EXHIBIT 10.12
EMPLOYMENT AGREEMENT
AGREEMENT by and between Golden Books Family Entertainment, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the "Executive"),
dated as of the 27th day of January, 2000.
1. DEFINITION OF CHANGE OF CONTROL. For the purpose of this Agreement,
a "Change of Control" shall mean:
(a) 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 35% or more (on
a fully diluted basis) of either (i) the then outstanding shares of common stock
of the Company, taking into account as outstanding for this purpose such common
stock issuable upon the exercise of options or warrants, the conversion of
convertible stock or debt, and the exercise of any similar right to acquire such
common stock (the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition by the Company or any "affiliate" of the Company, within the meaning
of 17 C.F.R. ss. 230.405 (an "Affiliate"), (ii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Affiliate of the Company, (iii) any acquisition by any corporation pursuant to a
transaction which complies with classes (i), (ii) and (iii) of subsection (c) of
this Section 1, or (iv) any acquisition by the Executive or a group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) that includes the
Executive.
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent thereto whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) 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, (i) 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 60% of,
respectively, the then outstanding shares of common stock 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 resulting from
such Business Combination (including, without limitation, a corporation 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 (ii) 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 an equity interest, or any Affiliate of such entity)
beneficially owns, directly or indirectly, 35% or more (on a fully diluted
basis) of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination, taking into account as
outstanding for this purpose such common stock issuable upon the exercise of
options or warrants, the conversion of convertible stock or debt, and the
exercise of any similar right to acquire such common stock, or the combined
voting power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the Business
Combination and (iii) at least a majority of the members of the board of
directors of the corporation 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
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
2. EMPLOYMENT PERIOD. The Company hereby agrees to continue to employ
the Executive and the Executive hereby agrees to remain in the continued employ
of the Company, subject to the terms and conditions of this Agreement, for the
period commencing on the date hereof (the "Effective Date") and ending on May 8,
2003 or such earlier date on which the Executive's employment is terminated
pursuant to the terms hereof (the "Employment Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) Commencing on the
Effective Date and for the remainder of the Employment Period, the Executive
shall be the Chief Executive Officer of the Company and Chairman of the
Company's Board of Directors and shall have such duties, responsibilities and
authority as shall be consistent therewith. The Executive shall be based in New
York City.
(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 it shall not be
a violation of this Agreement for the Executive to (A) serve on corporate, civic
or charitable boards or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C) manage personal
investments, so long as
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such activities do not interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by the Executive prior to a Change of
Control, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to a Change of Control shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) COMPENSATION. (i) BASE SALARY. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") at a rate
of $750,000 until the third anniversary of the Effective Date and, thereafter,
at a rate of $850,000. The Annual Base Salary shall be paid in equal monthly
installments. During the Employment Period, the Annual Base Salary shall be
reviewed at least every 12 months. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive under the
Agreement. The Annual Base Salary shall not be reduced after any such increase
and the term Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased.
(ii) ANNUAL BONUS. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus") pursuant to the Company's Executive
Officer Bonus Plan or a replacement therefor (the "Annual Plan") under one or
more of the criteria prescribed in the plan as generally designed by a
compensation expert mutually satisfactory to the Board and the Executive and
approved by the Compensation Committee of the Board of Directors, which bonus
shall be pro rated in the case of a bonus for any fiscal year during which the
Executive was employed for less than 12 months. The Executive shall have a
target annual bonus of 100% of his Annual Base Salary (the "Target Bonus") and
an annual bonus opportunity of 200% of his Annual Base Salary (inclusive of the
Target Bonus), subject in each case to attainment of the performance goals set
forth in the Annual Plan. The Executive waives any right to receive a pro rated
Target Award under Section 15 of the Executive Officer Bonus Plan upon a "change
of control," as defined therein, so long as he shall be employed on the last day
of the fiscal year and be entitled to an Annual Bonus at the levels specified
herein on a non pro rated basis for the fiscal year of such "change of control"
if the performance goals for such fiscal year are achieved. Each such Annual
Bonus shall be paid no later than the end of the third month of the fiscal year
next following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus. The parties
acknowledge that the Annual Plan has been approved by the stockholders of the
Company in accordance with the requirements of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"). The Board may award the Executive
bonuses other than pursuant to the Annual Plan in its discretion.
