SPECIAL TERMINATION AGREEMENT
THIS SPECIAL TERMINATION AGREEMENT ("Agreement") is made as of the 1st day
of July, 1999, between Tandycrafts, Inc., a Delaware corporation (the
"Company"), and {Name} (the "Executive") (all of whom are collectively referred
to as the "parties).
WHEREAS, the Executive is currently serving as the Company's {Title};
WHEREAS, the Executive possesses an intimate knowledge of the business and
affairs of the Company, its policies, methods, personnel and plans for the
future and has acquired contacts of considerable value to the Company;
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the Executive's contribution to the growth and success of the Company has
been substantial and wishes to offer an inducement to the Executive to remain in
the employ of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties agree as
follows:
1. Term. The term of this Agreement shall continue until the earlier of
(i) the expiration of the second anniversary of this Agreement (or if there
shall be a Change in Control during the Term, the second anniversary of the
occurrence of a Change of Control), (ii) the Executive's death, or (iii) the
Executive's earlier voluntary retirement (except for those events described in
Section 3(a)(3)); provided, however, that, on each anniversary date of this
Agreement or any extension, this Agreement, the Term and the periods referenced
in Section 3 shall automatically be extended for an additional year unless, not
later than 90 calendar days prior to such anniversary date, the Company shall
have given written notice to the Executive that it does not wish to have the
term extended.
2. Definitions.
(a) Acquiring Person: An "Acquiring Person" shall mean any person (as
defined in Section 2(d)(iv) of this Agreement) that, together with all
Affiliates and Associates of such person, is the beneficial owner of 35% or more
of the outstanding Common Stock. The term "Acquiring Person" shall not include
the Company, any subsidiary of the Company, any employee benefit plan of the
Company or subsidiary of the Company, or any person holding Common Stock for or
pursuant to the terms of any such plan. For the purposes of this Agreement, a
person who becomes an Acquiring Person by acquiring beneficial ownership of 35%
or more of the Common Stock at any time after the date of this Agreement shall
continue to be an Acquiring Person whether or not such person continues to be
the beneficial owner of 35% or more of the outstanding Common Stock.
(b) Affiliate and Associate. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") in effect on the date of this Agreement.
(c) Cause. For "Cause" shall mean that, during the Term, the Executive
shall have:
(i) committed an intentional material act of fraud or embezzlement in
connection with his duties or in the course of his employment
with the Company;
(ii) committed an intentional wrongful material damage to property of
the Company;
(iii) committed an intentional wrongful disclosure of material
secret processes or material confidential information of the
Company; or
(iv) been convicted of a felony criminal offense.
(v) For the purposes of this Agreement, no act, or failure to act, on
the part of the Executive shall be deemed "intentional" unless
done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that his action or omission was in
the best interest of the Company.
(d) Change in Control. A "Change in Control" of the Company shall have
occurred if at any time during the term of this Agreement any of the following
events shall occur:
(i) any consolidation, merger or other reorganization of the Company in
which the Company is merged, consolidated or reorganized into or
with another corporation or other legal person or pursuant to which
shares of the Company's stock are converted into cash, securities or
other property, other than a merger of the Company in which the
holders of the Company's common stock immediately prior to the
merger own more than 50.1% of the common stock of the surviving
corporation or its ultimate parent immediately after the merger;
(ii) any sale, lease, exchange or other transfer (or in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company and as a result of
such transaction the holders of the Company's common stock
immediately prior thereto own more than 50.1% of the common stock of
such transferee or its ultimate parent immediately after such
transaction;
(iii) any liquidation or dissolution of the Company or any approval by
the stockholders of the Company of any plan or proposal for the
liquidation or dissolution of the Company;
(iv) any person (including any "person" as such term is used in
Section l3(d)(3) or Section l4(d)(2) of the Exchange Act), has
become an Acquiring Person;
(v) if at any time, the Continuing Directors then serving on the Board
cease for any reason to constitute at least a majority thereof;
(vi) any occurrence that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A or any successor rule
or regulation promulgated under the Exchange Act; or
(vii) such other events that cause a change in control of the Company;
provided, however, that a Change in Control of the Company shall not
be deemed to have occurred as the result of any transaction having
one or more of the foregoing effects if such transaction is proposed
by, and includes a significant equity participation (i.e., an
aggregate of at least 25% of the then outstanding common equity
securities of the Company immediately after such transaction which
are entitled to vote to elect any class of Directors) of, the
executive officers of the Company as constituted immediately prior
to the occurrence of such transaction or any Company employee stock
ownership plan or pension plan.
(e) Code. The "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) Continuing Director. A "Continuing Director" shall mean a Director of
the Company who (i) is not an Acquiring Person, an Affiliate or Associate, a
representative of an Acquiring Person or nominated for election by an Acquiring
Person, and (ii) was either a member of the Board of Directors of the Company on
the date of this Agreement or subsequently became a Director of the Company and
whose initial election or initial nomination for election by the Company's
stockholders was approved by at least two-thirds of the Continuing Directors
then on the Board of Directors of the Company.
