EXHIBIT 12.3
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of July ___, 1994, by and between TYCO TOYS, INC., a
Delaware corporation having an office at 6000 Midlantic Drive, Mt. Laurel, New
Jersey 08054 (the "Company"), and HARRY J. PEARCE, residing at 325 Tom Brown
Road, Moorestown, New Jersey 08057 ("Mr. Pearce").
WITNESSETH:
WHEREAS, Mr. Pearce is currently employed by the Company pursuant to an
Employment Agreement between the Company and Mr. Pearce dated January 15, 1992,
as amended as of June 27, 1994, for a term expiring December 31, 1994 (the
"Current Agreement"); and
WHEREAS, Mr. Pearce has heretofore been appointed to the position of Vice
Chairman of the Company and is the Chief Financial Officer of the Company; 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.
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b. "Cause" means (1) repeated violations by Mr. Pearce of Mr.
Pearce'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. Pearce's part, which are
committed in bad faith or 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. Pearce 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
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or its Subsidiaries, or (iii) any Person in connection with a 'Non-
Control Transaction' (as hereinafter defined);
(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
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resulting from such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as
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).
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Notwithstanding the foregoing, a Change of Control shall not
be deemed to occur solely because any Person (the "Subject Person")
acquired 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) a demotion in Mr. Pearce's status, title
or position, or the regular assignment to Mr. Pearce 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.
Pearce's notifying the Company of such breach. Mr. Pearce shall
notify the Company of his
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belief that such a breach has occurred within thirty days of the
occurrence of such breach; or (iii) a relocation of the executive
offices of the Company to a location outside the 20-mile radius of Mt.
Laurel, New Jersey, without Mr. Pearce's written consent given to the
Company within 30 days of Mr. Pearce's receipt of notification of such
relocation by the Company. The Company agrees to give Mr. Pearce 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. Pearce for the Term as
Vice Chairman and Chief Financial Officer of the Company and Mr.
Pearce hereby accepts such employment. Notwithstanding Section 2. of
the Current Agreement, the term of Mr. Pearce's employment pursuant to
the Current Agreement shall not be renewed and extended for an
additional one-year period after December 31, 1994. The terms and
provisions of the Current Agreement shall otherwise remain in full
force and effect through December 31, 1994.
b. Mr. Pearce shall have such powers and duties as generally pertain
to the offices of Vice Chairman and Chief Financial Officer, including
without limitation the hiring and firing of subordinates; provided,
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however, that in the case of persons occupying, or whose employment is
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being considered
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for, positions directly reporting to Mr. Pearce, such hiring and firing
shall be with the consent of the chief executive officer.
c. Mr. Pearce shall be responsible to, and report directly to, the
chief executive officer and shall perform those executive duties
consistent with the foregoing as shall be designated from time to time
by the chief executive officer and on the terms and conditions of this
Agreement.
3. TERM. Subject to Section 7. hereof, Mr. Pearce'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. Pearce'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.
Pearce's employment shall not be so renewed and extended.
4. COMPENSATION.
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a. The Company shall pay to Mr. Pearce during the Term, except as
otherwise expressly provided herein:
(1) Base salary (the "Base Salary") at an annual rate
of Four Hundred Thousand Dollars ($400,000), which shall be reviewed
annually by the Board and which may be increased (but not decreased) at the
sole discretion of the Board. The Base Salary shall be payable in bi-weekly
installments and subject to such deductions as are required by law;
(2) An annual incentive bonus (the "Annual Bonus"),
based on a target amount equal to 70% 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
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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. Pearce, 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. Pearce 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 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. Pearce with a
private office, secretarial help and such other facilities and
services reasonably suitable to his position and adequate for the
performance of his
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duties, including a current model automobile that is comparable to the
automobile used by Mr. Pearce 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. Pearce shall devote his full time
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and attention to the business of the Company and 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. Pearce from:
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
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d. serving as a member of the Board, a parent, or a subsidiary
thereof, provided that Mr. Pearce in his sole discretion agrees to so
serve. If Mr. Pearce (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.
6. NON COMPETITION; CONFIDENTIALITY.
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a. During the Non-Competition Period (as defined below), Mr. Pearce
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. Pearce 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. Pearce's employment for Cause or pursuant to
Section 7.f. hereof or Mr. Pearce'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.
Pearce during the Non-Competition Period in bi-weekly installments at
an annual rate
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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 which Mr. Pearce's
employment with the Company terminates for any reason.
b. Mr. Pearce 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. Pearce'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. Pearce.
c. Mr. Pearce 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. Pearce actually learned the Confidential Information.
