EXHIBIT 12.1
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of January 1, 1995, by and between TYCO TOYS, INC.,
a Delaware corporation having an office at 6000 Midlantic Drive, Mt. Laurel, New
Jersey 08054 (the "Company"), and RICHARD E. GREY, residing at 440 Windrow
Clusters Drive, Moorestown, New Jersey 08057 ("Mr. Grey").
WITNESSETH:
WHEREAS, Mr. Grey is currently employed by the Company pursuant to an
Employment Agreement between the Company and Mr. Grey dated January 15, 1992, as
amended as of June 27, 1994, for a term expiring December 31, 1994 (the "Current
Agreement"); and
WHEREAS, the parties are desirous of continuing such employment after
December 31, 1994 on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
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a. "Board" means the Board of Directors of the Company.
b. "Cause" means (1) repeated violations by Mr. Grey of Mr. Grey's
obligations under Section 2. of this Agreement (other than as a result
of incapacity due to physical or mental illness) which are
demonstrably willful and deliberate on Mr. Grey's part, which are
committed in bad faith or
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without reasonable belief that such violations are in the best
interests of the Company and which are not remedied in a reasonable
period of time after receipt of written notice from the Company
specifying such violations or (2) the conviction of Mr. Grey of a
felony involving moral turpitude.
c. "Change of Control" means the occurrence during the Term of:
(1) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
'Person' (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than the Company or any of its affiliates, immediately
after which such Person has 'Beneficial Ownership' (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of more than fifty
percent (50%) of the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in determining
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whether a Change of Control has occurred, Voting Securities which are
acquired in a 'Non-Control Acquisition' (as hereinafter defined) shall
not constitute an acquisition which would cause a Change of Control.
A 'Non-Control Acquisition' shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained
by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity
interest is owned, directly or indirectly, by the Company (for
purposes of this definition, a 'Subsidiary') (ii) the Company or its
Subsidiaries, or (iii) any Person in connection with a 'Non-Control
Transaction' (as hereinafter defined);
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(2) The individuals who, as of January 1, 1995, are members of
the Board of Directors of the Company (the "Incumbent Board") cease
for any reason to constitute at least two-thirds of the members of the
Board; provided, however, that if the election, or nomination for
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election by the Company's common stockholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such
new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided further, however, that no
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individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened 'Election Contest' (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board
(a "Proxy Contest"), including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(3) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization involving
the Company, unless
(A) the stockholders of the Company immediately before
such merger, consolidation or reorganization own, directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined
voting power of the outstanding Voting Securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as
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their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization, and
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the
Surviving Corporation, and
(C) no Person (other than the Company, any Subsidiary, any
employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Corporation, or any
Subsidiary, or any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of more
than fifty percent (50%) of the then outstanding Voting
Securities) has Beneficial Ownership of more than fifty percent
(50%) of the combined voting power of the Surviving Corporation's
then outstanding voting securities.
A transaction described in clauses (A) through (C) shall
herein be referred to as a 'Non-Control Transaction';
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of 50% or more of the
net assets of the Company to any Person (other than a transfer to
a Subsidiary).
Notwithstanding the foregoing, a Change of Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
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Beneficial Ownership of more than the permitted amount of the outstanding
Voting Securities as a result of the acquisition of Voting Securities by
the Company which, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by the
Subject Person, provided that if a Change of Control would occur (but for
the operation of this sentence) as a result of the acquisition of Voting
Securities by the Company, and after such share acquisition by the Company,
the Subject Person becomes the Beneficial Owner of any additional Voting
Securities which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change of
Control shall occur.
d. "Compensation Committee" means the compensation committee of the
Board of Directors of the Company, which shall consist solely of two
or more persons each of whom are "outside directors" within the
meaning of Section 162(m) of the Internal Revenue Code of 1986, as
amended.
e. "Competing Enterprise" means any entity which is, or has an
affiliate which is, engaged primarily in the design, development,
manufacture or distribution of toy products.
f. "Good Reason" means (i) except as contemplated by Section 2.d.
hereof, a demotion in Mr. Grey's status, title or position, or the
regular assignment to Mr. Grey of duties or responsibilities which are
inconsistent with such status, title or position; (ii) a material
breach of this Agreement by the Company if the Company has not cured
such breach within thirty days of Mr. Grey's notifying the Company of
such breach. Mr. Grey shall notify the Company of his belief that
such a breach has occurred within thirty days of the occurrence of
such breach; or (iii) a relocation of the
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executive offices of the Company to a location outside the 20-mile
radius of Mt. Laurel, New Jersey, without Mr. Grey's written consent
given to the Company within 30 days of Mr. Grey's receipt of
notification of such relocation by the Company. The Company agrees to
give Mr. Grey at least three (3) months prior written notice of any
such relocation.
g. "Term" means the period from January 1, 1995 through the close
of business on December 31, 1997, or if this Agreement is renewed and
extended pursuant to Section 3. hereof, December 31, 1998.
