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: January 23, 2003
(Date of earliest event reported)
REFAC
(Exact Name of Registrant as Specified in Charter)
Delaware 0-7704 13-1681234
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of 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 has entered into (i) Amendment No. 3 to the Agreement and Plan
of Merger, dated as of December 12, 2002, with Palisade Concentrated Equity
Partnership, L.P. and Palisade Merger Corp, (ii) the First Amendment to the
Second Amended and Restated Employment Agreement between Robert L. Tuchman and
Refac, dated as of January 23, 2003, (iii) the Fourth Amended and Restated
Employment Agreement between Robert L. Tuchman and Refac, dated as of January
23, 2003, (iv) the Second Amendment to the Employment Agreement between
Raymond A. Cardonne, Jr. and Refac, dated as of January 23, 2003, (v) the
Third Amendment to the Employment Agreement between Raymond A. Cardonne, Jr.
and Refac, dated as of January 23, 2003, and (vi) the First Amendment to the
Refac Technology Development Corporation 1998 Stock Incentive Plan, dated as
of January 23, 2003. Copies of such amendments are filed herewith as Exhibits
10.1 through 10.6 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: January 24, 2003 By: /s/ Robert L. Tuchman
---------------- ------------------------------
Robert L. Tuchman
Chief Executive Officer,
President and General Counsel
EXHIBITS
10.1 Amendment No. 3 to the Agreement and Plan of Merger, dated as of
January 23, 2003, by and among Palisade Concentrated Equity
Partnership, L.P., Palisade Merger Corp. and Refac.
10.2 Fourth Amended and Restated Employment Agreement between Robert L.
Tuchman and Refac, dated as of January 23, 2003.
10.3 First Amendment to the Second Amended and Restated Employment
Agreement between Robert L. Tuchman and Refac, dated as of January
23, 2003.
10.4 Second Amendment to the Employment Agreement between Raymond A.
Cardonne, Jr. and Refac, dated as of January 23, 2003.
10.5 Third Amendment to the Employment Agreement between Raymond A.
Cardonne, Jr. and Refac, dated as of January 23, 2003.
10.6 First Amendment to the Refac Technology Development Corporation 1998
Stock Incentive Plan, dated as of January 23, 2003.
Exhibit 10.1
AMENDMENT NO. 3 TO THE AGREEMENT AND PLAN OF MERGER
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THIS AMENDMENT NO. 3 TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment") is dated as of January 23, 2003, by and among Palisade
Concentrated Equity Partnership, L.P., a Delaware limited partnership
("Palisade"), Palisade Merger Corp., a Delaware corporation and a direct
wholly-owned subsidiary of Palisade ("Merger Sub"), and Refac, a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Palisade, Merger Sub and the Company entered into an
Agreement and Plan of Merger, dated as of August 19, 2002, which was amended
pursuant to Amendment No. 1 to the Agreement and Plan of Merger, dated as of
October 21, 2002 and Amendment No. 2 to the Agreement and Plan of Merger,
dated as of December 12, 2002 (as amended, the "Agreement");
WHEREAS, pursuant to Section 9.04 of the Agreement, the Agreement may
be amended by a written instrument duly executed by or on behalf of each party
thereto; and
WHEREAS, Palisade, Merger Sub and the Company desire to amend the
Agreement on the terms hereinafter set forth.
NOW, THEREFORE, Palisade, Merger Sub and the Company, intending to be
legally bound, hereby agree to the following amendments to the Agreement:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement.
2. Amendment to Section 2.01(d) of the Agreement. Section 2.01(d) of
the Agreement shall be amended and restated in its entirety to read
as follows:
"Payment Right. Each holder of the shares of
Surviving Corporation Stock issued pursuant to Section
2.01(c)(ii) shall be entitled to receive in exchange for
each such one whole share the amount determined pursuant to
clauses (i)-(iii) below (the "Payment Right"), if such
holder (or such holder's estate or heirs, or any other
Person (as defined in Section 4.01) to whom such holder
transfers such shares without value) tenders such shares of
Surviving Corporation Stock to the Surviving Corporation as
provided in Section 2.01(f), provided that such holder (or
such holder's estate or heirs, or any other Person to whom
such holder transfers such shares without value) continues
to beneficially own such shares of Surviving Corporation
Stock obtained pursuant to Section 2.01(c)(ii) during the
entire period between the Closing Date and June 30, 2005,
and provided further that:
(i) If the Surviving Corporation has not
realized Liquid Distributable Assets (as defined
below) of at least $14 million by March 31, 2003,
then the Payment Right shall be equal to (A) $5.50
minus (B) an amount equal to the product of (x) the
difference between $14 million and the actual
amount of Liquid Distributable Assets realized and
(y) 1.25, divided by (z) the sum of (1) 697,062 and
(2) twenty percent of the number of shares of
Company Common Stock issued between August 19, 2002
and the Closing Date pursuant to the exercise of
Company Options (as defined in Section 2.01(h)).