(iii) RESTRICTED STOCK. Simultaneous with, and as further
consideration for, the Executive's execution of this Agreement, the Company
shall grant to the Executive restricted shares of Common Stock which represent
2.5% of the Company's then issued and outstanding Common Stock (but prior to
dilution by any portion of the 10.0% of the Common Stock available under the
management incentive plan referenced in Section 3(b)(iv) below or any
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warrants) in accordance with the form of restricted stock agreement annexed as
Exhibit A hereto (the "Restricted Stock"). Not less than two-thirds (2/3) of the
shares of Restricted Stock shall vest on the second anniversary of the date
hereof and the remaining shares of Restricted Stock shall vest on the third
anniversary of the date hereof provided the Executive has been continuously
employed through each applicable vesting date. Notwithstanding the foregoing, in
the event the Executive's employment is terminated by reason of his death or
Disability or the Executive is terminated by the Company without Cause or
terminates his employment for Good Reason, the shares of Restricted Stock shall
become fully vested on the Date of Termination. Upon a Change in Control, the
provisions of Section 8 shall apply. The Company shall file and maintain a Form
S-8 with regard to the Restricted Stock and shall file Forms S-3 as reasonably
requested by the Executive with regard to the Restricted Stock.
(iv) MANAGEMENT RESTRICTED STOCK. Simultaneous with, and as
further consideration for, the Executive's execution of this Agreement, the
Company shall make an additional grant to the Executive of restricted shares of
Common Stock which represent 2.0% of the Company's issued and outstanding Common
Stock on a fully diluted basis (including all shares authorized, whether or not
issued or covered by a grant, under any employee stock incentive plan and any
warrants) pursuant to the Company's management incentive plan in accordance with
the form of management restricted stock agreement annexed as Exhibit B hereto
(the "Management Restricted Stock"). Not less than two-thirds (2/3) of the
shares of Management Restricted Stock shall vest on the second anniversary of
the date hereof and the remaining shares of Management Restricted Stock shall
vest on the third anniversary of the date hereof provided the Executive has been
continuously employed through each applicable vesting date. Notwithstanding the
foregoing, in the event the Executive's employment is terminated by reason of
his death or Disability or the Executive is terminated by the Company without
Cause or terminates his employment for Good Reason, the Management Restricted
Stock shall become fully vested on the Date of Termination. Upon a Change in
Control, the provisions of Section 8 shall apply. The Company shall file and
maintain a Form S-8 with regard to the Management Restricted Stock and shall
file Forms S-3 as reasonably requested by the Executive with regard to the
Management Restricted Stock.
(v) INCENTIVE, SAVINGS, RETIREMENT AND EQUITY PLANS. During the
Employment Period, the Executive shall be eligible to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other senior executives of the Company and its
affiliated companies, provided that after a Change of Control in no event shall
such plans, practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect at any time during the
120-day period immediately preceding a Change of Control. In addition, the
Executive may participate in other equity plans and share in future grants to
management employees of stock options contemplated to be granted at or about the
Effective Date to management employees.
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(vi) SUPPLEMENTAL RETIREMENT PLAN. In addition to any retirement
benefits payable to the Executive pursuant to a plan or program described in
Section 3(b)(v), the Executive shall be entitled to a supplemental retirement
benefit, paid in the form of a single life annuity, of $250,000 per annum, with
payments commencing on the first day of the month immediately following the
latest of (i) May 8, 2001, (ii) the Executive's cessation of employment with the
Company other than by reason of death, or (iii) when the Executive ceases to
receive long term disability benefits pursuant to Section 3(b)(vii) below.
Notwithstanding the above, at the election of the Executive made at any time
prior to the commencement of payment, such supplemental retirement benefit shall
be paid in the form of a joint and 50% survivor annuity, which is the actuarial
equivalent of such single-life annuity (as determined by the Company's actuaries
using reasonable actuarial assumptions).