For example, it would be insufficient as proof for the Company merely
to establish that Mr. Pearce 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. Pearce of Confidential Information, the
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Company will be required to prove by a preponderance of proof that Mr.
Pearce actually divulged such Confidential Information contrary to the
provisions of this Agreement. For example, it would be insufficient
merely to establish that Mr. Pearce 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. Pearce 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. Pearce 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. Pearce that the
covenants contained in Sections 6.a. and 6.b. hereof are essential
elements of this Agreement and that, but for Mr. Pearce's agreement to
comply with such covenants, the Company would not have entered into
this Agreement. Mr. Pearce acknowledges that such covenants are
reasonable and valid.
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7. TERMINATION.
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a. Subject to the provisions of this Section 7., the Company and Mr.
Pearce may terminate this Agreement on fifteen days written notice to
the other party, which notice shall specify the exact cause for
termination.
b. Subject to Section 7.i. hereof, if within six months following a
Change of Control occurring during the Term the Company terminates Mr.
Pearce's employment hereunder without Cause or Mr. Pearce terminates
his employment hereunder other than by reason of death or disability,
the Company shall pay to Mr. Pearce (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. Pearce's
employment without Cause or Mr. Pearce terminates his employment for
Good Reason, the Company shall pay to Mr. Pearce an amount equal to the
payment set forth in Section 7.b. hereof.
d. If the Company terminates Mr. Pearce's employment hereunder for
Cause or, except as provided in Section 7.b. hereof, Mr. Pearce
terminates
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his employment hereunder without Good Reason, the Company's sole
obligation hereunder shall be to pay Mr. Pearce the portion of the Base
Salary accrued through the date of termination.
e. If the Company terminates Mr. Pearce's employment hereunder
without Cause or Mr. Pearce 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. Pearce (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. Pearce 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. Pearce's services hereunder, in which event the
Company's only obligations hereunder shall be to (i) to have paid Mr.
Pearce the portion of the Base Salary accrued during such period, (ii)
to have afforded Mr. Pearce 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. Pearce a pro rata share of the
Annual Bonus for the year in which his employment is terminated, and
(iv) to provide Mr. Pearce 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. Pearce'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. Pearce, the portion of the Base Salary accrued
through the
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date of his death, (ii) pay to his spouse, if he is survived by his
spouse, or if not, to the estate of Mr. Pearce, an amount equal to one-
half of Mr. Pearce'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 extent provided
under the terms of the Annual Bonus Plan, pay to Mr. Pearce a pro rata
share of the Annual Bonus for the year of his death and (iv) provide
Mr. Pearce 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. Pearce any amounts owing pursuant to
Sections 7.b., 7.c. or 7.e. in a single lump sum within fifteen (15)
days following Mr. Pearce'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. Pearce 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).
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(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"). The Accounting Firm shall provide its determination
(the "Determination"), together with detailed supporting calculations and
documentation, to the Company and Mr. Pearce within 15 days of the date Mr.
Pearce's employment is terminated, and if the Accounting Firm determines
that no Excise Tax is payable it shall furnish Mr. Pearce with an opinion
to such effect reasonably acceptable to Mr. Pearce. Within ten (10) days of
the delivery of the Determination to Mr. Pearce, Mr. Pearce 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. Pearce made on the date
received by Mr. Pearce, and Mr. Pearce 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. Pearce's rights and
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obligations hereunder are personal to Mr. Pearce and shall not be assignable;
provided, however, that upon his death all of Mr. Pearce's rights to cash
payments under this Agreement shall inure to the benefit of his widow, personal
representatives, designees or
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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, that the Company shall, notwithstanding
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such assumption, remain liable and responsible for the fulfillment of its
obligations under this Agreement.
9. ARBITRATION.
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a. Subject to Sections 6.d. and 7.i. hereof, the Company and Mr.
Pearce 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. Pearce 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. Pearce, 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. Pearce 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. Pearce'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
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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. Pearce, and each party
expressly waives any right he or it may have to seek redress in any
other forum.
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. Pearce'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. Pearce
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.
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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.
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
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or 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.
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Notice to Mr. Pearce shall be addressed to him at the executive offices of
the Company, with a copy to his home address at:
325 Tom Brown Road
Moorestown, New Jersey 08057
and with an additional copy to:
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:_________________________________
___________________________________
Harry J. Pearce
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