(ii) If the Surviving Corporation has not
realized Liquid Distributable Assets of at least
$18 million by June 30, 2005, then the Payment
Right shall be equal to (A) the lesser of $5.50 and
the Payment Right calculated pursuant to 2.01(d)(i)
above, minus (B) an amount equal to the June 30,
2005 Deficiency divided by the sum of (1) 697,062
and (2) twenty percent of the number of shares of
Company Common Stock issued between August 19, 2002
and the Closing Date pursuant to the exercise of
Company Options. For purposes of this Section
2.01(d)(ii), "June 30, 2005 Deficiency" shall mean
the difference between $18 million and the sum of
(x) the actual amount of Liquid Distributable
Assets realized by June 30, 2005 and (y) the
shortfall, if any, between $14 million and the
amount of Liquid Distributable Assets realized by
March 31, 2003.
(iii) If the Surviving Corporation has
realized Liquid Distributable Assets as of June 30,
2005 in excess of $18 million, then the Payment
Right shall be equal to (A) the lesser of $5.50 and
the Payment Right calculated pursuant to 2.01(d)(i)
above, plus (B) a number equal to (1) 60% of such
excess divided by (2) the sum of 697,062 and twenty
percent of the number of shares of Company Common
Stock issued between August 19, 2002 and the
Closing Date pursuant to the exercise of Company
Options (as defined in Section 2.01(h)).
For purposes of this Section 2.01(d), "Liquid
Distributable Assets" shall mean an amount of assets
generated through (A) the sale of the Surviving
Corporation's business segments and assets existing as of
the Closing Date, Receivables (as defined below) and tax
refunds collected after the Closing Date for taxes paid
prior to the Closing Date plus the value of Tax Attributes
(as defined below), plus (B) the Company's cash and cash
equivalents as of the Closing Date, plus (C) interest earned
or imputed on the items set forth in clauses (A) and (B),
calculated net of (w) taxes paid, (x) actual operating
expenses and liabilities incurred through March 31, 2003 or
June 30, 2005, as applicable, (y) any incentive paid or
payable to Robert Tuchman and/or Ray Cardonne with respect
to the periods from the Closing Date through March 31, 2003,
or June 30, 2005, as applicable, net of related tax
benefits, and (z) any reserve necessary to cover future
costs of completing the sale of business segments and assets
of the Surviving Corporation (in calculating such reserves,
future expectancies of additional Liquid Distributable
Assets shall be taken into account, and any possible claim
by the Internal Revenue Service that has neither been
asserted nor threatened shall not be taken into account;
asserted or threatened claims by the Internal Revenue
Service shall be taken into account only if asserted in
writing or, if oral, reduced to writing within 20 days, and
only to the extent of a reasonable estimate of the ultimate
liability, after discussion with the Board Observers).
Notwithstanding the foregoing, Liquid Distributable Assets
shall be calculated (1) as if the payment of fees and
expenses pursuant to Section 9.03(b) had not occurred and
(2) without including any proceeds resulting from exercise
of Company Options pursuant to Section 2.01(h).
