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Exhibit 10.111
12/13/96
AGREEMENT
THIS AGREEMENT, made this 17th day of December, 1996, by and between
XXXX XXXXXX AND COMPANY, INC., a New Jersey corporation having its principal
place of business at 000 Xxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Company")
and X. XXXXX XXXXX, residing at 00 Xxxxxxxxx Xxxx Xxxx, Xxxxx Xxxxxx Xxxxx, Xxx
Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been associated with the Company for many
years; and
WHEREAS, the Executive possesses an intimate knowledge of the business
and affairs of the Company, its policies, methods, personnel and business
relationships; and
WHEREAS, the Company desires to continue to retain the Executive's
services by employing the Executive as President and Chief Operating Officer of
the Company until June 30, 1997, and engaging the Executive as a consultant for
a period of one (1) year thereafter to render general advice and management
consulting services to the Company and its subsidiaries and affiliates; and
WHEREAS, the Executive wishes to perform such services for the
Company, all in accordance with the following terms, conditions and provisions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. TERM. This Agreement shall be effective from December 12, 1996
until June 30, 1998, on the terms and conditions set forth herein.
2. SUPERSEDING EFFECT. This Agreement supersedes and replaces all
prior agreements between the Executive and the Company, its subsidiaries and
affiliates, and shall be the exclusive agreement governing the terms of the
Executive's employment and consulting relationship with the Company.
Notwithstanding the foregoing, this Agreement shall not be deemed to cancel or
otherwise effect the Executive's right to receive compensation for his services
provided to the Company in 1996.
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The Executive will receive the Executive Incentive Plan Bonus and any
performance bonus if payable, and to participate in the Company's profit-
sharing/Section 401(k) plan for 1996 and Xxxx Xxxxxx and Company, Inc. 1994
Stock Option and Restricted Stock Plan.
3. DUTIES. From the date hereof through June 30, 1997, the Executive
shall be employed by the Company as president and Chief Operating Officer of the
Company, and shall diligently and conscientiously devote his business time,
attentions and energies to the business of the Company. From June 30, 1997
through June 30, 1998, the Executive shall be engaged as a consultant to the
Company. During the term of this Agreement, the Executive shall report to the
Board of Directors of the Company (the "Board") and the Chairman of the Board,
shall comply with those rules, regulations and policies of the Company adopted
by the Board, and shall to the utmost of his abilities work for the profit and
benefit of the Company. He shall have such authority and responsibility, and
shall serve in such capacities with the Company's subsidiaries and affiliates,
consistent with his status as President and Chief Operating Officer up to and
through June 30, 1997 as may from time to time be assigned to him by the Board
or the Chairman of the Board. The Executive shall not have the right to bind the
Company except in his capacity as President and Chief Operating Officer up to
and through June 30, 1997, and as specifically authorized by the Board during
the period of his engagement as a consultant hereunder.
4. CORPORATE POSITIONS. The Executive agrees during the term of this
Agreement to serve without further compensation as a director and/or officer of
the Company or of any corporation which is a subsidiary or affiliate of the
Company if elected or appointed by the shareholders or board of directors of the
Company or such corporation. The Company shall propose the Executive's name for
nomination as a director of the Company, subject to shareholder approval, at all
applicable times during the term of this Agreement; but nothing herein shall be
construed as requiring the election or employment of the Executive as a
director.
5. COMPENSATION. As his compensation for all services rendered to the
Company during the term of this Agreement, from and after January 1, 1997
through June 30, 1998, in whatever capacity rendered, the Executive shall be
entitled to have and receive an annual salary of Three Hundred Thousand Dollars
($300,000) per calendar year during the term of this Agreement, payable in
accordance with the Company's standard payroll procedures. The Company shall
deduct and withhold all necessary
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social security and withholding taxes, and any other similar sums required by
law, from the Executive's compensation.
6. INSURANCE. The Company shall furnish life, accident, medical and
dental insurance to the Executive during the term of this Agreement in
accordance with the Company's standard group insurance plan as such plan may be
amended, or in accordance with such alternate plan as may be carried by the
Company during the term of this Agreement. Notwithstanding anything hereinabove
to the contrary, the Company may discontinue or modify any of the plans which it
may grant under this Paragraph 6 at any time due to economic, tax or other
business reasons, as determined in the sole discretion of the Board.
7. AUTOMOBILE. Upon the execution of this Agreement, the Company shall
continue to supply the Executive with the automobile heretofore supplied to the
Executive by the Company. As soon as reasonably practicable after the execution
of this Agreement, the Company shall purchase a new automobile for his use
through June 30, 1997. On June 30, 1997, the Executive shall purchase such
automobile from the Company for the purchase price paid by the Company, less an
automobile allowance of $5,000. The Company shall pay the cost of, maintenance,
gasoline and insurance of such automobile until June 30, 1997, but shall not be
obligated to pay the insurance thereafter or to pay any other costs and expenses
for the maintenance and operation of such automobile at any time, including but
not limited to the cost of gasoline, repairs and maintenance.
