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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange
Act of 1934
Date of report (Date of earliest event reported): October 17, 2005
Lifetime Brands, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-19254 11-2682486
(Commission File Number) (IRS Employer Identification No.)
One Merrick Avenue, Westbury, New York, 11590
(Address of Principal Executive Offices)(Zip Code)
(Registrant's Telephone Number, Including Area Code) 516-683-6000
(Former Name or Former Address, if Changed Since Last
Report) N/A
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see
General Instruction A.2. below):
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-
2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-
4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On October 17, 2005, Lifetime Brands, Inc. (the "Company")
entered into an employment agreement pursuant to which the
Company employs Ronald Shiftan as the Company's Vice
Chairman and Chief Operating Officer. The following is a
summary of significant terms of the agreement:
(i) Mr. Shiftan's term of employment under the Agreement
will commence on July 1, 2005 and will expire on June 30,
2010. On each anniversary of that date thereafter, the term
of the Agreement shall be extended for an additional one
year period unless either the Company or Mr. Shiftan gives
notice of the intention not to extend the term at least 90
days prior to each such anniversary date.
(ii) Mr. Shiftan's initial base salary will be $400,000 per
year, subject to annual increases each January 1st based on
increases in the Bureau of Labor Statistics Consumer Price
Index for All Urban Consumers.
(iii) Commencing with the year ending December 31, 2005,
Mr. Shiftan will receive an annual cash bonus equal to six-
percent of the annual increase in the Company's income
before taxes (excluding items that appear on the audited
financial statements as extraordinary items and items that
the Board of Directors, in its sole discretion, determines
are outside of the ordinary course of business) over the
prior year.
(iv) On October 17, 2005, the Board of Directors granted an
option to Mr. Shiftan to purchase 350,000 shares of the
Company's common stock pursuant to the Company's 2000 Long-
Term Incentive Plan. The options are exercisable at $24.23
per share (the closing price of the Company's common stock
on October 17, 2005) and expire five years from the date
of grant. Twenty five percent of the options vest and become
exercisable on October 6, 2005, and the remaining options
vest and become exercisable ratably each quarter thereafter
commencing on December 31, 2005 through June 30, 2010.
(v) Mr. Shiftan agreed to certain restrictive covenants
including an agreement not to compete with the Company
during the term of his employment and for a period of five
years thereafter.
A copy of the Agreement is attached hereto as Exhibit 10.1
and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits.
10.1 Employment agreement dated October 17, 2005
between Lifetime Brands, Inc. and Ronald Shiftan.
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of this 17th day of October, 2005,
by and between LIFETIME BRANDS, INC., a Delaware corporation
(the "Employer"), and RONALD SHIFTAN (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is willing to serve as the Vice
Chairman and Chief Operating Officer of the Employer and the
Employer desires to retain the Executive in such capacity on
the terms and conditions herein set forth; and
NOW, THEREFORE, in consideration of the promises and
the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Employment and Duties
(a) General. Effective as of July 1, 2005 (the
"Effective Date"), the Employer hereby employs the Executive
as the Vice Chairman and Chief Operating Officer of the
Employer, and the Executive agrees upon the terms and
conditions herein set forth to be employed by the Employer.
In such capacity, the Executive shall report directly to the
Chief Executive Officer of the Employer. The Executive
shall perform all of the duties normally accorded to such
position, as directed by the Employer.
(b) Services. For so long as the Executive is employed
by the Employer, the Executive shall perform his duties
faithfully and shall devote his full business time,
attention and energies to businesses of the Employer, and
while employed, shall not engage in any other business
activity that is in conflict with his duties and obligations
to the Employer.
(c) No Other Employment. During the Term, the
Executive shall not, directly or indirectly, render services
to any other person or organization for which he receives
compensation; provided, however, that upon the receipt of
the Board's prior written approval to be granted in its sole
discretion, which approval shall not unreasonably be
withheld, the Executive may accept an election to the board
of directors of no more than two other companies without
being deemed to have violated Section 1(b) hereof, provided
that such activities do not otherwise conflict with his
duties and obligations to the Employer. No such approval
will be required if the Executive seeks to perform services
without direct compensation therefore in connection with the
management of personal investments or in connection with the
performance of charitable and civic activities, provided
that such activities do not contravene the provisions of
Section 1(b) and Section 5 thereof.
(d) Board Membership. The Executive is currently Vice
Chairman and a member of the Board of Directors of the
Employer. The Employer shall recommend that Executive be
nominated for re-election to the Board and to be re-
appointed Vice Chairman of the Board annually during the
Term. Upon request by the Employer at the end of the Term,
or upon notice given by the Employer or Employee of the
intention not to extend the Term, the Executive shall resign
his membership on the Board of Directors and resign as Vice
Chairman at the time he is no longer employed by the
Employer.
