SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (Fee Required)
For the Fiscal Year Ended December 31, 1996
Commission File Number 0-7704
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
Delaware 13-1681234
(State or other jurisdication of (I.R.S. Employer
Incorporation or organization) Identification No.)
122 East 42nd Street, New York, New York 10168
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area
code:(212)687-4741
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.10 per share
(Title of Class)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein, and
will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference
in Part III of this Form 10-K or any amendment to this Form 10-K.
X
The aggregate market value of the voting stock held by
non-affiliates of the registrant as of March 14, 1997 was
$22,145,116.
The number of shares outstanding of the registrant's Common
Stock, par value $.10 per share, as of March 14, 1997 was 3,626,887.
Signatures
Pursuant to the requirements of Section 13 or 15 (d) of the
Securities Exchange Act of 1934, the Company has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
REFAC Technology Development
Corporation
Date: April 14, 1997 Robert L. Tuchman
Robert L. Tuchman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on
behalf of the Company and in the capacities and on the dates
indicated.
April 14, 1997 Robert L. Tuchman
Robert L. Tuchman, President,
Chief Executive Officer, General
Counsel and Director
April 14, 1997 Eugene M. Lang
Eugene M. Lang, Chairman and
Director
April 14, 1997 Robert Rescigno
Robert Rescigno, Secretary and
Treasurer
April 14, 1997 Neil R. Austrian
Neil R. Austrian, Director
April 14, 1997 Robin L. Farkas
Robin L. Farkas, Director
April 14, 1997 Mark N. Kaplan
Mark N. Kaplan, Director
April 14, 1997
Herbert W. Leonard, Director
April 14, 1997 Ira T. Wender
Ira T. Wender, Director<PAGE>
EXHIBIT INDEX
Exhibit
No.
Page No.
3. Articles of Incorporation and By-laws of the Company as
currently in effect. The exhibits required by this item are
included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1987 and in the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1988, SEC file number
0-7704, and are hereby incorporated by reference.
10. Employment Agreement Amended and Restated dated December
13, 1996 between the Company and Robert L. Tuchman.
13. Annual Report to Security Holders of the Company for the
year ended December 31, 1996.
21. Subsidiaries of the Registrant.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
ROBERT L. TUCHMAN
AND
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
Dated as of December 13, 1996
<PAGE>
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") made as of December 13, 1996 between REFAC TECHNOLOGY
DEVELOPMENT CORPORATION, a Delaware corporation ("REFAC"), and
Robert L. Tuchman ("TUCHMAN").
TUCHMAN is currently employed by REFAC and the parties
hereto desire to continue such employment upon the terms and
conditions hereinafter set forth.
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. Effective immediately, and until the
retirement of Eugene M. Lang ("Lang") as REFAC'S Chief Executive
Officer, REFAC hereby does employ TUCHMAN and TUCHMAN hereby does
accept such employment as President, Chief Operating Officer and
General Counsel of REFAC. Effective upon Lang's retirement as
REFAC's Chief Executive Officer and for the period through the term
hereof, REFAC will employ TUCHMAN and TUCHMAN will accept such
employment as President, Chief Executive Officer and General Counsel
of REFAC with full responsibility for the supervision of all
corporate affairs.
2. Term. The employment of TUCHMAN by REFAC as provided in
Section 1 hereof will commence on the date hereof and end on
December 31, 2001, unless further extended or sooner terminated as
hereinafter provided. On December 31, 2000, and on December 3lst of
each year thereafter, the term of TUCHMAN's employment will be
automatically renewed for one additional year unless, at least 90
days prior to any such December 3lst, REFAC shall have delivered to
TUCHMAN or TUCHMAN shall have delivered to REFAC written notice that
the term of TUCHMAN's employment hereunder will not be renewed.
3. Duties. (a) Lang has agreed that he will retire from
his position as Chief Executive Officer of REFAC on the consummation
of the sale of his shares to REFAC on or before February 15, 1997.
