Exhibit 10.7
EMPLOYMENT AGREEMENT
CREATIVE PRODUCTS INTERNATIONAL, INC.
WITH
XXXXX X. XXXXXXXX
AGREEMENT, dated September 2, 1999, between CREATIVE PRODUCTS
INTERNATIONAL, INC., a Delaware corporation having an address at 0000 0xx
Xxxxxx, X, Xxxxxxx, XX 00000 (the "Company"),, and XXXXX X. XXXXXXXX, an
individual residing at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000
(the "Executive").
WITNESSETH
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The Company desires to retain the Executive, and the Executive is
willing to serve, as the Chief Executive Officer and President of the Company,
all upon the terms and conditions set forth herein. Among other things, the
Company and the Executive believe it imperative that should the Company receive
proposals from third parties with respect to its future, the Executive should,
without being influenced by the uncertainties of her own situation, assess and
advise the Company whether such proposals would be in the best interest of the
Company. In addition, the Company believes it is in the best interest of its
shareholders that the Executive have an equity position in the Company so as to
incentivize the Executive and to insure that her interests will be aligned with
the shareholders.
Accordingly, the parties hereto agree as follows:
1. Employment Term, Duties and Acceptance.
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(a) The Company hereby retains Executive as the Company's
Chief Executive Officer and President for a period of three (3) years,
commencing on the date hereof (the "Initial Period"), and thereafter the
Executive's employment under this Agreement shall automatically be extended for
successive periods of one (1) year (each, a "Renewal Period" and collectively,
the "Renewals;" the Initial Period and the Renewals are hereinafter collectively
referred to as the "Employment Period") unless no later than ninety (90) days
prior to the expiration of the Initial Period or any Renewal Period either party
hereto shall give written notice to the other as provided herein of its or her
election to terminate the employment hereunder whereupon such employment shall
terminate effective upon the expiration of the Initial Period or such Renewal
Period, as the case may be, subject to earlier termination as hereinafter
provided.
(b) In her capacity as Chief Executive Officer and
President of the Company, the Executive shall be responsible for the operations
of the Company, subject to the direction and control of the to the Board of
Directors. The Executive shall have the powers and privileges of the Chief
Executive Officer and President of the Company, as defined in the By-Laws of the
Company in effect on the date hereof and as currently interpreted, and, to the
extent not defined therein, as the same are customarily performed and exercised
by a president and chief executive officer of a publicly owned corporation
incorporated in one of the United States of America. If elected, the
Executive shall serve as a member of the Board of Directors (and of any
Executive Committee or similar committee having powers of the Board of Directors
now in existence or hereafter created) of the Company without any additional
compensation for such services. As used in this Agreement, the term "Company"
includes each Subsidiary of the Company, and the terms "Subsidiary" and
"Subsidiaries" shall mean each corporation of which more than 50% of the
outstanding stock entitled to vote for directors is owned directly or indirectly
by the Company. The Executive hereby accepts the foregoing employment and, so
long as she is the Chief Executive Officer and President of the Company, agrees
to devote such portion of her business time and attention to the performance of
her duties as hereinafter provided. The Company is in its early stage of
development and does not currently require the Executive's full business time
and attention. The Executive is also a party to an employment agreement with
Caring Products International, Inc. ("Caring"), pursuant to which she is
obligated to devote an average of 75% of her business time and attention to
Caring. Therefore, it is understood and agreed that during the Employment Period
the Executive shall not be required to devote more than an average of
twenty-five percent (25%) of her business time and attention to the affairs of
the Company. At such time during the Employment Period as in the reasonable
opinion of the Company's Board of Directors the Company's business and affairs
shall require the full business time and attention of the Executive and if she
is then legally permitted to do so, the Executive shall devote her full business
time and attention to the affairs of the Company. Such time as the Executive
shall be devoting her full business time and attention to the affairs of the
Company is hereinafter referred to as the "Full Employment Period
2. Compensation; Benefits. As compensation for all services to be
rendered by Executive pursuant to this Agreement, subject to the conditions
stated herein, the Company agrees to pay to Executive all of the foregoing:
(a) Base Salary. Beginning on October 1, 1999 and until
the expiration of the Employment Period the Company shall pay to the Executive a
base salary (the "Base Salary") at a minimum rate of Twenty Five Thousand
Dollars ($25,000) per annum, payable in accordance with the payroll practices of
the Company as from time to time in effect; provided, however, that upon
commencement of the Full Employment Period, the Base Salary shall be increased
to One Hundred Fifty Thousand Dollars ($150,000) per annum. On or as soon as
practicable after each yearly anniversary of the date hereof, the Board of
Directors shall review the services provided by Executive to determine the
amount, if any, that Executive's Base Salary shall be increased for the
forthcoming year. This Agreement shall not be deemed abrogated or terminated if
the Company, in its discretion, shall determine to increase the compensation to
the Executive for any period of time or if the Executive shall accept such
increase, but nothing herein shall be deemed to obligate the Company to make any
such increase.