2. EMPLOYMENT.
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a. The Company hereby agrees to employ Mr. Grey as Chairman of the
Board and Chief Executive Officer of the Company for the period
January 1, 1995 through the remainder of the Term. Mr. Grey hereby
accepts such employment.
b. Mr. Grey shall have such powers and duties as generally pertain
to the offices of Chairman of the Board and Chief Executive Officer
for the periods during which he holds such offices pursuant to
Sections 2.a. and 2.d., including without limitation the hiring and
firing of subordinates; provided, however, that in the case of persons
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occupying, or whose employment is being considered for, positions
higher than Senior Vice President, such hiring and firing shall be
with the consent of the Board.
c. Mr. Grey shall be responsible to, and report directly to, the
Board and shall perform those executive duties consistent with the
foregoing as shall be designated from time to time by the Board and on
the terms and conditions of this Agreement.
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d. At any time on or after January 1, 1996, the Company may replace
Mr. Grey as Chief Executive Officer of the Company. At any time on or
after January 1, 1996, Mr. Grey may resign as Chief Executive Officer
of the Company. If either of such events takes place, Mr. Grey shall
serve as Chairman of the Board and an officer (other than Chief
Executive Officer) of the Company for the remainder of the Term.
3. TERM. Subject to Section 7. hereof, Mr. Grey's employment hereunder
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shall commence on January 1, 1995 and terminate on December 31, 1997. Subject
to Section 7 hereof, on December 31, 1997, the term of Mr. Grey's employment
shall be renewed and extended for an additional one-year period unless by June
30, 1997 either party has given written notice to the other that the term of Mr.
Grey's employment shall not be so renewed and extended.
4. COMPENSATION.
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a. The Company shall pay to Mr. Grey during the Term, except as
otherwise expressly provided herein:
(1) For the period of January 1, 1995 through the
expiration of the Term, a base salary of Six Hundred Thousand Dollars
($600,000); provided, however, that for any period after January 1, 1996
during which Mr. Grey does not serve as Chief Executive Officer of the
Company, the base salary shall be at an annual rate of Four Hundred
Thousand Dollars ($400,000), which, with respect to periods after January
1, 1997, shall be reviewed annually beginning in 1996 by the Board and
which may be increased (but not decreased) at the sole discretion of the
Board.
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The base salary set forth in this Section 4.a.(1) shall
hereinafter be referred to as the "Base Salary." The Base Salary shall be
payable in bi-weekly installments and subject to such deductions as
required by law.
(2) An annual incentive bonus (the "Annual Bonus"), based
on a target amount equal to 90% of the Base Salary during the period to
which the bonus relates, payable pursuant to the Annual Bonus Plan (as
defined below) upon the attainment by the Company of specific performance
criteria to be established by the Compensation Committee and approved by
the Board. Payment of the Annual Bonus may be, in the sole discretion of
the Compensation Committee, subject to approval by holders of a majority of
the voting shares of the Company of the material terms of the plan or
arrangement pursuant to which the Annual Bonus is paid (the "Annual Bonus
Plan"); and
(3) The benefits of a long term incentive plan (the
"LTIP") to be established by the Compensation Committee and approved by the
Board on or before September 30, 1994. Adoption of the LTIP may be, in the
sole discretion of the Compensation Committee, subject to approval by
holders of a majority of the voting shares of the Company.
b. The Company shall provide to Mr. Grey, subject to his
insurability, those fringe benefits currently available to all
senior executive employees, as well as those which the Company may
generally make available to its senior executive employees,
including without limitation, life insurance, medical and hospital
coverage .
c. The Company shall reimburse Mr. Grey for all reasonable
ordinary and necessary business expenditures made by him in
connection with, or in furtherance of, his employment, upon
presentation and approval of expense
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statements, receipts or vouchers or such other supporting
information as may from time to time be reasonably requested by the
Company.