Until Lang's retirement from this office, TUCHMAN will continue to
serve as President, Chief Operating Officer and General Counsel of
REFAC and will have the same duties and responsibilities as are
currently being discharged by him and as may from time to time be
assigned by the Board of Directors of REFAC (the "Board") or by its
Chairman. TUCHMAN will report and be directly responsible to the
Chairman.
(b) Upon the effective date of Lang's retirement as
Chief Executive Officer of REFAC, TUCHMAN will perform such duties
and have such powers as are customary for the chief executive
officer of publicly-held corporations and will report and be
directly responsible to the Board.
(c) 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.
4. Board Membership. REFAC will to use its best efforts to
cause TUCHMAN to be reelected as a member of its Board and to have
his title and membership throughout the term of this Agreement.
TUCHMAN will serve as a Director of REFAC and/or its subsidiaries
(including committees of such Boards) without additional
compensation.
5. 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.
6. Compensation and Related Matters.
(a) Salary. For the year which began January 1, 1996
and for the calendar year 1997, REFAC will pay TUCHMAN a salary at
the annual rate of $250,000. Beginning with January 1, 1998, and
each January 1st thereafter, TUCHMAN's salary will be increased by
$10,000 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 benefits plan of REFAC.
(b) Bonus. REFAC will pay to TUCHMAN an annual
bonus in respect of each calendar year as determined in its sole
discretion by the Board. Any bonus payment to be made by REFAC to
TUCHMAN will be paid on or before March 31 of the year following the
year in respect of which the bonus is payable.
(c) Stock Options. REFAC has, pursuant to a separate
stock option agreement in the form annexed hereto as Appendix A,
granted TUCHMAN an option to purchase 100,000 shares of REFAC common
stock. REFAC agrees to submit a proposal at its 1997 Annual Meeting
of Stockholders to amend the 1990 Stock Option and Incentive Plan
(the "Plan") to increase the available shares subject to awards
under the Plan to a number which is sufficient to cover the grant to
TUCHMAN of the option provided for in this Section 6(c) and ratify
the grant of such option.
(d) Loans. As payment due upon the exercise by
TUCHMAN of his existing option to purchase an aggregate of 100,000
shares of REFAC Common Stock, REFAC will accept a promissory note
("Note") in the form annexed hereto as Appendix B. The Note will
bear interest annually at the Long-Term Applicable Federal Rate.
(e) Expenses. During the term of TUCHMAN's employment
hereunder, 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.
(f) Automobile. During the term of TUCHMAN's
employment hereunder, REFAC will provide TUCHMAN with an automobile
with a maximum monthly lease payment of $650 and with a lease term
of not less than 3 years.
(g) 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.
(h) 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.
(i) 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.
7. Key Man Life Insurance. REFAC intends to purchase a
five-year term policy of life insurance on the life of TUCHMAN in
the amount of $3,000,000 with REFAC as the beneficiary. TUCHMAN
will submit to such medical examinations, and to provide and/or
consent to the release of such medical information, as may be
necessary or desirable in order to secure the issuance thereof.
8. Termination. TUCHMAN's employment hereunder may be
terminated without any breach of this Agreement only under the
following circumstances:
(a) Death. TUCHMAN's employment hereunder will
terminate 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, 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 term 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, (ii) the willful engaging by TUCHMAN in conduct which in
the reasonable opinion of the Board is materially and demonstrably
injurious to REFAC or (iii) 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.
Notwithstanding the foregoing, TUCHMAN will not be deemed to have
been terminated for Cause within the meaning of clauses (i) and (ii)
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 (d) hereof, from the Board finding that, in the good
faith opinion of the Board, clause (i) or (ii) hereof may be
invoked, and specifying the particulars thereof in detail.
(d) Any termination of TUCHMAN'S employment by REFAC or
by TUCHMAN (other than termination pursuant to Section 8(a) hereof
but including termination pursuant to Section 10(a) hereof) 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.