2. Term of Employment.
Term. The term of the Executive's employment under
this Agreement (the "Term") shall commence on the Effective
Date and continue until June 30, 2010, unless his employment
is sooner terminated pursuant to the provisions of Section 4
hereof; provided, however, that commencing on June 30, 2010
and on each anniversary of that date thereafter, the Term
shall be extended for an additional one year period unless
either party gives notice of the intention not to extend the
Term at least 90 days prior to each such anniversary date.
3. Compensation and Other Benefits. Subject to the
provisions of this Agreement, the Employer shall pay and
provide the following compensation and other benefits to the
Executive during the Term as compensation for all services
rendered hereunder:
(a) Salary. As of the Effective Date, the Employer
shall pay to the Executive a base salary (the "Salary") at
an initial annual rate of $400,000, payable to the Executive
in accordance with the normal payroll practices of the
Employer as are in effect from time to time. On an annual
basis, commencing on January 1, 2006, the amount of the
Executive's Salary shall be reviewed by the Employer and
shall be increased, but not decreased, by the percentage by
which the Bureau of Labor Statistics Consumer Price Index
for All Urban Consumers (CPI-U) all items index, New
York-Northern New Jersey-Long Island, NY-NJ-CT-PA (the
"Relevant CPI Index") for the December immediately preceding
the January 1 in question, increased over the Relevant CPI
Index for the December of the previous year. For example,
if the Relevant CPI Index for December 2005 increased by 1%
over the Relevant CPI Index for December 2004, the
Executive's Salary shall increase by 1% effective January 1,
2006.
(b) Annual Cash Bonus. In each year of the Agreement,
commencing for the year ended December 31, 2005, the
Executive shall receive an Annual Cash Bonus of 6% (six
percent) of the annual increase of the Employer's Income
Before Income Taxes ("IBIT") over the Employer's IBIT for
the immediately prior year, as determined by the Employer's
independent auditors, using Generally Accepted Accounting
Principles and reported in the Employer's Consolidated
Statements of Income in its Annual Report, except however,
that for purposes of determining the Annual Cash Bonus, IBIT
shall exclude (i) extraordinary items that appear on the
audited financial statements as extraordinary items, and
shall also exclude (ii) items that the Board of Directors,
in its sole discretion, determines are outside of the
ordinary course of business. Salary paid to the Executive
shall not be excluded in determining IBIT; but the amount of
the annual cash bonus to be paid or accrued shall be
excluded in both years of the comparison. Charges to income
resulting from grants of stock options or other equity based
compensation shall not be considered extraordinary items or
items outside of the ordinary course of business and
therefore shall not be excluded from IBIT (except such
grants shall be excluded from the calculation of IBIT for
2006 only when IBIT for 2006 is compared to 2005; such
grants shall not be excluded from 2006 when 2007 is compared
to 2006). As examples, at the end of 2005, the Executive
shall receive an Annual Cash Bonus of 6% of the increase in
the Employer's 2005 IBIT over the Employer's 2004 IBIT, in
each case with the exclusions and inclusions set forth
above. For 2006, the Executive shall receive an Annual Cash
Bonus of 6% of the increase in the Employer's 2006 IBIT over
the Employer's 2005 IBIT, in each case with the exclusions
and inclusions set forth above. If the term of this
Agreement is not extended beyond June 30, 2010 Executive
shall be eligible to receive an Annual Cash Bonus of 3% of
the increase in the Employer's IBIT for the year 2010 over
Employer's IBIT for the year 2009 as reported on Employer's
Form 10-K, for the year ended December 31, 2010, with the
exclusions and inclusions set forth above. In any year in
which its Term of this Agreement is not extended beyond June
30th of that year as a result of a non extension of this
Agreement pursuant to Section 2, the Executive shall be
eligible to receive an Annual Cash Bonus determined as
described in the preceding sentence. The Annual Cash Bonus
for any year shall be paid to the Executive no later than
February 15 of the following year or as soon thereafter as
is administratively practical, and, in the case of a partial
year, within two and one half months of the termination of
employment or as soon thereafter as is administratively
practical. The Executive shall be entitled to participate
in any other annual bonus plan maintained by the Employer
for its senior executives on such terms and conditions as
may be determined from time to time by the Compensation
Committee of the Board.
(c) Initial Option Grant. The Board of Directors on
October 17, 2005 granted an option to Executive to purchase
350,000 shares of the Employer's common stock (the "Stock")
pursuant to the Employer's 2000 Long-Term Incentive Plan, as
it may be amended from time to time, equal to the closing
price of the common stock on the date hereof. The options
are exercisable no more than five (5) years from the date of
grant. Twenty Five percent (25%) of the options vest and
become exercisable on October 6, 2005, and the balance shall
vest and become exercisable quarterly in equal quarterly
installments thereafter commencing on December 31, 2005.