For purposes of this Agreement, the terms:
(I) "Tax Attribute" shall mean, (1) as of
March 31, 2003, any item of loss, deduction,
expense, credit or other tax attribute held by the
Surviving Corporation or its Subsidiaries
immediately after March 31, 2003 that is available
to offset taxable income of the Company (or, after
the Effective Time, the Surviving Corporation) or
its Subsidiaries attributable to any taxable period
(whether such taxable period begins before, on or
after the Closing Date), to the extent such tax
attribute has not been used to obtain a tax refund
described in Section 2.01(d)(A) above; and (2) as
of June 30, 2005, any item of loss, deduction,
expense, credit or other tax attribute held by the
Surviving Corporation or its Subsidiaries
immediately after March 31, 2003 that is actually
used (or can be used, upon filing of a tax return
for any taxable period ending before, on, or which
includes June 30, 2005) to offset taxable income of
the Company (or, after the Effective Time, the
Surviving Corporation) or its Subsidiaries
attributable to any taxable period ending on or
before June 30, 2005, or, in the case of a taxable
period that includes June 30, 2005, the portion of
such taxable period that ends on June 30, 2005, to
the extent such tax attribute has not been used to
obtain a tax refund described in Section 2.01(d)(A)
above. With respect to any taxable period that
includes but does not end on June 30, 2005, the
amount of taxable income attributable to such
taxable period that may be offset by Tax Attributes
shall be the amount of taxable income which would
be offset if the relevant taxable period had ended
on June 30, 2005. For purposes of this Agreement,
the amount of any Tax Attribute held by the
Surviving Corporation and its Subsidiaries
immediately after March 31, 2003 shall be
determined as if the taxable period of the
Surviving Corporation and its Subsidiaries that
includes March 31, 2003 ended on March 31, 2003.
(II) "Receivables" shall mean (1) as of
March 31, 2003, the collection of revenue streams
existing as of the Closing Date and the collection,
maturity or conversion of the Surviving
Corporation's assets existing as of the Closing
Date (including, but not limited to, note payments
and accounts receivable), and (2) as of June 30,
2005, the amounts actually collected pursuant to
clause (1) by the Surviving Corporation through
such date.
The Surviving Corporation shall determine the
amounts of Liquid Distributable Assets, which shall include
the amount of Liquid Distributable Assets available on the
Closing Date, through March 31, 2003, and thereafter through
June 30, 2005, as applicable. From and after the Closing
Date, Palisade shall cause the Surviving Corporation to, and
the Surviving Corporation shall, maintain a separate
accounting with respect to the Liquid Distributable Assets,
and the costs related thereto shall be excluded in
determining the amount of Liquid Distributable Assets. To
the extent the Surviving Corporation incurs any
indebtedness, pays any interest with respect to such
indebtedness, acquires any assets, incurs any expenses or
takes any other action not directly related to efforts to
monetize the Company's assets, or to operate the Company's
business, in each case as of the Closing Date, any such
indebtedness, interest, expenses or other action shall be
excluded under such accounting in determining the amount of
Liquid Distributable Assets and Tax Attributes."
3. Amendment to Section 2.01(f)(ii) of the Agreement. Section
2.01(f)(ii) of the Agreement shall be amended and restated in its
entirety to read as follows:
"The Board Observers shall promptly review such
calculation and, if either Board Observer disagrees with
such calculation, such Board Observer shall provide written
notice of such disagreement to the Surviving Corporation on
or before August 5, 2005. Upon receiving such notice, the
Surviving Corporation and the Board Observers shall in good
faith work together to resolve such disagreement by August
31, 2005."
4. Limited Effect. Except as expressly specified herein, the terms and
provisions of the Agreement shall continue and remain in full force
and effect and shall remain the valid and binding obligation of the
parties thereto in accordance with its terms.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to a
contract executed and performed in such State without giving effect
to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, each party hereto has caused this Amendment to be
duly executed as of the day and year first above written.
PALISADE CONCENTRATED EQUITY
PARTNERSHIP, L.P.
By: Palisade Concentrated Holdings, L.L.C.,
General Partner
By: /s/ Steven Berman
-------------------------------
Name: Steven Berman
Title: Member
PALISADE MERGER CORP.
By: /s/ Steven Berman
-------------------------------
Name: Steven Berman
Title: President
REFAC
By: /s/ Robert L. Tuchman
---------------------
Name: Robert L. Tuchman
Title: President and CEO
Exhibit 10.2
THIS FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") made as of January 23, 2003 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, March 21, 2002 and January 23, 2003
(the "Prior Agreement").
REFAC entered 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"), as amended (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.
TUCHMAN entered into a Third Amended and Restated Employment
Agreement dated as of November 20, 2002 (the "Third Agreement") which, by the
terms of such agreement, would have been effective as of the "Effective Time"
(as defined in the Merger Agreement) but shall instead be superseded by this
Agreement as of the date hereof.
