company.
B. Employee agrees that during the term of his employment
hereunder, and, thereafter for a period of six (6) months, he will not, as a
principal, agent, employee, employer, consultant, director or partner of any
person, firm, corporation or business entity other than the Company, or in any
individual representative capacity whatsoever, directly or indirectly (excluding
a five (5%) percent or less ownership of shares in publicly traded company),
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 to leave
the employ of the Company or employ or attempt to employ any such person or
persons who at any time during the preceding six months was in the employ of the
Company.
Employee acknowledges (i) that his position with the Company
requires the performance of services which are special, unique, and
extraordinary in character and places
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him in a position of confidence and trust with the customers and employees of
the Company, through which, among other things, he shall obtain knowledge of the
Company's "technical information" and "know-how" and become acquainted with its
customers, in which matters the Company has substantial proprietary interests,
(ii) that the restrictive covenants set forth above are necessary in order to
protect and maintain such proprietary interests and the other legitimate
business interests of the Company, and (iii) that the Company would not have
entered into this Agreement unless such covenants were included herein.
Employee also acknowledges that the business of the Company
presently extends throughout the United States, Puerto Rico, Canada and certain
European countries, and that he will personally supervise and engage in such
business on behalf of the Company and, accordingly, it is reasonable that the
restrictive covenants set forth above are not more limited as to geographic area
then is set forth herein. Employee also represents to the Company that the
enforcement of such covenants will not prevent Employee from earning a
livelihood or impose an undue hardship on the Employee.
If any of the provisions of this Section, or any part thereof, is
hereinafter construed to be invalid or unenforceable, the same shall not affect
the remainder of such provision or provisions, which shall be given full effect,
without regard to the invalid portions. If any of the provisions of this Section
or any part thereof, is held to be unenforceable because of the duration of such
provision, the area covered thereby or the type of conduct restricted therein,
the parties agree that the court making such determination shall have the power
to modify the duration, geographic area and/or other terms of such provision
and, as so modified, said provisions shall then be enforceable. In the event
that the courts of any one or more jurisdictions
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shall hold such provisions wholly or partially unenforceable by reason of the
scope thereof or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the Company's right to the relief
provided for herein in the courts of any other jurisdictions as to breaches or
threatened breaches of such provisions in such other jurisdictions, the above
provisions as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
The provisions of this Section 9 shall be construed as an
agreement on the part of the Employee independent of any other part of this
Agreement or any other agreement, and the existence of any claim or cause of
action of the Employee against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of the provisions of this Section 9.
9.4 Injunctive Relief. Employee acknowledges and agrees that,
because of the unique and extraordinary nature of his services, any breach or
threatened breach of the provisions of Sections 9.1, 9.2, or 9.3 hereof will
cause irreparable injury and incalculable harm to the Company, and the Company
shall, accordingly, be entitled to injunctive and other equitable relief for
such breach or threatened breach and that resort by the Company to such
injunctive or other equitable relief shall not be deemed to waive or to limit in
any respect any right or remedy which the Company may have with respect to such
breach or threatened breach. The Company and Employee agree that any such action
for injunctive or equitable relief shall be heard in a state or federal court
situated in New Jersey and each of the parties hereto, hereby agrees to accept
service of process by registered mail and to otherwise consent to the
jurisdiction of such courts.
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9.5 Expenses of Enforcement of Covenants. In the event that any
action, suit or proceeding at law or in equity is brought to enforce the
covenants contained in Section 9.1, 9.2, or 9.3 hereof or to obtain money
damages for the breach thereof, the party prevailing in any such action, suit or
other proceeding shall be entitled upon demand to reimbursement from the other
party for all expenses (including, without limitation, reasonable attorneys'
fees and disbursements) incurred in connection therewith.
10. Indemnification.
The Company will indemnify Employee, to the maximum extent
permitted by Delaware law and the by-laws of the Company, against all costs,
charges and expenses incurred or sustained by him in connection with any action,
suit or other proceeding to which he may be made a party by reason of his being
an officer, director or employee of the Company or of any subsidiary or
affiliate thereof except such actions as are brought by the Company or in which
the Company is an adverse party regarding Employee's obligations hereunder.