Such options shall be subject to earlier vesting as provided
elsewhere in this Agreement.
(d) Expenses. The Employer shall promptly reimburse
the Executive for all reasonable out-of-pocket expenses
incurred by the Executive in connection with his employment
hereunder upon submission of appropriate documentation or
receipts in accordance with the policies and procedures of
the Employer as in effect from time to time. In addition,
the Executive shall be reimbursed up to $10,000 for legal
fees incurred in connection with this Agreement.
(e) Pension, Welfare and Fringe Benefits. During the
Term, the Executive shall be eligible to participate in the
pension, medical, disability and life insurance plans
applicable to senior executives of the Employer generally in
accordance with the terms of such plans as in effect from
time to time. The foregoing shall not be construed to limit
the ability of the Employer or any of its affiliates to
amend, modify or terminate any such benefit plans, policies
or programs at any time and from time to time.
(f) Life, Disability Insurance. The Employer shall
reimburse the Executive for the first $20,000 of total
premiums per year with respect to a life insurance policy on
the life of the Executive which policy shall be purchased by
Executive and owned by the Executive and the benefits of
which shall be payable to the Executive's beneficiaries and
a long-term disability insurance policy to be purchased by
Executive and owned by the Executive for the benefit of the
Executive.
(g) Vacation. During each year of the Term the
Executive shall be eligible for thirty (30) days paid
vacation, in accordance with the policies periodically
established by the Board for similarly situated senior
executives of the Employer.
(h) Automobile Allowance. The Executive shall be
entitled to an automobile allowance of $1,000 per month
during the Term.
4. Termination of Employment. Subject to the notice
and other provisions of this Section 4, the Employer shall
have the right to terminate the Executive's employment
hereunder, and the Executive shall have the right to resign,
at any time for any reason or for no stated reason.
(a)Termination for Cause; Resignation Without Good
Reason.
(i) If, prior to the expiration of the Term,
the Executive's employment is terminated by the Employer for
"Cause" (as defined below) or if the Executive resigns from
his employment hereunder other than for "Good Reason" (as
defined below), the Executive shall be entitled to the
following amounts only: (A) payment of his Salary accrued
up to and including the date of termination or resignation,
(B) payment in lieu of any accrued but unused vacation time,
and (C) payment of any unreimbursed expenses (collectively,
the "Accrued Obligations"). Except to the extent required
by the terms of the programs described in Section 3(e) or
applicable law, the Executive shall have no further right
under this Agreement or otherwise to receive any other
compensation or to participate in any other plan, program or
arrangement after such termination or resignation of
employment.
(ii) "Cause" means that the Executive has (A)
committed any act of willful misconduct, including fraud, in
connection with his employment by the Employer; (B)
materially breached any provision of the Agreement, which
breach has not been cured within 10 business days after
receiving written notice of such breach; (C) failed, refused
or neglected, other than by reason of a Disability (as
defined below), to timely perform any material duty or
obligation under the Agreement or to comply with any lawful
directive of the Chief Executive Officer or the Board, which
failure, refusal or neglect has not been cured within 10
business days after receiving written notice thereof; (D)
been formally indicted for a crime involving moral
turpitude, dishonesty, fraud or unethical business conduct;
(E) violated a fiduciary obligation to the Employer; (F)
been determined by a governmental body or other appropriate
authority to have violated any material law or regulation
that is applicable to the Employer's businesses, or entered
into a consent order concerning a violation of any material
law or regulation that is applicable to the Employer's
business; or (G) become the subject of an SEC action or
administrative proceeding which has been commenced against
him. Upon a cure of the acts set forth in subsections (B) or
(C) by the Executive within the 10 business day cure period
to the reasonable satisfaction of the Board, such event
shall no longer constitute Cause for purposes of this
Agreement.
(iii) "Good Reason" means the occurrence of
any of the following without the Executive's prior written
consent: (A) a material diminution in the Executive's
duties, or the assignment to the Executive of duties
materially inconsistent with his authority, responsibilities
and reporting requirements as set forth in Section 1 of this
Agreement; (B) the failure of the Board or a nominating
committee thereof to nominate the Executive for election to
the Board; (C) the Employer, the Board or any person
controlling the Employer requires the Executive to relocate
his principal place of employment to a location other than
New York, New Jersey or Connecticut unless such relocation
is temporary or the result of exigent circumstances; or (D)
the failure of the Employer to obtain the assumption in
writing of its obligations to perform this Agreement by any
successor to all or substantially all of the business or
assets of the Employer not later than the effective date of
such transaction. In the event that Executive elects to
terminate the Agreement for Good Reason, he shall notify the
Employer in writing of the grounds for such termination
within thirty (30) days of the commencement of such
condition and the Employer shall have twenty (20) days from
receipt of such notice to cure such condition.
