EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement") dated as of June 1, 1999 between
CSS Industries, Inc., a Delaware corporation ("CSS") and David J. M. Erskine
("Executive").
WHEREAS, CSS and the Executive are desirous of memorializing the terms
and conditions of the Executive's employment by CSS;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Employment. CSS agrees to employ the Executive and the Executive
accepts such employment and agrees to perform his duties and
responsibilities hereunder, in accordance with the terms and conditions
hereinafter set forth.
1.1 Employment Term. The term of this Agreement (the
"Employment Term") shall commence as of the date hereof and shall continue for a
term of three years, unless terminated prior thereto in accordance with a
provision of Paragraph 7 of this Agreement. If the Executive remains an employee
of CSS beyond the expiration of the Employment Term, the Executive specifically
acknowledges that his status will thereupon be that of an employee-at-will.
However, during such time as the Executive's status is that of an
employee-at-will, or during the last year of the Employment Term, if the
Executive's employment with CSS is terminated for other than cause (as such term
is described in Section 7.3 hereof), the Executive shall thereupon be entitled
to receive severance pay equal to one year's Base Salary less applicable
deductions and payable in installments (all as described in Subsection 1.4(a)
hereof).
1.2. Duties and Responsibilities.
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(a) During the Employment Term, the Executive shall
serve as President and Chief Executive Officer of CSS and shall perform all
duties and accept all responsibilities incidental to such position and
designation as provided in the Bylaws of CSS as well as additional duties and
responsibilities consistent with such office and designation as may from time to
time be assigned to him by the board of directors ("Board") of CSS.
(b) The Executive represents to CSS that he is not
subject or a party to any employment agreement, non-competition covenant,
non-disclosure agreement or any other agreement, covenant, understanding or
restriction of any nature whatsoever which would prohibit the Executive from
entering into this Agreement and performing fully his duties and
responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the performance of the duties and responsibilities
of the Executive described in Subsection 1.2(a) above.
(c) The Executive agrees to at all times comply with
policies and procedures adopted by CSS for its employees, including, without
limitation, procedures and policies relating to conflicts of interest.
(d) The Executive shall not be required to reside
outside the Philadelphia, Pennsylvania SMSA.
1.3 Extent of Service. During the Employment Term, the
Executive agrees to use his best efforts to carry out his duties and
responsibilities described in Section 1.2 hereof and to devote his full time,
attention and energy to such duties and responsibilities. The Executive agrees
not to become engaged in any other business activity other than passive
investments without the prior approval of the Human Resources Committee
("Committee") of the CSS Board.
1.4 Base Compensation.
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(a) For the services rendered by the Executive
pursuant to this Agreement, CSS shall pay the Executive a salary of $360,000
("Base Salary") for each full year of the Employment Term, plus such additional
amounts, if any, as may be approved by the Committee of the CSS Board, less
withholding taxes and other withholdings required by law and other deductions
agreed to by the Executive. Such Base Salary less applicable deductions shall be
payable in installments at such times as CSS customarily pays its other
executive officers.
(b) During the Employment Term: (i) the Executive
shall be entitled to participate in such vacation and other fringe benefit
programs as CSS makes available to its executive officers, including by way of
illustration and not of limitation, participation in the CSS Non-Qualified
Supplemental Executive Retirement Plan Covering Officer - Employees and the Cleo
Inc 401K Profit Sharing Plan, as such fringe benefit programs are from time to
time authorized by the Committee of the CSS Board; and (ii) the Executive shall
be provided with use of a Company leased automobile in accordance with CSS'
policy.
(c) The Executive shall be responsible for the
payment of all federal, state and local taxes in respect of the payments to be
made and benefits to be provided under this Agreement or otherwise to the extent
imposed upon him by applicable law.
1.5 Incentive Compensation. In addition to the Base Salary and
other compensation described in Section 1.4, the Executive shall also be
eligible to participate in the CSS annual bonus program in accordance with
criteria annually established by the Committee of the CSS Board, which criteria
being based, in material part, upon the achievement of certain financial and
qualitative objectives. Anything of the foregoing to the contrary
notwithstanding, the amount of the bonus that the Executive will be eligible to
receive relating to the CSS fiscal year ending December 31, 1999 shall be an
amount equal to seven-twelfths of any such bonus calculated for the entire
fiscal year plus one-half of such seven-twelfths calculated amount. Furthermore,
upon commencement of the Employment Term, the Executive will be granted an
Incentive Stock Option to acquire 150,000 shares of the Company's Common Stock,
which grant shall in all respects be subject to and in accordance with the
provisions of the CSS 1994 Equity Compensation Plan, as amended ("Plan").
