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Exhibit 10(d)
EMPLOYMENT AGREEMENT
AGREEMENT, made this 27th day of November, 1991, between Amscan, Inc.,
a New York corporation (the "Employer" or "Company") and Xxxxxx X. Xxxxxxxxxx
(the "Employee").
W I T N E S S E T H:
WHEREAS, Employee is now and has been employed for some time as an
employee of the Employer;
WHEREAS, the Employer desires to continue to employ the Employee during
the term of this Agreement and the Employee desires to continue in the employ of
the Employer and the parties wish to set forth the terms and conditions of such
employment;
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and promises contained herein, the parties agree as follows:
1. Prior Contract Superseded.
This employment agreement supersedes the current employment agreement
between the Employer and the Employee dated February 28, 1990, and the
provisions hereof shall govern the employment of the Employee, except that the
following provisions of the prior agreement continue in force and effect:
(a) The base yearly salary of $150,000. shall remain in effect until
February 28, 1992 and shall thereafter be adjusted and increased as set forth in
paragraph 4. hereof.
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(b) The bonuses referred to in the third paragraph of the
agreement of February 28, 1990, shall be paid by the Employer to the Employee,
to the extent, if any, that any portion thereof is still unpaid.
(c) The bonus equal to one percent (l%) of the increase of the
net sales of Amscan USA and Amscan Canada referred to in the fourth paragraph of
the agreement of February 28, 1990, will be paid by the Employer to the
Employee, but any such payment shall be credited to the Employer in reduction of
the share of the Aggregate Net Profits, if any, computed for the calendar year
1992 as set forth in paragraph 4. hereof.
2. Duties.
During the term of this Agreement, the Employer will employ
the Employee to supervise and administer the general business of the Company,
including but not limited to marketing, sales, manufacturing and other executive
functions and to perform such other executive duties as may be assigned to him
from time to time, by the Board of Directors of the Company or its President or
Chairman of its Board.
(a) The Employee shall devote his entire time and attention to
the Employer's business. During the term of this agreement, the Employee shall
not engage in any other business activity, regardless of whether it is or is not
pursued for gain or profit.
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(b) The Employee is designated as the Executive Vice
President of the Company. The Board of Directors may designate the Employee as
an officer and director of the Company other than or in addition to his
designation as Executive Vice President and the Employee shall during the term
of this Agreement serve as such. No additional compensation shall be payable to
the Employee for his services as an officer or director of the Company.
3. Term of Employment and Effective Date Thereof.
(a) This agreement and the employment of the Employee
hereunder shall start and be effective on the date hereof and except as earlier
terminated, as herein provided, shall end December 31, 1996.
(b) Notwithstanding the foregoing, the Employee's employment
hereunder shall terminate upon the occurrence of any of the following events:
(i) the mutual agreement, in writing, at any time, by
the Employer and Employee to terminate such employment;
(ii) the death of the Employee;
(iii) the termination of the Employee's employment by
the Employer, for "Cause" as defined hereinafter.
(iv) the unilateral cessation or discontinuance by
the Employee of his working for or employment by the Employer;
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(v) the sale of the business of the Employer or of
substantially all of its shares of stock and the termination of the
Employee's employment as provided by paragraph 8.(c) hereof.
(vi) the election by the Employer to terminate the Employee's
employment at any time and for any reason prior to the end of the initial term
or any extended term, under the provisions of paragraph 12 hereof.
(c) For the purposes of this Agreement, "Cause" shall mean the
commission by the Employee of any crime or an intentional act of fraud against
the Employer. A violation under any Motor Vehicle Law or Code shall not be
included in the definition of "Cause".
(d) Upon termination of the Employee's employment hereunder,
whether at the end of the term hereof or any extended term or in the event of
earlier termination, the Employee shall have no further rights under this
Agreement, except as expressly herein set forth. But nothing contained herein
shall be deemed to preclude the Employer from enforcing any remedies available
to it by law in consequence of a breach by the Employee of his obligations to
the Employer or available to the Employer under the provisions of this
agreement, including without limitation the enforcement of any restrictive
covenants hereunder to the extent herein provided.