(vii) WELFARE 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 welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent applicable generally
to other peer executives of the Company and its affiliated companies, provided
that after a Change of Control in no event shall such plans, practices, policies
and programs provide the Executive with benefits which are less favorable, in
the aggregate, than the most favorable of such plans, practices, policies and
programs in effect for the Executive at any time during the 120-day period
immediately preceding a Change of Control. Executive shall be provided with both
active and retiree medical benefits on an indemnity basis with a $3 million
lifetime cap subject to an obligation to pay 20% of the cost of such benefits up
to a maximum of $200,000. The Company shall provide either (1) term life
insurance coverage to the Executive with a death benefit of at least $3 million,
or (2) at the Executive's election, a monthly cash allowance equal to the cost
of insurance determined pursuant to the "Table 1 rate" for insurance coverage up
to $3 million obtained by the Executive. For this purpose, the "Table 1 rate" is
the rate published by the United States Department of the Treasury as uniform
premiums for group term life insurance protection as currently set forth in
Treasury Regulation section 1.79-3(d). In the event of the Executive's
"Disability" (as defined in Section 4(a)), the Company shall provide the
Executive with an annual Disability benefit of no less than $700,000 per annum
until the Executive reaches age 70.
(viii) EXPENSES. During the Employment Period, the Company shall
pay or promptly reimburse the Executive for all business expenses upon
presentation of receipts therefor in accordance with the normal practices of the
Company. It is acknowledged that the Executive will incur expenses consistent
with an executive of his stature in the Company's industry.
(ix) FRINGE BENEFITS. During the Employment Period, the Executive
shall be entitled to fringe benefits of a type and an amount appropriate to an
executive of Executive's stature in the Company's industry, including, without
limitation, tax and financial
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planning services, payment of club dues, and an automobile of his choice and
payment of related expenses, including the services of a driver (collectively,
"Fringe Benefits").
(x) VACATION. During the Employment Period, the Executive shall
be entitled to five weeks of paid vacation per year.
4. 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 Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 12(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. 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 out of 120 consecutive business
days as a result of incapacity due to mental or physical illness which is
determined to prevent the Executive from performing his duties to the Company by
a physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's employment during
the Employment Period for Cause, provided that the Notice of Termination is
delivered to the Executive not more than 180 days after the discovery by the
Company of the Cause event. For purposes of this Agreement, "Cause" shall mean:
(i) the conviction of, or pleading guilty to, a felony or crime involving moral
turpitude, or (ii) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness which results in a Disability), after a written demand for substantial
performance is delivered to the Executive by the Board, which specifically
identifies the manner in which the Board or Chief Executive Officer believes
that the Executive has not substantially performed the Executive's duties.
For purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of regular outside counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of a majority of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity,
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together with counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, the Executive is guilty of the conduct described,
and specifying the particulars thereof in detail.
(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason, provided that the Notice of Termination is delivered
to the Company not more than 180 days after the discovery by the Executive of
the Good Reason event. For purposes of this Agreement, "Good Reason" shall mean
in each case, without the Executive's prior written consent:
(i) the assignment to the Executive of any duties inconsistent with
the Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3(a) of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 3(b) of this Agreement (other than failure not occurring in bad
faith) or any material breach by the Company of this Agreement which, in either
case, is not remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(iii) the Company's requiring the Executive to be based at any office
or location outside New York City, or, after a Change of Control, the Company's
requiring the Executive to travel on Company business to a substantially greater
extent than required immediately prior to a Change of Control; or
(iv) any failure by the Company to comply with and satisfy Section
11(c) of this Agreement.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. 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, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than 30
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
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(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be (although such Date of
Termination shall retroactively cease to apply if the circumstances providing
the basis of termination for Cause or Good Reason are cured in accordance with
Section 4(b) or 4(c) of this Agreement, respectively), (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) 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 Disability Effective Date, as the case
may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON; OTHER
THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination (or, in the case of any amount