(b) Bonus. Executive shall be entitled to participate in
any bonus or profit sharing plan that may be adopted from time to time by the
Company and to receive a bonus or distribution thereunder (the "Bonus").
(c) Fringe Benefits. Executive shall receive (subject to
the terms and conditions of particular plans and programs) all rights,
privileges and fringe benefits afforded to other senior executives of the
Company, including, but not by way of limitation, the right to participate in
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any pension, retirement, major medical, group health, disability, accident and
life insurance, relocation reimbursement, and other employee benefit programs
made generally available, from time to time, by the Company.
(d) Expense Reimbursement. The Company shall pay or
reimburse Executive for all reasonable expenses incurred in the performance of
her services under this Agreement during the Employment Period, upon
presentation of expense statements, vouchers or such other supporting
documentation as may reasonably be required.
3. Termination of Employment.
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(a) Executive's employment hereunder shall terminate upon
the earliest of the following
(i) Executive's death or Retirement (as defined
in Section 3(g) hereof);
(ii) Thirty (30) days after delivery by the
Company to Executive of written notice that Executive has materially and
substantially failed to perform and discharge her duties hereunder for a period
of at least three (3) consecutive months or for an aggregate of four (4) months
in any twelve (12) month period as a result of physical or mental disability or
incapacity (a "Disability") unless the Executive shall have returned to
full-time performance of her duties hereunder during such thirty (30) day
period;
(iii) Fifteen (15) days after delivery by the
Company to Executive of written notice of termination for "Objectionable
Conduct" (as such term is defined in Section 3 (c) hereof) , provided such
Objectionable Conduct has not been cured by Executive within such fifteen (15)
day period (or such longer period as is reasonably required provided that
Executive has acted in good faith to begin to cure such Objectionable Conduct
within such fifteen (15) day period);
(iv) Thirty (30) days after delivery by Executive
to the Company of written notice of termination other than pursuant to Sections
3 (a) (v) or 3 (a) (vi) ;
(v) Fifteen (15) days after delivery by
Executive to the Company of written notice of termination for "Good Reason" (as
such term is defined in Section 3 (e) hereof, provided such Good Reason has not
been cured by the Company within such fifteen (15) day period (or such longer
period as is reasonably required provided the Company has acted in good faith to
begin to cure such Good Reason within such fifteen (15) day period);
(vi) Fifteen (15) days after delivery by
Executive to the Company of written notice of termination in the event of a
"Change of Control" of the company (as such term is defined in Section 3(d)
hereof), such notice to identify the change of control as the cause of the
termination and to be delivered to the Company no later than three (3) months
following such Change of Control.
(vii) Fifteen (15) days after delivery by the
Company to Executive of written notice of termination for "Cause" (as defined in
Section 3(f) hereof).
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(b) In the event of a dispute between the parties as to
what constitutes a Disability, such dispute shall be finally determined by a
physician mutually agreed upon by Executive and Company. If a mutually
acceptable physician cannot be selected, Executive and the Company shall each
choose a physician, and such physicians shall select a third physician, by
mutual agreement, whose determination shall be conclusive. Either party may
request that such a determination be made, in which event the parties agree to
cooperate fully with whatever procedures and examinations may be required in
order to allow such determination to be made. The cost of such examinations
shall be borne by the Company if such determination is that a Disability exists
or by the Executive if such determination is that no Disability exists.