4. Compensation.
(a) For his services hereunder, the Employer agrees to pay to
the Employee during the term of this agreement, the
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following base year salaries:
(i) The base yearly salary shall be $150,000 until February
28, 1992.
(ii) Commencing March 1, 1992, the base yearly salary shall be
increased to $173,000. The base yearly salary of $173,000.
payable for less than a full calendar year shall be pro-rated
to the end of such calendar year.
(iii) For each full calendar year (including the final
calendar year of 1996 for the initial term of employment
hereunder) starting with the calendar year 1993, the base
yearly salary shall be increased by 5% of the base yearly
salary of the preceding year. The increase for 1993 shall be
5% of $173,000.
(b) Employee's base yearly salary shall be payable in regular
intervals in accordance with the Company's payroll practices, in effect, during
the term of this Agreement.
(c) All compensation shall be subject to such withholding of
any federal, state or local taxes as may be required by law with respect to
these payments.
(d) In the event of the termination of the Employee's
employment before the end of a calendar year, the base yearly salary for the
year of termination shall be pro-rated to the date of termination, except as
provided in paragraph l2. hereof.
5. Bonus.
In addition to the base yearly salary set forth in paragraph 4
hereof and any other compensation payable to the Employee as herein set forth,
the Employer agrees to pay to the Employee a bonus or bonuses as and upon the
terms and conditions hereinafter set forth:
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(a) For each calendar year that the Employee shall be employed
by the Employer, whether during the initial term or any extended term, the
Employer shall pay to the Employee a bonus of ten (10%) percent of the Aggregate
Net Profits (as hereinafter defined and calculated) of the Employer and its
Affiliates (as hereinafter described and defined) for the said calendar year.
(b) If the Employee's employment shall be terminated before
the end of a calendar year, then the bonus for the period of time that the
Employee shall be employed during such calendar year shall be ten (10%) percent
of the Aggregate Net Profits for the period from the commencement of such year
to the date of termination of employment within such year.
(c) For the year of termination of employment, no bonus shall
be payable by the Employer to the Employee under this provision of this
agreement if the Employee's employment has been terminated for "Cause" as set
forth in Paragraph 3 hereof or if it has been terminated by reason of the
unilateral cessation or discontinuance by the Employee of working for the
Employer as set forth in Paragraph 3.(a)(iv) of this agreement.
(d) The parties acknowledge that the Company's business is now
related to and associated with the following business entities, identified
herein for the purposes of this agreement as Amscan U.S.A., Amscan Canada,
Amscan Sweden, Amscan England, Amscan Australia, Amscan Germany, Deco
Manufacturing, Kookabura Manufacturing, Perfect Party and Cake Tops, and may
hereafter become related to business entities which will be
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engaged in businesses similar to those of the Company or related thereto or who
will serve the same outlets as does the Company, all of which entities are
referred to collectively for the purpose of this Agreement as "Affiliates".
While these other business entities are referred to herein as "Affiliates", it
is recognized and acknowledged that none of the current or future Affiliates are
or will be subsidiaries or have any other relationship to the Company which
would be violative of its status as a Sub-Chapter S Corporation under the United
States Internal Revenue Code.
The Employer may in its sole discretion, from time to time, in the
conduct and furtherance of its business, affiliate with such additional business
entities as described above. The proprietary ownership of and interests in such
Affiliates may be determined by the Employer, in its sole discretion. Such
additional business entities shall be regarded as "Affiliates" of the Employer
for the purpose of computing Aggregate Net Profits hereunder and the net profits
or losses of such additional Affiliates shall be included in the computation of
the Aggregate Net Profits, if any, hereunder, as if such other business entities
were originally named herein as Affiliates.