d. During the Term, the Company shall provide Mr. Grey with a
private office, secretarial help and such other facilities and
services reasonably suitable to his position and adequate for the
performance of his duties, including a current model automobile that
is comparable to the automobile used by Mr. Grey on the Company's
business during 1994.
e. The parties acknowledge and agree that the LTIP and the
Annual Bonus Plan shall contain such provisions and be administered
in such manner as the Compensation Committee shall, upon advice of
legal counsel, determine may be necessary so that compensation
attributable thereto is not subject to the deductibility limitations
of Section 162(m) of the Code.
f. The Company shall have the right to deduct from any payment
hereunder an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld.
5. FULL TIME DEVOTED TO COMPANY. Mr. Grey shall devote his full time and
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attention to the business of the Company for the period January 1, 1995 through
the expiration of the Term; provided, however, that during such period as Mr.
Grey is not Chief Executive Officer of the Company, Mr. Grey shall devote such
time and attention to the business of the Company as is reasonable and
consistent with the office or offices which he holds. Mr. Grey shall not during
the Term be engaged in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage, but this
shall not be construed as preventing Mr. Grey from:
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a. investing his assets in such form or manner as will not
require any services on his part in the operation of the affairs of
the entities in which such investments are made;
b. serving as an officer or director of a trade or business
association related to the toy industry, such as, for example, The
Toy Manufacturer's Association or The Hobby Industries Association;
c. serving as a member of the board of directors of
corporations which are not, and whose affiliates are not, engaged in
the toy industry; and
d. serving as a member of the Board, a parent, or a subsidiary
thereof, provided that Mr. Grey in his sole discretion agrees to so
serve. If Mr. Grey (with his consent) is elected or appointed a
director of any such entity (and, if so appointed, as a member of
any committee of the Board) during the Term, he shall serve in such
capacity without further compensation.
e. for periods during which Mr. Grey does not serve as Chief
Executive Officer of the Company, devoting up to 20% of his time to
other business activities, but only to the extent Mr. Grey has time
available after satisfying his obligations under this Section 5. and
provided such activities are unrelated to a Competing Enterprise.
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The Company shall notify Mr. Grey if it believes that Mr. Grey has breached
any of his obligations under this Section 5.; in such event, Mr. Grey shall have
fifteen days within which to cure such breach.
6. NON-COMPETITION; CONFIDENTIALITY.
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a. During the Non-Competition Period (as defined below), Mr. Grey
will not directly or indirectly engage in the business of, or own or
control any interest in (except as a passive investor in a publicly
owned company whose primary business is not a Competing Enterprise and
owning less than 5% of the equity securities thereof), or act as
director, officer of, employee of, or consultant to, or participate in
or render any service to or be in any other way connected with, any
individual, partnership, joint venture, corporation or other business
entity directly or indirectly engaged anywhere in the United States in
any Competing Enterprise. In addition, during the Non-Competition
Period Mr. Grey will not solicit suppliers or customers (or potential
suppliers or customers) of the Company for any Competing Business or
entice any individual to terminate his employment with the Company or
of any of the Company's subsidiaries. In the event (1) the Company
terminates Mr. Grey's employment for Cause or pursuant to Section 7.f.
hereof or Mr. Grey's employment terminates as of the expiration of the
Term and (2) the provisions of Sections 7.b., 7.c. and 7.e. do not
apply, this Section 6.a. shall not apply unless it is specifically
invoked by the Company and the Company agrees to pay Mr. Grey during
the Non-Competition Period in bi-weekly installments at an annual rate
equal to the Base Salary in effect on the date of termination. For
purposes of the foregoing, the Non-Competition Period is the period
commencing on January 1, 1995 and terminating on the first anniversary
of the June 30th which occurs during the year in
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which Mr. Grey's employment with the Company terminates for any
reason.
b. Mr. Grey agrees that all trade secrets, confidential information
with respect to marketing plans, manufacturing plans or techniques and
confidential financial matters of the Company and its subsidiaries
(collectively "Confidential Information") which is learned by him in
the course of his employment by the Company and any other Confidential
Information received, developed or hereafter learned in the course of
such employment or in association with the Company (or its
subsidiaries) shall be, until the date one year after Mr. Grey's
employment terminates hereunder, or, if later, the last day of the
Non-Competition Period, treated as confidential by him and shall not
be disclosed by him unless expressly authorized by the Company, or
unless the Confidential Information becomes generally available to the
public otherwise than through disclosure by Mr. Grey.
c. Mr. Grey shall not be deemed to have learned any Confidential
Information on the basis of inference or circumstantial evidence. It
shall be the burden of the Company to establish by a preponderance of
proof that Mr. Grey actually learned the Confidential Information.
