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2: EX-10 Material Contract 55± 216K
3: EX-10 Material Contract 19± 45K
4: EX-10 Material Contract 85± 305K
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6: EX-10 Material Contract 10± 47K
7: EX-10 Material Contract 7± 33K
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10: EX-27 Financial Data Schedule (Pre-XBRL) 1 6K
Exhibit 10.29
EMPLOYMENT AGREEMENT
Agreement made as of the 14th day of October, 1996,
between Smith Corona Corporation, a Delaware corporation (the
"Company"), and W. Michael Driscoll (the "Executive").
WHEREAS, on July 5, 1995, the Company filed a voluntary
petition for relief under Chapter 11 of Title 11 of the United
States Code, 11 U.S.C. 101 et. seq. (the "Bankruptcy Code"),
with the Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court");
WHEREAS, pursuant to the Bankruptcy Code, the Company
is continuing to operate its business and manage its properties
and assets as debtor-in-possession;
WHEREAS, the Company is soliciting acceptances from its
creditors with respect to its Third Amended Second Joint Plan of
Reorganization Under Chapter 11 of the United States Bankruptcy
Code (as such plan may be amended from time to time, the "Plan"),
which Plan is subject to certain conditions precedent to
confirmation (as set forth in Section 13.1 of the Plan) and to
effectiveness (as set forth in Section 13.2 of the Plan); and
WHEREAS, the Company desires to employ the Executive,
and the Executive desires to accept employment with the Company,
but only on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter set forth, the Company and
the Executive hereby agree as follows:
1. The Company shall employ the Executive, and the
Executive shall serve the Company, for the period beginning on
October 14, 1996 and expiring on the date three (3) years from
the Effective Date (as that term is defined in the Plan), unless
sooner terminated pursuant to the provisions of Section 4 hereof
(the "Employment Period").
2. For the period beginning on October 14, 1996 and
ending on the Effective Date, the Executive shall serve the
Company as a Consultant. During the remainder of the Employment
Period, the Executive shall serve the Company as its President
and Chief Executive Officer. During the Employment Period, the
Executive shall, except during vacation or sick leave, devote the
whole of his time, attention and skill during usual business
hours (and outside those hours when reasonably necessary to his
duties hereunder) to his duties hereunder; faithfully and
diligently perform such duties and exercise such powers as may be
from time to time assigned to or vested in him by the Company's
Board of Directors (the "Board") or, prior to the Effective Date,
by the Company's Chief Executive Officer; obey the directions of
the Board and, prior to the Effective Date, of the Company's
Chief Executive Officer; and use his best efforts to promote the
interests of the Company. The Executive may be required in
pursuit of his duties hereunder to perform services for any
company controlling (assuming the Executive declines to exercise
any resignation right pursuant to Section 4(d) hereof),
controlled by or under common control with the Company (such
companies hereinafter collectively called "Affiliates") and to
accept such offices in any Affiliates as the Board may require.
The Executive shall obey all policies of the Company and
applicable policies of its Affiliates.
3. a. During the Employment Period, the Company
shall pay the Executive a salary at an annual rate of $250,000,
subject to increase by the Board in its sole discretion, which
shall be payable periodically in accordance with the Company's
then prevailing payroll practices.
b. The Company, at such time subsequent to the
Effective Date as it (in its sole discretion) is reasonably able
to do so, shall award the Executive NewSCC Common Stock (as
defined in the Plan) pursuant to Section 6.3 of the Plan in an
aggregate amount which shall at all times constitute 2% of the
total shares of NewSCC Common Stock which are issued pursuant to
the Plan, determined on a fully-diluted basis, not including the
effect of the exercise of any of the NewSCC Warrants (as defined
in the Plan). The Executive's rights to such shares shall vest
on the second anniversary of the Effective Date; provided,
however, that the Company hereby agrees to file a motion with the
Bankruptcy Court to amend the Plan to allow for earlier vesting
of such shares at the time of a Change in Control (as defined in
Section 4(d) hereof). The Executive shall be eligible to
participate in the employee stock incentive or other similar plan
described in Section 6.2 of the Plan in accordance with the
provisions thereof. The Executive also shall be eligible to
participate in such other incentive compensation programs as may
be established by the Board that the Company generally provides
to its employees having rank and seniority at the Company
comparable to the Executive.
c. The Executive shall be entitled to four (4)
weeks of vacation per calendar year with any unused vacation time
carried over to the next calendar year.
d. The Executive shall be entitled to such
expense accounts, sick leave, perquisites of office, fringe
benefits, insurance coverage (including the Company's Executive
Medical and Life Insurance Programs), and other terms and
conditions of employment as the Company generally provides to its
employees having rank and seniority at the Company comparable to
the Executive. In addition, the Executive shall have annual
physical examinations at the Company's expense.