(g) Employment Term. The "Employment Term" shall be the period of
employment under this Agreement commencing on the day prior to a Change in
Control and continuing until the expiration of this Agreement.
(h) Severance Compensation. The "Severance Compensation" shall be a lump
sum amount equal to 150% of the sum of (A) the highest annual salary of the
Executive in effect at any time during the Employment Term or the salary of the
Executive in effect immediately prior to the Change in Control, whichever is the
larger amount, plus (B) the bonus or incentive compensation of the Executive,
based upon the dollar amount of bonus or incentive compensation that the
Executive received from the Company for the fiscal year preceding the year in
which the Change in Control occurred or for the fiscal year preceding the year
in which the Termination Date occurs, whichever is the larger amount.
(i) Termination Date. The "Termination Date" shall be the date upon which
the Executive or the Company effectively terminates the employment of the
Executive.
3. Rights of Executive Upon Change in Control.
(a) The Company shall provide the Executive, within ten days following the
Termination Date, Severance Compensation in lieu of compensation to the
Executive for periods subsequent to the Termination Date, but without affecting
the other rights of the Executive at law or in equity, if, any of the following
events shall occur:
(1) the Company terminates the Executive's employment within two
years after a Change of Control during the Term, other than for any of the
following reasons;
(i) the Executive dies;
(ii) the Executive becomes permanently disabled and is unable to
work for a period of 180 consecutive days; or
(iii) for Cause;
(2) the Executive's employment is involuntarily terminated by
Employer (except for Cause) in anticipation of a Change of Control, during
a Change of Control or after a Change of Control during the Term;
(3) if Executive terminates his employment, during the Term, after a
Change in Control and the occurrence of at least one of the following
events:
(i) Executive is assigned duties inconsistent with his position,
duties, responsibilities and status with Employer
immediately prior to a Change of Control (other than a
promotion or advancement), or there is otherwise an adverse
change in the nature or scope of the authorities, functions
or duties attached to the position with the Company that the
Executive had immediately prior to the Change in Control;
(ii) any reduction in the Executive's salary, bonus or incentive
compensation (based upon the dollar amount of salary, bonus
or incentive compensation that the Executive received from
the Company for the fiscal year preceding the year in which
the Change in Control occurred or for the fiscal year
preceding the year in which the Termination Date occurs,
whichever is the larger amount) during the Term or a
reduction in scope or value of the aggregate other monetary
or non-monetary benefits to which the Executive was entitled
from the Company immediately prior to the Change in Control;
(iii) there is a significant or material change in
Executive's reporting responsibilities (other than a
promotion or advancement); or
(iv) Executive reasonably determines, in good faith that, as
a result of a Change in Control, changes in the composition
or policies of the Board, a change in circumstances
affecting his position, or other events of material effect,
he is unable, or has been rendered substantially unable, to
carry out the duties and responsibilities that he had with
Employer immediately prior to the Change of Control or has
otherwise been substantially hindered in the performance of,
the authorities, functions or duties attached to his
position immediately prior to the Change in Control;
(b) Notwithstanding the above section or any other provision of this
Agreement, in no event shall the Company pay or be obligated to pay the
Executive an amount which would be an Excess Parachute Payment. For purposes
of this Agreement, the term "Excess Parachute Payment" shall mean any payment or
any portion thereof which would be an "excess parachute payment" within the
meaning of Section 280G of the Code, and would result in the imposition of an
excise tax under Section 4999 of the Code, in the opinion of tax counsel
selected by the Company's independent accountants and acceptable to the
Executive. If it is established pursuant to a final determination of a court or
an Internal Revenue Service administrative appeals proceeding that,
notwithstanding the good faith of the Executive and the Company in applying the
terms of this Agreement, a payment (or portion thereof) made is an Excess
Parachute Payment, then, except as hereafter provided, the Executive shall have
an obligation to repay the Company upon demand an amount equal to the minimum
amount (but without interest) necessary to insure that no payments made or to be
made by the Company pursuant to this Agreement is an Excess Parachute Payment;
provided, however, that if, in the opinion of tax counsel selected by the
Company's independent accountants and acceptable to the Executive, such
repayment will not ensure that no Excess Parachute Payment would be made
hereunder, then (l) no such repayment obligation will exist and (2) the Company
shall pay to the Executive an additional amount in cash equal to the amount
necessary to cause the amount of the aggregate after-tax cash compensation and
benefits otherwise receivable by the Executive to be equal to the aggregate
after-tax cash compensation and benefits he would have received as if Sections
280G and 4999 of the Code had not been enacted.
(c) Upon written notice given by the Executive to the Company prior to the
receipt of Severance Compensation, the Executive, at his sole option, may elect
to have all or any part of any such amount paid to him, without interest, on an
installment basis selected by him.
(d) The payment of Severance Compensation by the Company to the Executive
shall not affect any other rights and benefits of the Executive provided by the
Company, whether currently or in the future, prior to the Termination Date,
which rights shall be governed by the terms thereof. The Company shall provide
to the Executive throughout the Employment Term benefits substantially similar
to those which the Executive was receiving or entitled to receive immediately
prior to the Termination Date. Such benefits as provided by the Company,
however, shall be reduced to the extent comparable benefits are actually
received by the Executive during the Employment Term as a result of employment
other than with the Company.