8. EXPENSE REIMBURSEMENT. The Company shall reimburse the Executive
for the ordinary and necessary business expenses incurred by him in the
performance of his duties hereunder in accordance with the Company's usual
policies; provided, however, that the Executive shall, at all times during the
term of this Agreement, submit to the Company all documentation, including,
without limitation, receipts and vouchers, necessary to substantiate and justify
the deductibility of such expenses for income tax purposes and to maintain the
books and records of the Company.
9. PROFIT-SHARING PLAN. The Executive shall have the right to
participate in the Company's profit-sharing/Section 401(k) plan or any other
similar employee benefit maintained by the Company for all of its employees,
which right shall continue until June 30, 1997.
10. STOCK OWNERSHIP. The parties acknowledge that the Executive
possesses certain rights with respect to the common
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stock of the Company pursuant to the Company's Stock Option and Restricted Stock
Plan (the "Plan") in the form of Options and Restricted Stock as such terms are
defined in the Plan. The termination of the Executive's employment on June 30,
1997 shall be deemed by the Company and the Compensation Committee of the Board
to be retirement within the meanings of Sections 5.7 and 6.7 of the Plan for
purposes of the Executive's stock ownership rights. Accordingly, on June 30,
1997, all of the Executive's outstanding Options may be exercised for up to one
year thereafter or the stated period of the Option, whichever period is shorter,
and all restrictions on the Executive's Restricted Stock shall lapse, subject to
the terms of the Plan and applicable law.
11. VACATION AND HOLIDAYS. The Executive shall be entitled to vacation
time as mutually agreed upon by the Company and the Executive. The vacation time
shall be taken on reasonable prior notice to the Company, and at a time and
manner mutually agreed upon by both parties not to unreasonably interfere with
the proper operation of the Company. The Executive shall also be entitled to the
standard Company holidays.
12. CONDITIONS OF TERMINATION. This Agreement shall terminate on the
occurrence of any of the following events:
(a) Upon the expiration of its term.
(b) At any time by mutual agreement in writing between the Company and
the Executive.
(c) At any time, With Cause, at the sole option of Company, either
with or without written notice. For the purposes of this Agreement, "With Cause"
shall mean the following:
(i) fraud, misappropriation embezzlement, theft, dishonesty or
similar actions by the Executive;
(ii) the committing of any act, or failure to act where there is
a duty to act by the Executive, where such act or omission constitutes an
indictable criminal offense; or
(iii) breach by the Executive of any of the provisions of
paragraph 14 of this Agreement.
(d) Upon the permanent disability or death of the Executive. For
purposes of this Agreement, permanent disability shall be defined as the
Executive's inability to perform his
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duties under this Agreement, in the sole determination of the Board, due to
physical and/or mental incapacity for (x) a period of 180 consecutive days, or
(y) for more than 180 days (whether or not consecutive) in a period of 365
consecutive days.
13. TERMINATION COMPENSATION. Upon termination of this Agreement for
whatever reason, the Company shall be obligated to pay to the Executive all
unpaid compensation as set forth under paragraph 5 hereof accrued through the
date of termination and reimbursement of expenses incurred pursuant to paragraph
8 hereof. This shall be the Company's sole obligation to the Executive upon
termination.
14. RESTRICTIVE COVENANTS. The Executive covenants and warrants to the
Company as follows:
(a) Confidentiality. The Executive acknowledges that he has acquired
and will acquire and have access to confidential information and trade secrets
of the Company, its subsidiaries and affiliates, including but not limited to
customer lists and relationships, supplier lists and relationships, product
information, financial information, trade secrets, operating, marketing and
sales training materials and techniques, sales data, pricing practices and
strategies, manufacturing processes development plans and other confidential
information of every kind and character related to any aspect of the business of
the Company, its subsidiaries and affiliates (collectively "Proprietary
Information"). The Executive further acknowledges that Proprietary Information
is a valuable, special and unique asset of the Company. The Executive
accordingly agrees that during the term of this Agreement and at all times after
the termination of this Agreement or his relationship with the Company,
regardless of the time, manner or reason of or for such termination, the
Executive shall not, except in the regular course of the Company's business on
behalf of the Company, disclose, divulge, furnish, make accessible to or use
directly or indirectly, for his own use or benefit or that of any other person
or entity, any Proprietary Information of the Company, its subsidiaries or
affiliates and that he shall not disclose or divulge any Proprietary Information
for any reason or purpose whatsoever.
