EXHIBIT 10.16(a)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of January 1, 2000, between TOYMAX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXXX, XX. (the "Executive").
W I T N E S S E T H
WHEREAS, the Company and Executive entered into an Employment Agreement
dated as of October 1, 1997, and
WHEREAS, the Company and the Executive desire to modify the terms of
Executive's employment by entering into a new Employment Agreement which
Agreement will supersede the Employment Agreement dated as of October 1, 1997.
NOW, THEREFORE, in consideration of the mutual promises, representations
and warranties set forth herein, and for other good and valuable consideration,
it is hereby agreed as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive and the
Executive hereby accepts employment, upon the terms and conditions set forth
herein.
2. TERM. Subject to the provisions of Section 10 hereof, the period of the
Executive's employment under this Agreement shall be from January 1, 2000
through March 31, 2001, as may be extended as hereinafter provided. (the
"Term"). As of March 31, 2001 and each subsequent March 31, (March 31, 2001 and
each subsequent March 31 hereinafter called a "Renewal Date"), the Term shall be
automatically extended by one additional year (i.e. to include a period of 12
months commencing on the day after each Renewal Date) unless, at least 60 days
prior to any such Renewal Date, the Company shall deliver to the Executive or
the Executive shall deliver to the Company written notice that the Term will not
be further extended.
3. POSITION AND DUTIES.
(a) During the Term, the Executive shall serve as Chief Financial
Officer of the Company and shall have such duties consistent with such office as
from time to time may be prescribed by the Board of Directors of the Company
(the "Board").
(b) During the Term, the Executive shall perform and discharge the
duties that may be assigned to him by the Board from time to time in accordance
with this Agreement, and the Executive shall devote his best talents, efforts
and abilities to the performance of his duties hereunder.
(c) During the Term, the Executive shall perform such duties on a
full-time basis and the Executive shall have no other employment and no other
outside business activities whatsoever; PROVIDED, HOWEVER, that the Executive
shall not be precluded from making
passive investments which do not require the devotion of any significant time or
effort.
4. COMPENSATION.
(a) For the Executive's services hereunder, the Company shall pay the
Executive a minimum annual salary (as the same may be increased from time to
time, the "Base Salary") of $203,962.50, payable in accordance with the
customary payroll practices of the Company.
(b) The Base Salary shall be increased by 5% (or greater percentage as
the Board may determine) on January 1, 2001 and each subsequent January 1 during
the Term.
5. BONUSES.
(a) EXECUTIVE BONUS PLAN. During the Term, the Executive shall be
eligible to participate in the Company's Executive Bonus Plan (the "Bonus
Plan"), in accordance with the terms and conditions of such Plan, as they may
exist from time to time. Nothing herein shall preclude the Company from amending
the Bonus Plan from time to time or terminating the Bonus Plan, in whole or in
part, at any time.
6. OTHER BENEFITS. During the Term, the Company shall provide the
Executive with the following benefits:
(a) STOCK OPTION PLAN. The Executive shall be eligible to participate
in the Company's Stock Option Plan in accordance with the terms and conditions
thereof.
(b) MEDICAL, HEALTH AND DENTAL INSURANCE BENEFITS. The Company shall at
its own expense provide the Executive and his eligible dependents with the
medical, health and dental insurance coverage provided by the Company generally
to its employees. Nothing herein shall prevent the Company from amending and/or
terminating the coverages and/or plans described in this Section 6(b), provided,
however, that such amendment and/or termination is applicable generally to the
employees of the Company. 4
(c) SPLIT DOLLAR LIFE INSURANCE. The Company shall pay on the
Executive's behalf all premiums that become due during the Executive's
employment hereunder that are required to maintain in effect a life insurance
policy on Executive's life with a face value of $500,000 (the "Split Dollar
Policy") provided, however, that the Executive executes such documents that the
Company determines are necessary or advisable in connection with this split
dollar insurance program, including, without limitation, an irrevocable
collateral assignment and split dollar agreement in a form prescribed by the
Company assigning to the Company the right to recover from the cash value and
any death proceeds of the Split Dollar Policy, any and all amounts paid by the
Company with respect to the Split Dollar Policy and otherwise setting forth the
terms and conditions of maintaining this split dollar life insurance program.