(iv) Termination of the Executive's
employment for Cause shall be communicated by delivery to
the Executive of a written notice from the Employer stating
that the Executive will be terminated for Cause, specifying
the particulars thereof and the effective date of such
termination; provided, however, that no such written notice
shall be effective unless the cure period specified in
Section 4(a)(ii)(B) or (C) (if applicable) has expired
without the Executive having corrected the event or events
subject to cure. The date of a resignation by the Executive
without Good Reason shall be the date specified in a written
notice of resignation from the Executive to the Employer;
provided, however, that the Executive shall provide at least
30 days' advance written notice of resignation without Good
Reason.
(b) Involuntary Termination.
(i) If, prior to the expiration of the Term,
the Employer terminates the Executive's employment for any
reason other than Disability or Cause or the Executive
resigns from his employment hereunder for Good Reason (such
a resignation or termination being hereinafter referred to
as an "Involuntary Termination"), the Executive shall be
entitled to payment of the Accrued Obligations. In
addition, in the event of the Executive's Involuntary
Termination, the Employer shall, conditioned upon the
Executive's execution of a customary release of all claims
against the Employer and its officers, directors,
shareholders and affiliates, if any, in a form prescribed by
the Employer, continue to pay to the Executive as severance
(the "Severance Payments"), if the date of the Involuntary
Termination is on or after July 1, 2006: the lesser of (x)
$400,000 or (y) his Salary remaining to the end of the Term
(the "Severance Period"), plus (z) any Annual Cash Bonus
accrued to the date of Termination calculated in accordance
with Section 3(b). In the event of the Executive's
Involuntary Termination prior to July 1, 2006, he shall
receive as severance during the Severance Period his Salary
remaining to the end of the Term plus any Annual Cash Bonus
accrued to the date of termination as in (z) above. In
addition, in the event of the Executive's Involuntary
Termination, all of the Executive's then-outstanding stock
options shall be immediately vested and exercisable.
Anything in this Agreement to the contrary notwithstanding,
no Severance Payments shall be payable under this Section
4(b) if the Executive's employment with the Employer ends at
the expiration or non-renewal of the Term in accordance with
Section 2.
(ii) In the event of the Executive's
Involuntary Termination, the Executive shall continue to
participate on the same terms and conditions as are in
effect immediately prior to such termination or resignation
and at the Employer's expense in the Employer's health and
medical plans and any other benefits provided to the
Executive pursuant to Section 3(e) above at the time of such
Involuntary Termination until the end of the Term or until
the Executive obtains other employment, whichever occurs
first. Anything herein to the contrary notwithstanding, the
Employer shall have no obligation to continue to maintain
any plan, program or level of benefits solely as a result of
this Agreement. In the event of the Executive's death
subsequent to his Involuntary Termination, but prior to the
end of the Severance Period, the balance of the Severance
Payments shall continue to be paid in periodic installments
to the Executive's Beneficiary (as hereinafter defined) for
the balance of the Severance Period; provided, however, that
the Employer, in its sole discretion, may at any time pay
such Beneficiary the then remaining Severance Payments in a
cash lump sum.
(iii) The date of termination of employment
without Cause shall be the date specified in a written
notice of termination to the Executive. The date of
resignation for Good Reason shall be the date specified in a
written notice of resignation from the Executive to the
Employer, provided, however, that no such written notice
shall be effective unless the cure period specified in
Section 4(a)(iii) (if applicable) above has expired without
the Employer having corrected the event or events subject to
cure.
(c) Involuntary Termination in Connection with Certain
Changes in Control.