(e) "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 8, three weeks after Notice of Termination, (iii) if
TUCHMAN's employment is terminated pursuant to paragraph (c) of this
Section 8 or Section 10(a), 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.
(f) 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 pursuant to Section 8
(a) hereof) TUCHMAN will, to the best of his knowledge, disclose or
provide for the disclosure to REFAC, orally or in writing as
appropriate, all information of a material nature relating to
existing or prospective clients and licensees and to matters in
which TUCHMAN shall prior to his Notice 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.
9. Compensation Upon Termination or During Disability.
(a) 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) 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 any bonus
payment pursuant to Section 6(b) shall be paid in accordance with
that Section) 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) If TUCHMAN's employment should be terminated by
REFAC for Cause or voluntarily without Good Reason (as defined in
Section 10(c) hereof) by TUCHMAN prior to the expiration date
hereof, 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. In such case, TUCHMAN will not be
entitled to the bonus payment contemplated by Section 6(b) in
respect of the calendar year in which such Date of Termination
occurred.
(d) If, in breach of this Agreement, REFAC should
terminate TUCHMAN's employment other than pursuant to Section 8(b)
or 8(c) hereof (it being understood that a purported termination
pursuant to Section 8(b) or 8(c) hereof which is disputed and
finally determined not to have been proper shall be a termination by
REFAC in breach of this Agreement and failure of REFAC to continue
to employ TUCHMAN in accordance with the material terms and
conditions set forth herein will be a deemed termination by REFAC in
breach of this Agreement), REFAC will pay TUCHMAN a lump sum equal
to his full salary through the expiration date of the Agreement at
the rate in effect at the time Notice of Termination is given plus
an additional amount equal to the bonus TUCHMAN received for the
calendar year prior to such termination, and will provide, except to
the extent that TUCHMAN shall receive similar benefits from a
subsequent employer, life, health and similar benefits (other than
stock options which are not exercisable at the time such notice is
given) to which TUCHMAN would have been entitled through the
expiration date of the Agreement under any such benefit plan of
REFAC.
(e) TUCHMAN will not be required to mitigate the amount
of any lump sum payment or bonus entitlement provided for in this
Section 9 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 9.
10. Change in Control of REFAC.
(a) Notwithstanding anything else in this Agreement,
if, within two (2) years following a Change in Control (as
hereinafter defined), TUCHMAN's employment is terminated by REFAC
(or any successor thereto) other than pursuant to Section 8(b) or
8(c) hereof, or TUCHMAN terminates his employment for Good Reason
(as hereinafter defined), TUCHMAN will receive within five (5) days
of his Date of Termination a lump sum payment (the "Severance
Payments") equal to the sum of (i) TUCHMAN's full salary through the
expiration date of the Agreement at the rate in effect at the time
Notice of Termination is given or for a full year, whichever is
greater, and (ii) a bonus payment equal to two times the amount of
the bonus paid or payable to TUCHMAN for the calendar year preceding
the Change in Control. Except to the extent that TUCHMAN shall
receive similar benefits from a subsequent employer, life, health
and similar benefits to which TUCHMAN would have been entitled
through the expiration date of the Agreement under any such benefit
plan of REFAC will be made available by REFAC to TUCHMAN. In
addition, if TUCHMAN's employment terminates pursuant to this Sec-
tion 10, the provisions of Section 11 of this Agreement will be of
no force and effect.