(d) DISABILITY AND ACCIDENT INSURANCE BENEFITS. (1) Provided that (a)
the Executive is and remains insurable; (b) the Executive is and remains
eligible for coverage under
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either a group insurance policy maintained by the Company or its affiliates or
an individual insurance policy in either case at a cost to the Company no
greater than the standard rate (the "Standard Rate") as determined by the
insurance underwriter designated by the Company(the "Underwriter") based upon an
individual in good health and such other factors, including, but not limited to,
age, gender and income; and (c) the Executive shall do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged or delivered, all
documents, applications, instruments, assurances or acts (including but not
limited to physical examinations), as may be necessary to obtain such insurance
coverage, the Company shall provide the Executive with long term disability
insurance coverage from the "Underwriter" providing for "lifetime" disability
benefits, equal to 50% of the Executive's base salary after a waiting period of
ninety (90) days. In the event the Underwriter offers the Executive (a) such
coverage at a cost in excess of the Standard Rate, or (b) insurance coverage
providing reduced benefits, the Executive may, at his or her option, pay the
excess cost to obtain the insurance coverage or accept the disability insurance
coverage with reduced benefits. Under no circumstances will the Company have any
liability for the excess cost or resulting from the inability to obtain full
benefits.
(2) Provided that the Executive is and remains insurable and the Executive
shall do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged or delivered, all documents, applications, instruments, assurances
or acts (including but not limited to physical examinations), as may be
necessary to obtain such insurance coverage, the Company shall provide the
Executive with business travel accident and accidental death and dismemberment
insurance coverage in an amount of $250,000 from an insurance underwriter (the
"Underwriter") designated by the Company.
(e) 401(k) PLAN. The Executive shall be entitled to participate in the
Company's 401(k) Plan in accordance with the terms and conditions of such plan.
(f) LIABILITY INSURANCE. The Executive shall be provided with the
directors and officers liability insurance coverage generally provided to
officers of the Company. Notwithstanding the foregoing, the Company agrees to
indemnify the Executive against all costs, damages and expenses, including
attorneys' fees, incurred by the Executive as a result of claims by third
parties arising out of or from the Executive's lawful acts as an employee of the
Company, provided such acts are not grossly negligent and are performed in good
faith and in a manner reasonably believed by the Executive to be in the
Company's best interests. Any counsel employed to defend the Executive in any
such action shall be reasonably acceptable to the Executive and the Company. Any
counsel appointed by any insurance carrier for the Company shall be deemed
acceptable. It is the intent of the parties that the obligation imposed by this
paragraph will survive the termination of this Agreement.
(g) OTHER BENEFITS. The Company shall make available to the Executive
any and all other employee or fringe benefits (in accordance with their terms
and conditions) which the Company may make available to its other employees.
7. AUTOMOBILE ALLOWANCE. During the Term, the Company shall reimburse the
Executive for expenses, such as automobile lease or loan payments, in an amount
up to $600 per month, plus such amount(s) as may be required to reimburse the
Executive for expenses such as
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registration, insurance, repairs, maintenance, license fees, gasoline and oil
incurred by the Executive incident to his use of an automobile in connection
with his duties hereunder.
8. REIMBURSEMENT OF EXPENSES. During the Term, the Company shall pay or
reimburse the Executive for all reasonable travel, entertainment and other
business expenses actually incurred or paid by the Executive in the performance
of his duties hereunder upon presentation of expense statements and/or such
other supporting information as the Company may reasonably require of the
Executive.
9. VACATIONS. The Executive shall be entitled to no less than four weeks
of paid vacation during each full calendar year of the Term (and a pro rata
portion thereof for any portion of the Term that is less than a full calendar
year); provided that no single vacation may exceed two consecutive weeks in
duration. Unused vacation may not be carried over to successive years only with
the advance written consent of the Company. Executive shall use his best efforts
to use vacation each year.