4. Unless terminated in accordance with the following
provisions of this Section 4, the Company shall continue to
employ the Executive and the Executive shall continue to work for
the Company, during the Employment Period.
a. This Agreement shall terminate automatically
upon the death of the Executive.
b. The Company may terminate the Executive's
employment if the Executive suffers from a physical or mental
disability to an extent that renders it impracticable for the
Executive to continue performing his duties hereunder. The
Executive shall be deemed to be so disabled if (i) a physician
selected by the Company advises the Company that the Executive's
physical or mental condition will render the Executive unable to
perform his duties for a period exceeding three consecutive
months, or (ii) due to a physical or mental condition, the
Executive has not substantially performed his duties hereunder
for a period of three consecutive months. The Company will
provide the Executive with long-term disability insurance.
c. The Company may terminate the Executive's
employment at any time for cause; cause shall mean (i) a default
or other breach by the Executive of his obligations under
Sections 1, 2, 5, 6, 8 and 17 of this Agreement, (ii) misconduct,
dishonesty, insubordination or other act by the Executive
detrimental to the good will of the Company or damaging to the
Company's relationships with its customers, suppliers or
employees, (iii) the conviction of a felony, or (iv) any act of
disloyalty or breach of trust by the Executive.
d. The Company may terminate the Executive's
employment at any time without cause. The Executive may resign
from his employment at any time. In the event that the Executive
is terminated without cause, or resigns within thirty (30) days
following a Change of Control (as hereinafter defined), (i) the
Company shall continue to pay the Executive at a rate equivalent
to his regular base salary until the date one (1) year from the
date of termination or resignation; (ii) the Company shall
continue to provide medical insurance to the Executive until the
date one (1) year from the date of termination or resignation;
and (iii) the Company shall pay the Executive any accrued but
unused vacation time for the current year and any accrued but
unused vacation time carried over from any prior year. Such
payments to the Executive by the Company will be in full and
complete satisfaction (except as provided in subsection (e)
below) of any and all obligations owing to the Executive pursuant
to this Agreement. "Change of Control" shall mean (i) a stock
purchase by any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities and Exchange Act of 1934, as
amended) who then owns or by virtue of such purchase becomes the
beneficial owner of, directly or indirectly, voting securities of
the Company representing 51% or more of the combined voting power
of the Company's then outstanding voting securities or (ii) any
change in the composition of the Company's Board of Directors in
any one year which involves a majority of such directors and
which is not recommended by the Board.
e. Upon termination pursuant to (a), (b), (c) or
(d), above, the Company shall pay the Executive or his estate any
salary earned and unpaid to the date of termination, and any
outstanding funds advanced by the Company to or on behalf of the
Executive shall become immediately due and payable.
5. The Executive shall not divulge or communicate to
any person (except in performing his duties under this Agreement)
or use for his own purposes trade secrets, confidential
commercial information, or any other information, knowledge or
data of the Company or of any of its Affiliates which is not
generally known to the public and shall use his best efforts to
prevent the publication or disclosure by any other person of any
such secret, information, knowledge or data. All documents and
objects made, compiled, received, held or used by the Executive
while employed by the Company in connection with the business of
the Company shall be and remain the Company's property and shall
be delivered by the Executive to the Company upon the termination
of the Employment Period or at any earlier time requested by the
Company.
6. The Executive agrees that during the Employment
Period and for a period of two years after the termination of the
Employment Period (except for a termination without cause or
resignation upon a Change of Control pursuant to Section 4(d)
above), he will not directly or indirectly, whether or not for
compensation and whether or not as an employee, be engaged in or
have any financial interest in any business competing with or
which may compete with the business of the Company (or with any
business of any Affiliate for which the Executive performed
services hereunder) within any state, region or locality in which
the Company or such Affiliate is then doing business or marketing
its products, as the business of the Company or such Affiliate
may then be constituted. For purposes of this Agreement, the
Executive shall be deemed to be engaged in or to have a financial
interest in such a business if he is an employee, officer,
director, or partner, of any person, partnership, corporation,
trust or other entity which is engaged in such a business, or if
he directly or indirectly performs services for such entity or if
he or any member of his immediate family beneficially owns an
equity interest, or interest convertible into equity, in any such
entity; provided, however, that the foregoing shall not prohibit
the Executive from continuing to be a member of the board of
directors of IPC Holdings, Inc. for so long as such company, in
the sole discretion of the Board, does not compete with the
business of the Company (or with any business of any Affiliate
for which the Executive performed services hereunder), unless the
Board otherwise approves, and shall not prohibit the Executive or
a member of his immediate family from owning, for the purpose of
passive investment, less than 5% of any class of securities of a
publicly held corporation.
7. The Executive agrees that he shall not, for a
period of two years after the Employment Period, employ any
person who was employed by the Company or any of its Affiliates
or induce such person to accept employment other than with the
Company and its Affiliates.