(b) For purposes of this Section 10, a "Change in
Control" will be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(i) any Person (as hereinafter defined) is
or becomes the Beneficial Owner (as hereinafter
defined), directly or indirectly, of securities of REFAC
(not including in the securities beneficially owned by
such Person any securities acquired directly from REFAC
or its affiliates) representing 25% or more of the com-
bined voting power of REFAC's then outstanding securi-
ties, excluding any Person who becomes such a Beneficial
Owner in connection with a transaction described in
clause (i) of paragraph (iii) below; or
(ii) the following individuals cease for any
reason to constitute a majority of the number of
directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other
than a director whose initial assumption of office is in
connection with an actual or threatened election
contest, including but not limited to a consent
solicitation, relating to the election of directors of
REFAC) whose appointment or election by the Board or
nomination for election by REFAC's stockholders was ap-
proved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either
were directors on the date hereof or whose appointment,
election or nomination for election was previously so
approved or recommended; or
(iii) there is consummated a merger or
consolidation of REFAC or any direct or indirect
subsidiary of REFAC with any other corporation, other
than (i) a merger or consolidation which would result in
the voting securities of REFAC outstanding immediately
prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity
or any parent thereof), in combination with the owner-
ship of any trustee or other fiduciary holding securi-
ties under an employee benefit plan of REFAC or any
subsidiary of REFAC, at least 60% of the combined voting
power of the securities of REFAC or such surviving
entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization
of REFAC (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly,
of securities of REFAC (not including in the securities
Beneficially Owned by such Person any securities
acquired directly from REFAC or its affiliates other
than in connection with the acquisition by REFAC or its
affiliates of a business) representing 25% or more of
the combined voting power of REFAC's then outstanding
securities; or
(iv) the stockholders of REFAC approve a
plan of complete liquidation or dissolution of REFAC or
there is consummated an agreement for the sale or dispo-
sition by REFAC of all or substantially all of REFAC's
assets, other than a sale or disposition by REFAC of all
or substantially all of REFAC's assets to an entity, at
least 60% of the combined voting power of the voting
securities of which are owned by stockholders of REFAC
in substantially the same proportions as their ownership
of REFAC immediately prior to such sale.
(c) For purposes of this Section 10, "Good Reason"
shall mean the occurrence (without TUCHMAN's express written
consent) after any Change in Control of any one of the following
acts by REFAC, or failures by REFAC to act, unless, in the case of
any act or failure to act described in paragraph (i), (iv) or (v)
below, such act or failure to act is corrected prior to the Date of
Termination specified in the Notice of Termination given in respect
thereof:
(i) the assignment to TUCHMAN of any
duties inconsistent with TUCHMAN's status as Chief
Executive Officer of REFAC or a substantial adverse
alteration in the nature or status of TUCHMAN's
responsibilities from those in effect immediately prior
to the Change in Control;
(ii) the relocation of TUCHMAN's principal
place of employment to a location more than 50 miles
from TUCHMAN's principal place of employment immediately
prior to the Change in Control or REFAC's requiring
TUCHMAN to be based anywhere other than such principal
place of employment (or permitted relocation thereof),
except for required travel on REFAC's business to an
extent substantially consistent with TUCHMAN's present
business travel obligations;
(iii) the failure by REFAC to pay to TUCHMAN
any portion of TUCHMAN's current compensation;
(iv) the failure by REFAC to continue in
effect any compensation plan in which TUCHMAN
participates immediately prior to the Change in Control
which is material to TUCHMAN's total compensation or any
substitute plans adopted prior to the Change in Control,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with
respect to such plan, or the failure by REFAC to
continue TUCHMAN's participation therein (or in such
substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount
or timing of payment of benefits provided and the level
of TUCHMAN's participation relative to other
participants, as existed immediately prior to the Change
in Control;
(v) the failure by REFAC to continue to
provide TUCHMAN with benefits substantially similar to
those enjoyed by TUCHMAN under any of REFAC's pension,
savings, life insurance, medical, health and accident,
or disability plans in which TUCHMAN was participating
immediately prior to the Change in Control (except for
across the board changes similarly affecting all senior
executives of REFAC and all senior executives of any
Person in control of REFAC), the taking of any other ac-
tion by REFAC which would directly or indirectly materi-
ally reduce any of such benefits or deprive TUCHMAN of
any material fringe benefit enjoyed by TUCHMAN at the
time of the Change in Control, or the failure by REFAC
to provide TUCHMAN with the number of paid vacation days
to which TUCHMAN is entitled on the basis of this
Agreement; or
(vi) any purported termination of TUCHMAN's
employment by REFAC which is not effected pursuant to a
Notice of Termination satisfying the requirements of
Section 8(d) hereof; for purposes of this Agreement, no
such purported termination shall be effective.