Thereafter during the Employment Term, the Executive will be considered for
further Plan option grants by the Committee of the CSS Board on not less than an
annual basis.
1.6 Reimbursements.
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(a) CSS shall reimburse the Executive for reasonable
out-of-pocket expenses incurred in relocating him and his family from Oakville
Ontario, Canada to the Philadelphia SMSA, upon the Executive's presentation to
CSS of appropriate documentation evidencing such expenses; however, in no event
shall such reimbursement obligation exceed $50,000 in toto.
(b) In addition to the above items, the Executive
shall be reimbursed in an amount not to exceed $30,000 in toto for fees expended
by him on professional services rendered in the negotiation and execution of
this Agreement and the cost of replacement of household fixtures and decorations
such as appliances and drapes.
2. Developments. All developments, including inventions, whether
patentable or otherwise, trade secrets, discoveries, improvements, ideas and
writings which either directly or indirectly relate to or may be useful in the
Business (the "Developments") which the Executive, either by himself or in
conjunction with any other person or persons, shall conceive, make, develop,
acquire or acquire knowledge of during the Employment Term or at any time
thereafter during which he is employed by CSS, shall become the sole and
exclusive property of CSS. The Executive assigns, transfers and conveys, and
agrees to assign, transfer and convey to CSS, all of his right, title and
interest in and to any and all such Developments and to disclose to the extent
practicable all such Developments to the Committee of the CSS Board. At any time
and from time to time, upon the request and at the expense of CSS, the Employee
will execute and deliver any and all instruments, documents and papers, give
evidence and do any and all other acts which, in the opinion of counsel for CSS,
are or may be necessary or desirable to document such transfer or to enable CSS
to file and prosecute applications for and to acquire, maintain and enforce any
and all intellectual property rights with respect to any such Developments or to
obtain any extension, validation, re-issue, continuance or renewal of any such
intellectual property rights. CSS will be responsible for the preparation of any
such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Executive for all reasonable expenses
incurred by him in compliance with the provisions of this Section.
3. Confidential Information. The Executive recognizes and acknowledges
that by reason of his employment by and service to CSS, he has had and will
continue to have (both during the Employment Term and at any time thereafter
during which he is employed by CSS), access to confidential information of CSS
and its affiliates, including, without limitation, information and knowledge
pertaining to products and services offered, inventions, innovations, designs,
ideas, plans, trade secrets, proprietary information, computer systems and
software, packaging, advertising, distribution and sales methods and systems,
sales and profit figures, customer and client lists, and relationships between
CSS and its affiliates and dealers, distributors, wholesalers, customers,
clients, suppliers and others who have business dealings with CSS and its
affiliates ("Confidential Information"). The Executive acknowledges that such
Confidential Information is a valuable and unique asset of CSS and covenants
that he will not, either during or at any time after the Employment Term,
disclose any such Confidential Information to any person for any reason
whatsoever (except as his duties described herein may require) without the prior
written consent of the Committee of the CSS Board, unless such information is in
the public domain through no fault of Executive or except as may be required by
law.
4. Non-Competition.
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(a) During the Employment Term and for a period of
one year following the date that the Executive's employment with CSS is
terminated by either party, Employee will not, without the prior written consent
of the Committee of the CSS Board, directly or indirectly, own, manage, operate,
join, control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise with or use
or permit his name to be used in connection with, any business or enterprise
engaged within any portion of North America and any other country where CSS may
do business during the Employment Term (collectively, the "Territory") (whether
or not such business is physically located within the Territory) that is engaged
in the creation, design, manufacture, distribution or sale of seasonal social
expression products to mass market retailers or any other business in which CSS
or its affiliates may be engaged during the Employment Term (the "Business"). It
is recognized by the Executive that the Business and the Executive's connection
therewith is or will be involved in activity throughout the Territory, and that
more limited geographical limitations on this non-competition covenant (and the
non-solicitation covenant set forth in Paragraph 5 hereof) are therefore not
appropriate.