8. The Executive hereby agrees that any and all
improvements, inventions, discoveries, formulae, processes,
methods, know-how, confidential data, trade secrets and other
proprietary information (collectively, "Work Product") within the
scope of any business of the Company or any Affiliate which the
Executive may conceive or make or have conceived or made during
his employment with the Company shall be and are the sole and
exclusive property of the Company, and that the Executive shall,
whenever requested to do so by the Company, at its expense,
execute and sign any and all applications, assignments or other
instruments and do all other things which the Company may deem
necessary or appropriate (i) in order to apply for, obtain,
maintain, enforce, or defend letters patent of the United States
or any foreign country for any Work Product, or (ii) in order to
assign, transfer, convey or otherwise make available to the
Company the sole and exclusive right, title and interest in and
to any Work Product.
9. The Company and the Executive each agree to waive
trial by jury in any action arising under or in connection with
this Agreement or the employment relationship between the Company
and the Executive.
10. Any notice or other communication required or
permitted under this Agreement shall be effective only if it is
in writing and delivered personally or sent by registered or
certified mail, postage prepaid, addressed as follows:
If to the Company:
Smith Corona Corporation
P.O. Box 2090
839 Route 13
Cortland, NY 13045-0990
If to the Executive:
Mr. W. Michael Driscoll
529 Cayuga Heights Road
Ithaca, NY 14850
or to such other address as either party may designate by notice
to the other, and shall be deemed to have been given upon
receipt.
11. This Agreement constitutes the entire agreement
between the parties hereto with respect to the Executive's
employment by the Company, and supersedes and is in full
substitution for any and all prior understandings or agreements
with respect to the Executive's employment with the Company.
12. This Agreement may be amended only by an
instrument in writing signed by the parties hereto, and any
provision hereof may be waived only by an instrument in writing
signed by the party or parties against whom or which enforcement
of such waiver is sought. The failure of either party hereto at
any time to require the performance by the other party hereto of
any provision hereof shall in no way affect the full right to
require such performance at any time thereafter, nor shall the
waiver by either party hereto of a breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such
provision or a waiver of the provision itself or a waiver of any
other provision of this Agreement.
13. This Agreement is binding on and is for the
benefit of the parties hereto and their respective successors,
heirs, executors, administrators and other legal representatives.
Neither this Agreement nor any right or obligation hereunder may
be assigned by the Company (except to an Affiliate) or by the
Executive.
14. If any provision of this Agreement, or portion
thereof, is so broad, in scope or duration, so as to be
unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
15. a. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
b. Any judicial proceeding brought with respect
to this Agreement must be brought in any state or federal court
of competent jurisdiction located in the State of New York, and,
by execution and delivery of this Agreement, each party (i)
accepts, generally and unconditionally, the exclusive
jurisdiction of such courts and any related appellate courts, and
irrevocably agrees to be bound by any judgment rendered thereby
in connection with this Agreement and (ii) irrevocably waives any
objection it may now or hereafter have as to the venue of any
such suit, action or proceeding brought in such a court or that
such court is an inconvenient forum. THE PARTIES HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE BOTH
PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
16. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
17. The Executive represents and warrants that he is
not a party to any agreement which would prohibit him from
entering into this Agreement or performing fully his obligations
hereunder.
18. The obligations of the Executive set forth in
paragraphs 5, 6, 7, 8 and 9 represent independent covenants by
which the Executive is and will remain bound notwithstanding any
breach by the Company, and shall survive the termination of this
Agreement.
19. The Executive recognizes that a breach or
threatened breach by him of his obligations under Sections 5, 6,
7 or 8 would cause irreparable injury to the Company, and the
Company shall be entitled to preliminary and permanent
injunctions enjoining him from violating Sections 5, 6, 7 or 8 in
addition to any other remedies which may be available.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date first written above.
SMITH CORONA CORPORATION
By: /s/ Ronald F. Stengel
Name: Ronald F. Stengel
Title: President and CEO
/s/ W. Michael Driscoll
W. Michael Driscoll
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment"),
made as of the 2nd day of June, 1997, between SMITH CORONA
CORPORATION, a Delaware corporation (the "Company"), and W.
Michael Driscoll (the "Executive").