For example, it would be insufficient as proof for the Company merely
to establish that Mr. Grey had access to the Confidential Information
and that the Confidential Information was in his possession and
learned by him. Similarly, in the case of alleged disclosure by Mr.
Grey of Confidential Information, the Company will be required to
prove by a preponderance of proof that Mr. Grey actually divulged such
Confidential Information contrary to the provisions of this Agreement.
For example, it would be insufficient merely
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to establish that Mr. Grey knew of the Confidential Information or
that he would be required to make use of such knowledge in the course
of an activity or that he was in a position to divulge the
Confidential Information. Proof of the actual divulgence of such
Confidential Information would be required before the Company could
invoke any remedy provided under Section 6. hereof for a breach of
Section 6.b. hereof.
d. Mr. Grey acknowledges and agrees that in view of the unique
quality of his services provided to the Company and the fact that the
Company's business heavily depends upon his proprietary information,
the remedies of the Company at law for breach by Mr. Grey of any of
the restrictions contained in Sections 6.a. or 6.b. hereof will be
inadequate and that the Company shall be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief
obtained in an action or proceeding instituted in any court of
competent jurisdiction without the necessity of proving irreparable
damages. It is understood by the Company and Mr. Grey that the
covenants contained in Sections 6.a. and 6.b. hereof are essential
elements of this Agreement and that, but for Mr. Grey's agreement to
comply with such covenants, the Company would not have entered into
this Agreement. Mr. Grey acknowledges that such covenants are
reasonable and valid.
7. TERMINATION.
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a. Subject to the provisions of this Section 7., the Company and Mr.
Grey may terminate this Agreement on fifteen days written notice to
the other party, which notice shall specify the exact cause for
termination.
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b. Subject to Section 7.i. hereof, if within six months following a
Change of Control occurring during the Term the Company terminates Mr.
Grey's employment hereunder without Cause or Mr. Grey terminates his
employment hereunder other than by reason of death or disability, the
Company shall pay to Mr. Grey (1) the portion of the Base Salary
accrued through the date of termination, and (2) an amount equal to
the product of 2.99 and the average of the sum of the Base Salary and
the Annual Bonus for the last five calendar years prior to the date of
termination (including, if applicable, any year covered by the Current
Agreement) (the "Five-Year Compensation Average").
c. Subject to Section 7.i. hereof, in the event that (1) during the
Term the Company enters into a binding written agreement to engage in
a transaction which, if consummated, would result in a Change of
Control, (2) such transaction is consummated after the last date of
the Term and within four months thereof, and (3) subsequent to
entering into such agreement and during the Term the Company
terminates Mr. Grey's employment without Cause or Mr. Grey terminates
his employment for Good Reason, the Company shall pay to Mr. Grey an
amount equal to the payment set forth in Section 7.b. hereof.
d. If the Company terminates Mr. Grey's employment hereunder for
Cause or, except as provided in Section 7.b. hereof, Mr. Grey
terminates his employment hereunder without Good Reason, the Company's
sole obligation hereunder shall be to pay Mr. Grey the portion of the
Base Salary accrued through the date of termination.
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e. If the Company terminates Mr. Grey's employment hereunder without
Cause or Mr. Grey terminates his employment hereunder for Good Reason
and, in either case, Sections 7.b. and 7.c. hereof do not apply, the
Company shall pay to Mr. Grey (1) the portion of the Base Salary
accrued through the date of termination, and (2) an amount equal to
the product of 2.0 and the Five-Year Compensation Average.
f. If Mr. Grey becomes physically or mentally disabled during the
Term so that he is unable to perform the services required of him
pursuant to this Agreement for a period of six (6) successive months,
or an aggregate of six (6) months in any 12-month period, the Company
may terminate Mr. Grey's services hereunder, in which event the
Company's only obligations hereunder shall be (i) to have paid Mr.