10. TERMINATION. The employment hereunder of the Executive may be
terminated prior to the expiration of the Term in the manner described in this
Section 10.
(a) TERMINATION BY THE COMPANY FOR GOOD CAUSE. The Company shall have
the right to terminate the employment of the Executive for Good Cause (as such
term is defined herein) by written notice to the Executive specifying the
particulars of the circumstances forming the basis for such Good Cause.
(b) TERMINATION UPON DEATH. The employment of the Executive hereunder
shall terminate immediately upon his death.
(c) VOLUNTARY RESIGNATION BY THE EXECUTIVE. The Executive shall have
the right to voluntarily resign his employment hereunder by written notice to
the Company.
(d) TERMINATION BY THE COMPANY WITHOUT GOOD CAUSE. The Company shall
have the right to terminate the Executive's employment hereunder without Good
Cause by written notice to the Executive.
(e) TERMINATION DATE. The "Termination Date" is the date as of which
the Executive's employment with the Company terminates. Any notice of
termination given pursuant to the provisions of this Agreement shall specify the
Termination Date.
(f) CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, court or government (or political subdivision or agency thereof).
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(ii) "Change of Control" with respect to the Company, means the
occurrence of any of the following, other than in connection with the initial
public offering of the Common Stock, (A) the acquisition directly or indirectly
(in one or more related transactions) by any Person (other than the Executive),
or two or more Persons (other than the Executive) acting as a group, of
beneficial ownership (as that term is defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of more than 20% of the outstanding capital stock of the
Company entitled to vote for the election of directors ("Voting Shares"); (B)
the merger or consolidation of the Company with one or more other corporations
as a result of which the holders of the outstanding Voting Shares of the Company
immediately before the merger hold less than 80% of the Voting Shares of the
surviving or resulting corporation; (C) the sale of all or substantially all of
the assets of the Company.
(iii) "Good Cause" shall exist if, and only if, the Executive (A)
wilfully or repeatedly fails in any material respect to perform his obligations
hereunder as provided herein, provided that such Good Cause shall not exist
unless the Company shall first have provided the Executive with written notice
specifying in reasonable detail the factors constituting such material failure
and such material failure shall not have been cured by the Executive within 30
days after such notice or such longer period as may reasonably be necessary to
accomplish the cure; or (B) has been convicted of a crime which constitutes a
felony under applicable law or has entered a plea of guilty or nolo contendere
with respect thereto; or (C) has committed any act in connection with his
employment hereunder which constitutes fraud or gross negligence; or (D)
violates any term or terms of the Employee Patent and Confidential Information
Agreement by and between Toymax Inc. and the Executive.
11. OBLIGATIONS OF COMPANY ON EXPIRATION OR TERMINATION. Notwithstanding
anything in this Agreement to the contrary, the Company's obligations on
expiration or termination of the Executive's employment shall be as described in
this Section 11.
(a) OBLIGATIONS OF THE COMPANY IN THE CASE OF EXPIRATION OR TERMINATION
WITHOUT GOOD CAUSE. In the event that (1) the Company provides written notice to
the Executive pursuant to Section 2 of this Agreement that the Term will not be
extended and accordingly this Agreement expires at the end of the Term or (2)
prior to the expiration of the Term, the Company terminates the Executive's
employment, pursuant to Section 10(d), without Good Cause, the Company shall
provide the Executive with the following:
(i) AMOUNT OF SEVERANCE PAYMENT. Except as provided in Section
11(b) below the Company shall pay the Executive the "Severance Payments" equal
to the sum of the following:
(A) the continuation, for a period of twelve (12) months
following the Termination Date, of the Executive's Base Salary at the rate in
effect on the Termination Date, payable in accordance with the customary payroll
practices of the Company; and
(B) an immediate single lump sum cash payment of any Base
Salary, Bonus Plan bonuses, allowable vacation and unreimbursed expenses accrued
but unpaid as
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of the Termination Date.
