Exhibit 10.1


 


AGREEMENT


 


AGREEMENT
dated October 22, 2003 between Syratech Corporation, a Delaware corporation
(the “Company”), and Leonard Florence (the “Executive”).


 


WHEREAS, the
Executive is now the Company’s Chairman and is providing advisory services to
the Company pursuant to an Amended and Restated Employment Agreement dated as
of April 16, 1997, which was amended by Amendment No. 1 dated as of July 29,
1998 and Amendment No. 2 dated as of March 11, 2002 (as so amended, the
“Employment Agreement”); and


 


WHEREAS, the
Company and the Executive wish to set forth the terms of the Executive’s
resignation as an officer and a member of the Company’s Board of Directors and
the cessation of his advisory services pursuant to the Employment Agreement;


 


WHEREAS, the
Company acknowledges the contributions made by the Executive to its success
through the date of this Agreement; and


 


WHEREAS, the
Executive believes that, through the date hereof, he has earned approximately
$480,000 pursuant to the Employment Agreement and that therefore the Payment
(as defined below) represents a significant discount to the payments and other
benefits otherwise due him under the Employment Agreement;


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein contained,
the parties agree as follows:


 


1.             Termination of Relationship.  Effective as of October 22, 2003 (the
“Effective Date”):


 


(a)           The Executive will resign as an
officer and a member of the Board of Directors of the Company and any of its
subsidiaries or affiliates in accordance with the resignation letter attached
hereto as Schedule 1.


 


(b)           The parties will release each other
from their respective rights and obligations (i) under the Employment Agreement
(including but not limited to the rights and obligations set forth in the
letter dated May 28, 2002 related to the provision of additional services by
the Executive) except as expressly set forth herein and (ii) under any other
agreements or understandings, whether written or oral, between the Company and
the Executive other than the Stockholders’ Agreement (as defined below).


 


(c)           The Executive will relinquish any
contractual rights he may have to designate any member of the Company’s Board
of Directors pursuant to the Stockholders’ Agreement dated as of April 16, 1997
by and among the Company and the stockholders named therein (the “Stockholders’
Agreement”) or otherwise, and will execute the amendment to the Stockholders’
Agreement in the form of Schedule 2 attached hereto.


 

















 


2.             Payment.  The Company will pay to the Executive an
aggregate gross amount of $950,000, of which $750,000 will be paid on the
Effective Date and $200,000 will be paid on January 3, 2005 (collectively, the
“Payment”), in each case subject to applicable withholding requirements.  The Company and the Executive agree that the
Payment shall be deemed compensation and that they will so report the Payment
for tax purposes.  Except for payment on
the date hereof of the amounts expressly set forth on Schedule 3
attached hereto or otherwise expressly set forth herein, the Payment shall be
in lieu of:  (a) any and all payments,
rights, benefits or other consideration to which the Executive would be
entitled under the Employment Agreement (including amounts to which the
Executive would be entitled under the letter dated May 28, 2002 related to
provision of additional services by the Executive) and any other agreements or
understandings, whether written or oral, between the Company and the Executive;
and (b) the right of the Executive and his spouse to receive lifetime medical
benefits pursuant to the Employment Agreement and the Resolution of the
Company’s Board of Directors dated  
June 29, 1999.


 


3.             Medical Benefits.  The Company will:


 


(a)           Reimburse the Executive and his
spouse for all medical expenses incurred by the Executive and his spouse
through January 22, 2004 in the same manner as the Executive is reimbursed
prior to the date hereof, provided that (i) immediately following the Effective
Date, the Company will prepare any and all documents necessary for the
Executive and his spouse to participate in group medical coverage through the
Company, including but not limited to a Medex application and an application
with the Social Security Administration for Part B medical coverage, which the
Executive and his spouse will then promptly execute and submit; (ii) such
medical expenses shall be consistent with past practice and shall not include
any wholly elective cosmetic surgeries (i.e., directed solely at improving
appearance and serving no other medical purpose) for the Executive or his
spouse and (iii) the Executive will make reasonable best efforts to submit
billing statements from medical providers for medical expenses incurred through
the Effective Date as soon as possible hereafter, and will submit requests for
reimbursement for any medical expenses (which shall consist of billing
statements from medical providers) incurred after the Effective Date promptly
upon his receipt of same from his or his spouse’s medical providers, all of
which expenses will then be reimbursed by the Company as promptly as
practicable thereafter.  For the
avoidance of doubt, the parties acknowledge and agree that the Company’s
obligation under this Section 3(a) includes full reimbursement of medical
expenses for the Executive and his spouse, regardless of whether they are
covered by the Company’s group medical plan and/or Part B medical coverage, so
long as such expenses are otherwise consistent with the provisions of this
Section 3(a).