If, during the Term, the Employer undergoes a "Change
in Control" (as defined below), and either (x) the
Executive's employment is thereafter terminated under
circumstances that would constitute an Involuntary
Termination or (y) the Executive undergoes an Involuntary
Termination and within 90 days of the Involuntary
Termination, the Employer executes a definitive agreement to
enter into a transaction the consummation of which would
result in a "Change in Control" and such transaction is
actually consummated, all of the Executive's then-
outstanding stock options shall be immediately vested and
exercisable and the Executive shall receive, conditioned
upon his execution of a customary release of all claims
against the Employer, successor, officers, directors,
employees and its affiliates, if any, in a form prescribed
by the Employer, in lieu of Severance Payments, a "Change in
Control Severance Payment" equal to the lesser of (x) 2.99
times the average of the Executive's Annual Cash Bonus and
Salary for the three years immediately preceding the change
of control, or (y) 1% of the Employer's market
capitalization (the closing price of the Employer's common
stock on the date the Change in Control is effected,
multiplied by the number of shares of common stock issued
and outstanding on that date) in excess of $220,000,000, (z)
up to a maximum Change in Control Severance Payment of
$2,500,000, plus the continuation of benefits in accordance
with the terms of Section 3(e). The Employer shall make the
payments and provide the benefits to be paid and provided
under this Agreement; provided, however, (1) under no
circumstances shall the maximum Change of Control Severance
Payment exceed $2,500,000, plus the continuation of
benefits in accordance with Section 3(e), and (2) if all or
any portion of the payments and benefits provided under this
Agreement, either alone or together with other payments and
benefits which the Executive receives or is then entitled to
receive from the Employer or otherwise, would constitute a
"parachute payment" within the meaning of Section 280G of
the Code (or a similar or successor provision), the Employer
shall reduce such payments hereunder and such other payments
to the extent necessary so that (A) no portion thereof shall
be subject to the excise tax imposed by Section 4999 of the
Code (or a similar or successor provision); and (B) the
maximum Change of Control Severance Payment of $2,500,000
plus the continuation of benefits in accordance with the
terms of Section 3(e) is not exceeded, and (C) by reason of
such reduction, the net after-tax benefit to the Executive
shall exceed the net after-tax benefit if such reduction
were not made. The determination of whether the payments
shall be reduced as provided in this Section 4(c) and the
amount of such reduction shall be made at the Employer's
expense by a public accounting firm retained by the Employer
at the time the calculation is to be performed, the
selection of which is agreed to by the Executive, such
agreement not to be unreasonably withheld (the "Accounting
Firm"). The Accounting Firm shall provide its
determination, together with detailed supporting
calculations and documentation to the Employer and the
Executive within twenty (20) business days of the payment of
the initial installment of the Change in Control Severance
Payment, or within such time as is administratively
practical. The Executive may review these calculations for
a period of twenty days and may retain another accounting
firm (at his own expense) for such review and submit
objections during such twenty-day review period.
Notwithstanding anything to the contrary that may result
from these calculations, the maximum Change of Control
Severance Payment shall not exceed $2,500,000 plus the
continuation of benefits in accordance with the terms of
Section 3(e).
(i) "Change in Control" means (A) the
consummation of a merger or consolidation of the Employer
with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting
power of the continuing or surviving entity's issued shares
or securities outstanding immediately after such merger,
consolidation or other reorganization is owned by persons
who were not shareholders of the Employer immediately prior
to such merger, consolidation or other reorganization; (B)
the sale, transfer or other disposition of all or
substantially all of the Employer's assets; (C) a change in
the composition of the Board, as a result of which fewer
than 50% of the incumbent directors are directors who had
been directors of the Employer on the date 24 months prior
to the date of the event that may constitute a Change in
Control (for example, the current Board has eight directors,
a change of five Directors shall constitute a Change in
Control); (D) any transaction as a result of which any
person is the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), directly or indirectly, of securities of
the Employer representing at least 50% of the total voting
power represented by the Employer's then outstanding voting
securities (e.g., issued shares). The term "person" shall
have the same meaning as when used in sections 13(d) and
14(d) of the Exchange Act but shall exclude (i) a trustee or
other fiduciary holding securities under an employee benefit
plan of the Employer or of any subsidiary of the Employer
and (ii) a company owned directly or indirectly by the
shareholders of the Employer in substantially the same
proportions as their ownership of the ordinary shares of the
Employer.
(ii) In the event of the Executive's
death subsequent to his Involuntary Termination following a
Change in Control, but prior to the end of the Severance
Period, the balance of the Severance Payments shall continue
to be paid in periodic installments to the Executive's
Beneficiary (as hereinafter defined) for the balance of the
Severance Period; provided, however, that the Employer, in
its sole discretion, may at any time pay such Beneficiary
the then remaining Severance Payments in a cash lump sum.
(d) Termination Due to Disability. In the event of the
Executive's Disability, the Employer shall be entitled to
terminate his employment. In the case that the Employer
terminates the Executive's employment due to Disability, the
Executive shall be entitled to payment of the Accrued
Obligations, a pro rata portion of the Annual Cash Bonus
provided for in Section 3(b) hereof and any disability
benefits that are provided under the terms of any plan,
program or arrangement referred to in Section 3(e)
applicable to the Executive at the time of his Disability.
"Disability" shall mean a physical or mental impairment that
substantially prevents him from performing his duties
hereunder and that has continued for either (i) 180
consecutive days or (ii) any 270 days within a consecutive
360 day period. Any dispute as to whether or not the
Executive is disabled within the meaning of the preceding
sentence shall be resolved by a physician reasonably
satisfactory to the Executive and the Employer, and the
determination of such physician shall be final and binding
upon both the Executive and the Employer.