(b) Exceptions. The obligations and restrictions provided by paragraph
14 (a) hereof shall not apply with respect to the following if demonstrated by
the Executive to the Company by clear evidence: (i) information which at the
time of disclosure is or was in the public domain; (ii) information which after
disclosure to the Executive becomes a part of the public
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domain by publication or otherwise, other than through disclosure, directly or
indirectly, by the Executive; and (iii) information which has been, is now, or
is hereafter furnished or made known to the Executive by a third party lawfully
in possession thereof and legally entitled to disclose same. Specific
Proprietary Information shall not be deemed to be within the foregoing
exceptions merely because such information is embraced by more general
information in the public domain or which was received by the Executive from a
third party without binder of secrecy.
(c) Competitive Activities. During the term of this Agreement and for
a period of one (1) year thereafter, the Executive shall not, directly or
indirectly, (i) use the name of the Company or its successors or assigns, or any
of its subsidiaries or affiliates, announcement of new connections, advertising
of any kind or in any other matter whatsoever without the prior written approval
of the Board, (ii) engage in or be interested in (as owner, partner,
shareholder, employee, director, officer, agent, consultant, investor or
otherwise) with or without compensation, any business which is in competition
with or similar to any line of business conducted by the Company, any successor
to the Company's business, or any of their subsidiaries or affiliates, (iii)
solicit, sell to or do business with any party who is then or has within two (2)
years prior thereto been a customer of the Company, any of its subsidiaries or
affiliates (other than the general retail public) with respect to any product or
service the same as, similar to or competitive with any product or service of
Company, or (iv) hire, employ, solicit or offer employment to or attempt to
hire, employ or solicit any employees of the Company or any of its subsidiaries
or affiliates who are or were employed by the Company or such subsidiaries or
affiliates at the time of the Executive's termination or during the one (1) year
period immediately thereafter. Nothing in this Paragraph 14(c) shall prohibit
the Executive from acquiring or holding not more than one percent (1%) of any
class of publicly traded securities of any business. If granted, in the sole
discretion of the Board, the Board shall have the right, to waive any or all of
the above provisions. Such waiver, however, shall be in writing, and shall be so
documented in a Resolution of the Board.
15. THIRD PARTY INFORMATION. The Executive recognizes that the Company
has received and in the future will receive from third parties confidential or
proprietary information ("Third Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the term of this
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Agreement and at all times thereafter, the Executive shall hold Third Party
Information in the strictest confidence and shall not disclose or use Third
Party Information except as permitted by the agreement between the Company and
such third party unless expressly authorized in writing to act otherwise by an
officer of the Company.
16. CONFIDENTIAL PAPERS. Upon termination of his relationship with the
Company, regardless of the time, manner or reason of or for such termination, or
upon the Company's earlier request, the Executive shall return to the Company
all customer lists, files, documents, records, drawings, notebooks and similar
repositories of or containing Proprietary Information or Third Party
Information, including all copies thereof, whether in written, printed,
electronic or magnetic form then in the Executive's possession or control,
whether prepared by him or others, and shall not retain any copies or abstracts
thereof.
17. INDEPENDENT AGREEMENTS. All of the covenants of the Executive set
forth in paragraphs 14, 15 and 16 hereof shall be construed as agreements
independent of any other provision or this Agreement and shall survive the
termination of this Agreement; and the existence of any claim or cause of action
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of such covenants.
The Executive represents and warrants that his background, training and
experience are such that the restrictions contained in paragraph 14, in general,
and paragraph 14(c) specifically, shall not result in an inability on his part
to pursue a livelihood, and that other alternatives of employment or business
endeavors are reasonably available to him.
18. REMEDIES.
(a) The parties recognize that irreparable injury will result to the
Company, its business and property, in the event of a breach by the Executive of
any of the provisions of this Agreement and that the relationship with the
Company of the Executive is continued in reliance, among other matters, upon the
covenants by the Executive as herein set forth. The Executive acknowledges that
the provisions of this Agreement are reasonable and necessary for the protection
of the Company and that the Company will be irrevocably damaged if these
provisions are not specifically enforced.
(b) Accordingly, in the event of a breach or threatened breach by the
Executive of any of the provisions of this Agreement, the Executive hereby
acknowledges and stipulates
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that the Company shall not have an adequate remedy at law, shall suffer
irreparable harm, and, therefore, the Executive agrees and stipulates that the
Company shall be entitled to seek preliminary and/or final injunctive relief
from any court of competent jurisdiction restraining the Executive from any
violation or breach of such provisions (without posting a bond or security in
connection therewith) . The Company shall also be entitled to seek an equitable
accounting of all profits, compensation or benefits arising out of any such
violation and damages for breach of this Agreement. The aforesaid rights and
remedies shall be independent, severable and cumulative and shall be in addition
to any other rights and remedies to which the Company may be entitled. In the
event that any provisions contained herein shall be held to be excessively broad
as to duration, geographical scope or activity, such provision shall be
construed as determined by a court of competent jurisdiction and shall be
enforceable to the extent compatible with applicable law.