 


(b)           Provide the Executive with reasonable
administrative assistance through January 22, 2004 in connection with
transitioning to a new health insurance arrangement.


 


(c)           Have no further or additional
obligation with respect to health insurance or health or medical benefits for
the Executive or his spouse after January 22, 2004.


 


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4.             Reimbursement and Related
Matters.  The Company will:


 


(a)           Pay the Executive the Base Salary
owed under Section 3.2 of the Employment Agreement through the Effective Date
as set forth on Schedule 3 attached hereto.


 


(b)           Reimburse the Executive for all
business expenses incurred by the Executive through the Effective Date as set
forth in Schedule 3 attached hereto.


 


(c)           Have no further or additional obligation
with respect to the provision of an automobile or reimbursement of automobile
expenses for the Executive.


 


(d)           Reimburse the Executive for his
attorneys’ fees and expenses incurred in connection with this Agreement in an
amount equal to Twenty Five Thousand Dollars ($25,000) on the Effective Date.


 


5.             Office Move.  Within 30 days following the Effective Date,
the Executive will vacate his current office. 
The Company acknowledges that the desk and filing cabinets therein
belongs to the Executive and will assist the Executive with the removal of the
desk, filing cabinets and his personal effects from the office, including the
reasonable expenses of moving them to the Executive’s new offices (such
expenses not to exceed $1,000).  The
Company will thereafter immediately forward all email, phone messages and mail
(unopened in the case of mail) addressed to the Executive and delivered to the
Company, to the Executive at his home address of 99 Lyman Road, Brookline,
MA  02467, or such other address as the
Executive may designate in writing to the Company; provided that if any such
mail relates to the business of the Company, the Executive will promptly
forward it to the Company.


 


6.             Office and Other Support.  Commencing on the Effective Date and
continuing through April 16, 2005 (the “Remaining Term”) the Company will:


 


(a)           Reimburse the Executive for the third
party costs and expenses associated with his use of an office located outside
of the Company’s facilities in an amount not to exceed $2,500 per month within
10 business days of the Executive’s properly documented requests for
reimbursement.


 


(b)           Reimburse the Executive for the costs
and expenses associated with his employment of a secretary, in an amount not to
exceed the aggregate monthly salary and benefits currently received by Ms.
Patricia Felt, which the Company represents is $5,413.59, within 10 business
days of the Executive’s properly documented requests for reimbursement.  The Executive agrees that he will offer
employment to Ms. Felt as a secretary, and the Company consents to such
employment, both parties acknowledging that (i) Ms. Felt shall be under no
obligation to accept such offer or to remain in the Executive’s employ through
the Remaining Term; and (ii) the Executive will have no obligation to pay any
form of severance to Ms. Felt in the event she leaves the Company’s employ.


 


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(c)           Provide the Executive with access,
for no additional consideration, to the Company’s inside tax accountant for the
purpose of assisting the Executive in his personal tax and accounting matters
on the same basis and to the same extent as applied prior to the Effective
Date.


 


7.             Restrictive Covenants.  The Executive hereby reconfirms the validity
and continuing legal effect of Sections 7 and 8 of the Employment Agreement and
agrees to comply in all respects with the provisions of such Sections of the
Employment Agreement through the Remaining Term.


 


8.             No Hire.  (a) 
The Executive hereby agrees that through the Remaining Term, except as
otherwise set forth in Section 8(b) and (c) hereof, neither he, nor any entity
of or in which he is an officer, director, partner, member, consultant,
employee, stockholder, creditor, investor or other participant (collectively, a
“Covered Entity”) will, acting directly or indirectly, hire or solicit for
hire, as an employee, consultant, partner or any other capacity, any person who
is now, or at any time prior to expiration of the Remaining Term becomes, an
employee of or consultant to the Company or any of its successors.  Notwithstanding the foregoing, nothing
herein shall be deemed to prohibit the Executive or a Covered Entity from
hiring during the Remaining Term:


 


(i)            Someone whom they
have not solicited and who, as of the date of such hiring, has not been an
employee of or consultant to the Company at any time during the preceding
ninety (90) days or, in the case of those persons listed on Schedule 4
attached hereto, during the preceding one hundred eighty (180) days.