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, 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, TUCHMAN (or in the case of death, TUCHMAN's estate) will be
entitled to receive a bonus (a "Success Bonus") in consideration of his
successful performance of his duties described. Such Success Bonus shall be an
amount equal to 16% of the "GLDA" (as hereinafter defined), if any, provided,
however, that TUCHMAN shall not be entitled to such Success Bonus if TUCHMAN'S
employment is terminated prior to the expiration of the Employment Period (1)
by TUCHMAN without Good Reason (as hereinafter defined or (2) by REFAC for
Cause (as hereinafter defined).
As used herein "GLDA" shall mean an amount equal to:
1. the "Liquid Distributable Assets" as of June 30, 2005, as
calculated under Section 2.01(d) of the Merger Agreement, PLUS
2. any incentive compensation payable to TUCHMAN and/or Raymond A.
Cardonne, PLUS
3. any signing bonuses or retention payments previously made to
TUCHMAN and/or Raymond A. Cardonne LESS
4. the sum of $17,843,602.
(b) Payment of Success Bonus. REFAC shall pay TUCHMAN his Success
Bonus, if any, at the same time that shareholders become entitled to amounts
described in Section 2.01(d) of the Merger Agreement, regardless of whether
such Success Bonus becomes payable after the expiration of 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 | The earlier of: |
| | (i) the first |
| | anniversary of the |
| | Effective Time, or (ii) |
| | March 31, 2004 |
| ----------------------------| ------------------------------|
| $100,000 | January 1, 2004 |
| ----------------------------| ------------------------------|
| $200,000 | March 31, 2004 |
-------------------------------------------------------------
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 REFAC. 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 TUCHMAN'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. Following the termination of TUCHMAN's
employment due to Disability, TUCHMAN shall remain eligible to receive any
Success Bonus payable pursuant to Section 5 of this Agreement.
(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, (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, and
(iii) pay any Success Bonus payable to TUCHMAN pursuant to Section 5 of this
Agreement, to TUCHMAN's spouse, or, if he leaves no spouse, to his estate.
(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) 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. Following the termination of TUCHMAN'S employment by REFAC without
Cause, TUCHMAN shall remain eligible to receive any Success Bonus payable
pursuant to Section 5 of this Agreement.
(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. Following
the termination of TUCHMAN'S employment by TUCHMAN for Good Reason, TUCHMAN
shall remain eligible to receive any Success Bonus payable pursuant to Section
5 of this Agreement.
(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. As of the date hereof, this Agreement shall supersede the
Third Agreement in its entirety and the Third Agreement shall be of no further
force or effect. 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.
23. Survival. The obligations of the parties set forth in Sections
3(e), 5 (other than 5(a)), 10(g), 11, 13, 14, 15, 16, 17, 18, 19, 20, 21 and
22 of this Agreement shall survive the expiration of the Employment Period.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
January 23, 2003.
/s/ Robert L. Tuchman
---------------------
Robert L. Tuchman
REFAC
By: /s/ Ira T. Wender
----------------------
Name: Ira T. Wender
Title: Director
Exhibit 10.3
FIRST AMENDMENT TO
THE SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BETWEEN
ROBERT L. TUCHMAN
AND
REFAC
This First Amendment (this "Amendment") to the Second Amended and
Restated Employment Agreement (the "Agreement") dated as of March 21, 2002
between REFAC, a Delaware corporation ("REFAC"), and Robert L. Tuchman
("TUCHMAN").
TUCHMAN is currently employed by REFAC pursuant to the Agreement.
REFAC entered 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") as amended (the "Merger Agreement")
pursuant to which the Merger Sub will merge with and into REFAC and REFAC will
become a subsidiary of Palisade.
TUCHMAN entered into a Fourth Amended and Restated Employment
Agreement with REFAC dated January 23, 2003, which, by its terms, shall not be
effective until the "Effective Time" (as defined in the Merger Agreement).
