CORGI CLASSICS LIMITED EXECUTIVE EMPLOYMENT AGREEMENT FOR GEORGE VOLANAKIS
Exhibit
4(c)(6)
CORGI
CLASSICS LIMITED
FOR
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This
Executive Employment Agreement (“Agreement”) is entered into as of February
13th,
2004,
by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (“Executive”) and Corgi Classics Limited
(“Corgi” or the “Company”), a United Kingdom corporation and wholly-owned
subsidiary of Zindart Limited (“Zindart,” or together with Corgi and all other
Zindart subsidiaries, collectively, the “Group”).
Whereas,
the
Company desires to employ Executive to provide personal services to the Company,
and wishes to provide Executive with certain compensation and benefits in return
for his services; and
Whereas,
Executive wishes to be employed by the Company and provide personal services
to
the Company in return for certain compensation and benefits provided under
this
Agreement;
Now,
Therefore,
in
consideration of the mutual promises and covenants contained herein, it is
hereby agreed by and between the parties hereto as follows:
1. Employment
by the Company.
1.1 Title
and Responsibilities.
Subject
to the terms set forth herein, the Company agrees to employ Executive in the
position of President and Chief Executive Officer, and Executive hereby accepts
such employment, commencing on February 15, 2004 (the “Effective Date”).
Executive shall work from the Company’s offices in Chicago, Illinois, or such
place or places as the Company shall reasonably designate or as shall be
reasonably appropriate and necessary in connection with Executive’s employment.
Executive will be assigned such facilities and support staff as are customarily
associated with the position of President and Chief Executive Officer of
companies of similar nature and size as the Company. During his employment
with
the Company, Executive will devote his best efforts and substantially all of
his
business time and attention (except for vacation periods as set forth herein
and
reasonable periods of illness or other incapacity permitted by the Company’s
general employment policies) to the business of the Company. Executive will
report directly to the Executive Chairman of Zindart (the
“Chairman”).
1.2 Executive
Position.
Executive will serve in an executive capacity and shall perform such duties
as
are assigned from time to time by the Chairman, consistent with the bylaws
of
the Company and as required by the Company.
1.3 Company
Employment Policies.
Executive’s employment shall also be governed by the general employment policies
and procedures of the Company, except that when the terms of this Agreement
differ from or are in conflict with the Company’s general employment policies or
procedures, this Agreement shall control.
2. Compensation
and Benefits.
2.1 Salary.
For
services rendered hereunder, Executive shall receive an annualized base salary
at the rate of Three Hundred Thousand Dollars ($300,000), less required
withholdings and deductions, payable in accordance with the Company’s standard
payroll procedures.
2.2 Bonus
Compensation.
Executive shall receive a bonus payment of Thirty Thousand Dollars ($30,000),
less required withholdings and deductions, within one (1) month after the
Effective Date of this Agreement, provided that Executive remains employed
by
the Company on such payment date. Annual bonuses will be considered by the
Compensation Committee of Zindart’s Board of Directors; whether to award any
annual bonus and the amount and timing of payment thereof shall remain in the
sole discretion of the Compensation Committee.
2.3 Benefits.
The
Company will not make any employee benefits available to Executive except as
may
be required by applicable law. It is agreed that the potential award of stock
bonuses described in Section 2.4(a) is in lieu of such benefits.
2.4 Stock;
Stock Option.
(a) Stock
Bonuses.
On
February 15, 2005, if Executive remains employed by the Company on such date,
the Company will grant Executive a bonus of Seventeen Thousand Five Hundred
(17,500) Zindart American Depositary Shares. On December 31, 2005, if Executive
remains employed by the Company on such date, the Company will grant Executive
an additional bonus of Seventeen Thousand Five Hundred (17,500) Zindart American
Depositary Shares. Such shares shall not be subject to vesting.
(b) Stock
Option.
On the
Effective Date, Zindart’s Compensation Committee granted Executive an option to
purchase One Hundred Thousand (100,000) Zindart American Depositary Shares
(the
“Option”) at the fair market value of said shares on February 13, 2004. The
Option shall vest over a two (2) year period, with fifty percent (50%) of the
Option shares vesting on the first anniversary of the Effective Date, and the
remaining fifty percent (50%) of the Option shares vesting on December 31,
2005, assuming Executive remains employed with the Company on such dates. The
Option will be governed by the terms of Zindart’s employee stock option plan and
Zindart’s standard form of stock option agreement issued
thereunder.