19. NO CONFLICTS. The Executive represents and warrants that he has
the legal capacity to execute and perform this Agreement, that it is a valid and
binding agreement, enforceable against him according to its terms, and that the
continuation of his relationship with the Company and his execution of and
compliance with the terms of this Agreement will not conflict with, violate the
terms of, or constitute a breach of any agreement or understanding to which the
Executive is a party or to which he may otherwise be bound. The Executive shall
not disclose or use during his relationship with the Company any proprietary or
confidential information which the Executive may have acquired because of
employment with an employer other than the Company, which information is subject
to restrictions on disclosure and/or use.
20. CORPORATE AUTHORITY. The Company hereby represents and warrants to
the Executive that this Agreement is a valid and binding agreement of the
Company enforceable against it according to its terms. The Company will advise
the Executive as and when the Agreement has been formally approved by the
Compensation Committee of the Board.
21. SATISFACTION OF OBLIGATIONS. The Executive acknowledges that,
except as otherwise provided in paragraph 2 hereof, the Company has paid all of
its obligations to the Executive to date. In consideration of the Executive's
continued relationship with the Company and the execution of this Agreement by
the Company, the Executive hereby releases the Company, its subsidiaries and
affiliates and their respective directors, officers, employees and agents from
any and all claims, demands,
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damages, obligations and rights (collectively "Claims") in law or in equity,
which he has had or now has of any nature whatsoever, whether existing or
inchoate, known or unknown, including but not limited to any Claims arising out
of or in connection with the Executive's employment by the Company or his
relationship with the Company through the date of this Agreement. The Executive
represents that there are no Claims outstanding as of the date of this
Agreement.
22. ACKNOWLEDGEMENT OF RELEASE. By executing this Agreement, the
Executive acknowledges the release set forth in Paragraph 21 hereof. The
Executive acknowledges that this Agreement is voluntarily entered into, that he
has carefully read the entire terms of this Agreement and knows and understands
its binding effect, and has had an opportunity to consult with an attorney or
other advisor (at the Executive's cost) . The Executive acknowledges that this
Agreement provides for fair and equitable consideration for the release that he
has given to the Company.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with respect to the relationship of the parties, superseding any
and all other agreements, written or oral, among the parties concerning the
subject of this Agreement, and this Agreement may not be altered, modified,
amended or terminated, except in a writing signed by the parties hereto.
24. NOTICES. Any and all notices, consents or any other communication
provided for herein shall be given in writing, by registered or certified mail,
return receipt requested, which shall be addressed, in the case of the Company,
to its principal place of business, and in the case of the Executive, to his
personal residence. The effective date of such notice, consent or other
communication, any law or statute to the contrary, shall be deemed to be the
date it is duly deposited and registered in any United States Post Office or
Branch Post Office.
25. ASSIGNMENT AND BINDING EFFECT. This Agreement is personal to the
Executive and he may not assign or delegate any of his rights or obligations
hereunder. This Agreement shall be binding upon the parties, their legal
representatives, successors and permitted assigns.
26. WAIVER. The waiver of any breach of any provisions of this
Agreement shall be effective only if in a
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writing signed by the parties hereto, and such waiver shall not operate or be
construed as a waiver of any subsequent breach.
27. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to the Company or any other person, shall, to any extent, be
determined to be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to the Company or any other person or
circumstances other than as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
28. ARBITRATION, ENFORCEMENT AND GOVERNING LAW. This Agreement and all
disputes arising under or relating to this Agreement, or relating to the
Executive's relationship with the Company, shall be subject to arbitration
before the American Arbitration Association, which arbitration shall occur only
in New Jersey, and New Jersey law shall govern and apply to such arbitration and
all issues and disputes subject to such arbitration. The parties hereto consent
to jurisdiction in New Jersey for purposes of such arbitration or any court
action to compel, enforce or confirm such arbitration. Any award or
determination of the arbitration shall be final and binding between the parties
and final judgment may be entered on such award or determination by any court in
New Jersey. The parties hereby consent to personal jurisdiction and venue only
in New Jersey. Nothing in this provision shall prohibit the Company from seeking
equitable relief from a court of competent jurisdiction in order to enforce the
provisions of Paragraphs 14, 15 and 16 hereof.
29. CAPTIONS. Captions of this Agreement are inserted only as a matter
of convenience and for reference, and in no way define, limit or describe the
scope or intent of this Agreement, nor in any way affect this Agreement.
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30. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall in such event be deemed an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
WITNESS:
/s/ Xxxxx Xxxxxxx /s/ X. Xxxxx Xxxxx
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X. XXXXX XXXXX
XXXX BERRIE AND COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
Chairman of the Board
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