(e) The Employer may take such steps in the operation of its
business as its President or Board of Directors or shareholders may, in their
sole discretion, determine, including, without limitation, modification or
discontinuance of
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any of its present operations or addition of new operations, without regard to
the effect on the calculation of the Aggregate Net Profits hereunder. Similarly,
any Affiliate may conduct its business as it sees fit without regard to the
effect on the Aggregate Net Profits hereunder. If any action taken by the
Employer or its officers or Board of Directors or if any action taken by any of
the Affiliates, adversely affects the Aggregate Net Profits as defined herein,
the Employee shall not be entitled to any claim or recourse of any kind or
nature by reason thereof.
(f) The Aggregate Net Profits hereunder shall be calculated by
adding the net profits of the Employer and of all of the Affiliates and
deducting therefrom the net losses of the Employer and of all of the Affiliates
for each calendar year or any lesser period within a calendar year if the
Employee's employment shall be terminated before the end of a calendar year. The
Employer's fiscal period is the calendar year. However, various of the
Affiliates may have fiscal periods which do not coincide with the calendar year.
Nevertheless, in computing the Aggregate Net Profits, if any, for any calendar
year, the net profits or losses of the respective Affiliates for any full
calendar year shall be taken as the amounts calculated as at the end of their
respective fiscal periods occurring during the calendar year involved.
(g) For the purposes hereof, the Net Profits of the Employer
and the Affiliates, if any, shall be computed before
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the payment of any federal, state or local taxes by the Employer and those
Affiliates located in the United States and before the payment of comparable
taxes payable by any of the Affiliates located outside of the United States.
(h) For the purpose of computing the Aggregate Net Profits
hereunder during the initial term of this agreement and during the extended
term, if the option to extend is exercised as provided by paragraph 13. hereof,
the deduction by the Employer for the base salary of the President of the
Employer (now, Xxxx Xxxxxxxxxxx) shall not exceed the base sum of $250,000. for
the calendar year 1992 with successive increases thereafter, of 5% over the base
salary for each of the four (4) calendar years of the initial term and if this
agreement is extended, then for each of the three years of the extended term.
Nothing contained herein shall limit the amount of salary which may be payable
by the Employer or any of the current or future Affiliates, as herein described
and defined to its President; the foregoing limitation being only for the
purpose of computing Aggregate Net Profits.
(i) The Employee may examine the financial and other books and
records of the Company relating to the profits and losses of the Company and its
affiliates. For the purposes hereof, the Aggregate Net Profits shall be
calculated and determined by outside accountants regularly employed by the
Employer and the respective Affiliates to prepare their financial statements and
such calculations shall be made in
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accordance with generally accepted accounting principles consistently applied.
The Employee and Employer shall be bound by the calculation of the said
accountants as to the amount of the Aggregate Net Profits and Losses.
The Employee's share of the Aggregate Net Profits, if any, shall be
paid to him as follows:
The Aggregate Net Profits shall be computed by the aforesaid
accountants in a timely manner at the end of each calendar year or at the time
of termination of the Employee's employment within a calendar year, in the event
of early termination and the Employee's share of the Aggregate Net Profits shall
be paid to him as follows:
(i) One-third thereof shall be paid to the Employee within 90
days after the end of the calendar year involved or within 90 days after early
termination of Employee's employment within a calendar year, as the case may be.
(ii) The remaining two-thirds of the Employee's share of said
Aggregate Net Profits shall be loaned by the Employee to the Company to be
repaid to the Employee with interest at prime rate chargeable by the Company's
bank as follows: Interest only shall be paid at the end of the first year of
such loan and the remaining principal plus interest shall be paid at the end of
the second year of such loan. The loan shall be deemed to have been made on the
first day following the period covered by the accounting involved.
(j) Nothing contained herein is intended to imply that
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the Employee is obliged to reimburse the Employer for any losses
sustained by the Employer.
6. Fringe Benefits.
As additional consideration for the services of the Employee
under this Agreement, the Employer shall provide to the Employee all fringe
benefits provided by the Employer to its other executives, including automobile
allowance, paid vacation, holiday and sick leave, medical insurance for the
Employee, spouse and dependent children fully paid for by the Employer and group
life insurance, and participation in pension and/or profit-sharing plans, in the
same manner and to the same extent as such fringe benefits shall be available to
such other executives of the Employer.