calculated based on the actual performance during the fiscal year of the
termination, at such time as bonuses are paid or made available to other
senior executives of the Company) the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Annual Bonus paid or payable, including any bonus
or portion thereof which has been earned but deferred (and annualized
for any fiscal year consisting of less than twelve full months or
during which the Executive was employed for less than twelve full
months), for the most recently completed fiscal year during the
Employment Period or, if the Date of Termination occurs during the
fiscal year during which the Effective Date occurs, for the current
fiscal year based on the actual performance results for the measuring
period ending at the end of such fiscal year assuming that the
Executive was employed by the Company for the entire fiscal year (the
"Earned Bonus"), provided that (and without affecting the definition
of Earned Bonus), if Executive is entitled pursuant to the Annual Plan
to a portion of the Target Bonus for a fiscal year as a result of a
"change of control," as defined in the Annual Plan, the amount payable
under A2 if for the same fiscal year shall be reduced by the amount of
the Target Bonus being otherwise paid, and (y) a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365
(the "Pro Rata Bonus"), and (3) any compensation previously deferred
by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (1),
(2), and (3) shall be hereinafter referred to as the "Accrued
Obligations"); and
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B. If the Date of Termination is prior to May 8, 2001, the amount
equal to the product of (1) three and (2) the sum of the Executive's
Annual Base Salary and the Earned Bonus, or if the Date of Termination
is on or after May 8, 2001, the amount equal to the product of (a) two
and (b) the sum of the Executive's Annual Base Salary and the Earned
Bonus; and
C. an amount equal to the difference between (a) the actuarial
equivalent of the benefit (utilizing actuarial assumptions no less
favorable to the Executive than those most favorable to the Executive
in effect under the Company's qualified defined benefit retirement
plan (the "Retirement Plan") at any time during the 120 days
immediately prior to a Change of Control) under the Retirement Plan,
and any excess or supplemental retirement plan in which the Executive
participates (together, the "SERP") which the Executive would receive
if the Executive's employment continued for (I) if the Date of
Termination is prior to May 8, 2001, three years after the Date of
Termination, or (II) if the Date of Termination is on or after May 8,
2001, two years after the Date of Termination, and (b) the actuarial
equivalent of the Executive's actual benefit (paid or payable), if
any, under the Retirement Plan and the SERP as of the Date of
Termination. For purposes of this subsection (C), it shall be assumed
that all accrued benefits are fully vested and that the Executive's
compensation during the applicable two or three year period is that
required by Section 3(b)(i) and by Section 3(b)(ii) but based on the
Earned Bonus;
(ii) all stock options, restricted stock and other
stock-based compensation shall become immediately exercisable or
vested, as the case may be;
(iii) If the Date of Termination is prior to May 8, 2001,
for three years after the Executive's Date of Termination, or, if the
Date of Termination is on or after May 8, 2001, for two years but, in
all cases, for such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, the Company shall
continue benefits to the Executive and/or the Executive's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described
in Section 3(b)(vii) of this Agreement if the Executive's employment
had not been terminated, provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided plan,
the corresponding medical and other welfare benefits described herein
shall be terminated. For purposes of determining eligibility (but not
the time of commencement of benefits) of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until the later
of the applicable two or three year period after the Date of
Termination or the end of the Employment Period and to have retired on
the last day of such period;
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(iv) If the Date of Termination is prior to May 8, 2001, for
three years after the Executive's Date of Termination, or, if the Date
of Termination is on or after May 8, 2001, for two years, the Company
shall continue to provide the Executive with Fringe Benefits; and
(v) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided to the Executive or which the
Executive is entitled to receive under any plan, program, policy or
practice or contract or agreement of the Company and its affiliated
companies, to the extent payment of any such amounts or benefits are
not already provided for under this Agreement including, but not
limited to, the supplemental retirement benefit set forth in Section
3(b)(vi) above (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) DEATH. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits (to the extent payable upon the
Executive's death). Accrued Obligations shall be paid to the Executive's estate
or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date
of Termination (or at such other time as expressly provided herein). With
respect to the provision of Other Benefits after a Change of Control, the term
Other Benefits as utilized in this Section 5(b) shall include, without
limitation, and the Executive's estate and/or beneficiaries shall be entitled to
receive, benefits at least equal to the most favorable benefits provided by the
Company and affiliated companies to the estates and beneficiaries of peer
executives of the Company and such affiliated companies under such plans,
programs, practices and policies relating to death benefits, if any, as in
effect with respect to other peer executives and their beneficiaries at any time
during the 120- day period immediately preceding a Change of Control.