(c) As used herein, "Objectionable Conduct" shall mean
(i) the material breach by Executive of her duties and obligations hereunder, or
(ii) any act of gross misconduct by Executive materially detrimental to the
Company, including without limitation, misappropriation of the Company's
property, conviction of a felony, or dishonesty or conflict of interest on the
part of Executive (d) As used herein, "Change in Control" of the Company shall
mean the happening of any of the following events:
(i) A change in control of the direction and
administration of the Company's business of a nature that if any securities of
the Company were registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), such change would be required to be reported in
response to (a) Item 6(e) of Schedule 14A of Regulation 14A promulgated under
the Exchange Act, or (b) Item 1(a) of Form 8-K under the Exchange Act as each is
in effect on the date hereof and any successor provision of such regulations
under the Exchange Act, irrespective of whether the Company is then subject to
such reporting requirements;
(ii) Any "person" or "group" (as such term is
used in connection with Section 13(d) and 14(d)(2) of the Exchange Act) but
excluding any employee benefit plan of the Company or any "affiliate" or
"associate" of the Company (as defined in Regulation 12b-2 under the Exchange
Act) (a) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the
Company's outstanding securities then entitled ordinarily (and apart from rights
accruing under special circumstances) to vote for the election of directors or
(b) acquires by proxy or otherwise 50% or more of the combined voting securities
of the Company having the right to vote for the election of directors of the
Company, for any merger or consolidation of the Company, for the election of
Directors, or for any other matter; or
(iii) During any period of twenty-four (24)
consecutive months, the individuals who at the beginning of such period
constitute the Board of Directors of the Company or any individuals who would be
"Continuing Directors" (as hereinafter defined) cease for any reason to
constitute at least a majority thereof; or
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(iv) There shall be consummated (A) any
consolidation, merger or recapitalization of the Company or any similar
transaction involving the Company, irrespective of whether the Company is the
continuing or surviving corporation, pursuant to which shares of the Company's
common stock, par value $.01 per share ("Common Stock"), would be converted into
cash, securities or other property, other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportion and ownership of common stock of the surviving corporation
immediately after the merger, (B) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company or (C) the adoption of a plan of
complete liquidation of the Company (whether or not in connection with the sale
of all or substantially all of the Company's assets) or a series of partial
liquidations of the Company that is de jure or de facto part of a plan of
complete liquidation of the Company; provided, that the divestiture of less than
substantially all of the assets of the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange, spin-off, sale
of the stock or merger of a Subsidiary or otherwise, or a transaction solely for
the purpose of reincorporating the Company in another jurisdiction, shall not
constitute a "Change in Control"; or
(v) The Board of Directors of the Company shall
approve any merger, consolidation or like business combination or reorganization
of the Company, the consummation of which would result in the occurrence of any
event described in Section 3(d)(i), (ii) or (iv) above.
(vi) For purposes of this Agreement, "Continuing
Directors" shall mean the directors of the Company in office on the date hereof
and any successor to any such director and any additional director who after the
date hereof (i) was nominated or selected by a majority of the Continuing
Directors in office at the time of his nomination or selection and (ii) who is
not an "affiliate" or "associate" (as defined in Regulation 12b-2 under the
Exchange Act) of any person who is the beneficial owner, directly or indirectly,
of securities representing ten percent (10%) or more of the combined voting
power of the Company's outstanding securities then entitled ordinarily to vote
for the election of directors.
(e) As used herein, "Good Reason" shall mean (i) the
material breach by the Company of any of its obligations hereunder, (ii) the
assignment by the Company to Executive of duties which are inconsistent with, or
require travel significantly more time-consuming or extensive than, Executive's
duties and business travel obligations on the date hereof, (iii) any diminution
in the duties or authority of the Executive as in effect on the date hereof,
(iv) a change in Executive's assigned site location without Executive's express
written consent, (v) the failure by the Company to pay (or reimburse Executive
for) all reasonable moving expenses incurred by Executive and relating to a
change of her principal residence and to indemnify Executive against any loss by
Executive and/or her spouse in the sale of Executive's principal residence in
connection with any such change of residence, all to the effect that Executive
shall incur no loss on an after-tax basis, (vi) the failure by the Company to
obtain the express written assumption of and agreement to perform this Agreement
as contemplated in Section 14 hereof, or (vii) a reduction by the Company of
Executive's Base Salary as the same may be increased from time to time
hereafter, (viii) the failure of the Company to continue to provide Executive
with substantially the same level of fringe benefits as contemplated in Section
2(c) hereof unless such fringe benefits shall cease to be provided to all
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senior executive officers and employees of the Company or (ix) any purported
termination of Executive's employment which is not effected in accordance with
the terms of this Agreement.
(f) As used herein, "Cause" shall mean, at any time
during the one year period following a Change of Control:
(i) The willful and continued failure by
Executive to perform substantially her duties with the Company (other than any
such failure resulting from the Executive's incapacity due to physical or mental
illness or any such actual or anticipated failure resulting from termination by
the Executive for Good Reason) which is not cured within thirty (30) days after
a written demand for substantial performance is delivered to the Executive by
the Board of Directors, which demand specifically identifies the manner in which
the Board of Directors believes that Executive has not substantially performed
his duties; or
(ii) The willful engagement in conduct by
Executive which is demonstrably and materially injurious to the Company,
monetarily or financially, which is not discontinued within five (5) days after
written demand to cease and desist from such conduct is delivered to Executive
by the Board of Directors, which demand specifically identifies the conduct
which the Board of Directors believes is injurious to the Company; or
(iii) Conviction for a felony or other crime
punishable by imprisonment for more than one (1) year, or the entering of a plea
of nolo contendere thereto.
Notwithstanding any of the foregoing, Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to Executive a resolution duly adopted by the affirmative vote of not
less than a majority of the entire membership of the Board of Directors (other
than Executive) at a meeting called and held for such purpose (after reasonable
notice to Executive and an opportunity for Executive, together with his counsel,
to be heard before the Board of Directors), finding that in the good faith
opinion of the Board of Directors Executive was guilty of conduct set forth
above in clause (i), (ii) or (iii) and specifying the particulars thereof in
detail. For purposes of this Section 3(f), no act, or failure to act, on
Executive's part shall be considered "willful" unless done, or omitted to be
done, by her knowing and with the intent that such action or inaction would not
be in the best interests of the Company or otherwise was done or omitted to be
done in bad faith.