7. Business Expenses.
The Employer acknowledges that the Employee may necessarily
incur, for the benefit of the Company and in furtherance of the Company's
business, various expenses included but not limited to travel, entertainment and
promotion expenses. The Employer, at its option, shall either pay such necessary
expenses directly, advance sums to be used for payment of such necessary
expenses or on submission by the Employee of proper vouchers therefor, reimburse
the Employee for such necessary expenses actually incurred by him.
8. Additional Compensation Upon Sale of Business.
(a) As additional compensation to the Employee for the
covenants and obligations of the Employee under this Agreement
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and as an incentive to remain employed by the Employer, the Employer agrees that
in the event the Employer shall sell its business, including substantially all
of its assets or if the shareholders of the Employee shall sell substantially
all of their stock in the Company to another person or entity while the Employee
is still employed by the Employer, then the Employer (in the event of a sale by
the Employer) or the shareholders (in the event of a sale of stock by the
shareholder) shall pay to the Employee a sum of money equal to five percent (5%)
of the "Net Selling Price", as defined hereinafter. "Net Selling Price" shall
mean the total consideration actually paid by the purchaser for all of the stock
or substantially all of the assets of the Company (including liabilities assumed
by the purchaser) less any liabilities required to be satisfied or paid by the
Employer or the shareholders out of the proceeds of the sale, and less any and
all selling expenses of the Employer, including, without limitation, legal fees,
brokerage commissions, sales taxes (if paid by the Employer) and other selling
expenses whether similar or dissimilar to the foregoing. If payment of such
consideration by the purchaser shall be deferred in whole or in part, the
Employee will be entitled to his additional compensation hereunder only if and
when and to the extent that payments thereof shall actually be collected by the
Employer or shareholder(s), and will be subject to deduction for the Employee's
pro rata share of collection expenses, including legal fees.
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(b) Nothing contained herein is intended to limit or preclude
the sale by the current shareholder(s) of the Employer of any portion of
their shares provided that the current shareholder(s) shall retain ownership
of more than Fifty (50%) percent of the shares of the Company and control
thereof and provided further that any purchasers of such shares shall upon
the purchase of such shares covenant and agree to be bound by this portion
of the agreement relating to additional compensation upon the sale of the
business of the Company. No portion of the consideration received upon such
sale shall be payable to the Employee.
(c) If the Employer shall sell its business including
substantially all of its assets or if the shareholder(s) of Employer shall sell
substantially all of their shares of stock in the Company, then at the
discretion of the purchaser of said business of said shares of stock, as the
case may be, the Employer at the request of the purchaser, may terminate this
Agreement. Thereupon, the Employee shall be entitled to receive all sums payable
to him in the manner and as provided by sub- paragraph (a) of this paragraph 8.
In the event of such termination, the bonus provided in Paragraph 5 shall be
based on the Aggregate Net Profits for the portion of the Company's year through
the date of such termination.
(d) Nothing contained in this paragraph or elsewhere in this
agreement or otherwise is intended to imply that a merger or consolidation of
the Company with any other company or
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business entity shall constitute a sale of the business hereunder or of the
shares of stock of the Company, whereby additional compensation shall be paid to
the Employee under this paragraph 8. and such consolidation or merger shall not
constitute any such sale.
(e) Xxxx Xxxxxxxxxxx, as sole shareholder of the Company has
signed the last page of this agreement to acknowledge his obligation under this
paragraph of this agreement as the sole shareholder of the Company.