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. For purposes of
any determination regarding the existence of Good Reason, any claim
by TUCHMAN that Good Reason exists shall be presumed to be correct
unless REFAC establishes to the Board by clear and convincing
evidence that Good Reason does not exist.
(d) For purposes of this Section 10, "Person" shall
have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) REFAC or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of REFAC or any of its affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering
of such securities, or (iv) a corporation owned, directly or indi-
rectly, by the stockholders of REFAC in substantially the same
proportions as their ownership of stock of REFAC.
(e) For Purposes of this Section 10, "Beneficial Owner"
shall have the meaning set forth in Rule 13d-3 under the Exchange
Act.
(f) (A) In the event that any payment or benefit
received or to be received by TUCHMAN in connection with a Change in
Control or the termination of TUCHMAN's employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement or
agreement with REFAC, any Person whose actions result in a Change in
Control or any Person affiliated with REFAC or such Person) (all
such payments and benefits, including the Severance Payments, being
hereinafter called "Total Payments") would not be deductible (in
whole or part), by REFAC, an affiliate or Person making such payment
or providing such benefit as a result of section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), then, to the
extent necessary to make such portion of the Total Payments deduct-
ible (and after taking into account any reduction in the Total
Payments provided by reason of section 280G of the Code in such
other plan, arrangement or agreement), the cash Severance Payments
shall first be reduced (if necessary, to zero), and all other
payments shall thereafter be reduced (if necessary, to zero);
provided, however, that TUCHMAN may elect to have the noncash pay-
ments reduced (or eliminated) prior to any reduction of the cash
Severance Payments.
(B) For purposes of this limitation, (i) no
portion of the Total Payments the receipt or enjoyment of which
TUCHMAN shall have waived at such time and in such manner as not to
constitute a "payment" within the meaning of section 280G(b) of the
Code shall be taken into account, (ii) no portion of the Total
Payments shall be taken into account which, in the opinion of tax
counsel ("Tax Counsel") reasonably acceptable to TUCHMAN and se-
lected by the accounting firm which was, immediately prior to the
Change in Control, REFAC's independent auditor (the "Auditor"), does
not constitute a "parachute payment" within the meaning of section
280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A)
of the Code, (iii) the Severance Payments shall be reduced only to
the extent necessary so that the Total Payments (other than those
referred to in clauses (i) or (ii)) in their entirety constitute
reasonable compensation for services actually rendered within the
meaning of section 280G(b)(4)(B) of the Code or are otherwise not
subject to disallowance as deductions by reason of section 280G of
the Code, in the opinion of Tax Counsel, and (iv) the value of any
noncash benefit or any deferred payment or benefit included in the
Total Payments shall be determined by the Auditor in accordance with
the principles of sections 280G(d)(3) and (4) of the Code.
(C) If it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding
that, notwithstanding the good faith of TUCHMAN and REFAC in
applying the terms of this Section 10(f), the Total Payments paid to
or for TUCHMAN's benefit are in an amount that would result in any
portion of such Total Payments being subject to the Excise Tax,
then, if such repayment would result in (i) no portion of the
remaining Total Payments being subject to the Excise Tax and (ii) a
dollar-for-dollar reduction in TUCHMAN's taxable income and wages
for purposes of federal, state and local income and employment
taxes, TUCHMAN will have an obligation to pay REFAC upon demand an
amount equal to the sum of (i) the excess of the Total Payments paid
to or for TUCHMAN's benefit over the Total Payments that could have
been paid to or for TUCHMAN's benefit without any portion of such
Total Payments being subject to the Excise Tax; and (ii) interest on
the amount set forth in clause (i) of this sentence at the rate
provided in section 1274(b)(2)(B) of the Code from the date of
TUCHMAN's receipt of such excess until the date of such payment.