Prior to the Effective Time, the parties hereto desire to continue
TUCHMAN'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 date hereof, the Agreement shall be amended as
follows:
1. Section 6(b) of the Agreement is hereby amended to read in its
entirety as follows:
"(b) Incentive Compensation. TUCHMAN shall use reasonable
efforts, consistent with prudent and reasonable business judgment, to
convert REFAC's assets into cash and securities that can be
distributed to REFAC's stockholders. 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 "Eligible Consideration"
(as hereinafter defined) in accordance with the terms of this Section
6. For purposes of this Agreement, "Payment Event" shall mean (i)
each Liquidation (as hereinafter defined) which occurs (A) during the
term of this Agreement or (B) after the term of this Agreement
provided that TUCHMAN's employment with REFAC is not terminated prior
to the expiration of the term of this Agreement (1) by TUCHMAN for
any reason other than due to death or Disability (as hereinafter
defined) or (2) by REFAC for Cause (as hereinafter defined), and (ii)
the occurrence of a Company Sale. In the event that TUCHMAN receives
a Success Bonus in respect of a Liquidation or Company Sale, he will
remain eligible for additional Success Bonus payments in the event of
a subsequent Liquidation (or Liquidations). In the event that TUCHMAN
receives a Success Bonus in respect of a Payment Event subsequent to
a Liquidation or Company Sale, such amount shall be reduced by the
amount of any Success Bonus previously paid to TUCHMAN (hereinafter,
the "Offset Adjustment").
(1) Eligible Consideration - Liquidation. In the event of
each Liquidation, "Eligible Consideration" shall mean the amount, if
any, by which the Distributed Amount (as hereinafter defined) exceeds
$10 million. "Distributed Amount" shall mean the aggregate amount of
cash and the fair market value (as determined by the Board in its
sole discretion) of securities that are distributed to REFAC's
stockholders (plus the aggregate amount distributed in any prior
Liquidation plus the aggregate amount of any compensation paid or
payable to TUCHMAN and/or Raymond A. Cardonne, Jr. with respect to
this and all prior Liquidations hereunder.
(2) Eligible Consideration - Company Sale. In the event of a
Company Sale (as hereinafter defined), the Eligible Consideration
shall be the amount, if any, by which the Sale Consideration (as
hereinafter defined) and any Distributed Amount previously
distributed to REFAC's stockholders in connection with a Liquidation
exceeds $10 million. "Sale Consideration" shall mean (i) in the case
of a Company Sale which results in a merger or the sale of 100% of
REFAC's then-outstanding voting securities, the aggregate value of
the consideration (which may consist of cash, securities, other
property or a combination of the foregoing) actually received by
REFAC's stockholders in connection with the consummation of a Company
Sale or (ii) in the case of a Company Sale which results in the sale
of less than 100% of REFAC's then-outstanding voting securities, the
aggregate amount of consideration which would have been received by
REFAC's stockholders in connection with the consummation of a Company
Sale assuming that the price per-share applicable with respect to
such Company Sale was applied to all outstanding voting securities,
in each case as determined by the Board in its sole discretion.
2. Section 6(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) Calculation of Eligible Consideration. The Board shall have
sole responsibility to make all calculations and determinations
necessary to the calculation of the Eligible Consideration. In making
such calculation, with respect to each Liquidation, once the
Distributed Amount exceeds $10 million in the aggregate, TUCHMAN's
Success Bonus shall be an amount equal to 20% of such excess amount
distributed in such Liquidation. 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
Company Sale, the Eligible Consideration shall be calculated
immediately upon the occurrence of such Company Sale.
3. The first paragraph of Section 6(d) of the Agreement is hereby
amended to read in its entirety as follows:
(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, regardless of whether such
Liquidation occurs after the expiration of the term of this Agreement
or whether TUCHMAN is employed by REFAC at the time 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.
4. Section 6(f) of the Agreement is hereby amended to read in its
entirety as follows:
(f) Liquidation Defined. For purposes of this Agreement, a
"Liquidation" shall mean a distribution in cash or securities made to
the stockholders of REFAC.
5. Section 10(a) of the Agreement is hereby amended to add a sentence
at the end thereof reading in its entirety as follows:
Following the termination of TUCHMAN'S employment due to Disability,
TUCHMAN shall remain eligible to receive any Success Bonus payable
pursuant to Section 6 of this Agreement.
6. Section 10(b) of the Agreement is hereby amended to read in its
entirety as follows:
(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, (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, and (iii) pay any
Success Bonus payable to TUCHMAN pursuant to Section 6 of this
Agreement, to TUCHMAN's spouse, or, if he leaves no spouse, to his
estate.