(g) As used herein, the term "Retirement" shall mean that
Executive shall have retired after reaching the earliest normal or early
retirement date provided in the Company's retirement plans as then in effect (or
if Executive retires after a Change in control of the Company, as in effect on
the date of the change in Control).
(h) The date upon which Executive's employment terminates
in accordance with any of the provisions of Section 3(a) is referred to herein
as the "date of termination". In the event of a termination of this Agreement
pursuant to Section 3(a), the Company shall be obligated to pay to Executive,
and Executive shall be entitled to receive (i) any unpaid Base Salary through
the date of termination, (ii) reimbursement for expenses incurred by Executive
through the date of termination, subject to the procedures set forth in
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Section 2(d), (iii) any unpaid Bonus in respect of fiscal years prior to the
year in which the date of termination occurs, and (iv) such additional
compensation or benefits, if any, as are set forth in Section 4 hereof Except
for the compensation and benefits specified in this Section 3(h) and in Section
4, the Company shall have no obligation to provide to Executive any compensation
or benefits from and after the date of termination. Executive agrees, upon any
such termination, to resign as an officer and director of the Company and each
of its Subsidiaries as of the date of termination
4. Additional Benefits Upon Termination.
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(a) Bonus. (i) If Executive's employment hereunder
terminates pursuant to the provisions of Sections 3(a)(i), 3(a)(ii) or 3(a)(iv),
and Executive has served hereunder for at least one-half of the fiscal year in
which the date of termination occurs, Executive (or Executive's estate, in the
event of a termination due to death) will be entitled to receive a pro rata
portion of the Bonus paid to the Executive on account of the immediately
preceding fiscal year (the "Prior Bonus") based on that portion of the fiscal
year for which Executive was employed hereunder. Such amount will be payable to
the Executive within thirty (30) days following such date of termination.
(ii) If Executive's employment hereunder
terminates pursuant to the provisions of Section 3(a)(v) or 3(a)(vi), Executive
will be entitled to receive a bonus for the fiscal year in which the date of
termination occurs equal to a pro rata portion of the Prior Bonus, based on that
portion of the current fiscal year for which Executive was employed hereunder.
Such sum will be payable within thirty (30) days after the date of termination.
(iii) If Executive's employment hereunder
terminates pursuant to the provisions of Section 3(a)(iii) or 3(a)(vii),
Executive will not be entitled to receive any Bonus in respect of the fiscal
year in which the date of termination occurs.
(b) Options. (i) Upon any termination of this Agreement
pursuant to Sections 3(a)(i), 3(a)(ii), 3(a)(iii), 3(a)(iv), 3(a)(v), Executive
will be entitled to retain any options granted to her prior to the date of
termination and to hold and exercise such options in accordance with the terms
thereof
(ii) Upon any termination of this Agreement
pursuant to Sections 3(a)(v) or 3(a)(vi), any options granted to Executive prior
to the date of termination shall be deemed immediately to vest (if not then
vested) and immediately to become exercisable (if not then exercisable), any
exercise to be on the terms specified in the applicable stock option plan.
Additionally, Executive may, in lieu of exercising such options, convert such
options to non-qualified stock options which will immediately vest in and be
exercisable by Executive. All other terms applicable to the options originally
granted to Executive will be applicable to such non-qualified stock options
other than terms limiting the Executive's ability to exercise the option to a
period less than ten (10) years from the date of grant.
(c) Additional Benefits. (i) If this Agreement is
terminated due to Executive's Disability pursuant to Section 3(a)(ii), Executive
will be entitled to receive, in addition to the other compensation and
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benefits described herein, Executive's then effective Base Salary for a period
of one year from the date of termination, less the proceeds of any disability
insurance policy on Executive purchased by the Company and the Company will
continue to provide Executive with, or will reimburse Executive the cost of,
major medical and health insurance for such one year period. The Base Salary for
such period will be payable in the same manner as if Executive continued to be
employed by the Company, and the insurance proceeds will be payable, if at all,
on the basis specified in the applicable disability insurance policy.