(c) DISABILITY. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination (or at such other time as expressly provided
herein). With respect to the provision of Other Benefits after a Change of
Control, the term Other Benefits as utilized in this Section 5(c) shall include,
and the Executive shall be entitled after the Disability Effective Date to
receive, disability and other benefits at least equal to the most favorable of
those generally provided by the Company and its affiliated companies to disabled
executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any time during the
120-day period immediately preceding a Change of Control.
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(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (x) his Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by the
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
but not including the Pro Rata Bonus and the timely payment or provision of
Other Benefits. In such case, all Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination (or at
such other time as expressly provided herein). Upon a termination of the
Executive's employment for Cause by the Company or by the Executive without Good
Reason, the Executive shall forfeit all stock options, restricted stock and
other stock-based compensation that is not vested on 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.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify nor shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its affiliated companies.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of or any contract or
agreement with the Company or any of its affiliated companies at or subsequent
to the Date of Termination shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
7. FULL SETTLEMENT; LEGAL FEES. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, all legal and professional fees and expenses
which the Executive may reasonably incur as a result of the negotiation and
preparation of this Agreement and any contest by the Executive in good faith, by
the Company or others of the validity or enforceability of, or liability under,
any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Code; provided, that, in connection with any contest of this Agreement prior
to a Change of Control, the Executive shall
11
only be entitled to reimbursement of legal fees in the event that he prevails
with respect to at least one material issue.
8. CHANGE IN CONTROL. Upon the occurrence of a Change in Control of
the Company during the Employment Period, all stock options, restricted stock
and other stock-based compensation shall become immediately exercisable or
vested, as the case may be, including without limitation, the Restricted Stock
and the Management Restricted Stock.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise or paid or payable as a result of any
prior or future actions or change in effective control or ownership (within the
meaning of Section 280G of the Code), but determined without regard to any
additional payments required under this Section 9) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes and any benefits that
result from the deductibility by the Executive of such taxes (including, in each
case, any interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties imposed
with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Ernst & Young
or such other "Big Five" (or its equivalent) certified public accounting firm as
may be designated by the Executive and reasonably acceptable to the Company (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
of Control, the Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 9, shall be paid by the Company to the
Executive within 10 business days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments
12
which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 9(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action m connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of the payment of costs and
expenses relating to such representation. Without limitation on the foregoing
provisions of this Section 9(c), the Company shall control all proceedings taken
in connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the
13
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority at
his sole cost and expense.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(a) or 9(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Section 9(c)) promptly pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
10. CONFIDENTIAL INFORMATION; NONSOLICITATION. (a) The Executive shall
hold in a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company or any of
its affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company or
any of its affiliated companies 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 required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
(b) Until the later of (i) May 8, 2001 or (ii) one year following the
termination of the Executive's employment for any reason, the Executive shall
not, directly or indirectly, (i) 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 (included for this purpose
14
the contracting with any person who was an independent contractor of the Company
during such period) or (ii) solicit any customers of the Company to purchase
products or services then sold by the Company from another person or entity
without, in either case, the prior written consent of the Company's Board of
Directors.
11. 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
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will 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 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, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
12. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) 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:
Xxxxxxx X. Xxxxxx
Linden Farm
00 Xxxxxxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
15
IF TO THE COMPANY:
Golden Books Family Entertainment, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) 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,
including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to Section 4(c)(i)-(iv) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes the amended and restated employment agreement dated as of the 20th
day of August, 1996 by and between the Executive and the Company (as so amended
on the 9th day of September, 1997) and any other agreement between them
concerning the subject matter hereof.
[concluded on next page]
16
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and the Company has caused these presents to be executed in its name on its
behalf, all as of the day and year first above written.
XXXXXXX X. XXXXXX
___________________________________________
GOLDEN BOOKS FAMILY ENTERTAINMENT, INC.
By: ______________________________________
Name:
Title:
17
EXHIBIT A
[Restricted Stock Agreement]
18
EXHIBIT B
[Management Restricted Stock Agreement]
19