Grey the portion of the Base Salary accrued during such period, (ii)
to have afforded Mr. Grey the full benefits provided in Section 4.b.
above during such period, (iii) to the extent provided under the terms
of the Annual Bonus Plan, to pay Mr. Grey a pro rata share of the
Annual Bonus for the year in which his employment is terminated, and
(iv) to provide Mr. Grey those benefits set forth in the LTIP which he
would be entitled to in the event his employment terminates by reason
of his disability.
g. In the event of Mr. Grey's death during the Term, the Company
shall (i) pay to his spouse, if he is survived by a spouse, or if not,
to the estate of Mr. Grey, the portion of the Base Salary accrued
through the date of his death, (ii) pay to his spouse, if he is
survived by his spouse, or if not, to the estate of Mr. Grey, an
amount equal to one-half of Mr. Grey's annual Base Salary as of the
date of his death, payable in a lump sum or over six months in equal
bi-weekly installments as the Board shall determine, (iii) to the
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extent provided under the terms of the Annual Bonus Plan, pay to
Mr. Grey a pro rata share of the Annual Bonus for the year of his
death, and (iv) provide Mr. Grey those benefits set forth in the LTIP
which he would be entitled to in the event of his death.
h. The Company shall pay to Mr. Grey any amounts owing pursuant to
Sections 7.b., 7.c. or 7.e. in a single lump sum within fifteen (15)
days following Mr. Grey's termination of employment.
i. (1) Notwithstanding anything contained in this Agreement to the
contrary, to the extent that the payments and benefits provided under this
Agreement or provided to or for the benefit of Mr. Grey under any other plan
or agreement of or with the Company (each such payment or benefit, a
"Payment," and such payments and benefits collectively, the "Payments") would
be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of
the Code, the Payments shall be reduced if and to the extent necessary so
that no Payment shall be subject to the Excise Tax (such reduced amount, the
"Limited Payment Amount"). The Company shall reduce or eliminate the Payments
by first reducing or eliminating the payments due under Sections 7.b. or 7.c.
hereof, then by reducing or eliminating any other amounts payable in cash,
and then by reducing or eliminating benefits which are not payable in cash,
in each case in reverse order beginning with payments or benefits which are
to be paid the farthest in time from the date of the Determination (as
hereinafter defined).
(2) An initial determination as to whether the Payments shall be
reduced and the amount of the Limited Payment Amount shall be made at the
Company's expense by an accounting firm selected by the Company which is one
of the five largest accounting firms in the United States (the "Accounting
Firm").
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The Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation, to the
Company and Mr. Grey within 15 days of the date Mr. Grey's employment is
terminated, and if the Accounting Firm determines that no Excise Tax is
payable it shall furnish Mr. Grey with an opinion to such effect reasonably
acceptable to Mr. Grey. Within ten (10) days of the delivery of the
Determination to Mr. Grey, Mr. Grey shall have the right to dispute the
Determination (the "Dispute"). If there is no Dispute, the Determination
shall be binding, final and conclusive upon the Company, subject to the
application of subparagraph (3) below.
(3) If it is established pursuant to a final determination of a
court or an Internal Revenue Service (the "IRS") proceeding which has been
finally and conclusively resolved, that any portion of the Payments or the
Limited Payment Amount is subject to the Excise Tax, such portion shall be
deemed for all purposes to be a loan to Mr. Grey made on the date received by
Mr. Grey, and Mr. Grey shall repay such portion to the Company on demand (but
on not less than ten (10) days' written notice) together with interest at the
"Applicable Federal Rate" (as defined in Section 1274(d) of the Code).
8. NON-ASSIGNMENT. This Agreement and all of Mr. Grey's rights and
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obligations hereunder are personal to Mr. Grey and shall not be assignable;
provided, however, that upon his death all of Mr. Grey's rights to cash payments
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under this Agreement shall inure to the benefit of his widow, personal
representatives, designees or other legal representatives, as the case may be.
Any person, firm or corporation 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 hereunder, provided, however,
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that the Company shall, notwithstanding such assumption, remain liable and
responsible for the fulfillment of its obligations under this Agreement.
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9. ARBITRATION.
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a. Subject to Sections 6.d. and 7.i. hereof, the Company and Mr.