(e) The Company shall pay to the Executive all reasonable legal fees and
expenses incurred by him as a result of the enforcement of any of Executive's
rights hereunder within ten business days of the date such expenses are incurred
(including without limitation all such fees and expenses, if any, incurred in
contesting or disputing any termination of employment or in seeking to obtain or
enforce any right or benefit provided by this Agreement in accordance with
Section 12 hereof).
(f) The Company shall have no right of set-off or counterclaim in respect
of any claim, debt or obligation against any payment or benefit to or for the
benefit of the Executive provided for in this Agreement.
(g) Without limiting the rights of the Executive at law or in equity, if
the Company fails to make any payment required to be made hereunder on a timely
basis, the Company shall pay interest on the amount thereof on demand at an
annualized rate of interest equal to 120% of the then applicable Federal rate
determined under Section 1274(d) of the Code, compounded semi-annually (but in
no event shall such interest exceed the highest lawful rate).
4. No Mitigation Required. In the event that this Agreement or the
employment of the Executive hereunder is terminated, the Executive shall not be
obligated to mitigate his damages nor the amount of any payment provided for in
this Agreement by seeking other employment or otherwise, and except for the
termination of benefits pursuant to Section 3(d), the acceptance of employment
elsewhere after termination shall in no way reduce the amount of Severance
Compensation payable hereunder.
5. Successors: Binding Agreement.
(a) The Company will require any successor and any corporation or other
legal person (including any "person" as defined in Section 2(d)(iv) of this
Agreement) which is in control of such successor (as "control" is defined in
Regulation 230.405 or any successor rule or regulation promulgated under the
Securities Act of 1933, as amended) to all or substantially all of the business
and/or assets of the Company (by purchase, merger, consolidation or otherwise),
by agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a material breach of this
Agreement by the Company. Notwithstanding the foregoing, any such assumption
shall not, in any way, affect or limit the liability of the Company under the
terms of this Agreement or release the Company from any obligation hereunder.
As used in this Agreement, "Company" shall mean the Company and any successor to
its business and/or all or part of its assets which executes and delivers the
agreement provided for in this Section 5 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
6. Notice. The Company shall give written notice to Executive within ten
days after any Change in Control. Failure to give such notice shall constitute
a material breach of this Agreement. For purposes of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or received after
being mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive: {Name}
{Address}
If to the Company: Chief Executive Officer
Tandycrafts, Inc.
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of chance of address shall be
effective only upon receipt.
7. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, unless
specifically referred to herein with respect to the subject matter of this
Agreement have been made be either party which are not set forth expressly in
this agreement. THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF
THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
8. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Employment Rights. Nothing implied in this Agreement shall create any
right or duty on the part of the Company or the Executive to have the Executive
remain in the employment of the Company prior to any Change in Control;
provided, however, that any termination of employment of the Executive or
removal of the Executive as an elected officer of the Company following the
commencement of any discussion authorized by the Board of Directors of the
Company with a third person that ultimately results in a Change in Control shall
be deemed to be a termination or removal of the Executive after a Change in
Control for purposes of this Agreement and shall entitle the Executive to all
Severance Compensation. Notwithstanding any other provision hereof to the
contrary, the Executive may, at any time during the Employment Term, upon the
giving of 30 days prior written notice, terminate his employment hereunder. If
this Agreement or the employment of the Executive is terminated under
circumstances in which the Executive is not entitled to any Severance
Compensation, the Executive shall have no further obligation or liability to the
Company hereunder or otherwise with respect to his prior or any future
employment by the Company.
11. Withholding of Taxes. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling; provided,
however, that no withholding pursuant to Section 4999 of the Code shall be made
unless, in the opinion of tax counsel selected by the Company's independent
accountants and acceptable to the Executive, such withholding relates to
payments which result in the imposition of an excise tax pursuant to Section
4999 of the Code.
12. Legal Fees and Expenses. It is the intent of the Company that the
Executive not be required to incur the expenses associated with the enforcement
of his rights under this Agreement by litigation or other legal action because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Executive in this Agreement. Accordingly, if it
should appear to the Executive that the Company has failed to comply with any of
its obligations under the Agreement or in the event that the Company or any
other person takes any action to declare the Agreement void or unenforceable, or
institutes any litigation designed to deny, or to recover from, the Executive
the benefits intended to be provided to the Executive hereunder, the Company
irrevocably authorizes the Executive from time to time to retain counsel of his
choice, at the expense of the Company as hereafter provided, to represent the
Executive in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. The Company shall pay and
be solely responsible for any and all attorneys' and related fees and expenses
incurred by the Executive as a result of the Company's failure to perform this
Agreement or any provision thereof or as a result of the Company or any person
contesting the validity or enforceability of this Agreement or any provision
thereof.
13. Rights and Remedies Cumulative. No right or remedy conferred upon or
reserved to the Executive is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy under this Agreement, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
TANDYCRAFTS, INC.:
By: _______________________________________
Its: Chief Executive Officer
EXECUTIVE:
By: _______________________________________
{Name}