7. Section 10(d) of the Agreement is hereby amended to add a sentence
at the end thereof reading in its entirety as follows:
Following the termination of TUCHMAN'S employment by REFAC without
Cause, TUCHMAN shall remain eligible to receive any Success Bonus
payable pursuant to Section 6 of this Agreement.
8. The Agreement is hereby amended to add a Section at the end
thereof reading in its entirety as follows:
22. Survival. The obligations of the parties set forth in
Sections 3(e), 6 (other than 6(a)), 9(f), 10, 12, 13, 14, 15, 16, 18,
19, 20 and 21 of this Agreement shall survive the expiration of the
term of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
January 23, 2003.
/s/ Robert L. Tuchman
---------------------
Robert L. Tuchman
REFAC
By: /s/ Ira T. Wender
----------------------
Name: Ira T. Wender
Exhibit 10.4
SECOND AMENDMENT TO
EMPLOYMENT AGREEMENT
BETWEEN
RAYMOND A. CARDONNE, JR.
AND
REFAC
This Second Amendment (this "Amendment") to the Employment Agreement
dated as of March 21, 2002 between REFAC, a Delaware corporation ("REFAC"),
and Raymond A. Cardonne, Jr. ("CARDONNE") as amended dated October 22, 2002
(the "Agreement").
CARDONNE is currently employed by REFAC pursuant to the Agreement.
REFAC entered 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") as amended (the "Merger Agreement")
pursuant to which the Merger Sub will merge with and into REFAC and REFAC will
become a subsidiary of Palisade.
CARDONNE intends to enter into a Third Amendment to the Agreement
dated as of January 23, 2003 (the "First Amendment") which, by its terms,
shall not be effective until the "Effective Time" (as defined in the Merger
Agreement).
Prior to the Effective Time, 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 date hereof, the Agreement shall be amended as
follows:
1. Section 5(b) of the Agreement is hereby amended to read in its
entirety as follows:
"(b) Incentive Compensation. CARDONNE shall use reasonable
efforts, consistent with prudent and reasonable business judgment, to
convert REFAC's assets into cash and securities that can be
distributed to REFAC's stockholders. As incentive compensation for
this undertaking, upon a Payment Event (as such term is hereinafter
defined) CARDONNE (or in the case of death, CARDONNE'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 4% of the "Eligible
Consideration" (as hereinafter defined) in accordance with the terms
of this Section 5. For purposes of this Agreement, "Payment Event"
shall mean (i) each Liquidation (as hereinafter defined) which occurs
(A) during the term of this Agreement or (B) after the term of this
Agreement provided that CARDONNE's employment with REFAC is not
terminated prior to the expiration of the term of this Agreement (1)
by CARDONNE for any reason other than due to death or Disability (as
hereinafter defined) or (2) by REFAC for Cause (as hereinafter
defined), and (ii) the occurrence of a Company Sale. In the event
that CARDONNE receives a Success Bonus in respect of a Liquidation or
Company Sale, he will remain eligible for additional Success Bonus
payments in the event of a subsequent Liquidation (or Liquidations).
In the event that CARDONNE receives a Success Bonus in respect of a
Payment Event subsequent to a Liquidation or Company Sale, such
amount shall be reduced by the amount of any Success Bonus previously
paid to CARDONNE (hereinafter, the "Offset Adjustment").
(1) Eligible Consideration - Liquidation. In the event of
each Liquidation, "Eligible Consideration" shall mean the amount, if
any, by which the Distributed Amount (as hereinafter defined) exceeds
$10 million. "Distributed Amount" shall mean the aggregate amount of
cash and the fair market value (as determined by the Board in its
sole discretion) of securities that are distributed to REFAC's
stockholders (plus the aggregate amount distributed in any prior
Liquidation plus the aggregate amount of any compensation paid or
payable to CARDONNE or Robert L. Tuchman with respect to this and all
prior Liquidations hereunder).