(e) Death. Except as provided in Sections 4(b)(ii),
4(c)(ii) and this Section 4(e), no Salary or benefits shall
be payable under this Agreement following the date of the
Executive's death. In the event of the Executive's death,
the Accrued Obligations and a pro rata portion of the Annual
Cash Bonus provided for in Section 3(b) hereof shall be paid
to the Executive's Beneficiary within 30 days of such
termination. The Executive's Beneficiary shall also be
entitled to any death benefits that are provided under the
terms of any plan, program or arrangement referred to in
Section 3(e) applicable to the Executive at the time of
death.
(f) Beneficiary. For purposes of this Agreement,
"Beneficiary" shall mean the person or persons designated in
writing by the Executive to receive benefits under a plan,
program or arrangement or to receive the balance of the
Severance Payments, if any, in the event of the Executive's
death, or, if no such person or persons are designated by
the Executive, the Executive's estate. No Beneficiary
designation shall be effective unless it is in writing and
received by the Employer prior to the date of the
Executive's death.
(g) No Mitigation; No Offset. In the event of any
termination of his employment hereunder, by the Employer
without Cause or by the Executive for Good Reason, the
Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset
or reduced by the amount of any compensation provided to the
Executive in any subsequent employment.
5. Protection of the Employer's Interests.
Restrictive Covenants; Injunctive Relief. The
Executive acknowledges and agrees that (i) the principal
business of the Employer is the design, importation and
distribution of a broad range of household cutlery,
kitchenware, tabletop, cutting boards, pantryware and
bakeware products; (ii) he is one of the limited number of
persons who has developed, and will continue to develop,
that business; (iii) the business of the Employer is
conducted throughout the United States; (iv) his work for
the Employer has included the identification and
solicitation of present and prospective suppliers and
customers and the maintenance of supplier and customer
relationships and goodwill; (v) the suppliers and customers
of the Employer are engaged in supplying and purchasing
various types of houseware products including cutlery,
kitchenware, tabletop, cutting boards, pantryware and
bakeware products; (vi) his work for the Employer has
provided him, and will continue to provide him, with
confidential and proprietary information including customer
and supplier lists and marketing strategies; and (vii) the
business of the Employer and the potential for its continued
success have been, and will continue to be, dependent on
unique personal skills of the Executive and his diligent
efforts in implementing those skills on behalf of the
Employer and in this regard the services to be provided by
him are special, unique and extraordinary. Accordingly, in
order to induce the Employer to enter into this Agreement,
the Executive covenants and agrees that:
(a) During the Term and for a period of five years
thereafter (together, the "Restricted Period"), the
Executive shall not:
(i) engage in the business of importing or
distributing any cutlery, kitchenware, tabletop, cutting
boards, pantryware or bakeware products whatsoever or any
other houseware products related to or competitive with the
products distributed by the Employer or any of its
subsidiaries or engage in any other business engaged in by
the Employer or any of its subsidiaries at the time or at
any time during the immediately preceding twelve-month
period (the "Prohibited Activity") in the United States for
his own account; (b) directly or indirectly enter the employ
of, or render any services to, any Person engaged in any
Prohibited Activity in the United States; (c) have an
interest in any Person engaged in any Prohibited Activity in
the United States, directly or indirectly, as an individual,
partner, shareholder, officer, director, principal, agent,
employee, trustee, consultant or in any other relationship
or capacity; provided, however, that the Executive may own
directly, or indirectly, solely as an investment, securities
of any Person which are traded on any national securities
exchange or in the over-the-counter market if the Executive
(x) is not a controlling Person of, or a member of a group
that controls, the Person or (y) does not directly or
indirectly, own 5% or more of any class of securities of the
Person;
(ii) directly or indirectly hire, engage or
retain any Person who at any time within the immediately
preceding two (2) year period was a supplier, client or
customer of the Employer or any of its subsidiaries, or
directly or indirectly solicit, entice or induce any Person
to become, a supplier, client or customer of any other
Person engaged in any Prohibited Activity; or
(iii) directly or indirectly hire, employ or
retain any person who at any time within the immediately
preceding two (2) year period was an employee of the
Employer or any of its subsidiaries or directly or
indirectly solicit, entice, induce or encourage any such
person to become employed by any other Person.