9. Additional Compensation Upon Initial Public Offering.
(a) As additional consideration for the covenants and
obligations of the Employee under this Agreement and as incentive to remain
employed by the Employer, the Employer agrees that in the event the Company
files a registration statement with the Securities and Exchange Commission in
connection with an "Initial Public Offering," as defined hereinafter, during the
term of this Agreement and the registration statement is effective and stock of
the Company is sold pursuant to the Initial Public Offering, the Company shall
issue to the Employee shares of Company Stock (the "Shares") equal to five (5%)
percent of the shares of Company Stock issued and outstanding immediately
following the closing of the Initial Public Offering.
(b) "Initial Public Offering" shall mean the registration of
the Company's stock with the Securities and Exchange Commission under the
Securities Act of 1933, as
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amended. "Company Stock" shall mean the common stock, no par
value, of the Company.
(c) It is understood that the Shares received by the Employee
pursuant to this paragraph 9 shall be "restricted stock" as that term is defined
in Rule 144 promulgated under the Securities Act of 1933, as amended. Further
the Employee agrees that each certificate representing the Shares will bear on
its face a legend substantially in the following form:
"This certificate and the shares of stock represented
hereby have not been registered with the Securities
Act of 1933. They have been acquired for investment
purposes only and not with the view to the
distribution thereof within the meaning of the
Securities Act of 1933, and the rules and regulations
thereunder. They may not be transferred in the
absence of an effective registration statement except
in compliance with any provision of law."
The Employee further agrees that the Company may place a stop order on the
certificate(s) evidencing the Shares, restricting their transfer in accordance
with their restricted nature.
10. Restrictive Covenant.
The Employee in consideration of his special and unique
services and his position, which by its nature exposes him to trade secrets,
proprietary information and other confidential material and assets of the
Employer, covenants and agrees as follows with the Employer:
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(a) During the term of this Agreement and during any extended term,
whether or not the Employee's employment hereunder is terminated before the
end of the particular term, and for the additional periods thereafter, set
forth below, the Employee covenants and agrees with the Employer that he
shall not, directly or indirectly, as proprietor, partner, shareholder
(other than as a less than five percent shareholder in a publicly held
company), officer, director, employee or consultant, or in any other
capacity, for his own benefit or for or with any other person or entity,
engage in or perform services in any business or activity involved in or
related to the business in which the Employer or any of its Affiliates, as
herein defined, is now engaged or any other business in which the Employer
or any of its Affiliates may hereafter become engaged in any trading area
in which the Employer or any of its Affiliates may be engaged in business
or trade. The Employee acknowledges that the Employer and its Affiliates
now carry on their business in many trading areas throughout the world.
(i) If the Employee's employment is terminated for Cause
as defined by paragraph 3.(c) hereof, then the restrictive
covenant shall extend for three (3) years after such
termination.
(ii) If the Employer fails to exercise its option
to extend as provided by paragraph 13. hereof, then the
restrictive covenant shall extend for one (1) year
after the end of the initial term.
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(iii) If the Employer does exercise its option to
extend as provided by paragraph 13. hereof, then the
restrictive covenant shall extend for three (3) years after
the end of the extended term.
(iv) But, if the Employer exercises its option to
terminate this Agreement as provided by paragraph 12. hereof,
then there shall be no restrictive covenant, binding upon the
Employee after such termination.
(b) The Employee further covenants that he will not, at any time,
without the prior written consent of the Employer furnish or disclose to any
person who is not then an officer, employee or agent of the Employer, (i) any
trade secret of the Employer or of any Affiliate, or (ii) any documents,
records, plans, models, customer lists or other tangible property of the
Employer or any Affiliate, regardless of its form, which may come into his
possession, custody or control in consequence of his employment.
(c) In addition to a right to accounting by the Employer and/or
damages and/or any other relief to which the Employer may be entitled as a
result of the Employee's breach hereof, the Employer or the Affiliates will be
entitled to injunctive relief restraining any such breach or threatened breach,
or the continuation of such breach, by the Employee, provided, however that if a
court of competent jurisdiction shall determine that this covenant shall be
enforceable only if limited to a shorter period of time or to a small
geographical
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area than is herein expressly provided, or otherwise limited, then and in such
event, this covenant shall be deemed to be limited to the extent so determined
to be enforceable, in the same manner and to the same extent as of such limits
were expressly provided herein.