2.5 Vacation
and Holidays.
Executive shall be entitled to twenty (20) days paid vacation annually, vested
on a pro rata basis. Executive shall also be paid for official public holidays
observed by the Company, as approved by the Chairman.
2.6 Business
Expense Reimbursement. The
Company shall reimburse Executive for all reasonable, documented travel,
entertainment or other expenses he incurs in furtherance of or in connection
with the performance of his duties hereunder, in accordance with the Company’s
expense reimbursement policy.
2.7 Indemnification.
Executive
shall receive indemnification as a corporate officer of the Company to the
maximum extent extended to the other officers and directors of the Company.
2.8 Insurance.
Executive will be named as a beneficiary under Zindart’s directors’ and
officers’ insurance policies, if any, to the same extent as other executive
officers of Zindart, for certain liabilities as stated in the applicable
policy(ies), and shall be covered under Zindart insurance policies, if any,
that
provide benefits to corporate executives or their family members for kidnapping
or death due to terrorism, to the same extent as other executive officers of
the
Group. Executive will be provided with copies of any applicable insurance
policy(ies) or existing summaries thereof upon request.
2.9 Standard
Company Benefits.
Executive shall not be entitled to any other rights or benefits the Company
offers to its employees generally.
3. Proprietary
Information Obligations.
Executive
agrees to execute and abide by the Company’s standard form of Employee
Proprietary Information and Inventions Agreement (the “Proprietary Information
Agreement”), a copy of which is attached hereto as Exhibit A.
Executive’s duties under the Proprietary Information Agreement shall survive
termination of Executive’s employment with the Company.
4. Outside
Activities.
4.1 Activities.
Except
with the prior written consent of the Board (as defined below), Executive will
not during his employment with the Company undertake or engage in any other
employment, occupation or business enterprise, other than ones in which
Executive is a passive investor. Notwithstanding the foregoing, Executive may
(a) engage in civic and not-for-profit activities so long as such activities
do
not materially interfere with the performance of his duties hereunder, and
(b)
serve as a member of the board of directors of any entity so long as such
service does not, in the sole discretion of the Board, materially interfere
with
the performance of his duties hereunder or violate Section 4.2 hereof. Executive
agrees to notify the Board in writing prior to the commencement of any such
board service.
4.2 Non-Competition.
Executive acknowledges that he will be a member of executive and management
personnel at the Company. Executive further acknowledges that during his
employment at the Company, he will be privy to extremely sensitive, confidential
and valuable commercial information, which information constitutes trade secrets
belonging to Corgi and/or the Group, the disclosure of which information and
secrets would greatly harm Corgi and/or the Group. As a reasonable measure
to
protect the Company and/or the Group from the harm of such disclosure and use
of
its information and trade secrets against it, Executive agrees that during
his
employment with the Company and for a period of twelve (12) months following
the
separation of his employment with the Company, for any reason, Executive shall
not, individually or together with others, directly or indirectly, whether
as an
owner, officer, director, employee consultant, partner, representative, joint
venturer, stockholder, broker, agent, financial agent, principal, trustee,
licensor or in any other capacity whatsoever: (i) own, manage, operate, join,
control, finance or participate in the ownership, management, operation, control
or financing of any business or enterprise which is a Conflicting Organization
(as defined below); or (ii) sell or assist in the design, development,
manufacture, licensing, sale, marketing or support of any Conflicting Product
or
Service (as defined below). As used in this Agreement, a “Conflicting Product or
Service” means any business in which the Group is actively engaged on the date
of Executive’s termination or any business in which during the twelve (12)
months immediately preceding the date of Executive’s termination the Group
actively contemplated engaging (as evidenced by inclusion in a written business
plan or proposal), and a “Conflicting Organization” means any person or
organization that is engaged in or is about to become engaged in the design,
research, development, production, marketing, distribution, leasing, licensing,
selling, or servicing of a Conflicting Product or Service. Executive further
agrees and acknowledges that because of the nature and type of business that
the
Group engages in, the geographic scope of the covenant not to compete shall
include all counties, cities, and states of the United States and any other
country, territory or region in which the Group conducts business or in which
the Group actively contemplated conducting business in (as evidenced by
inclusion in a written business plan or proposal) at the time of Executive’s
employment termination, including but not limited to China and Hong Kong, and
that such a geographic scope is reasonable. Notwithstanding the foregoing,
Executive may own, as a passive investor, securities of any Conflicting
Organization that, in the aggregate, do not constitute more than one percent
(1%) of the voting stock of such Conflicting Organization.