(ii) (A) If within two (2) years after a Change
in Control of the Company, the Company shall terminate the Executive's
employment other than by reason of the Executive's death, Disability, voluntary
Retirement or for Cause or if Executive shall terminate his employment for Good
Reason or pursuant to Section 3(a)(vi) hereof, in the manner provided in Section
3(a) hereof, then, in any such event, the Company will pay to Executive as
compensation for services rendered, beginning not later than the fifth business
day following completion of the "Parachute Procedure" (as hereinafter defined)
if the Company elects to follow such procedure and not later than the fifteenth
day after the date of termination of Executive's employment hereunder and
otherwise shall take such action as follows:
(1) a severance payment (the "Severance
Payment") equal to two times the Executive's then effective Base Salary, plus
all benefits (other than Bonus and stock options) to which Executive would be
entitled for a period of two years or the value thereof, or if the Company is
then subject to Section 280 of the Internal Revenue Code (the "Code"), then
equal to two times the Executive's average annual compensation during the Base
Period (as hereinafter defined) (subject to any applicable payroll or other
taxes and charges required to be withheld computed at the rate for supplemental
payments), plus such of the benefits provided for under Section 2(a) hereof or
the value thereof for a period of two years to the extent such benefits shall
not be deemed to constitute fringe benefits within the meaning of Section 280 of
the Code, provided that in no event shall "Total Payments" (as hereinafter
defined) exceed 2.99 times the Executive's "Base Amount," as such term is
defined in Section 280G of the Code. The Severance Payment shall be paid in a
single lump sum or, at the election of the Executive (given to the Company in
writing within seven (7) days of the date of termination), in 23 substantially
equal monthly installments. The Executive's Base Amount shall be determined in
accordance with temporary or final regulations promulgated under Section 280G of
the Code then in effect, if any. In the absence of such regulations, if the
Executive was not employed by the Company (or any corporation or partnership
affiliated with the Company (an "Affiliate") within the meaning of Section 1504
of the Code or a predecessor of the Company) during the entire five calendar
years (the "Base Period") preceding the calendar year in which a Change in
Control of the Company occurred, the Executive's average annual compensation for
the purposes of such determination shall be the lesser of (1) the average of the
Executive's annual compensation for the complete calendar years during the Base
Period during which the Executive was so employed or (2) the average of the
Executive's annual compensation for both complete and partial calendar years
during the Base Period during which the Executive was so employed, determined by
annualizing any compensation (other than nonrecurring items) includible in the
Executive's gross income for any partial calendar year or (3) the annual average
of the Executive's total compensation for the Base Period during which the
Executive was so employed, determined by dividing such total compensation by the
number of whole and fractional years included in the Base Period. Compensation
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payable to the Executive by the Company or any Affiliate or predecessor of the
Company shall include every type and form of compensation includible in the
Executive's gross income in respect of the Executive's employment by the Company
or any Affiliate or predecessor of the Company, including compensation income
recognized as a result of the Executive's exercise of stock options or sale of
the stock so acquired, except to the extent otherwise provided in temporary or
final regulations promulgated under Section 280G of the Code. For purposes of
this Section 3(n) a "change in control of the Company" shall have the meaning
set forth in Section 280G of the Code and any temporary or final regulations
promulgated thereunder, subject to the limitation stated in Section 3(n)(iii)
below; and
(2) Notwithstanding anything to the
contrary contained herein, if any portion of the aggregate payments and benefits
(the "Total Payments") received or to be received by the Executive, whether paid
or payable pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, a Subsidiary or any other person or
entity, would not be deductible in whole or in part by the Company, a Subsidiary
or by such other person or entity in the calculation of its Federal income tax
by reason of Section 280G of the Code, the Total Payments payable shall be
reduced by the least amount necessary so that no portion of the Total Payments
would fail to be deductible by reason of being an "excess parachute payment."
(3) At the option of the Company, no
payments shall be made pursuant to this section until the procedure described in
this Section 4(c)(ii)(A)(3) is completed (the "Parachute Procedure"). If the
Company elects to comply with such procedure, the Company shall cause its
independent auditors to deliver to Executive, within fifteen (15) days after the
date of termination, a statement which shall indicate whether payment to
Executive of the Total Payments would cause any portion of the Total Payments
not to be deductible in whole or part in the calculation of Federal income tax
by reason of Section 280G of the Code, or would cause, directly or indirectly,
an "excess parachute payment" to exist within the meaning of Section 280G of the
Code. Such statement shall set forth the value, calculated in accordance with
the principles of Section 280G of the Code and any temporary or final
regulations promulgated thereunder, of any non-cash benefits or any deferred or
contingent payment or benefit payable pursuant to the terms of this Agreement or
any other plan, arrangement or benefit, together with sufficient information to
enable the Employer to determine the payments that may be made to Executive
without resulting in a loss of deduction under Section 280G of the Code or an
"excess parachute payment" to the Executive within the meaning of Section 280G
of the Code. The Company warrants to Executive the accuracy of all information
and calculations supplied to Executive in such statement. If such statement
indicates that payment of the Total Payments would result in a loss of a
deduction by reason of Section 280G of the Code or would cause an "excess
parachute payment" to exist within the meaning of Section 280G of the Code, the
Executive shall, within thirty (30) days after receipt of the statement, deliver
to the Company a statement indicating which of the payments and benefits
specified in such auditor's statement Executive elects to receive; provided,
however, that the payments and benefits selected by Executive shall not result
in a loss of deduction under Section 280G of the Code or an "excess parachute
payment" to Executive within the meaning of Section 280G of the Code and,
provided, further, however, that if the Company does not comply with the
Parachute Procedure, it shall deliver the payments required by this Section
4(c)(ii)(A)(1) within fifteen (15) days after the date of termination or as
Executive may elect as provided herein. Delivery of the statement by Executive
to the Company shall constitute completion of the Parachute Procedures; and
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(4) The Company shall contest any
improper assessment of an excise or other tax imposed as a result of
determination that an "excess parachute payment" has been made to Executive
within the meaning of Section 280G of the Code. If it is established pursuant to
a final determination of a court of competent jurisdiction or an Internal
Revenue Service proceeding that an "excess parachute payment" does in fact
exist, within the meaning of Section 280G of the Code, then Executive shall pay
to the Company, upon demand, an amount not to exceed the sum of (i) the excess
of the aggregate Total Payments over the aggregate Total Payments that would
have been paid without any portion of such payment being deemed an "excess
parachute payment" within the meaning of Section 280G of the Code.