 


(ii)           Someone who
provided written notice of his resignation or received written notice of his
termination prior to September 30, 2003.


 


(b)           The parties further agree that the
Executive will not be deemed in violation of this Section 8 in the event that,
without the Executive’s knowledge or participation, an entity in which (i) the
Executive is not an officer, director, or employee, and (ii) he has less than a
10% interest, hires any employee of or consultant to the Company.


 


(c)           The provisions of this Section 8 will
not prohibit the Executive from retaining consultants also retained by the
Company, provided that:  (i) any such
consultant does not have an exclusive contractual commitment to the Company;
(ii) the Executive’s use of such consultant does not interfere with or disrupt
the consultant’s commitments to, and service on behalf of, the Company; (iii)
such consultant does not assist the Executive, directly or indirectly, during
the Remaining Term in preparing to engage in any “Competitive Business” within
the meaning of Section 8.3 of the Employment Agreement upon the expiration of
the Remaining Term; and (iv) such consultant does not disclose any confidential
information of the Company to the Executive.


 


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(d)           The provisions of this Section 8
shall not apply to Mel Levine, provided that: 
(i) Mr. Levine does not assist the Executive, directly or indirectly,
during the Remaining Term in preparing to engage in any “Competitive Business”
within the meaning of Section 8.3 of the Employment Agreement upon the
expiration of the Remaining Term; and (ii) Mr. Levine does not use or disclose
confidential information of the Company to the Executive.


 


9.             Indemnification.  The Company hereby reconfirms the validity
and continuing legal effect of Section 6 of the Employment Agreement and agrees
to comply in all respects with the provisions of such Section of the Employment
Agreement, it being expressly understood and agreed that the Executive’s right
to indemnification thereunder shall extend to all actions taken by him up to
and including his execution of this Agreement.


 


10.           Nondisparagement.  The Executive agrees that at no time after
the date hereof will he disparage the Company, the Thomas H. Lee Company and
their respective officers, directors and employees.  The Company, acting on its behalf and on behalf of the Thomas H.
Lee Company and their respective officer, directors and employees, agrees that
at no time after the date hereof will any of them disparage the Executive to any
third party.  In no event will the
provisions of this Section 10 apply to any truthful testimony or response to a
subpoena or other investigative request or legal proceeding.  The parties agree that they shall use the
statement set forth on Schedule 5 attached hereto to describe the
Executive’s termination with the Company and that they will refrain from making
any statements inconsistent with it.


 


11.           Confidentiality.  Each of the Company and the Executive agrees
that it/he will keep the terms of this Agreement confidential, and not
hereafter disclose any information concerning or content of this Agreement to
anyone other than, in the case of the Executive, his immediate family, attorney
and/or accountant(s), and, in the case of the Company, its tax and legal
advisors, directors, officers, accountants, stockholders, investors and
creditors; provided that the Company and the Executive may make such disclosure
as is otherwise required by law or contract.


 


12.           Release by the Executive.  Except for the right to enforce performance
under this Agreement, and to sue for damages for breach of this Agreement, the
Executive, acting in his individual capacity and in his capacity as an officer,
director, employee, consultant and stockholder of the Company, hereby releases
and forever releases, remises and discharges the Company, and its subsidiaries
and affiliated companies, the Thomas H. Lee Company and its affiliated
entities, and the past and present officers, directors, partners, members,
agents, employees, and consultants of any of the foregoing entities and any
person or entity acting for or on behalf of them (collectively, the
“Releasees”) from any and all liabilities, claims, damages, causes of action,
judgments, liens, wages or commissions, both in law and equity, whether known
or unknown, and whether asserted or not, arising out of any act, event, neglect
or omission occurring from the beginning of the world to the date of the
Agreement (collectively, “Claims”), which the Executive or his personal
representative, heirs or assigns ever had, now has or may have, including, but
not limited to, any Claims arising out of or connected with his employment by
the Company and the termination of that employment.  This includes, but is not limited to, any Claims that may exist
under any federal, state or local laws prohibiting discrimination, such as
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities


 


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Act, the Age Discrimination in
Employment Act, the Employee Retirement Income Security Act, Massachusetts
General Laws Chapter 151B, and any other federal, state or local statutory or
common law Claims affecting or relating to the claims or rights of employees,
as the same may be amended from time to time; provided that (a) if any past or
present officer, director, partner, member, agent, or consultant of any of the
foregoing entities (collectively, the “Individual Releasees”), or any person or
entity acting for or on behalf of them, shall assert any Claim against the
Executive, the Executive will retain the full right to pursue any Claim against
any such Individual Releasee, (b) the Executive does not hereby waive his right
as a shareholder to participate in any recovery resulting from litigation brought
by a third party against the Releasees so long as the Executive strictly
complies with the provisions of Section 14 of this Agreement and (c) this
Section 12 shall not release any claims that any members of Executive’s family
(other than Executive’s spouse) may have in their own right, but shall release
any Claims which such family members might have a right to bring on behalf of
the Executive.