4.3 Non-Solicitation.
During
his employment with the Company, and for a period of two (2) years following
the
termination of such employment, Executive will not, either directly or through
others, solicit or attempt to solicit any employee of the Group, or any
consultant or independent contractor who performs forty (40) or more hours
per
month of services for the Group, with whom Executive came in contact during
his
employment with the Company, to terminate his or her relationship with the
Group
to become an employee, consultant, or independent contractor to or for any
other
person or entity.
5. Other
Agreements.
Executive
represents and warrants that his employment by the Company will not conflict
with or be constrained by any prior agreement or relationship with any third
party. Executive represents and warrants that he will not disclose to the
Company or use on behalf of the Company any confidential information governed
by
any agreement with any third party except in accordance with a written agreement
between the Company and any such third party. During Executive’s employment by
the Company, Executive may use, in the performance of his duties, all
information generally known and used by persons with training and experience
comparable to his own and all information that is common knowledge in the
industry or otherwise legally in the public domain.
6. Term;
Termination Of Employment.
6.1 Term.
Unless
terminated earlier, this Agreement will terminate on the second anniversary
of
the Effective Date (“Term”).
6.2 At-Will
Employment.
Executive’s relationship with the Company is at will. Both Executive and the
Company shall have the right to terminate Executive’s employment with the
Company at any time, with or without Cause (as defined below) and with or
without notice.
6.3 Termination
by Company for Cause. If
the
Company terminates Executive’s employment at any time for Cause (as defined
below), Executive’s salary shall cease on the date of termination and Executive
shall not be entitled to severance pay, pay in lieu of notice, accelerated
vesting of his Option, or any other compensation other than payment of accrued
salary and such other benefits as expressly required in such event by applicable
law or the terms of applicable benefit plans. All stock and stock options held
by Executive shall
cease vesting as of the date of termination and shall be exercisable thereafter
only pursuant to the terms of the Company’s applicable stock option plans and
the corresponding stock award agreements. For
purposes of this Agreement, “Cause” shall mean, in the reasonable determination
of the Board of Directors of Zindart (the “Board”): (i) Executive’s
conviction of any felony, or any crime involving moral turpitude or dishonesty;
(ii) Executive’s participation in any fraud against Corgi and/or the Group;
(iii) Executive’s breach of any duties to, or agreements with, Corgi and/or
the Group; (iv) Executive’s unauthorized disclosure of any trade secrets or
confidential information of the Group; (v) Executive’s breach of this
Agreement or his Proprietary Information Agreement; or (vi) Executive’s willful
and continued failure to perform the duties and responsibilities of his position
after receiving a written demand for performance from the Board that describes
the basis for the demand and provides Executive with thirty (30) days to cure
the stated deficiencies. Executive’s physical or mental disability or death
shall not constitute Cause hereunder.
6.4 Termination
Without Cause. If
the
Company terminates Executive’s employment at any time prior to the end of the
Term, without Cause, Executive shall be entitled, as his sole and exclusive
severance benefit, to immediate vesting of any and all unvested portion of
the
Option.
6.5 Executive’s
Voluntary Resignation. Executive
may voluntarily terminate his employment with the Company at any time, for
any
reason or for no reason, upon three (3) months’ written notice of termination.
If Executive voluntarily terminates his employment, he will not be entitled
to
severance pay, pay in lieu of notice, accelerated vesting of his Option, or
any
other such compensation other than payment of accrued salary and such other
benefits as expressly required in such event by applicable law or the terms
of
applicable benefit plans. All stock and stock options held by Executive shall
cease vesting as of the date of termination and shall be exercisable thereafter
only pursuant to the terms of the Company’s applicable stock option schemes and
the corresponding stock award agreements.