(2) Eligible Consideration - Company Sale. In the event of a
Company Sale (as hereinafter defined), the Eligible Consideration
shall be the amount, if any, by which the Sale Consideration (as
hereinafter defined) and any Distributed Amount previously
distributed to REFAC's stockholders in connection with a Liquidation
exceeds $10 million. "Sale Consideration" shall mean (i) in the case
of a Company Sale which results in a merger or the sale of 100% of
REFAC's then-outstanding voting securities, the aggregate value of
the consideration (which may consist of cash, securities, other
property or a combination of the foregoing) actually received by
REFAC's stockholders in connection with the consummation of a Company
Sale or (ii) in the case of a Company Sale which results in the sale
of less than 100% of REFAC's then-outstanding voting securities, the
aggregate amount of consideration which would have been received by
REFAC's stockholders in connection with the consummation of a Company
Sale assuming that the price per-share applicable with respect to
such Company Sale was applied to all outstanding voting securities,
in each case as determined by the Board in its sole discretion.
2. Section 5(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) Calculation of Eligible Consideration. The Board shall have
sole responsibility to make all calculations and determinations
necessary to the calculation of the Eligible Consideration. In making
such calculation, with respect to each Liquidation, once the
Distributed Amount exceeds $10 million in the aggregate, CARDONNE's
Success Bonus shall be an amount equal to 5% of such excess amount
distributed in such Liquidation. 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
Company Sale, the Eligible Consideration shall be calculated
immediately upon the occurrence of such Company Sale.
3. The first paragraph of Section 5(d) of the Agreement is hereby
amended to read in its entirety as follows:
(d) Payment of Success Bonus. (i) In the event of a Liquidation,
REFAC shall pay CARDONNE the Success Bonus at the time of the
consummation of such Liquidation, regardless of whether such
Liquidation occurs after the expiration of the term of this Agreement
or whether CARDONNE is employed by REFAC at the time of such
Liquidation. In the event of a Payment Event other than a
Liquidation, REFAC shall pay CARDONNE the Success Bonus as soon as
practicable following the occurrence of such Payment Event.
4. Section 5(f) of the Agreement is hereby amended to read in its
entirety as follows:
(f) Liquidation Defined. For purposes of this Agreement, a
"Liquidation" shall mean a distribution in cash or securities made to
the stockholders of REFAC.
5. Section 9(a) of the Agreement is hereby amended to add a sentence
at the end thereof reading in its entirety as follows:
Following the termination of CARDONNE'S employment due to Disability,
CARDONNE shall remain eligible to receive any Success Bonus payable
pursuant to Section 5 of this Agreement.
6. Section 9(b) of the Agreement is hereby amended to read in its
entirety as follows:
(b) Death. If CARDONNE'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 CARDONNE's spouse, or, if
he leaves no spouse, to his estate, (ii) pay or cause the payment to
CARDONNE'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, and (iii) pay any
Success Bonus payable to CARDONNE pursuant to Section 5 of this
Agreement, to CARDONNE's spouse, or, if he leaves no spouse, to his
estate.
7. Section 9(d) of the Agreement is hereby amended to add a sentence
at the end thereof reading in its entirety as follows:
Following the termination of CARDONNE'S employment by REFAC without
Cause, CARDONNE shall remain eligible to receive any Success Bonus
payable pursuant to Section 5 of this Agreement.
8. The Agreement is hereby amended to add a Section at the end
thereof reading in its entirety as follows:
22. Survival. The obligations of the parties set forth in
Sections 3(e), 5 (other than Section 5(a)), 8(f), 9, 11, 12, 13, 14,
15, 17, 18, 19 and 20 of this Agreement shall survive the expiration
of the term of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
January 23, 2003.
/s/ Robert L. Tuchman
---------------------
Robert L. Tuchman
REFAC
By: /s/ Ira T. Wender
----------------------
Name: Ira T. Wender
Exhibit 10.5
THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT
BETWEEN
RAYMOND A. CARDONNE, JR.
AND
REFAC
This Third Amendment (this "Amendment") to the Employment Agreement
dated as of March 21, 2002 between REFAC a Delaware corporation ("REFAC"), and
Raymond A. Cardonne, Jr. ("CARDONNE") as amended dated October 22, 2002 and
January 23, 2003 (the "Agreement").
CARDONNE is currently employed by REFAC pursuant to the Agreement.
REFAC entered 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"), as amended (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.
CARDONNE entered into a Restatement of the First Amendment to the
Agreement which, by its terms, would have been effective as of the "Effective
Time" (as defined in the Merger Agreement) but shall instead be superceded by
this Amendment as of the date hereof.
CARDONNE entered into a Second Amendment to the Agreement which, by
its terms, is effective as of the date hereof and which shall continue in
force, as modified by this Amendment, following the Effective Time.