(b) The foregoing restriction shall not be construed
to prohibit the ownership by the Executive of not more than five percent (5%) of
any class of securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to the
Securities Act of 1933, provided that such ownership represents a passive
investment and that neither the Executive nor any group of persons including the
Executive in any way, either directly or indirectly, manages or exercises
control of any such corporation, guarantees any of its financial obligations,
otherwise takes any part in business, other than exercising his rights as a
shareholder, or seeks to do any of the foregoing.
5. No Solicitation. For a period of the later to occur of one year
following the expiration of the Employment Term or one year following the date
that Executive's employment with CSS is terminated by either party, the
Executive agrees not to, either directly or indirectly, (i) call on or solicit
with respect to the Business any person, firm, corporation or other entity who
or which at the time of termination was, or within two years prior thereto had
been, a customer of CSS or any of its affiliates or (ii) solicit the employment
of any person who was employed by CSS or any of its affiliates on a full or
part-time basis at any time during the course of the Executive's employment with
CSS, unless prior to such solicitation of employment, such person's employment
with CSS or any of its affiliates was terminated.
6. Equitable Relief.
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(a) The Executive acknowledges that the restrictions
contained in Paragraphs 2, 3, 4 and 5 hereof are reasonable and necessary to
protect the legitimate interests of CSS and its affiliates, that CSS would not
have entered into this Agreement, in the absence of such restrictions, and that
any violation of any provision of those Paragraphs will result in irreparable
injury to CSS. The Executive represents that his experience and capabilities are
such that the restrictions contained in Paragraphs 4 and 5 hereof will not
prevent the Executive from obtaining employment or otherwise earning a living at
the same general level of economic benefit as is anticipated by this Agreement.
THE EXECUTIVE FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) HE HAS BEEN ADVISED
BY CSS TO CONSULT HIS OWN LEGAL COUNSEL IN RESPECT OF THIS AGREEMENT, (ii) THAT
HE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS AGREEMENT, TO REVIEW
THOROUGHLY THIS AGREEMENT WITH HIS COUNSEL, AND (iii) HE HAS READ AND FULLY
UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(b) The Executive agrees that CSS shall be entitled
to preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as any other remedies provided by law arising from any
violation of Paragraphs 2, 3, 4 or 5 hereof, which rights shall be cumulative
and in addition to any other rights or remedies to which CSS may be entitled. In
the event that any of the provisions of Paragraphs 2, 3, 4 or 5 hereof should
ever be adjudicated to exceed the time, geographic, product or service, or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or service, or other limitations permitted by applicable
law.
(c) The Executive and CSS irrevocably and
unconditionally (i) agree that any suit, action or other legal proceeding
arising out of Paragraphs 2, 3, 4, or 5 of this Agreement, including without
limitation, any action commenced by CSS for preliminary or permanent injunctive
relief or other equitable relief, may be brought in the United States District
Court for the Eastern District of Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Philadelphia County, Pennsylvania, (ii) consents to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iii) waives any objection to the laying of venue of any such
suit, action or proceeding in any such court. The Executive and CSS also
irrevocably and unconditionally consent to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions of Paragraph 11 hereof.
(d) The Executive agrees that CSS may provide a copy
of Paragraphs 2, 3, 4, and 5 of this Agreement to any business or enterprise (i)
which he may directly or indirectly own, manage, operate, finance, join,
participate in the ownership, management, operation, financing, control or
control of, or (ii) with which he may be connected with as an officer, director,
employee, partner, principal, agent, representative, consultant or otherwise, or
in connection with which he may use or permit his name to be used.
7. Termination. This Agreement shall terminate prior to the expiration
of the Employment Term upon the occurrence of any one of the following events:
7.1. Disability. In the event that Executive is unable fully
to perform his duties and responsibilities set forth in Section 1.2 of this
Agreement by reason of illness, injury or incapacity for six consecutive months,
during which time he shall continue to be compensated as provided in Section 1.4
hereof (less any payments due the Executive under disability benefit programs,
including Social Security disability, worker's compensation, and disability
retirement benefits), this Agreement may be terminated by CSS and CSS shall have
no further liability or obligation to the Executive for compensation hereunder;
provided, however, that Executive will be entitled to receive the payments
prescribed under any disability benefit plan which may be in effect for
employees of CSS and in which he participated. The Executive agrees, in the
event of any dispute under this Section 7.1, to submit to a physical examination
by a physician licensed in the State in which the Executive is then residing
selected by the Committee of the CSS Board.
7.2. Death. In the event that the Executive dies during the
Employment Term, CSS shall pay to his executors, legal representatives or
administrators an amount equal to the installment of his Base Salary set forth
in Subsection 1.4 (a) hereof for the month in which he dies and applicable
incentive compensation, if any, referred to in Section 1.5 hereof in respect of
the last fiscal year ended prior to the date of his death to the extent earned,
but not yet paid. Thereafter CSS shall have no further liability or obligation
hereunder to his executors, legal representatives, administrators, heirs or
assigns or any other person claiming under or through him; provided, however
that the Executive's estate or designated beneficiaries shall be entitled to
receive the payments prescribed for such recipients under any death benefit plan
which may be in effect for employees of CSS in which the Executive participated.
7.3. Cause. Nothing in this Agreement shall be construed to
prevent its termination by CSS at any time for "cause". For purposes of this
Agreement, "cause" shall mean the failure of the Executive to perform or observe
any of the terms or provisions of this Agreement (after notice to the Executive
by the Committee of the CSS Board of such failure and the Executive's failure to
cure such act or omission within a reasonable time thereafter), a failure to
comply with a lawful directive of the CSS Board, conviction of a crime involving
moral turpitude or substance abuse or the willful engaging by the Executive in
misconduct injurious to CSS or its affiliates. In the event of termination for
cause, CSS shall pay the Executive an amount equal to the installment of Base
Salary due until the date of termination together with payment of any incentive
compensation described in Section 1.5 to the extent that such incentive
compensation related to CSS' then last fiscal year which had been earned by the
Executive, but not yet paid, and any reimbursable expenses then due the
Executive and shall have no further liability or obligation to the Executive for
compensation hereunder. Such termination shall be effected by notice thereof
transmitted to the Executive in a manner permitted by the notice provisions of
Paragraph 11 hereof and shall be effective as of the date of transmittal of such
notice. CSS' liability, if any, for payments to the Executive by virtue of any
wrongful termination of Executive's employment pursuant to this Agreement shall
be reduced by and to the extent of any earnings received by or accrued for the
benefit of the Executive during any unexpired part of the Employment Term.
7.4. Without Cause by CSS. CSS may also terminate this
Agreement at and for CSS' sole convenience and in its sole discretion and
without specifying any cause. In such event, and contingent upon (i) receipt by
CSS of a valid and fully effective release (in form and substance reasonably
satisfactory to CSS) of all claims of any nature which the Executive might have
at such time against CSS and its affiliates and their respective officers,
directors and agents excepting therefrom only any payments due the Executive
from CSS pursuant to this Section 7.4, and (ii) the resignation of the Executive
from all positions of any nature which Executive may then have held with CSS and
its affiliates, CSS shall continue to pay Executive until the end of the
Employment Term the Base Salary set forth in Subsection 1.4(a) hereof in the
installments provided therein, together with payment of any incentive
compensation described in Section 1.5 to the extent such incentive compensation
related to CSS' then last fiscal year which had been earned by the Executive,
but not yet paid. CSS' liability, if any, by virtue of the foregoing sentence
shall be reduced by and to the extent of any earnings and other compensation
received by or accrued for the benefit of the Executive for his services
(whether as an employee or as an independent contractor) during any then
remaining portion of the Employment Term. Following termination covered by this
Section 7.4, the Executive shall promptly advise CSS on not less than a monthly
basis of any such earnings and other compensation. However, anything of the
foregoing to the contrary notwithstanding, in no event shall CSS pay the
Executive less than one year's Base Salary.
7.5. Change of Control. If during the Employment Term, the
percentage of equity ownership in CSS of Jack Farber (owned both directly and
beneficially as determined by the rules of the Securities and Exchange
Commission) on the date hereof decreases by more than one-half of such equity
ownership, then, upon the occurrence of such event, the Executive shall have a
period of up to sixty days from such event (time being of the essence) to
terminate both this Agreement and his employment with CSS by notice to CSS. Upon
the exercise of such timely option of termination, the Executive shall be
entitled to receive severance pay equal to one year's Base Salary less
applicable deductions and payable in installments (all as described in
Subsection 1.4(a) hereof).
8. Survival. Notwithstanding the termination of this Agreement by CSS
by reason of either the Executive's disability under Section 7.1, for cause
under Section 7.3, without cause under Section 7.4, or change of control under
Section 7.5, the Executive's obligations under Paragraphs 2, 3, 4 and 5 hereof
shall survive and remain in full force and effect for the periods therein
provided, and the provisions for equitable relief against the Executive in
Paragraph 6 hereof shall continue in force along with the provisions of
Paragraphs 8 through 16 hereof. Any payment obligation of CSS set forth in
Paragraph 7 hereof shall survive the termination of this Agreement and remain in
full force and effect.
9. Arbitration. Except as otherwise provided in Section 6(c) with
respect to injunctive relief, all disputes between the parties hereto pertaining
to this Agreement shall be settled by arbitration before one arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration Association in
Philadelphia, Pennsylvania; provided, however, that any award pursuant to such
arbitration shall be accompanied by a written opinion of the arbitrator giving
the reasons for the award. The award rendered by the arbitrator shall be
conclusive and binding upon the parties hereto. Nothing herein shall prevent the
parties from settling any dispute by mutual agreement at any time. Each party
shall pay his or its own expenses of arbitration and shall equally share the
expenses of the arbitrator.
10. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
11. Notices. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given either when hand delivered, or if not
hand delivered, either mailed by registered or certified mail postage prepaid,
or sent by electronic facsimile transmission (with a hard copy sent by a
nationally recognized overnight courier or registered mail), or sent by a
nationally recognized overnight courier, as follows (provided that notice of
change of address shall be deemed given only when received):
If to CSS, to:
CSS Industries, Inc.
1845Walnut Street, Suite 800
Philadelphia, PA 19103
Attention: Jack Farber
Telecopy: 215-569-9979
With a required copy to Stephen V. Dubin, Esquire at the same
address and telecopy number set forth for CSS Industries, Inc.
If to the Executive, to:
David J. M. Erskine
541 Larkin's Bridge Drive
Downingtown, PA 19355
Telecopy: 610-458-8987
With a required copy to:
William J. Rodgers, Esquire
Collier, Shannon, Rill & Scott, PLLC
3050 K Street, N. W., Suite 400
Washington, D. C. 20007
Telecopy: (202) 342-8451
or to such other names or addresses as CSS or the Executive, as the case may be,
shall designate by notice to each other person entitled to receive notices in
the manner specified in this Paragraph.
12. Entire Agreement; Contents of Agreement.
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(a) This Agreement supersedes all prior agreements
and sets forth the entire understanding among the parties hereto with respect to
the subject matter hereof and cannot be changed, modified, extended or
terminated except upon written amendment executed by the Executive and approved
by the Committee of the CSS Board and executed on behalf of CSS by a duly
authorized officer. The Executive and CSS acknowledge that the effect of this
provision is that no oral modifications of any nature whatsoever to this
Agreement shall be permitted.
(b) The Executive and CSS acknowledge that from time
to time, CSS may establish, maintain and distribute employee manuals or
handbooks or personnel policy manuals, and representatives of CSS may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of CSS (whether
written or oral, and whether or not contained in any employee manual or handbook
or personnel policy manual), and no acts or practices of any nature, shall be
construed to modify this Agreement or to create express or implied obligations
of any nature by CSS to the Executive.
13. Assignment. All of the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of the
Executive hereunder are of a personal nature and shall not be assignable or
delegated in whole or in part by the Executive.
14. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application in any
other jurisdiction.
15. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity. No
delay or omission by a party in exercising any right, remedy or power hereunder
or existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by a party from time to time and as
often as may be deemed expedient or necessary by such party in its sole
discretion.
16. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
CSS Industries, Inc.
By: /s/ Jack Farber
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Jack Farber
Chairman of the Board
/s/ David J. M. Erskine
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David J. M. Erskine