11. Noncompetition.
(a) TUCHMAN will not, except as hereinafter set forth,
engage in any Competitive Activity (as hereinafter defined) during
the term of this Agreement or during the 18 month period commencing
on the Date of Termination hereunder unless terminated by REFAC
without Cause or by TUCHMAN for Good Reason. 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 at the Date of Termination.
(b) Nothing herein contained will prohibit TUCHMAN from
the following:
(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.
(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.
12. Successors Binding Agreement.
(a) 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.
(b) 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.
13. 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 Technology Development Corporation
122 East 42nd Street, Suite 4000
New York, New York 10017
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 735-3000
Telecopy: (212) 735-2000
Attention: Mark N. Kaplan, 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.
14. 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.
15. 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.
16. Counterparts. This Agreement may be executed in one 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.
17. 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.
18. Confidentiality. As an officer and director of REFAC,
TUCHMAN will become 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 years after 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, provided that this clause shall not apply to
parties who TUCHMAN, prior to his employment by REFAC, shall have
regularly served as counsel or with whom TUCHMAN shall have engaged
in any business activity.
(c) For a period of two years after 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.
19. Each of the parties hereto acknowledges that in the
event of any breach of Section 11 or 18 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 such Sections of this Agreement.
TUCHMAN hereby acknowledges and agrees that the restrictive
covenants contained in Sections 11 and 18 of this Agreement,
(including the geographic reach provision of Section 11 and the
duration of such covenants) as provided for in such provisions, are
reasonable and fully necessary for the protection of the legitimate
interests of REFAC and are not oppressive to the interest of
TUCHMAN.
20. Entire Agreement. Except as provided in Sections 6(c)
and 6(d), 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; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and
canceled.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
Robert L. Tuchman
Robert L. Tuchman
REFAC TECHNOLOGY
DEVELOPMENT CORPORATION
Eugene M. Lang
By: Eugene M. Lang
Chairman<PAGE>
APPENDIX A
1990 STOCK OPTION AND INCENTIVE PLAN OF
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT SCHEDULE
Identification.
1. Name of Grantee: Robert L. Tuchman
2. Address of Grantee: 1 Vultee Drive
Florham Park, NJ 07932
3. Social Security Number of Grantee: ###-##-####
4. Date of Option Agreement: December 13, 1996
Terms of Grant.
1. INCENTIVE STOCK OPTIONS
a. Date of grant and number
of shares granted 12/13/96 100,000
b. Option prices $9.25
c. Expiration dates Ten years from date of grant
d. Times at which options
become exercisable 20,000 exercisable immediately
and 20,000 per year commencing
on the first anniversary
hereof
<PAGE>
1990 STOCK OPTION AND INCENTIVE PLAN
OF REFAC TECHNOLOGY DEVELOPMENT CORPORATION
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is between REFAC
TECHNOLOGY DEVELOPMENT CORPORATION, a Delaware corporation (the "Employer),
and the employee whose name appears on the Schedule attached to this Agreement
(the "Grantee"), under the 1990 Stock Option and Incentive Plan of the
Employer (the "Plan").
Because of exceptional services provided by the Grantee to the
Employer, and/or in order to provide an incentive to the Grantee to exert his
utmost efforts on behalf of the Employer, the Grantee has been awarded one or
more Options on the terms and conditions set forth in the Plan, the Agreement
and the Schedule.
Terms which are defined in the Plan will have the meanings set
forth therein and the following terms will have the following meanings when
used in this Agreement:
"Expiration Date" is the earliest of (1) the last date on which
any Options can be exercised as set forth in the Schedule, (2) 90 days after
the date of termination of the Grantee other than for cause or by reason of
death, Disability or retirement, (3) one year after the death, Disability or
retirement of the Grantee, (4) the date of termination for any other reason or
(5) the date 10 years after the date of grant.
"Schedule" means the schedule attached to the end of this
Agreement listing information about the Options being granted to the Grantee.