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, the Agreement shall be amended as
follows:
1. As of the Effective Time, Section 5 of the Agreement is hereby
amended to read in its entirety as follows:
(a) Base Salary. CARDONNE's salary will be $175,000 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, CARDONNE
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, CARDONNE (or in the case of death,
CARDONNE's estate) will be entitled to receive a bonus (a "Success
Bonus") in consideration of his successful performance of his duties
described. Such Success Bonus shall be an amount equal to 4% of the
"GLDA" (as hereinafter defined), if any, provided, however, that
CARDONNE shall not be entitled to such Success Bonus if CARDONNE'S
employment is terminated prior to the expiration of the Employment
Period (1) by CARDONNE for any reason other than Disability (as
hereinafter defined) or death or (2) by REFAC for Cause (as
hereinafter defined).
As used herein "GLDA" shall mean an amount equal to :
5. the "Liquid Distributable Assets" as of June 30, 2005, as
calculated under Section 2.01(d) of the Merger Agreement, PLUS
6. any incentive compensation payable to Robert Tuchman
and/or CARDONNE, PLUS
7. any signing bonuses or retention payments previously made to
Robert Tuchman and/or CARDONNE LESS
8. the sum of $17,843,602.
(c) Payment of Success Bonus. REFAC shall pay CARDONNE his Success
Bonus, if any, at the same time that shareholders become entitled to
amounts described in Section 2.01(d) of the Merger Agreement,
regardless of whether such Success Bonus becomes payable after the
expiration of the Employment Period.
(d) Signing Bonus. At 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 Sub"), as amended, pursuant to which the
Merger Sub will merge with and into REFAC (the "Merger")) REFAC will
pay CARDONNE a one time cash bonus of $313,744. Under no
circumstances shall the consummation of the Merger, shareholder
approval thereof or any other event relating thereto give rise to any
payment to CARDONNE, except as explicitly provided in this Agreement,
as amended through January 23, 2003.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
January 23, 2003.
/s/ Robert L. Tuchman
---------------------
Robert L. Tuchman
REFAC
By: /s/ Ira T. Wender
----------------------
Name: Ira T. Wender
Exhibit 10.6
FIRST AMENDMENT TO THE
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
1998 STOCK INCENTIVE PLAN
WHEREAS, REFAC (formerly known as REFAC Technology Development
Corporation), a Delaware corporation ("REFAC") maintains the REFAC Technology
Development Corporation 1998 Stock Incentive Plan (the "Plan");
WHEREAS, REFAC has reserved the right to amend the Plan pursuant to
Section (9)(5) thereof;
WHEREAS, REFAC entered 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"), as amended (the "Merger Agreement")
pursuant to which the Merger Sub will merge with and into REFAC and REFAC will
become a subsidiary of Palisade;
WHEREAS, REFAC desires to amend the Plan, effective as of the
Effective Time (as defined in the Merger Agreement), to modify certain terms
of outstanding stock options held by non-employee directors of REFAC
immediately prior to the Effective Time;
NOW, THEREFORE, the Plan is amended effective as the Effective Time,
as follows:
1. Section (7)(1)(6) of the Plan shall be amended to include a
sentence at the end thereof reading, in its entirety, as follows:
Notwithstanding anything contained in any Award Agreement evidencing
the grant of any Option held by a non-employee director of the Company
immediately prior to the Effective Time (as defined in the Agreement and Plan
of Merger by and among the Company, Palisade Concentrated Equity Partnership,
L.P. and Palisade Merger Corp. dated August 19, 2002, as amended) (such
Options, collectively, the "Director Options"), in the event that the services
of a non-employee director terminate for any reason, all Director Options that
are outstanding and held by such non-employee director at the time of such
termination shall remain exercisable by such non-employee director, or in the
case of such non-employee director's death, by the heirs, distributees, or
legal representatives of such non-employee director, for the remainder of the
original term of such Director Option.
2. Except as set forth above, all terms and conditions of the Plan
and all Award Agreements (as defined in the Plan) shall remain in full force
and effect.
IN WITNESS WHEREOF, REFAC has caused this Amendment to be executed,
effective as of the Effective Time, this 23 day of January, 2003.
REFAC
By: /s/ Robert L. Tuchman
--------------------------
Robert L. Tuchman
President and Chief Executive Officer