Grey agree that any dispute, controversy or claim which may arise out
of or relate to this Agreement (including, but not limited to, any
claim relating to the purported validity, interpretation,
enforceability or breach of any portion of this Agreement) or any
other claim, dispute or controversy arising out of the relationship
between Mr. Grey and the Company, which is not settled by agreement
between the parties, shall be settled by arbitration of three
arbitrators. One arbitrator shall be selected by Mr. Grey, one by the
Company and the third by the two persons so selected, all in
accordance with the labor arbitration rules of the American
Arbitration Association then in effect. In the event that the
arbitrator selected by Mr. Grey and the arbitrator selected by the
Company are unable to agree upon a third arbitrator, then the third
arbitrator shall be selected from a list of seven provided by the
office of the American Arbitration Association nearest to Mr. Grey's
residence with the parties striking names in order and the party
striking first to be determined by the flip of a coin. The arbitration
shall be held in a location to be mutually agreed upon by the parties.
b. In consideration of the parties' agreement under Section 9.a.
hereof, and in further consideration of the anticipated expedition and
minimization of expense of the arbitration remedy, the arbitration
provisions of this Agreement shall provide the exclusive remedy for
settling disputes, controversies or claims hereunder or arising out of
the relationship between the Company and Mr. Grey, and each party
expressly waives any right he or it may have to seek redress in any
other forum.
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c. Any claim which either party has against the other which could be
submitted for resolution pursuant to this Section 9. must be presented
in writing by the claiming party to the other within one year of the
date the claiming party knew or should have known of the facts giving
rise to the claim, except that claims arising out of or related to the
termination of Mr. Grey's employment must be presented by him within
one (1) year of the date of termination. Unless the party against whom
any claim is asserted waives the time limits set forth above, any
claim not brought within the time periods specified shall be waived
and forever barred.
d. Each party shall bear the cost of its own legal fees and related
expenses (including the cost of experts, evidence and counsel)
incurred in connection with any arbitration, but the Company and Mr.
Grey shall bear equally the cost of the arbitrators' fees and
expenses.
e. Any decision and award or order of the majority of the
arbitrators shall be binding upon the parties hereto and judgment
thereon may be entered in any court having jurisdiction.
f. Each of the above terms and conditions of this Section 9. shall
have separate validity, and the invalidity of any part thereof shall
not affect the remaining parts.
g. Any decision and award or order of the majority of the
arbitrators shall be final and binding between the parties as to all
claims which were or could have been raised in connection with the
dispute to the fullest extent permitted by law.
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10. INVALIDITY. The invalidity or unenforceability of any provision of
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this Agreement shall in no way affect the validity or enforceability of any
other provision.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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among the parties respecting the subject matter hereof and supersedes any prior
agreement respecting the subject matter hereof. No amendment to this Agreement
shall be deemed valid unless in writing and signed by the parties, and no
discharge of the terms of this Agreement shall be deemed valid unless by full
performance by the parties or by a writing signed by the parties. No waiver by a
party of any provisions or conditions of this Agreement shall be deemed a waiver
of similar or dissimilar provisions and conditions at the same time or any prior
or subsequent time.
12. NOTICE. Any notice, statement, report, request or demand required or
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permitted to be given by this Agreement shall be effective only if in writing,
delivered personally against receipt therefor or mailed by certified or
registered mail, return receipt requested, to the parties at the addresses
hereinafter set forth, or at such other places that either party may designate
by notice to the other.
Notice to the Company shall be addressed to:
Tyco Toys, Inc.
6000 Midlantic Drive
Mt. Laurel, New Jersey 08054
Attn: R. Michael Kennedy, Jr., Esq.
Notice to Mr. Grey shall be addressed to him at the executive offices of
the Company, with a copy to his home address at:
440 Windrow Clusters Drive
Moorestown, New Jersey 08057
and with an additional copy to:
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Salamon, Gruber, Newman, Blaymore & Rothschild, P.C.
97 Powerhouse Road
Roslyn Heights, New York 11577
Attn: Frederick Newman, Esq.
Such notice shall be deemed effectively given five (5) days after the same
has been deposited in a post box under the exclusive control of the United
States Postal Service.
13. GOVERNING LAW. This Agreement has been made in and shall be
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interpreted according to the laws of the State of New York without any reference
to the conflicts of laws rules thereof. Subject to Section 9. hereof, the
parties hereto submit to the jurisdiction of the courts of the State of New York
for the purpose of any actions or proceedings which may be required to enforce
the provisions of this Agreement or an award made in any arbitration proceeding
initiated.
IN WITNESS WHEREOF, the parties have executed these presents as of the day
and year first above written.
TYCO TOYS, INC.
By:________________________________
___________________________________
Richard E. Grey
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