11. Arbitration.
Except with respect to any injunction or other equitable relief
proceeding brought under Section 9.4 hereof, any controversy, claim, or dispute
between the parties, directly or indirectly, concerning this Agreement. or the
breach hereof, or the subject matter hereof, including questions concerning the
scope and applicability of this arbitration clause, shall be finally settled by
arbitration in Xxxxxx County, New Jersey pursuant to the rules then applying of
the American Arbitration Association. The parties agree to expedite the
arbitration proceeding in every way, so that the arbitration proceeding shall be
commenced within thirty (30) days after request therefore is made, and shall
continue thereafter, without interruption, and that the decision of the
arbitrators shall be handed down within thirty (30) days after the hearings in
the
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arbitration proceedings are closed. The arbitrators shall have the right and
authority to assess the cost of the arbitration proceedings and to determine how
their decision or determination as to each issue or matter in dispute may be
implemented or enforced. The decision in writing of any two of the arbitrators
shall be binding and conclusive on all of the parties to this Agreement. Any
decision or award of the arbitrators shall be final and conclusive on the
parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America;
and the application may be made to such court for confirmation of such decision
or award for any order of enforcement and for any other legal remedies that may
be necessary to effectuate such decision or award. The prevailing party in any
such arbitration proceeding shall be entitled to reimbursement from the
non-prevailing party for all expenses incurred in relation to such arbitration
proceedings, including but not limited to, reasonable attorney's fees.
12. 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 mailed first-class, postage prepaid,
by registered or certified mail (notices sent by telegram or mailed shall be
deemed to have been given on the date sent), to the parties at their respective
addresses hereinabove set forth or to such other address as either party shall
designate by notice in writing to the other in accordance herewith.
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13. General.
13.1 Governing Law. This Agreement shall be governed by and
construed 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.
13.2 Section Headings. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13.3 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
13.4 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 obligations, hereunder in connection with any
sale, transfer or other disposition of all or substantially all of its business
or assets; in any event the rights and obligations of the Company hereunder
shall be binding on its successors or assigns, whether by merger, consolidation
or acquisition of all or substantially all of its business or assets.
13.5 Amendment. 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,
or in the case of a waiver by the party waiving compliance. No superseding
instrument, amendment, modification,
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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 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 instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
WITNESS: PARTY CITY CORPORATION
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Chief Executive Officer
WITNESS: EMPLOYEE:
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President --
Administration and Franchise
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[PARTY CITY LOGO]
To: Xxxxxx Xxxx
Fr: Xxx Xxxx
Re: Fiscal 2001 Bonus Plan
Bonus Plan
July 1, 2000 -- June 30, 2001
Attached are the specifics of your individual Bonus plan for Fiscal 2001. Your
plan is based on how well the company achieves its EBITDA numbers. If you have
joined the plan after July 1, 2000 your Bonus payout will be prorated by the
amount of days employed during the Fiscal year. To receive a bonus you must be
employed and in good standing (performance for 2001 must be at a meets standard
level minimally) at time of payout.
Bonus will be paid out as soon as practical after completion of 2001 audits.
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[PARTY CITY LOGO]
COMPANY EBITDA 31,532,600
TARGET BONUS % 40%
NAME LEVEL EBITDA % EBITDA $ % OF BONUS BONUS %
---- ----- -------- -------- ---------- -------
Xxxxxx Xxxx SVP 90% 28,379,340 20% 8.0%
95% 29,955,970 50% 20.0%
100% 31,532,600 100% 40.0%
101% 31,847,926 107% 42.7%
102% 32,163,252 113% 45.4%
103% 32,478,578 120% 48.0%
104% 32,793,904 127% 50.7%
105% 33,109,230 133% 53.3%
106% 33,424,556 137% 54.6%
107% 33,739,882 140% 56.0%
108% 34,055,208 143% 57.3%
109% 34,370,534 147% 58.6%
110% 34,685,860 150% 59.9%
Signature: /s/ Xxxxxx X. Xxxx
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Date: 10-16-2000
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