(5) The Company shall, during the three
year period following the date of termination, advise Executive by written
notice at least four (4) weeks prior to the filing of a registration statement
under the Securities Act of 1933, as amended, (excluding registration on Form
X-0, X-00, X-00, or any successor forms thereto or such other forms required by
the Vancouver Stock Exchange) covering securities of the Company to be offered
and sold to the public generally and shall, upon the request of Executive,
include in any such registration statement, such shares and information as may
be required to permit a public offering of shares of Common Stock of the Company
to which Executive is entitled by way of exercise of stock options and/or
exercise of warrants whether or not such rights have been exercised. Executive
shall furnish such information to the Company as is reasonably requested by the
Company. The Company shall supply prospectuses and qualify such shares of Common
Stock for sale in such states or provinces as the Company qualifies its shares.
5. Voluntary Termination. If any person or organization commences
a tender or exchange offer, circulates a proxy statement to the Company's
stockholders, or takes other steps designed to effect a Change in Control of the
Company, Executive agrees that in order to receive the benefits provided by this
Agreement, she will not voluntarily leave the employ of the Company or any of
its Subsidiaries, and will continue to perform her regular duties and to render
the services specified in the recitals to this Agreement, until such person or
organization has abandoned or terminated his or its efforts to effect a Change
in Control or until a Change in Control has occurred. Should Executive
voluntarily terminate her employment before any such effort to effect a Change
in Control of the Company has commenced, or after any such effort has been
abandoned or terminated without effecting a Change in Control and no such effort
is then in process, this Agreement shall lapse and be of no further force or
effect. Should Executive voluntarily terminate her employment with the Company
or any of its Subsidiaries during such time as any person or organization has
commenced, but has not yet abandoned, any steps designed to effect a Change in
Control of the Company, but at a time when a Change in Control has not been
effected, Executive shall not be entitled to receive any of the benefits of
Sections 4 hereof.
(i) Thirty (30) days after delivery by Executive
to the Company of written notice of termination other than pursuant to Sections
3 (a) (v) or 3 (a) (vi);
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(ii) Fifteen (15) days after delivery by
Executive to the Company of written notice of termination for "Good Reason" (as
such term is defined in Section 3 (e) hereof, provided such Good Reason has not
been cured by the Company within such fifteen (15) day period (or such longer
period as is reasonably required provided the Company has acted in good faith to
begin to cure such Good Reason within such fifteen (15) day period);
(iii) Fifteen (15) days after delivery by the
Company to Executive of written notice of termination for "Cause" (as defined in
Section 3(f) hereof).
(b) In the event of a dispute between the parties as to
what constitutes a Disability, such dispute shall be finally determined by a
physician mutually agreed upon by Executive and Company. If a mutually
acceptable physician cannot be selected, Executive and the Company shall each
choose a physician, and such physicians shall select a third physician, by
mutual agreement, whose determination shall be conclusive. Either party may
request that such a determination be made, in which event the parties agree to
cooperate fully with whatever procedures and examinations may be required in
order to allow such determination to be made. The cost of such examinations
shall be borne by the Company if such determination is that a Disability exists
or by the Executive if such determination is that no Disability exists.
(c) As used herein, "Objectionable Conduct" shall mean
(i) the material breach by Executive of her duties and obligations hereunder, or
(ii) any act of gross misconduct by Executive materially detrimental to the
Company, including without limitation, misappropriation of the Company's
property, conviction of a felony, or dishonesty or conflict of interest on the
part of Executive.