6.6 Termination
for Death or Disability.
Executive’s employment with the Company will be terminated in the event of
Executive’s death, or, subject to applicable law, any illness, disability or
other incapacity that renders Executive physically or mentally unable regularly
to perform his duties hereunder for a period in excess of one hundred twenty
(120) consecutive days or more than one hundred eighty (180) days in any
consecutive 12 month period. The determination regarding whether Executive
is
physically or mentally unable regularly to perform his duties shall be made
by
the Board. Executive’s inability to be physically present on the Company’s
premises shall not constitute a presumption that Executive is unable to perform
such duties. If Executive’s employment with the Company is terminated for death
or disability as described in this Section 6.6, Executive or Executive’s heirs,
successors, and assigns shall not receive any compensation or benefits other
than payment of accrued salary and such other benefits as expressly required
in
such event by applicable law or the terms of applicable benefit plans. All
Stock
and stock options held by Executive shall
cease vesting as of the date of termination and shall be exercisable thereafter
only pursuant to the terms of the Company’s applicable stock option schemes and
the corresponding stock award agreements.
6.7 Resignation
from Group.
In the
event that Executive’s relationship with the Company is terminated, by either
party and for any reason or for no reason, Executive agrees, upon the Company’s
request, to resign from all offices and positions he then holds with the Company
and any other company in the Group, effective as of the date of his employment
termination.
7. General
Provisions.
7.1 Notices.
Any
notices provided hereunder must be in writing and shall be deemed effective
upon
the earlier of personal delivery (including, personal delivery by facsimile
transmission or the third day after mailing by first class mail) to the Chairman
at his primary office location and to Executive at his address as listed on
the
Company payroll (which address Executive may change by written
notice).
7.2 Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality
or
unenforceability will not affect any other provision or any other jurisdiction,
but such invalid, illegal or unenforceable provision will be reformed, construed
and enforced in such jurisdiction so as to render it valid, legal, and
enforceable consistent with the intent of the parties insofar as
possible.
7.3 Waiver.
If
either party should waive any breach of any provision of this Agreement, he
or
it shall not thereby be deemed to have waived any preceding or succeeding breach
of the same or any other provision of this Agreement.
7.4 Entire
Agreement.
This
Agreement, together with the Proprietary Information Agreement attached hereto
as Exhibit A, constitutes the entire agreement between Executive and the Company
and it supersedes any prior agreement, promise, representation, or statement
written or otherwise between Executive and the Company with regard to this
subject matter. It is entered into without reliance on any promise,
representation, statement or agreement other than those expressly contained
or
incorporated herein, and it cannot be modified or amended except in a writing
signed by Executive and the Executive Chairman.
7.5 Counterparts.
This
Agreement may be executed in separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
will
constitute one and the same Agreement.
7.6 Headings.
The
headings of the sections hereof are inserted for convenience only and shall
not
be deemed to constitute a part hereof nor to affect the meaning
thereof.
7.7 Successors
and Assigns.
This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
Executive, the Company and their respective successors, assigns, heirs,
executors and administrators, except that Executive may not assign any of his
rights or duties hereunder.
7.8 Remedies.
Executive’s
duties and obligations under Sections 3 and 4 above, and under the Proprietary
Information Agreement, shall survive termination of Executive’s employment with
the Company. Executive acknowledges that a remedy at law for any breach or
threatened breach by Executive of the provisions of such sections and/or the
Proprietary Information Agreement would be inadequate, and Executive therefore
agrees that the Company shall be entitled to injunctive relief in case of any
such breach or threatened breach.
7.9 Governing
Law.
All
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the law of the State of Illinois, without regard
to conflicts of laws principles thereof, as applied to contracts made and to
be
performed entirely within the State of Illinois.
In
Witness Whereof,
the
parties have executed this Agreement effective as of the date first above
written.
CORGI
CLASSICS LIMITED
By:
/s/
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Executive
Chairman, Zindart Limited
Accepted
and Agreed
/s/
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Exhibit
A
EMPLOYEE
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT