SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________
Date of Report: November 20, 2002
(Date of earliest event reported)
REFAC
(Exact Name of Registrant as Specified in Charter)
Delaware 0-7704 13-1681234
(State or Other Jurisdiction of (Commission File Number) (IRS Employer
Incorporation) Identification
No.)
115 River Road, Edgewater, New Jersey 07020
(Address of Principal Executive Offices)
(201) 943-4400
(Registrant's telephone number, including area code)
Item 5. Other events
The registrant amended its employment agreements with Robert L.
Tuchman, President and Chief Executive Officer, and Raymond A. Cardonne, Chief
Financial Officer, dated as of November 20, 2002 and October 22, 2002,
respectively. Copies of such amendments are filed herewith as Exhibits 10.1
and 10.2, respectively, and are incorporated herein by reference.
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
REFAC
Date: November 22, 2002 By: /s/ Robert L. Tuchman
-----------------------
Robert L. Tuchman
Chief Executive Officer,
President and General Counsel
EXHIBITS
10.1 Third Amended and Restated Employment Agreement between Robert L.
Tuchman and Refac, dated as of November 20, 2002.
10.2 Restatement of First Amendment to Employment Agreement between
Raymond A. Cardonne, Jr. and Refac, dated as of October 22, 2002.
EXHIBIT 10.1
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
ROBERT L. TUCHMAN
AND
REFAC
(formerly REFAC TECHNOLOGY DEVELOPMENT CORPORATION)
Dated as of November 20, 2002
THIS THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") made as of November 20, 2002 between REFAC, a Delaware
corporation ("REFAC"), and Robert L. Tuchman ("TUCHMAN").
TUCHMAN is currently employed by REFAC under a Second Amended and
Restated Employment Agreement dated as of December 13, 1996 and amended by
agreements dated as of January 20, 1999 and March 21, 2002 (the "Prior
Agreement").
REFAC intends to enter into an Agreement and Plan of Merger by and
among REFAC, Palisade Concentrated Equity Partnership, L.P. ("Palisade") and
Palisade Merger Corp. (the "Merger Sub") (the "Merger Agreement") pursuant to
which the Merger Sub will merge with and into REFAC (the "Merger") and REFAC
will become a subsidiary of Palisade;
Following the Merger, the parties hereto desire to continue TUCHMAN's
employment upon the terms and conditions hereinafter set forth.
Effective as of the "Effective Time" (as defined in the Merger
Agreement), the parties hereto desire to modify the contractual arrangements
between them and replace them with this Agreement.
In consideration of the premises and the respective agreements of the
parties herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. Subject to the provisions hereof, following the
Effective Time, REFAC shall continue to employ TUCHMAN and TUCHMAN shall
continue to serve as the Chief Executive Officer, President, and General
Counsel of REFAC with full responsibility for the supervision of all corporate
affairs.
2. Term. The employment of TUCHMAN by REFAC hereunder will continue
from the Effective Time until March 31, 2004, (the "Employment Period") unless
further extended by agreement of TUCHMAN and REFAC or until sooner terminated
as hereinafter provided.
3. Duties.
(a) Regular Duties. During the Employment Period, TUCHMAN will
continue to perform such duties and have such powers as are customary for the
chief executive officer, president and general counsel of publicly-held
corporations of a size and engaging in a business comparable to REFAC.
(b) Liquidation. In addition to the services rendered under Section
3(a) above, TUCHMAN shall be responsible for REFAC's efforts to liquidate.
(c) Responsible to the Board. TUCHMAN will report and be directly
responsible to the Board of Directors of REFAC (the "Board").
(d) Time Devoted to REFAC's Affairs. TUCHMAN will devote
substantially all his working time and efforts to the business and affairs of
REFAC and will not, without the express prior authorization of the Board, have
any active engagement in or responsibility with respect to any business or
commercial enterprise other than REFAC or a subsidiary of REFAC.
(e) Post Employment Services. It is contemplated that some of REFAC's
assets may be sold in exchange for contract rights that include periodic
payments and that some of the royalty agreements might be collected until
maturity rather than sold. In such event and with respect to such contracts,
TUCHMAN agrees to be responsible for the contract administration, which shall
include invoicing (where appropriate), collecting the periodic payments,
monitoring performance, and record keeping. TUCHMAN shall be reimbursed for
all of his out-of-pocket costs associated therewith and will perform these
services on a part-time basis.
4. Place of Performance. In connection with TUCHMAN's employment by
REFAC, TUCHMAN will be based in the New York City metropolitan area, except
for required travel on REFAC's business to an extent consistent with REFAC's
business requirements and his responsibilities hereunder.
5. Base Salary and Incentive Compensation.
(a) Base Salary. During the Employment Period, TUCHMAN's salary will
be $300,000 per annum. Payment of such salary will be made in accordance with
REFAC's customary pay practices for senior officers and will be subject to
such payroll deductions as are required by law or by the terms of any
applicable benefit plan of REFAC.
(b) Incentive Compensation. During the Employment Period, TUCHMAN
shall use reasonable efforts, consistent with prudent and reasonable business
judgment, to convert REFAC's assets into cash and securities in order to
maximize the payment available to REFAC's stockholders pursuant to Section
2.01(d) of the Merger Agreement. As incentive compensation for this
undertaking, upon a Payment Event (as such term is hereinafter defined)
TUCHMAN (or in the case of death, TUCHMAN's estate) will be entitled to
receive a bonus or bonuses (each, a "Success Bonus") in consideration of his
successful performance of the duties described in Section 3(b) hereof equal to
16% of the amount, if any, by which the "Eligible Consideration" (as
hereinafter defined) exceeds $17,843,602, payable in accordance with the terms
of this Section 5. For purposes of this Agreement, "Payment Event" shall mean
(i) each Liquidation (as hereinafter defined) during the Employment Period,
(ii) termination of TUCHMAN's employment with REFAC during the Employment
Period due to his death, Disability (as hereinafter defined) or termination by
REFAC without Cause (as hereinafter defined) or by TUCHMAN for Good Reason (as
hereinafter defined), and (iii) the expiration of the term of this Agreement.
In the event that TUCHMAN receives a Success Bonus in respect of a
Liquidation, he will remain eligible for additional Success Bonus payments in
the event of a subsequent Liquidation (or Liquidations) or other Payment
Event. In the event that TUCHMAN receives a Success Bonus in respect of a
Payment Event subsequent to a Liquidation, such amount shall be reduced by the
amount of any Success Bonus previously paid to TUCHMAN (hereinafter, the
"Offset Adjustment"). In the event that TUCHMAN receives a Success Bonus in
respect of Payment Event that is not a Liquidation, TUCHMAN will not be
eligible for additional Success Bonus payments upon the occurrence of any
subsequent event.
(1) Eligible Consideration - Liquidation, Expiration of Term. In
the event of each Liquidation or the expiration of the term of
this Agreement, "Eligible Consideration" shall mean the sum of
(i) the aggregate amount of cash and the fair market value (as
determined by the Board in its sole discretion) of securities
that would be available for distribution to REFAC's
stockholders if REFAC completely liquidated on the date of such
Liquidation or expiration, as applicable, plus (ii) the amount
of any expenditure by the Company, made between the Effective
Time and the date of such Liquidation or expiration, as
applicable, that is unrelated to a Liquidation or the continued
operation of the Company as conducted at the Effective Time
(other than expenditures to purchase securities described in
subparagraph (i)), plus (iii) the total amounts paid or payable
upon completion of future services to TUCHMAN pursuant to
Sections 6 and 7 of this Agreement and any incentive
compensation paid to Raymond Cardonne with respect to any
Company Sale, as defined in his employment agreement with
REFAC, plus (iv) any incentive compensation paid to TUCHMAN or
Raymond Cardonne with respect any prior Liquidation, plus (v)
any amount paid by REFAC to Palisade pursuant to Section
9.03(b) of the Merger Agreement, minus (vi) the amount of cash
and the fair market value of assets (as determined by the Board
in its sole discretion) reserved to cover actual or potential
liabilities or claims against or relating to REFAC, including
unpaid legal and other fees and expenses incurred by REFAC in
connection with the Liquidation and any unpaid Retention
Payment, as defined below (but excluding TUCHMAN's incentive
compensation hereunder and Raymond Cardonne's incentive
compensation under his employment agreement with REFAC), minus
(vii) REFAC's total proceeds from exercises of options for
common stock of REFAC that occur after the date of the Merger
Agreement.
(2) Eligible Consideration - Termination Due to Death or Disability
or By REFAC Without Cause or By TUCHMAN for Good Reason. In the
event that TUCHMAN's employment is terminated by REFAC without
Cause or by TUCHMAN for Good Reason or due to TUCHMAN's
Disability or is terminated upon TUCHMAN's death, in any such
case during the Employment Period, "Eligible Consideration"
shall mean the sum of (i) the aggregate amount of cash and the
fair market value (as determined by the Board in its sole
discretion) of securities that would be available for
distribution to REFAC's stockholders if REFAC completely
liquidated on the date of such termination, plus (ii) the
amount of any expenditure by the Company, made between the
Effective Time and the date of such termination, that is
unrelated to a Liquidation or the continued operation of the
Company as conducted at the Effective Time (other than
expenditures to purchase securities described in subparagraph
(i)), plus (iii) the total amounts paid or payable upon
completion of future services to TUCHMAN pursuant to Sections 6
and 7 of this Agreement and any incentive compensation paid to
Raymond Cardonne with respect to any Company Sale, as defined
in his employment agreement with REFAC, plus (iv) any
compensation paid to TUCHMAN or Raymond Cardonne with respect
to any prior Liquidation, plus (v) any amount paid by REFAC to
Palisade pursuant to Section 9.03(b) of the Merger Agreement,
plus (vi) the amount (as determined by the Board in its sole
discretion) that reasonably may be realized upon the sale of
REFAC's remaining assets that are derived from the assets of
REFAC as of the Effective Time, minus (vii) the cash and fair
market value of assets (as determined by the Board in its sole
discretion) needed to be reserved for actual or potential
liabilities or claims against or relating to REFAC, including
any unpaid Retention Payment (but excluding TUCHMAN's incentive
compensation hereunder and Raymond Cardonne's incentive
compensation under his employment agreement with REFAC), minus
(viii) legal and other fees and expenses expected by the Board,
in its sole discretion, to be incurred by REFAC in connection
with the sale of REFAC's assets, minus (ix) REFAC's total
proceeds from exercises of options for common stock of REFAC
that occur after the date of the Merger Agreement.
(c) Calculation of Eligible Consideration. The Board in its sole
discretion shall make all calculations and determinations necessary to the
calculation of the Eligible Consideration. Distributable Amount shall be
determined exclusively with respect to the assets and businesses of REFAC as
of the Effective Time. In the case of a Liquidation, the Eligible
Consideration shall be calculated immediately prior to each date of an actual
distribution to stockholders. In the case of a Payment Event other than a
Liquidation, the Eligible Consideration shall be calculated immediately upon
the occurrence of such Payment Event.
(d) Payment of Success Bonus. (i) In the event of a Liquidation,
REFAC shall pay TUCHMAN the Success Bonus at the time of the consummation of
such Liquidation. In the event of a Payment Event other than a Liquidation,
REFAC shall pay TUCHMAN the Success Bonus as soon as practicable following the
occurrence of such Payment Event.
(ii) Notwithstanding the foregoing, in the event that some or all of
the Eligible Consideration consists of securities or other property, the Board
may, in its sole discretion, pay TUCHMAN a ratable portion of his Success
Bonus in such securities or other property, which shall be valued by the Board
in its sole discretion. If there are restrictions imposed upon the
consideration (including, without limitation, transfer restrictions or
forfeiture conditions), the Board may, in its sole discretion, require TUCHMAN
to consent to the imposition of similar restrictions upon any share of such
consideration conveyed to him. Payment of such incentive compensation shall be
made within thirty (30) days after the date of calculation except that the
Board may also elect to pay TUCHMAN his share of any consideration that it
receives in installment payments within thirty (30) days after receipt.
(e) Liquidation Defined. For purposes of this Agreement, a
"Liquidation" shall mean any sale of assets of REFAC during the Employment
Period.
6. Signing Bonus. At the Effective Time, REFAC will pay TUCHMAN a one
time cash bonus of $800,000.
7. Retention Payments. If TUCHMAN is employed by REFAC, Palisade or
one of their respective subsidiaries on the retention payment dates set forth
below (each, a "Retention Payment Date"), REFAC will pay to TUCHMAN the
retention payment set forth below with respect to such Retention Payment Date
(each, a "Retention Payment") within seven (7) days following such Retention
Payment Date:
---------------------------------- ------------------------------
Retention Payment Retention Payment Date
---------------------------------- ------------------------------
$200,000 First anniversary of the
Effective Time
---------------------------------- ------------------------------
$100,000 January 1, 2004
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$200,000 March 31, 2004
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8. Fringe Benefits, Expenses and Related Matters.
(a) Expenses. During Employment Period, TUCHMAN will be entitled to
receive prompt reimbursement for all reasonable expenses incurred by TUCHMAN
in performing services hereunder, including all reasonable expenses of travel
and living expenses while away from home on business or at the request of and
in the service of REFAC, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by
REFAC.
(b) Automobile. During the Employment Period, REFAC will provide
TUCHMAN with an automobile with a maximum monthly lease payment of $650.
(c) Other Benefits. TUCHMAN will be entitled to participate in or
receive benefits under any employee benefit plan or arrangement now or in the
future made available by REFAC generally to its executive employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements, including health insurance and
life insurance benefits.
(d) Vacations. TUCHMAN will be entitled to four weeks of paid
vacation per calendar year, prorated for any portion thereof and to all paid
holidays given by REFAC in accordance with REFAC's regular paid holidays
policy.
9. Facilities and Support Services Furnished. REFAC will furnish
TUCHMAN with office space, secretarial assistance and such other facilities
and services as shall be suitable to TUCHMAN's position and adequate for the
performance of his duties as herein set forth.
10. Termination. TUCHMAN's employment hereunder may be terminated
under the following circumstances:
(a) Death. TUCHMAN's employment hereunder will terminate immediately
upon his death.
(b) Disability. REFAC may terminate TUCHMAN's employment hereunder if
TUCHMAN should become permanently disabled. For the purposes of this
Agreement, permanent disability ("Disability") means TUCHMAN's inability, by
virtue of physical or mental illness or injury, to perform his regular duties
on a full-time, continuous basis for 120 consecutive days. TUCHMAN's
disability will be established if a qualified medical doctor selected by the
parties so certifies in writing. If the parties are unable to agree on the
selection of such a doctor, each party will designate a qualified medical
doctor who together will select a third doctor who will make the
determination. TUCHMAN will make himself available for an examination by a
doctor selected in accordance with this paragraph (b).
(c) Cause. REFAC may terminate TUCHMAN's employment hereunder for
Cause at any time during the Employment Period hereof as hereinafter set
forth. For purposes of this Agreement, REFAC will have "Cause" to terminate
TUCHMAN's employment hereunder upon (i) the willful and continued failure, in
the reasonable judgment of the Board, by TUCHMAN to perform substantially his
duties with REFAC (other than any such failure resulting from his death or
Disability) after a written demand for substantial performance is delivered to
TUCHMAN by the Board which specifically identifies the manner in which it is
believed that TUCHMAN has not substantially performed his duties or (ii) the
conviction of TUCHMAN (or the entering by TUCHMAN of a plea of guilty or nolo
contendere) for any felony or any lesser crime which involved REFAC or its
property. For purposes of clause (i) of this definition, no act, or failure to
act, on TUCHMAN's part shall be deemed "willful" unless done, or omitted to be
done, by TUCHMAN not in good faith and without reasonable belief that his act,
or failure to act, was in the best interest of the Company. Notwithstanding
the foregoing, TUCHMAN will not be deemed to have been terminated for Cause
within the meaning of clause (i) without (1) reasonable notice to TUCHMAN
setting forth the reasons for REFAC's intention to terminate for Cause, (2) an
opportunity for TUCHMAN, together with his counsel, to be heard before the
Board, and (3) delivery to TUCHMAN of a Notice of Termination, as defined in
paragraph (e) of this Section 10, from the Board finding that, in the good
faith opinion of the Board, clause (i) hereof may be invoked, and specifying
the particulars thereof in detail.
(d) Good Reason. TUCHMAN may terminate his employment with REFAC for
Good Reason at any time during the Employment Period. For purposes of this
Agreement, TUCHMAN will have "Good Reason" to terminate his employment with
REFAC upon: (i) the assignment to TUCHMAN of any duties materially
inconsistent with his status as Chief Executive Officer of REFAC or a
substantial adverse alteration in the nature or status of his
responsibilities, giving due regard to the intention of Palisade for REFAC to
acquire new businesses which may not be under the management control of
TUCHMAN; (ii) a reduction by REFAC in TUCHMAN's Base Salary set forth in
Section 5 hereof; (iii) the relocation of TUCHMAN's principal place of
employment to a location more than thirty-five (35) miles from TUCHMAN's
principal place of employment; (iv) the failure by REFAC to pay to TUCHMAN any
portion of the Executive's current compensation within seven (7) days of the
date such compensation is due; and (v) any other material breach of this
Agreement by REFAC which is not cured within ten (10) days of a written notice
by TUCHMAN. TUCHMAN's right to terminate his employment for Good Reason shall
not be affected by his incapacity due to physical or mental illness. TUCHMAN's
continued employment shall not constitute consent to, or a waiver of rights
with respect to, any act or failure to act constituting Good Reason hereunder.
(e) Notice of Termination. Any termination of TUCHMAN's employment by
REFAC or by TUCHMAN (other than termination pursuant to Section 10(a)) during
the Employment Period will be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of TUCHMAN's employment under the provision so indicated.
(f) Date of Termination. "Date of Termination" shall mean (i) if
TUCHMAN's employment is terminated by his death, the date of his death, (ii)
if TUCHMAN's employment is terminated pursuant to paragraph (b) of this
Section 10, three weeks after Notice of Termination, (iii) if TUCHMAN's
employment is terminated pursuant to paragraph (c) or (d) of this Section 10,
the date specified in the Notice of Termination, and (iv) if TUCHMAN's
employment is terminated for any other reason, the date specified in the
Notice of Termination.
(g) TUCHMAN Cooperation. From and after the earlier to occur of (i)
delivery of a Notice of Termination and (ii) termination of TUCHMAN's
employment hereunder (other than termination due to TUCHMAN's death) TUCHMAN
will, to the best of his knowledge, disclose or provide for the disclosure to
REFAC or any successor thereof, orally or in writing as appropriate, all
information of a material nature relating to existing or prospective clients
and licensees and as to any other matters in which TUCHMAN shall prior to his
Date of Termination have been personally involved or as to which TUCHMAN will
have acquired special knowledge, and TUCHMAN will thereafter answer to the
best of his knowledge any questions that REFAC may from time to time submit
with respect to any such aforesaid matters.
11. Compensation Upon Termination or During Disability.
(a) Disability. During any period that TUCHMAN fails or is unable to
perform his duties hereunder as a result of Disability, TUCHMAN will continue
to receive his full salary at the rate then in effect for such period until
his employment is terminated, provided that such payments will be reduced by
the amounts, if any, paid to TUCHMAN under any disability benefit plans of
REFAC or under the Social Security disability insurance program. Following the
termination of his employment, TUCHMAN's benefits will be determined in
accordance with REFAC's retirement, insurance, and other applicable programs
and plans then in effect, if any.
(b) Death. If TUCHMAN's employment should be terminated by his death,
REFAC will (i) pay any accrued salary and other compensation and benefits
through the date of death to TUCHMAN's spouse, or, if he leaves no spouse, to
his estate and (ii) pay or cause the payment to TUCHMAN's beneficiary, or if
he specified no beneficiary, to his estate, the death benefits payable
pursuant to REFAC's life insurance program in effect at the date of death, if
any.
(c) Cause. If TUCHMAN's employment should be terminated by REFAC for
Cause or by TUCHMAN during the Employment Period, REFAC will pay TUCHMAN his
full salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which TUCHMAN is
entitled as of the Date of Termination under any benefit plan of REFAC at the
time such payments are due, and REFAC will have no further obligations to
TUCHMAN under this Agreement.
(d) Without Cause. TUCHMAN's employment with REFAC may not be
terminated by REFAC during the Employment Period for reasons other than those
described in Section 10(a), 10(b) or 10(c) unless, prior to such termination
TUCHMAN has together with his counsel had an opportunity to appear and be
heard at a meeting of the Board which was called and held (after reasonable
notice to TUCHMAN) for the purpose of considering such a termination. In the
event that TUCHMAN's employment is terminated by REFAC during the Employment
Period for reasons other than those described in Section 10(a), 10(b) or
10(c), REFAC will (i) pay TUCHMAN a lump sum equal to the sum of (A) his full
salary that would have been payable for the remainder of the Employment Period
absent such termination at the rate in effect at the time Notice of
Termination is given and (B) all Retention Payments not previously paid and
(ii) will provide, except to the extent that TUCHMAN shall receive similar
benefits from a subsequent employer, the life, health and similar welfare
benefits which TUCHMAN would have been entitled to during the remainder of the
Employment Period absent such termination under any such benefit plan of
REFAC.
(e) Good Reason. In the event that TUCHMAN's employment is terminated
by TUCHMAN during the Employment Period for Good Reason, REFAC will (i) pay
TUCHMAN a lump sum equal to the sum of (A) his full salary that would have
been payable for the remainder of the Employment Period absent such
termination at the rate in effect at the time Notice of Termination is given
and (B) all Retention Payments not previously paid and (ii) will provide,
except to the extent that TUCHMAN shall receive similar benefits from a
subsequent employer, the life, health and similar welfare benefits which
TUCHMAN would have been entitled to during the remainder of the Employment
Period absent such termination under any such benefit plan of REFAC.
(f) Mitigation of Payments. TUCHMAN will not be required to mitigate
the amount of any lump sum payment or bonus entitlement provided for in this
Section 11 by reducing it by the amount of any compensation earned by TUCHMAN
as the result of employment by another employer after the Date of Termination,
or otherwise. However, he will be required to mitigate the costs of the other
benefits provided for in this Section.
12. Noncompetition. TUCHMAN will not, except as hereinafter set
forth, engage in any Competitive Activity (as hereinafter defined) during the
Employment Period. For purposes of this Section, "Competitive Activity" will
mean directly or indirectly: owning, managing, controlling, investing in, or
otherwise being connected with, in any manner, whether as an officer,
director, employee, partner, investor, consultant, lender or otherwise, any
business entity or activity which is engaged in, or is in any way related to,
the business of establishing, acquiring or administrating manufacturing
licenses and joint ventures from or with third parties in the United States;
it will also mean the direct or indirect solicitation or representation for
any such business purpose of or for any existing or prospective client of
REFAC or any of its subsidiaries. Nothing herein contained will prohibit
TUCHMAN from (i) investing in securities of a business entity if the
securities of such entity are listed for trading on a national securities
exchange or traded in the over-the-counter market and TUCHMAN's holdings
therein represent less than five (5%) percent of the total number of shares or
principal amount of other securities of such entity outstanding or (ii) at any
time subsequent to the termination of this Agreement, engaging in the design,
development and licensing of children's toys, games, stationery products and
characters in or with which REFAC, prior to such termination, shall not have
been directly, indirectly or prospectively engaged for REFAC's own account or
in the normal course of REFAC's business.
13. Section 162 (m). In the event that any payment or benefit
received or to be received by TUCHMAN in connection with his employment by
REFAC would otherwise not be deductible (in whole or part), by REFAC as a
result of the operation of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), the delivery of the non-deductible portion of
such payment or benefit to TUCHMAN by REFAC shall be deferred until the
earliest date on which it may be delivered to TUCHMAN without being subject to
the limit on deductibility imposed by Section 162(m) of the Code.
14. Successors; Binding Agreement.
(a) Should any entity succeed (whether by purchase, merger,
consolidation or similar transaction) to all or substantially all of the
business and/or assets of REFAC, TUCHMAN shall continue to perform all of his
duties and obligations hereunder.
(b) REFAC will require any successor (whether by purchase, merger,
consolidation or similar transaction) to all or substantially all of the
business and/or assets of REFAC, by agreement in form and substance reasonably
satisfactory to TUCHMAN, to expressly assume and agree to perform this
Agreement in substantially the same manner and to substantially the same
extent that REFAC would be required to perform it if no such succession had
taken place.
(c) This Agreement and all rights of TUCHMAN hereunder shall inure to
the benefit of and be enforceable by TUCHMAN's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If TUCHMAN should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to TUCHMAN's devisee, legatee, or other designee or, if there be no
such designee, to TUCHMAN's estate.
15. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to TUCHMAN:
Robert L. Tuchman
1 Vultee Drive
Florham Park, NJ 07932
If to REFAC:
REFAC
The Hudson River Pier
115 River Road
Edgewater, New Jersey 07020
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Stephen Banker, Esq.
or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
16. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to in writing signed by TUCHMAN and such other officer of REFAC as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth expressly in
this Agreement. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to its conflicts of law principles. All compensation payable to TUCHMAN
pursuant to this Agreement shall be subject to all applicable withholding
taxes, normal payroll withholding and any other amounts required by law to be
withheld.
17. Validity. If any term or provision of this Agreement or the
application thereof to any person, entity or circumstance should to any extent
be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to any person, entity or circumstance
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement (including, to
the extent permitted by law, any such term or provision which has been held to
be otherwise invalid or unenforceable) shall be deemed valid and enforceable
to the fullest extent permitted by law.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement will be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
20. Confidentiality. As an officer and director of REFAC, TUCHMAN is
privy to information generally regarded as confidential and often proprietary
with respect to REFAC, its business relationships, negotiations and
activities. Such information may include details of REFAC's business and
client relationships (past, present and prospective) and related REFAC and
client plans, products, property rights, technical and market data.
By reason of the foregoing:
(a) TUCHMAN will not at any time divulge or negligently permit the
communication of any of the foregoing types of information in any way that
could conflict with the interests of REFAC and its clients and the
responsibilities of REFAC to its clients and business associates.
(b) For a period of two (2) years after any Date of Termination,
TUCHMAN will not without REFAC's prior written approval by a designated REFAC
officer, directly or indirectly, either as a principal, agent, employee or
employer or in any other capacity, solicit, serve, engage or assist in the
business of any REFAC client or business associate or of any prospective
client or business associate with whom REFAC shall have been in contact for
business purposes at any time prior to the termination date of TUCHMAN's
employment by REFAC.
(c) For a period of two (2) years after any Date of Termination,
neither TUCHMAN nor any company which TUCHMAN directly or indirectly owns,
controls or manages shall employ or solicit the employment of any present or
future REFAC employee.
21. Breach of Confidentiality Covenant. Each of the parties hereto
acknowledges that in the event of any breach of Section 20 of this Agreement
by TUCHMAN, REFAC would be irreparably harmed and could not be made whole by
monetary damages. Therefore REFAC, in addition to any other remedy to which it
may be entitled at law or in equity, may compel specific performance of
Section 20 of this Agreement. TUCHMAN hereby acknowledges and agrees that the
covenants contained in Section 20 of this Agreement are reasonable and fully
necessary for the protection of the legitimate interests of REFAC and are not
oppressive to the interest of TUCHMAN.
22. Entire Agreement. This Agreement shall not be effective and shall
have no force or effect unless and until the Effective Time occurs. The Prior
Agreement shall remain in force and effect in accordance with its terms until
the Effective Time. At the Effective Time, this Agreement shall supersede the
Prior Agreement in its entirety and the Prior Agreement shall be of no further
force or effect. Under no circumstances shall the consummation of the Merger,
shareholder approval thereof or any other event relating thereto be deemed a
"Company Sale" for any purposes under the Prior Agreement. Subject to the
foregoing, this Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements, promises, agreements, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
November 20, 2002.
/s/ Robert L. Tuchman
--------------------------
Robert L. Tuchman
REFAC
By: /s/ Neil Austrian
----------------------
Name: Neil Austrian
Title: Director
EXHIBIT 10.2
RESTATEMENT OF FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
BETWEEN
RAYMOND A. CARDONNE, JR.
AND
REFAC
This First Amendment (this "Amendment") to the Employment Agreement
(the "Agreement") made as of October 22, 2002 between REFAC, a Delaware
corporation ("REFAC"), and Raymond A. Cardonne ("CARDONNE").
CARDONNE is currently employed by REFAC pursuant to the Agreement;
REFAC intends to enter into an Agreement and Plan of Merger by and
among REFAC, Palisade Concentrated Equity Partnership, L.P. ("Palisade") and
Palisade Merger Corp. (the "Merger Sub") (the "Merger Agreement") pursuant to
which the Merger Sub will merge with and into REFAC (the "Merger") and REFAC
will become a subsidiary of Palisade;
Following the Merger, the parties hereto desire to continue
CARDONNE's employment upon the terms and conditions set forth in the
Agreement, subject to the modifications set forth in this Amendment.
Effective as of the "Effective Time" (as defined in the Merger
Agreement), the Agreement shall be amended as follows:
1. Following the Effective Time, the definition of "Distributable
Amount" set forth in Section 5(b)(1) shall read as follows:
"Distributable Amount" shall mean the sum of (i) the aggregate amount
of cash and the fair market value (as determined by the Board in its
sole discretion) of securities that would be available for
distribution to REFAC's stockholders if REFAC completely liquidated
on the date of the Liquidation or expiration, as applicable, plus
(ii) the amount of any expenditure by the Company, made between the
Effective Time (as defined in the Agreement and Plan of Merger by and
among REFAC, Palisade Concentrated Equity Partnership, L.P.
("Palisade") and Palisade Merger Corp. (the "Merger Agreement")) and
the date of the Liquidation or expiration, as applicable, that is
unrelated to a Liquidation or the continued operation of the Company
as conducted at the Effective Time (other than expenditures to
purchase securities described in subparagraph (i)), plus (iii) the
total amounts paid or payable upon completion of future services to
Robert L. Tuchman pursuant to Sections 6 and 7 of his employment
agreement with REFAC and any incentive compensation paid to CARDONNE
with respect to any Company Sale, plus (iv) any compensation paid to
CARDONNE or Robert L. Tuchman with respect to any prior Liquidation,
plus (v) any amount paid by REFAC to Palisade pursuant to Section
9.03(b) of the Merger Agreement, minus (vi) the amount of cash and
the fair market value of assets (as determined by the Board in its
sole discretion) reserved to cover actual or potential liabilities or
claims against or relating to REFAC, including unpaid legal and other
fees and expenses incurred by REFAC in connection with the
Liquidation and any unpaid retention payment under Robert L.
Tuchman's employment agreement with REFAC (but excluding CARDONNE's
incentive compensation hereunder and Robert L. Tuchman's incentive
compensation under his employment agreement with REFAC), minus (vii)
REFAC's total proceeds from exercises of options for common stock of
REFAC that occur after the date of the Merger Agreement.
2. Following the Effective Time, the definition of "Eligible
Consideration" set forth in Section 5(b)(2) shall read as follows:
In the event that CARDONNE's employment is terminated by REFAC
without Cause or due to CARDONNE's Disability or is terminated upon
CARDONNE's death, in any such case prior to the expiration of the
term of this Agreement, "Eligible Consideration" shall mean the sum
of (i) the aggregate amount of cash and the fair market value (as
determined by the Board in its sole discretion) of securities that
would be available for distribution to REFAC's stockholders if REFAC
completely liquidated on the date of such termination, plus (ii) the
amount of any expenditure by the Company, made between the Effective
Time and the date of such termination, that is unrelated to a
Liquidation or the continued operation of the Company as conducted at
the Effective Time (other than expenditures to purchase securities
described in subparagraph (i)), plus (iii) the total amounts paid or
payable upon completion of future services to Robert L. Tuchman
pursuant to Sections 6 and 7 of his employment agreement with REFAC
and any incentive compensation paid to CARDONNE with respect to any
Company Sale, plus (iv) any compensation paid to CARDONNE or Robert
L. Tuchman with respect to any prior Liquidation, plus (v) any amount
paid by REFAC to Palisade pursuant to Section 9.03(b) of the Merger
Agreement, plus (vi) the amount (as determined by the Board in its
sole discretion) that reasonably may be realized upon the sale of
REFAC's remaining assets that are derived from the assets of REFAC as
of the Effective Time, minus (vii) the cash and fair market value of
assets (as determined by the Board in its sole discretion) needed to
be reserved for actual or potential liabilities or claims against or
relating to REFAC, including any unpaid retention payment under
Robert L. Tuchman's employment agreement with REFAC (but excluding
CARDONNE's incentive compensation hereunder and Robert L. Tuchman's
incentive compensation under his employment agreement with REFAC),
minus (viii) legal and other fees and expenses expected by the Board,
in its sole discretion, to be incurred by REFAC in connection with
the sale of REFAC's assets, minus (ix) $10 million, minus (x) REFAC's
total proceeds from exercises of options for common stock of REFAC
that occur after the date of the Merger Agreement.
3. Following the Effective Time, the definition of "Liquidation" set
forth in Section 5(f) shall be amended to read as follows:
(f) Liquidation Defined. For purposes of this Agreement, a
"Liquidation" shall mean any sale of assets of REFAC during the
period between the Effective Time and March 31, 2004.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
October 22, 2002.
/s/ Raymond A. Cardonne
----------------------------
Raymond A. Cardonne
REFAC
By: /s/ Neil Austrian
------------------------
Name: Neil Austrian
Title: Director