(d) As used herein, "Good Reason" shall mean (i) the
material breach by the Company of any of its obligations hereunder, (ii) the
assignment by the Company to Executive of duties which are inconsistent with, or
require travel significantly more time-consuming or extensive than, Executive's
duties and business travel obligations on the date hereof, (iii) any diminution
in the duties or authority of the Executive as in effect on the date hereof,
(iv) a change in Executive's assigned site location without Executive's express
written consent, (v) the failure by the Company to pay (or reimburse Executive
for) all reasonable moving expenses incurred by Executive and relating to a
change of her principal residence and to indemnify Executive against any loss by
Executive and/or her spouse in the sale of Executive's principal residence in
connection with any such change of residence, all to the effect that Executive
shall incur no loss on an after-tax basis, (vi) the failure by the Company to
obtain the express written assumption of and agreement to perform this Agreement
as contemplated in Section 14 hereof, or (vii) a reduction by the Company of
Executive's Base Salary as the same may be increased from time to time
hereafter, (viii) the failure of the Company to continue to provide Executive
with substantially the same level of fringe benefits as contemplated in Section
2(c) hereof unless such fringe benefits shall cease to be provided to all senior
executive officers and employees of the Company or (ix) any purported
termination of Executive's employment which is not effected in accordance with
the terms of this Agreement.
(e) As used herein, the term "Retirement" shall mean that
Executive shall have retired after reaching the earliest normal or early
retirement date provided in the Company's retirement plans as then in effect.
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(f) The date upon which Executive's employment terminates
in accordance with any of the provisions of Section 3 (a) is referred to herein
as the "date of termination". In the event of a termination of this Agreement
pursuant to Section 3(a), the Company shall be obligated to pay to Executive,
and Executive shall be entitled to receive (i) any unpaid Base Salary through
the date of termination, (ii) reimbursement for expenses incurred by Executive
through the date of termination, subject to the procedures set forth in Section
2(d), (iii) any unpaid Bonus in respect of fiscal years prior to the year in
which the date of termination occurs, and (iv) such additional compensation or
benefits, if any, as are set forth in Section 4 hereof . Except for the
compensation and benefits specified in this Section 3 (f) and in Section 4, the
Company shall have no obligation to provide to Executive any compensation or
benefits from and after the date of termination. Executive agrees, upon any such
termination, to resign as an officer and director of the Company and each of its
Subsidiaries as of the date of termination.
6. Trade Secrets.
-------------
(a) Executive acknowledges that her employment by the
Company, which is in the business of marketing incontinence products, may enable
her to obtain confidential information concerning the Company, its subsidiaries
and affiliates, their products, services, concepts, businesses, trade secrets,
employees, customers, suppliers, vendors, venture partners, and strategic allies
(collectively, the "Confidential Information"). Executive further acknowledges
that the services to be performed under this Agreement are of a special, unique,
unusual and extraordinary character, that the Company's products will be
marketed and licensed throughout the United States and abroad, that the Company
will be competing with other organizations which are or could be located in any
part of the United States or abroad, and that the Confidential Information is of
great value to the Company. Accordingly, Executive agrees that she shall not
knowingly divulge any of the Confidential Information to anyone outside of the
Company except as expressly authorized by the Board of Directors of the Company,
or as is necessary to permit Executive to discharge her duties hereunder in good
faith and in the best interests of the company, or as is required by law.
(b) Except if this Agreement is terminated by way of
breach of same by the Company or for reasons specified in Sections 9(a) or 9(b),
Executive's covenants contained herein shall survive the termination or
expiration of this Agreement.
7. Purchase and Sale of Shares. In order to incentivize the
Executive and insure that her interests are aligned with those of the Company's
shareholders, the Company hereby agrees to sell to the Executive, and the
Executive hereby agrees to purchase from the Company, 384,000 shares of the
Company's common stock (the "Shares") for a consideration of $.05 per share. The
Company and the Executive agree that such purchase price represents the fair
market value of the Shares, taking into account the uncertainty regarding the
spin-off of the Company's shares (the "Spin-off') by its parent, Caring, and the
price at which the Company' common stock may trade, if at all, the limitations
on the Executive's ability to sell or otherwise transfer the Shares and other
factors that the Company and the Executive have deemed relevant and appropriate.
If for any reason the Spin-off shall not occur on or before March 31, 2000, the
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Company shall have the option to repurchase the Shares at $.05 per share. To
evidence the foregoing, the parties hereto shall execute and deliver a
Subscription Agreement and an Escrow Agreement simultaneous with the execution
of this Agreement or as soon as practicable thereafter.
8. Right to Independent Counsel.
----------------------------
The parties hereto recognize that this Agreement is a legal document
which may affect them adversely. Consequently, the parties acknowledge that
prior to executing this Agreement they were given the opportunity to seek the
advice of independent legal counsel regarding the provisions of this Agreement
and their legal involvement herein. By executing this Agreement, the parties
acknowledge that they have reviewed this Agreement with independent counsel or
have waived their opportunity to do so.