(b) During the Restricted Period, the Executive shall
keep secret and retain in strictest confidence, and shall
not use for the benefit of himself or any other Person
except in connection with the business and affairs of the
Employer, all confidential or proprietary information of the
Employer and its subsidiaries, including, without
limitation, trade "know-how", secrets, consultant contracts,
supplier lists, customer lists, pricing policies, cost
information, operational methods, marketing plans or
strategies, product development techniques or plans,
business acquisition plans, new personnel plans, methods of
manufacture, technical processes, designs and design
projects and other business affairs of the Employer and its
subsidiaries learned by the Executive heretofore or during
the Term of this Agreement, and shall not disclose them to
anyone outside the Employer and its subsidiaries, either
during or after his employment by the Employer, except as
required in the course of performing duties hereunder or
with the Employer's express written consent; provided,
however, that the Executive shall not be bound by the
restrictive obligations of this Section 5(b) with respect to
any matter that is or becomes publicly known through no act
of the Executive or that is permitted by Section 5(a). All
memoranda, reports, notes, customer or supplier lists,
correspondence, records and other documents (and all copies
) made or compiled by the Executive, or made available to
the Executive, concerning the business of the Employer or
any of its subsidiaries shall be the Employer's property
and shall be delivered to the Employer promptly upon the
termination of the Term.
(c) The Executive hereby acknowledges that the
covenants of the Executive contained in Sections 5(a) and
(b) (the "Restrictive Covenants") are reasonable and valid
in all respects and that the Employer is entering into this
Agreement in reliance, inter alia, on his acknowledgment.
If the Executive breaches, or threatens to commit a breach
of, any of the Restrictive Covenants, the Employer shall
have the right and remedy to have the Restrictive Covenants
specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any
breach or threatened breach will cause irreparable injury to
the Employer and that money damages will not provide an
adequate remedy to the Employer. If any court determines
that any of the Restrictive Covenants, or any part is
invalid or unenforceable, the remainder of the Restrictive
Covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions; and if
any court construes any of the Restrictive Covenants, or any
part to be unenforceable because of the duration of the
provision, the scope of the restrictions, or the area
covered thereby, the court shall have the power to reduce
the duration or area of the provision and, in its reduced
form, the provision shall then be enforceable and shall be
enforced.
(d) For purposes of this Section 5, the term "Person"
shall mean an individual, partnership, joint venture,
corporation, trust, unincorporated association, other
business entity or government or department, agency or
instrumentality (whether domestic or foreign).
6. Indemnification; Insurance.
(a) The Employer agrees that if the Executive is made a
party, or is threatened to be made a party, to any action,
suit or proceeding, whether civil, criminal, administrative
or investigative (a "Proceeding"), by reason of the fact
that he is or was a director, officer or employee of the
Employer or is or was serving at the request of the Employer
as a director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee
benefit plans, the Executive shall be indemnified and held
harmless by the Employer to the fullest extent legally
permitted or authorized by the Employer's certificate of
incorporation or bylaws or resolutions of the Employer's
Board against all cost, expense, liability and loss
(including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or other liabilities or penalties
and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member,
employee or agent of the Employer or other entity and shall
inure to the benefit of the Executive's heirs, executors or
administrators (the "Indemnified Claims"). Provided that
the Executive provides the Employer with prompt notice of
any such Proceeding or Indemnified Claim, then the Employer
shall advance to the Executive all reasonable attorneys fees
and expenses incurred by him in connection with a Proceeding
or Indemnified Claim within a reasonable time after
submission of reasonable documentation of such fees and
expenses. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall
ultimately be determined that he is not entitled by law to
be indemnified against such fees and expenses.
(b) Participation by the Employer. The Employer shall
be entitled to participate in any litigation or Proceeding
relating to any Indemnified Claims, and after notice from
the Employer to the Executive, to assume the defense of such
litigation or Proceeding and Indemnified Claim with counsel
of its choice at its expense; provided, that such notice
shall include an acknowledgment of the Employer's obligation
to indemnify the Executive with respect to such Proceeding
and Indemnified Claim.
(c) Right to Settle. The Employer shall have the right
to settle any litigation, proceeding or claim against the
Executive exclusively for money damages as, and to the
extent, to which the Employer is liable for indemnification
as long as the Executive receives a release from all parties
to such litigation. Notwithstanding the foregoing, neither
the Employer nor the Executive may settle or compromise any
claim over the objection of the other unless the settling
party settles such claim at no cost to the other party and
obtains a full and unconditional release of the other party;
provided, that the consent to settlement or compromise shall
not be unreasonably withheld.
(d) The Employer shall furnish the Executive with
coverage under the Employer's customary director and officer
indemnification arrangements in accordance with the
Employer's by-laws and its D&O insurance policies, as in
effect from time to time for Executives or Directors at his
level.