(d) The rights hereunder by the Employer against the Employee
may be assigned by the Employer and may be enforced by any successors or assigns
of the Employer.
(e) The provisions of this paragraph are subject to the
provisions of paragraph 8 hereof, related to sale of the business of the
Employer or the shares of its stock.
11. Relationship of Xxxx Xxxxxxxxxxx.
Nothing contained in this Agreement or elsewhere shall
preclude or prevent Xxxx Xxxxxxxxxxx from engaging in any business or businesses
or any activities as he may wish separate and apart from the business of the
Employer or its Affiliates. Such other unrelated businesses and activities shall
not be considered in determining any rights of the Employee hereunder
particularly and, without limitation, as to a share of the Aggregate Net Profits
or additional compensation upon the sale of any business or any shares of stock
or upon any public offering of shares of stock. The Employee recognizes and
acknowledges that Xxxx Xxxxxxxxxxx has considerable other business interests
which are not related to the operation of business of the Company or of any of
its Affiliates. None of these are to be considered in determining any rights of
the
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Employee hereunder. Xxxx Xxxxxxxxxxx has a proprietary interest in various real
properties which are being used in the business of the Company or of Affiliates.
None of these are or are to be regarded as assets of the Employer or Company for
any purposes under this agreement or otherwise, including without limitation,
calculation of Aggregate Net Profits or additional compensation to the Employee
upon the sale of the Company's business, or its shares of stock or upon any
public offering of shares of stock.
12. Early Termination of Agreement at Employer's Option.
Notwithstanding anything to the contrary contained in this
agreement or elsewhere, the Employer may terminate this agreement at any time
and for any reason, prior to its regular termination date.
(a) In the event of such termination, the Employer shall pay
to the Employee the following:
(i) The base yearly salary at the rates set forth in
paragraph 4(a) of this agreement to the end of the current term of the
Employee's employment; such payments to be made at the same intervals as the
base yearly salary would have been paid had this agreement not been terminated.
(ii) 10% of the Aggregate Net Profits, if any, of the
Employer and the Affiliates for the period from the commencement of the then
current full term to the date of termination, as set forth in paragraph 5.(c)
hereof, computed and payable as set forth in paragraph 5. hereof.
(b) All loans payable by the Employer to the Employee shall be
paid to the Employee within 90 days of the termination
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hereunder with interest to the date of payment.
(c) All fringe benefits provided to the Employee under this
agreement shall terminate upon the termination of this agreement and shall be
disposed of and adjusted as follows:
(i) Any motor vehicle which the Employee may have been
assigned for the performance of his duties shall be turned back to the Employer.
(ii) Vacation pay shall be pro-rated to the date of
termination.
(iii)Employee may maintain medical insurance for himself and
his insured dependents in compliance with the provisions of COBRA or any other
applicable law or regulation but the premiums for the first 90 days following
termination of the Employee's employment shall be paid by the Employer.
(d) The additional compensation payable to the Employee, upon the
sale of the business of the Employer or upon a public offering of the shares of
stock of the Employer's corporation as provided by paragraphs 8. and 9. hereof
shall be paid to the Employee, if such sale or public offering shall be made
within one (1) year after the termination of this agreement under this paragraph
12., but if said sale or public offering shall be made after one (1) year after
said termination, then the Employee shall have no rights to additional
compensation under said paragraphs 8. and 9.
(e) The provisions of Article l0(a) hereof relating to
restrictions on Employee's employment after termination of the original term of
this agreement or any extended term shall have
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no application to a termination under this Paragraph and shall not be binding
upon the Employee in the event of a termination of his employment under this
Paragraph, it being understood that if the Employee's employment is terminated
under this Paragraph at the sole discretion of the Employer, then the Employee
is free to seek employment in any manner that he may wish.