(b) OBLIGATIONS OF THE COMPANY IN THE CASE OF TERMINATION OF
EXECUTIVE'S EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. In the event that at any
time during the Term and following a Change of Control, the Company terminates
the Executive's employment without Good Cause, in lieu of the Severance Payments
to which the Executive is entitled under Section 11(a)(i) above, the Company
shall pay the Executive as follows:
(i) CHANGE OF CONTROL SEVERANCE PAYMENT. The Company shall
continue to pay to the Executive for a period of twenty-four (24) months
following the Termination Date the Executive's Base Salary at the rate in effect
on the Termination Date, payable in accordance with the customary payroll
practices of the Company, PLUS an immediate single lump sum cash payment of any
Base Salary, Bonus Plan bonuses, allowable vacation and unreimbursed expenses
accrued but unpaid as of the Termination Date.
(c) OBLIGATIONS OF THE COMPANY IN CASE OF TERMINATION FOR DEATH,
VOLUNTARY RESIGNATION OR GOOD CAUSE. Upon termination of the Executive's
employment upon death (pursuant to Section 10(b)), as a result of the voluntary
resignation of the Executive (pursuant to Section 10(c)) or for Good Cause
(pursuant to Section 10(a)), the Company shall have no payment or other
obligations hereunder to the Executive, except for the payment of any Base
Salary, Bonus Plan bonuses, allowable vacation, benefits or unreimbursed
expenses accrued but unpaid as of the date of such termination.
12. SEVERABILITY. Should any provision of this Agreement be held, by a
court of competent jurisdiction, to be invalid or unenforceable, such invalidity
or unenforceability shall not render the entire Agreement invalid or
unenforceable, and this Agreement and each other provision hereof shall be
enforceable and valid to the fullest extent permitted by law.
13. SUCCESSORS AND ASSIGNS.
(a) This Agreement and all rights under this Agreement are personal
to the Executive and shall not be assignable other than by will or the laws of
descent. All of the Executive's rights under the Agreement shall inure to the
benefit of his heirs, personal representatives, designees or other legal
representatives, as the case may be.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns. Any Person succeeding to the
business of the Company by merger, purchase, consolidation or otherwise shall
assume by contract or operation of law the obligations of the Company under this
Agreement.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, without regard to the
conflicts of laws rules thereof.
15. NOTICES. All notices, requests and demands given to or made upon the
respective parties hereto shall be deemed to have been given or made three
business days after the
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date of mailing when mailed by registered or certified mail, postage prepaid, or
on the date of delivery if delivered by hand, or one business day after the date
of delivery by Federal Express or other reputable overnight delivery service,
addressed to the parties at their addresses set forth below or to such other
addresses furnished by notice given in accordance with this Section 15: (a) if
to the Company, to 000 X. Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 and (b) if to
the Executive, to 00 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000.
16. WITHHOLDING. All payments required to be made by the Company to the
Executive under this Agreement shall be subject to withholding taxes, social
security and other payroll deductions in accordance with applicable law and the
Company's policies applicable to executive employees of the Company.
17. COMPLETE UNDERSTANDING. Except as expressly provided below, this
Agreement supersedes any prior contracts, understandings, discussions and
agreements relating to employment between the Executive and the Company,
including but not limited to that certain Employment Agreement between the
Executive and the Company dated as of October 1, 1997, and constitutes the
complete understanding between the parties with respect to the subject matter
hereof. No statement, representation, warranty or covenant has been made by
either party with respect to the subject matter hereof except as expressly set
forth herein. Notwithstanding the foregoing or anything in this Agreement to the
contrary, the Employee Patent and Confidential Information Agreement, by and
between the Company and the Executive, shall remain in full force and effect.
18. MODIFICATION; WAIVER.
(a) This Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
the Company and the Executive or in the case of a waiver, by the party against
whom the waiver is to be effective. Any such waiver shall be effective only to
the extent specifically set forth in such writing.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or priilege.
19. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed in its corporate name by one of its officers duly authorized to enter
into and execute this Agreement, and the Executive has manually signed his name
hereto, all as of the day and year first
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above written.
TOYMAX INTERNATIONAL, INC.
------------------------- By:
Witness -----------------------------
--------------------- --------------------------------
Witness Xxxxxxx X. Xxxxxxx, Xx.
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