Section 1. Options. To the extent indicated in the Schedule, the
Grantee is hereby granted one or more Options to purchase shares of Common
Stock, par value of $0.10, of the Employer.
Section 2. Exercise of Rights.
2.1 Times when Common Stock can be Purchased. Subject to the
provisions of the Plan and except as noted on the Schedule, Options will
become exercisable immediately on the date of grant.
2.2 Notice. If the holder of an Option wishes to exercise any of
the holder's rights, the holder must give notice of exercise to the Employer
at the Employer's principal office. The holder must give the notice in
writing in form satisfactory to the Committee. The holder must include with
the notice full payment for any Common Stock being purchased under any Option
(unless, in accordance with the Plan, the Committee shall have provided
otherwise), and any taxes due under Section 2.3 hereof.
2.3 Payment.
2.3.1 Payment of the Option Price for any Common Stock
being purchased under an option must be made in cash, by certified or bank
check or by delivering to the Employer stock of the Employer which the Grantee
already owns. If the Grantee pays by delivering stock of the Employer, the
holder must include with the notice of exercise the certificates for the stock
duly endorsed for transfer. The Employer will value the stock delivered by
the Grantee at its Fair Market Value on the date of receipt as set forth in
the Plan and, if the value of the stock delivered by the Grantee exceeds the
amount required under this Section 2.3.1., will return to the Grantee cash in
an amount equal to the value, so determined, of any fractional portion of a
share of stock exceeding the amount required and will issue a certificate for
any whole share of stock exceeding the amount required.
2.3.2 The holder cannot buy any Common Stock under an
Option unless, at the time the holder gives notice of exercise to the
Employer, the holder includes with such notice payment in cash or by certified
or bank check of all local, state or federal withholding taxes due, if any, on
account of buying Common Stock under the Option or gives other assurance to
the Employer satisfactory to the Committee of the payment of those withholding
taxes.
2.4 Transfer.
2.4.1 The Employer shall deliver certificates for Common
Stock bought under an Option as soon as practicable after receiving payment
for the Common Stock and for any taxes under Section 2.3 hereof, and all
documents required under the Plan and the Agreement. The certificates will be
made out in the name of the holder and shall be legended as follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be sold,
transferred, pledged, hypothecated or offered for sale in the absence of
an effective registration statement relating to such shares under such
Act or a written opinion of counsel to Refac Technology Development
Corporation that such registration is not required."
2.4.2 If the Plan or any law, regulation or interpretation
requires the Employer to take any action regarding the Common Stock, before
the Employer issues certificates for the Common Stock being purchased, the
Employer may delay delivering the certificates for the Common Stock for the
period necessary to take that action.
Section 3. Termination. In the event that the employment of a
Grantee shall terminate (other than for cause or by reason of death,
Disability or retirement), all Options then outstanding (and not earlier
terminated in accordance with their terms), may be exercised by such Grantee
within ninety (90) days after the date of such termination. If a Grantee dies
(a) while employed by the Company or a subsidiary thereof or (b) within ninety
(90) days after the date of such Grantee's termination (other than for cause),
or, if the Grantee's employment is terminated by reason of Disability or
retirement, all Options then outstanding (and not earlier terminated in
accordance with their terms), may be exercised by such Grantee (or his legal
representative) within one year after the date of death, Disability or
retirement. In the case of the termination of a Grantee for any other reason
no Common Stock may be purchased by or on behalf of the holder under any
Option.
Section 4. Cancellation of Rights and Limited Rights. Pursuant
to the provisions of the Plan, upon the exercise of a Right or Limited Right
granted in tandem with an Option, the Related SAR Option or Related LSAR
Option shall cease to be exercisable to the extent of the shares of Common
Stock with respect to which such Right or Limited Right is exercised. Upon
the exercise or termination of a Related SAR Option or Related LSAR Option,
the Right or Limited Right with respect to such Related SAR Option or related
LSAR Option shall terminate to the extent of the shares of Common Stock with
respect to which the Related SAR Option or Related LSAR Option was exercised
or terminated.