9. Termination of Agreement.
------------------------
This Agreement shall, in addition to other provisions affecting
termination, terminate on the occurrence of any of the following events:
(a) cessation of the Company's business;
(b) dissolution of the Company; or
(c) the voluntary agreement of the parties hereto.
10. Notices.
-------
All notices, requests, demands, deliveries and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, postage prepaid, registered or certified mail, return receipt requested
to the parties at the addresses (or at such other address for a party as shall
be specified by like notice) specified on the first page of this Agreement.
11. Waiver.
------
No course of dealing nor any delay on the part of the Company or
Executive in exercising any rights hereunder shall operate as a waiver of any
such rights. No waiver of any default or breach of this Agreement shall be
deemed a continuing waiver or a waiver of any other breach or default.
12. Governing Law.
-------------
This Agreement shall be governed by the laws of the State of New York.
Any controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled by arbitration in New York, New York, in
accordance with the rules of the American Arbitration Association then in force.
Any award rendered in any such proceeding shall be final and binding on the
parties thereto and judgment upon any such award may be entered in any court of
competent jurisdiction.
13
13. Complete Agreement.
------------------
This Agreement constitutes the entire agreement of the parties hereto
and supersedes all prior agreements and proposals, oral and written, and all
other communications between the parties relating to the subject matter
contained herein, including, without limitation, the Employment Agreement.
14. Severability.
------------
If any of the provisions of this Agreement are held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
15. Executors, Administrators, successors and Assigns.
-------------------------------------------------
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon any successor of the Company
or to the business of the Company. Neither this Agreement or any rights or
obligations of Executive hereunder shall be transferable or assignable by
Executive; provided, however, that this Agreement shall inure to the benefit of
and be enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts would still be payable to Executive
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such designee,
to Executive's estate. The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written
agreement, to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, the term
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement required by this Section 12, or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
16. Modification.
------------
This Agreement may only be amended, varied or modified by a written
document executed by the parties hereto.
17. Further Instruments.
-------------------
The parties hereto agree to execute and deliver, or cause to be
executed and delivered, such further instruments or documents and take such
other action as may be required to effectively carry out the transactions
contemplated herein.
18. Indemnification and Legal Expenses.
----------------------------------
(a) In addition to any liability insurance to be provided
Executive under the terms contained in paragraph 2(c) and any indemnification
14
provided under the Company's certificate of incorporation or by-laws or
applicable law, the Company will indemnify and hold harmless Executive from and
against any claims, damages, expenses (including reasonable attorneys' fees)
judgments, fines, penalties (including any excise taxes assessed with respect to
an employee benefit plan), and amounts paid in settlement incurred by Executive
in connection with the investigation, defense, settlement or appeal of any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative, whether formal or informal and
whether brought by or in the right of the corporation, (by a class of its
security holders or otherwise) in which Executive may be involved as a party or
otherwise by reason of the fact that Executive is or was a director, officer,
stockholder, employee or agent of the Company or is or was serving at the
request of the Company as a director, officer, partner, trustee, employee or
agent of another entity or by reason of anything done or not done by Executive
in any such capacities; provided, however, that Executive shall not be entitled
to indemnification for the portion of any proceeding in which a final judgment
or other final adjudication adverse to the Executive establishes that
Executive's acts were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated or that Executive personally
gained in fact a financial profit or advantage to which the Executive was not
legally entitled.
(b) The Company shall pay the expenses (including
reasonable attorneys' fees) incurred by the Executive in advance of the final
disposition of a proceeding described in paragraph 17(a) upon receipt of an
undertaking by or on behalf of Executive to repay such amount if it shall
ultimately be determined that Executive is not entitled to indemnification under
paragraph 17 (a) . Such payments shall be made within thirty (30) days after a
written, claim has been received by the Company or, in the case of attorneys
fees and expenses, shall be paid directly by the Company.
(c) Upon the reasonable request of Executive, the Company
shall provide security satisfactory to Executive for its obligations hereunder.
(d) If it shall be necessary or desirable for Executive
to retain legal counsel and/or to incur other costs and expenses in connection
with the enforcement or validity of Executive's rights under paragraph 17(a) or
17(b) or any other provisions of this Agreement, the Company shall pay or
Executive shall be entitled to recover from the Company, as the case may be,
reasonable attorneys' fees and costs and expenses, regardless of the final
outcome. Such payments shall be made within thirty (30) days after a written
claim has been received by the Company.
19. Survival.
--------
All covenants, representations and warranties made in this Agreement,
and all other documents provided for herein, shall survive the execution,
delivery and performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
15
CREATIVE PRODUCTS INTERNATIONAL, INC.
By: /s/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx, Director
/s/ XXXXX X. XXXXXXXX
----------------------------------------
Xxxxx x. Xxxxxxxx
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