13. Option to Extend.
The Employer is granted an option to extend this agreement and
the employment of the Employee for an additional period of three (3) years
during the calendar years 1997, l998, and 1999, upon the following terms and
conditions:
(a) The option shall be exercised by notice to the Employee by
the Employer, no later than July 1, 1996.
(b) Notice of the exercise of such option shall be in
conformity with the provisions of paragraph 14. hereof
(c) The employment of the Employee during such extended three
(3) year term shall be upon the same terms and conditions as are set forth in
this agreement and the base yearly salary shall be increased from year to year
in the manner provided by Paragraph 4.(a)(iii) hereof.
14. Notices.
Any notice hereunder shall be sufficient if sent by Certified
Mail, Return Receipt Requested, to the party to be notified at his or its
address set forth below or at such other address as the party to be notified may
have otherwise designated, by notice in writing, with copies to their respective
attorneys as set forth below:
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To Amscan or any of
its Affiliates at: Amscan, Inc.
X.X. Xxx 000
Xxxxx Xxxx
Xxxxxxxx, X.X. 00000
with a copy to: Xxxxxxx & Xxxxxxxxx
Xxx Xxxxxxxxx, Esq.
One North Broadway
White Plains, N.Y. l060l
To Xxxxxx X. Xxxxxxxxxx
at: Xx. Xxxxxx X. Xxxxxxxxxx
25 Tulip Tree Lane
Mamaroneck, N.Y. 10543
with a copy to: Xxxxxx, XxXxxxxxxxx & Xxxxxx
Xxxxxxx X. Xxxxxx, Esq.
X.X. Xxx 0000
Xxxxxxxxxx, X.X. 00000
15. Amendments.
No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties, except as herein otherwise
provided.
16. Governing Law.
This Agreement shall be governed in all respects by the laws
of the State of New York.
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00 . Xxxxxxxxx Headings.
The paragraph headings used in this Agreement are included
solely for convenience and shall not affect or be used in connection with the
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMSCAN, INC. (Employer)
By:/s/ XXXX XXXXXXXXXXX
-------------------------------
Xxxx Xxxxxxxxxxx,
President
WITNESS:
/s/ XXXXXX XXXXXXXXX /s/ XXXXXX X. XXXXXXXXXX
---------------------------- -------------------------------
Xxxxxx X. Xxxxxxxxxx (Employee)
The undersigned has placed his signature below as the sole shareholder of the
Employer to acknowledge his obligations under paragraph 8. hereof.
/s/ XXXX XXXXXXXXXXX
----------------------------
Xxxx Xxxxxxxxxxx
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SUPPLEMENT TO AGREEMENT made the 27 day of November, 1991, between
Amscan, Inc., a New York corporation (the "Employer" or "Company") and Xxxxxx X.
Xxxxxxxxxx (the "Employee") (hereinafter referred to as the "Employment
Agreement").
WHEREIN, IT IS MUTUALLY AGREED AS FOLLOWS:
Paragraph 5.(f) of the Employment Agreement is amended to add the
following:
"For the purpose of calculating the Aggregate Net Profits hereunder,
all contributions by Xxxx Xxxxxxxxxxx to the capital of the Employer or
any of its affiliates shall be treated as if such capital contributions
were loans to the Employer or any of its affiliates, as the case may
be, and an amount equal to the "interest" (computed as hereinafter set
forth) which would have been paid on such capital contributions had
they been loans shall be deducted as an operating expense. For the
purpose of such calculation, the amount of "interest" shall be the
"prime" rate chargeable by the Employer's primary bank as it may be
determined from time to time by said bank plus one (1%) percent."
IN WITNESS WHEREOF, the parties have executed this Agreement the
28 day of December, 1992.
AMSCAN, INC. (Employer)
By:/s/ XXXX XXXXXXXXXXX
-----------------------------------
Xxxx Xxxxxxxxxxx, President
/s/ XXXXXX X. XXXXXXXXXX
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XXXXXX X. XXXXXXXXXX, Employee
/s/ XXXXXX XXXXXXXXX
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Witness