7. General Provisions.
(a) No Other Severance Benefits. Except as
specifically set forth in this Agreement, the Executive
covenants and agrees that he shall not be entitled to any
other form of severance benefits from the Employer,
including, without limitation, benefits otherwise payable
under any of the Employer's regular severance plans or
policies, in the event his employment ends for any reason
and, except with respect to obligations of the Employer
expressly provided for herein, the Executive unconditionally
releases the Employer and its subsidiaries and affiliates,
and their respective directors, officers, employees and
stockholders, or any of them, from any and all claims,
liabilities or obligations under any severance or
termination arrangements of the Employer or any of its
subsidiaries or affiliates.
(b) Tax Withholding; Section 409A. All amounts paid to
Executive hereunder shall be subject to all applicable
federal, state and local wage withholding. It is the
intention of the parties hereto that this Agreement comply
strictly with the provisions of Section 409A of the Internal
Revenue Code and Treasury Regulations and other Internal
Revenue Service guidance (the "Section 409A Rules").
Accordingly, this Agreement, including, but not limited to,
any provisions relating to severance payments, Change in
Control payments, and the terms of any grants of restricted
stock or options hereunder, including but not limited to the
timing of payments may be delayed, limited or amended from
time to time as may be necessary or appropriate to comply
with, and to avoid adverse tax consequences under the
Section 409A Rules.
(c) Notices. Any notice hereunder by either party to
the other shall be given in writing by personal delivery, or
certified mail, return receipt requested, or (if to the
Employer) by telex or facsimile, in any case delivered to
the applicable address set forth below:
(i) To the Employer:
Chief Executive Officer
Lifetime Brands, Inc.
One Merrick Avenue
Westbury, NY 11590
(ii) To the Executive:
36 East River Road
Rumson, New Jersey 07760
or to such other persons or other addresses as either party
may specify to the other in writing.
(d) Representation by the Executive. The Executive
represents and warrants that his entering into this
Agreement does not, and that his performance under this
Agreement will not, violate the provisions of any agreement
or instrument to which the Executive is a party or any
decree, judgment or order to which the Executive is subject,
and that this Agreement constitutes a valid and binding
obligation of the Executive in accordance with its terms.
Breach of this representation will render all of the
Employer's obligations under this Agreement void ab initio.
(e) Representation by the Employer. The Employer
represents that (i) the execution of this Agreement and the
provision of all benefits and grants provided herein have
been duly authorized by the Employer, including, where
necessary, by the Board and its Compensation Committee, (ii)
to the best of its knowledge, the execution, delivery and
performance of this Agreement does not violate any law,
regulation, order, decree, agreement, plan or corporate
governance document of the Employer, and (iii) upon the
execution and delivery of this Agreement, it shall be the
valid and binding obligation of the Employer enforceable in
accordance with its terms.
(f) Assignment; Assumption of Agreement. No right,
benefit or interest hereunder shall be subject to
assignment, encumbrance, charge, pledge, hypothecation or
setoff by the Executive in respect of any claim, debt,
obligation or similar process, except by will or by the laws
of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by the Executive's legal
personal representatives. This Agreement shall be binding
upon and shall inure to the benefit of the Employer, its
successors and assigns. The Employer will require any
successor or assign (whether direct or indirect, by
purchase, merger, consolidation, operation of law or
otherwise) to all or substantially all of the business or
assets of the Employer to assume expressly and to agree to
perform this Agreement in the same manner and to the same
extent that the Employer would be required to perform it if
no such succession or assignment had taken place. The term
"the Employer" as used herein shall include any such
successors and assigns.
(g) Amendment. No provision of this Agreement may be
amended, modified, waived or discharged unless such
amendment, modification, waiver or discharge is agreed to in
writing and signed by the parties hereto. 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.
(h) Severability. If any term or provision hereof is
determined to be invalid or unenforceable in a final court
or arbitration proceeding, (i) the remaining terms and
provisions hereof shall be unimpaired and (ii) the invalid
or unenforceable term or provision shall be deemed replaced
by a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
New York (determined without regard to the choice of law
provisions thereof), and the parties consent to jurisdiction
in the United States District Court for the Southern
District of New York.
(j) Entire Agreement. This Agreement contains the
entire agreement of the Executive, the Employer and any
predecessors or affiliates thereof with respect to the
subject matter hereof and all prior agreements, term sheets,
understandings and arrangements, oral or written, between
the parties hereto with respect to the subject matter hereof
are superseded hereby.
(k) Counterparts. This Agreement may be executed by
the parties hereto in counterparts, each of which shall be
deemed an original, but both such counterparts shall
together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this
Agreement effective as of the day and year first written
above.
LIFETIME BRANDS, INC.
By:
Name: Jeffrey Siegel
Title: CEO and President
EXECUTIVE
RONALD SHIFTAN