WHEREAS, the Company and Executive have entered into an
employment agreement dated as of October 14, 1996 (the
"Employment Agreement") and
WHEREAS, the Company and Executive desire to amend the
Employment Agreement.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter set forth, the Company and
the Executive hereby agree as follows:
1. Section 2 of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
2. During the Employment Period, the Executive shall
serve the Company as its President and Chief Executive
Officer. During the Employment Period, the Executive shall,
except during vacation or sick leave, devote the whole of
his time, attention and skill during usual business hours
(and outside those hours when reasonably necessary to his
duties hereunder) to his duties hereunder; faithfully and
diligently perform such duties and exercise such powers as
may be from time to time assigned to or vested in him by the
Company's Board of Directors (the "Board"); obey the
directions of the Board; and use his best efforts to promote
the interests of the Company. The Executive may be required
in pursuit of his duties hereunder to perform services for
any company controlling (assuming the Executive declines to
exercise any resignation right pursuant to Section 4(d)
hereof), controlled by or under common control with the
Company (such companies hereinafter collectively called
"Affiliates") and to accept such offices in any Affiliates
as the Board may require. The Executive shall obey all
policies of the Company and applicable policies of its
Affiliates.
2. Section 3(b) of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
b. The Company shall award the Executive NewSCC
Common Stock (as defined in the Plan) pursuant to Section
6.3 of the Plan in an aggregate amount which shall at all
times constitute 2% of the total shares of NewSCC Common
Stock which are issued pursuant to the Plan, determined on a
fully-diluted basis, not including the effect of the
exercise of any of the NewSCC Warrants (as defined in the
Plan). The Executive's rights to such shares shall vest on
the second anniversary of the Effective Date; provided,
however, at the Executive's option, that such shares may
vest earlier at the time of a Change in Control (as defined
in Section 4(d) hereof). The Executive shall be eligible to
participate in the employee stock incentive or other similar
plan described in Section 6.2 of the Plan in accordance with
the provisions thereof. The Executive also shall be
eligible to participate in such other incentive compensation
programs as may be established by the Board that the Company
generally provides to its employees having rank and
seniority at the Company comparable to the Executive.
3. Section 3(c) of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
c. The Executive shall be entitled to four (4)
weeks of vacation per calendar year with any unused vacation
time carried over to the first quarter of the next calendar
year. If the prior year's vacation time is not used by the
end of said first quarter, the Company shall pay the
Executive for the unused time at his regular annual rate
thereby discharging its obligation with respect to the
unused time.
4. The Employment Agreement shall be amended by
adding a new Section 3(e) as follows:
e. The Executive shall have the sole discretion
to designate the recipient or recipients of such number of
shares of NewSCC Common Stock to be issued by the Company
pursuant to Section 6.3 of the Plan that in the aggregate
shall at all times constitute 1% of the total shares of
NewSCC Common Stock which are issued pursuant to the Plan,
determined on a fully-diluted basis, not including the
effect of the exercise of any of the NewSCC Warrants;
provided, that if such grant is (i) to the Executive, then
prior written notice shall have been given to the Board and
(ii) to any officer of the Company, then such grant can be
in the form of either shares of NewSCC Common Stock or
options to acquire such shares. The rights to such shares
shall not vest prior to the second anniversary of the
Effective Date or shall vest earlier at the time of a Change
in Control as provided in the Technical Modifications to the
Plan.
5. Section 6 of the Employment Agreement shall be
deleted in its entirety and replaced with the following:
6. The Executive agrees that during the Employment
Period and for a period of two years after the termination
of the Employment Period (except for a termination without
cause or resignation upon a Change of Control pursuant to
Section 4(d) above), he will not directly or indirectly,
whether or not for compensation and whether or not as an
employee, be engaged in or have any financial interest in
any of the entities set forth on Exhibit A hereto or in any
business competing with or which may compete with the
business of the Company (or with any business of any
Affiliate for which the Executive performed services
hereunder) within any state, region or locality in which the
Company or such Affiliate is then doing business or
marketing its products, as the business of the Company or
such Affiliate may then be constituted. For purposes of
this Agreement, the Executive shall be deemed to be engaged
in or to have a financial interest in such a business if he
is an employee, officer, director, or partner, of any
person, partnership, corporation, trust or other entity
which is engaged in such a business, or if he directly or
indirectly performs services for such entity or if he or any
member of his immediate family beneficially owns an equity
interest, or interest convertible into equity, in any such
entity; provided, however, that the foregoing shall not
prohibit the Executive from continuing to be a member of the
board of directors of IPC Holdings, Inc. for so long as such
company, in the sole discretion of the Board, does not
compete with the business of the Company (or with any
business of any Affiliate for which the Executive performed
services hereunder), unless the Board otherwise approves,
and shall not prohibit the Executive or a member of his
immediate family from owning, for the purpose of passive
investment, less than 5% of any class of securities of a
publicly held corporation.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Amendment as of the date first written above.
SMITH CORONA CORPORATION
By:/s/ John A. Piontkowski
Name:John A. Piontkowski
Title:Executive Vice President and
Chief Financial Officer
/s/ W. Michael Driscoll_
W. Michael Driscoll
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 9/16/97 |
| For Period End: | | 6/30/97 | | | | | | | DEF 14A |
| | 10/14/96 | | 1 | | 2 |
| | 7/5/95 | | 1 |
| List all Filings |
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