Exhibit 10-I
GUARANTY
THIS GUARANTY (this "GUARANTY") is made as of March 12,
2001, by Xxxxxxxx Brands, Inc., a Delaware corporation
("GUARANTOR").
RECITALS
WHEREAS, Guarantor is a wholly-owned subsidiary of
Xxxxxxxx Brands International, Inc., a New Jersey corporation
(the "COMPANY");
WHEREAS, certain executives and other employees of the
Company and its subsidiaries are eligible to participate in the
Company's Deferred Compensation Plan and its Capital Accumulation
Plan (each, a "PLAN" and, collectively, the "PLANS");
WHEREAS, participants in such Plans (each, a
"PARTICIPANT") have account balances thereunder consisting of
deferred compensation, Company matching contributions and
investment income thereon; and the vested portion of such account
balances would become payable in full to any Participant who
terminated his or her employment;
WHEREAS, each present Participant performs, and each
future Participant is expected to perform, services that benefit
Guarantor and/or one or more of its subsidiaries; Guarantor
benefits substantially from the continuing services performed by
present Participants, is expected to benefit substantially from
the services performed by future Participants and has a
substantial interest in encouraging the retention of present and
future Participants; and the objective of retaining such
Participants would be significantly furthered if Guarantor
guaranteed the Company's obligations under the Plans;
WHEREAS, Guarantor has agreed to fully and
unconditionally guaranty the Company's payments and performance
under the Plans on the terms and conditions set forth below.
NOW, THEREFORE, Guarantor agrees as follows:
1. GUARANTY. Guarantor hereby fully, unconditionally and
irrevocably guarantees to each present and future Participant the
punctual payment and performance when due of all obligations of
the Company under the Plans (for each Participant, the
"OBLIGATIONS"). Without limitation of the foregoing, the
Obligations with respect to each Participant shall include all
costs and expenses (including reasonable attorney's fees and
expenses and reasonable compensation for the time value of money)
incurred by such Participant in collecting any amount due such
Participant under this Guaranty or in prosecuting any action
against the Company, Guarantor or any other guarantor of the
Obligations (collectively, the "ENFORCEMENT COSTS"). Guarantor
agrees that this Guaranty is a present and continuing guaranty of
payment and not of collection, and that such Participant shall
not be required to prosecute collection, enforcement or other
remedies against the Company before calling on Guarantor for
payment and Guarantor shall pay such Obligations to such
Participant in full immediately upon demand. Guarantor agrees
that one or more successive actions may be brought against
Guarantor, as often as such Participant deems advisable, until
all of the Obligations are paid and performed in full.
2. WAIVERS. Guarantor unconditionally waives, to the extent
permitted by law:
1. all notices which may be required by statute, rule of
law or otherwise, now or hereafter in effect, to preserve intact
any rights against Guarantor, including, without limitation, any
demand, presentment and protest, proof of notice of non-payment
under either Plan and notice of any failure on the part of any
Participant, the Company, Guarantor or any other guarantor of the
Obligations to perform or comply with any covenant, agreement,
term or condition of either Plan;
2. any right to the enforcement, assertion or exercise
against the Company, Guarantor or any other guarantor of the
Obligations of any right or remedy conferred under either Plan;
3. any requirement of diligence on the part of any person;
4. any requirement to exhaust any remedies or to mitigate
the damages resulting from any failure on the part of the Company,
Guarantor or any other guarantor of the Obligations to perform or
comply with any covenant, agreement, term or condition of either
Plan; and
5. any notice of any sale, transfer or other disposition of
any right, title or interest of any Participant under either Plan.
3. REINSTATEMENT. The obligations of Guarantor pursuant to
this Guaranty shall continue to be effective or automatically be
reinstated, as the case may be, if at any time the Obligations or
payment of the Obligations are rescinded, rejected, subordinated,
stayed, offset or otherwise must be disgorged or returned by any
Participant, in whole or in part, for any reason, including the
insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company.
4. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the
benefit of each Participant and his or her successors and
assigns. This Guaranty shall be binding on Guarantor, its
successors and assigns, and shall continue in full force and
effect until all of the Obligations are paid and performed in
full.
5. NO WAIVER OF RIGHTS. No delay or failure on the part of any
Participant to exercise any right, power or privilege under this
Guaranty or the respective Plan for any such Participant shall
operate as a waiver thereof, and no single or partial exercise of
any right, power or privilege shall preclude any other or further
exercise thereof or the exercise of any other power or right, or
be deemed to establish a custom or course of dealing or
performance between the parties hereto or thereto. The right and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law. No notice to or demand on
Guarantor in any case shall entitle Guarantor of any other or
further notice or demand in the same, similar or other
circumstance.
6. JOINDER. Guarantor agrees that any action to enforce this
Guaranty may be brought against Guarantor without any
reimbursement or joinder of the Company or any other guarantor of
the Obligations in such action.
7. SEVERABILITY. If any provision of this Guaranty is deemed
to be invalid by reason of the operation of law, or by reason of
the interpretation placed thereon by any court or other
governmental authority, this Guaranty shall be construed as not
containing such provision and the invalidity of such provision
shall not affect the validity of any other provision hereof, and
any and all other provisions hereof which otherwise are lawful
and valid shall remain in full force and effect.
8. DESCRIPTIVE HEADINGS. The descriptive headings of this
Guaranty are inserted for convenience only and do not constitute
a part of this Guaranty.
9. GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Guaranty will be governed by
the internal law of the State of Ohio (without reference to any
principles of conflicts of law).
10. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this
Guaranty will be in writing and shall be given to Guarantor at
the address indicated below:
IF TO GUARANTOR: Xxxxxxxx Brands, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Secretary
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to
the sending party. All such notices shall be effective (a) if
given by facsimile, upon confirmation of receipt or (b) if given
by any other means, when delivered at the address specified
above.
* * * * *
IN WITNESS WHEREOF, the undersigned has executed this
Guaranty as of the date first above written.
XXXXXXXX BRANDS, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Its: Xxxxxx X. Xxxxxxx
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Director, President and
Chief Operating Officer