Section 5. Governing Provisions. The Agreement is made under and
subject to the provisions of the Plan, and all of the provisions of the Plan
are also provisions of the Agreement. If there is a difference or conflict
between the provisions of the Agreement and the provisions of the Plan, the
provisions of the Plan will govern. By signing the Agreement, the Grantee
confirms that he has received a copy of the Plan.
5.1 Entire Agreement. This Agreement, the Plan and the Schedule
contain all of the understandings between the Employer and Grantee concerning
all Options granted under the Plan, and includes all earlier negotiations and
understandings. The Employer and Grantee have made no promises, agreements,
conditions or understandings, either orally or in writing, that are not
included in the Agreement, the Plan or the Schedule.
5.2 Employment. By establishing the Plan, granting rights under
the Plan and entering into the Agreement, the Employer does not give Grantee
any right to continue to be employed by the Employer or to be entitled to,any
remuneration or benefits not set forth in the Agreement, the Plan or the
Schedule. None of the provisions of the Agreement, the Plan or the Schedule
will interfere with or limit the right of the Employer to end Grantee's
employment at any time.
5.3 Captions. The captions and section numbers appearing in the
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of the
Agreement.
5.4 Counterparts. The Agreement may be executed in counterparts,
each of which when signed by the Employer and Grantee will be deemed an
original and all of which together will be deemed the same Agreement.
5.5 Notice. Any notice or communication having to do with the
Agreement must be given by personal delivery or by certified mail, return
receipt requested, addressed, if to the Employer or the Committee, to the
principal office of the Employer and, if to Grantee, to Grantee's last known
address on the personnel records of the Employer.
5.6 Amendment. The Agreement may be amended by the Employer as
provided by the Plan. However, unless Grantee consents, the Employer cannot
amend the Agreement if the amendment will materially change or impair the
holder's rights under the Agreement and such change is not to the holder's
benefit.
5.7 Succession and Transfer. Each and all of the provisions of
the Agreement are binding upon and inure to the benefit of the Employer and
Grantee and their heirs, successors and assigns. However, except as agreed in
writing between the parties, the holder may not sell, give, transfer, encumber
or assign, or use as collateral, any of the holder's rights under the
Agreement or the Plan.
5.8 Governing Law. The Agreement shall be governed and construed
exclusively in accordance with the law of the State of New York applicable to
agreements to be performed in the State of New York to the extent it may
apply.
The Employer and Grantee have caused Agreement to be signed and
delivered as of the date set forth on the Schedule.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By Eugene M. Lang, Chairman
(Title)
Robert T. Tuchman
(Grantee)
<PAGE>
APPENDIX B
PROMISSORY NOTE
New York, New York
December 13, 1996
FOR VALUE RECEIVED, Robert L. Tuchman ("TUCHMAN"), hereby unconditionally
promises to pay to the order of REFAC Technology Development Corporation, a
Delaware corporation ("REFAC"), in lawful money of the United States of
America and in immediately available funds, the principal amount of THREE
HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($375,000). The principal amount
shall be due and payable in full on the earlier of (i) December 13, 2006; or
(ii) if TUCHMAN retires from or terminates his employment with REFAC prior to
December 13, 2006, one (1) year from the date of such retirement or
termination of employment; provided however, if TUCHMAN sells any of his
shares of REFAC Common Stock, five days from the date of such sale, TUCHMAN
shall pay the amount received for such shares to REFAC.
TUCHMAN agrees to pay interest in respect of the unpaid principal
amount hereof from the date hereof until the principal amount hereof shall be
paid in full at a rate per annum which shall be equal to the Long-Term
Applicable Federal Rate. Interest on the principal amount hereof shall accrue
from and including the date hereof and shall be payable in arrears annually on
December 31 and when the principal amount hereof becomes due.
TUCHMAN may prepay all or any portion of the outstanding principal
amount hereunder at any time and from time to time, without premium or
penalty.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
ROBERT L. TUCHMAN
Robert L. Tuchman