 


13.           Release by the Company.  Except for the right to enforce performance
under this Agreement, and to sue for damages for breach of this Agreement, the
Company, acting on its own behalf and on behalf of its subsidiaries and
affiliated entities and the Thomas H. Lee Company and its affiliated entities,
hereby releases and forever remises, releases and discharges the Executive from
any and all Claims which any of them ever had, now has or may have, including,
but not limited to, any Claims arising out of or connected with his employment
by the Company.


 


14.           Agreement Regarding Litigation.  The Executive agrees that at no time after
the date hereof will he, acting directly or indirectly, provide information to,
or finance or otherwise provide support or assistance to, any third party in
any lawsuit, administrative action or similar proceeding brought against the
Releasees or any future officer, director, partner, member, agent, employee,
consultant or affiliate of any of the Releasees, whether based on acts or
omissions, occurring prior to the date hereof.


 


15.           Assistance Regarding Litigation.  The Executive will cooperate reasonably with
the Company and assist it in connection with any governmental investigation,
litigation, or regulatory or other proceeding which may have arisen or which
may arise following the signing of this Agreement.  The Company will compensate the Executive at a per diem rate as mutually agreed to by the
Company and the Executive and will reimburse the Executive for his reasonable
expenses in connection with any such cooperation and assistance.


 


16.           Costa Rican Consulate.  The Executive shall take all necessary steps
to change the location of the Costa Rican consulate, which has been located at
the Company’s offices in East Boston, Massachusetts, to such other address as
he determines in his sole discretion, such change to be effective not later than
December 31, 2003.


 


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17.           Ratification.  The Company agrees that all acts of the
Executive taken at any time from the inception of the Company and/or any
subsidiary of the Company to and including the date hereof, whether (a) fully
reflected in the records of the Company or any subsidiary, (b) reflected in
incomplete or unsigned records of the Company or any subsidiary, including, but
not limited to (i) the amendments to the Loan and Security Agreement, (ii) the
purchase and/or leasing of real and/or personal property, (iii) the
establishment of depositories or corporate funds, (iv) corporate borrowing, (v)
expenditures of corporate funds, (vi) adoption of employee benefit plans and
(vii) any and all other acts or omissions of said officers and directors taken
in good faith, be and the same hereby are ratified, confirmed and approved in
all respects.


 


18.           Miscellaneous.


 


(a)           This Agreement sets forth the full
and complete understanding of the parties with respect to the subject matter
hereof and may be amended only by a writing signed by both parties hereto.  Both parties agree to take such action, and
to execute such documents as the other may reasonably request in order to
implement the understandings set forth herein; provided that in doing so, the
Executive shall not be obligated to incur any financial expense.  The Executive and the Company acknowledge
and agree that, except as set forth in Sections 7 and 9 hereof, effective on
the date hereof, the Employment Agreement shall be deemed terminated and of no
further force and effect.  The parties
acknowledge that if either party breaches this Agreement, the other party may
seek both monetary damages and equitable relief and shall be entitled to
recover its/his attorneys’ fees and disbursements if it/he is a prevailing
party in any litigation pursued in connection with such breach.


 


(b)           The Company hereby advises the
Executive to consult with an attorney prior to executing this Agreement and the
Executive acknowledges that he has consulted with his own attorney concerning
this Agreement.


 


(c)           The Executive acknowledges that the
Company has provided him the opportunity to review and consider this Agreement
for twenty-one (21) days from the date the Company provided the Executive with
a copy of this Agreement and the Executive has chosen, of his own free will
without any duress and upon advice of counsel, to waive his right to the full
twenty-one (21) day period.


 


(d)           The Executive further acknowledges
that the Company has provided him the opportunity to revoke this Agreement
within seven (7) days after its execution and the Executive has chosen, of his
own free will without any duress and upon advice of counsel, to waive his right
to this seven-day revocation period so that this Agreement may be immediately
effective and enforceable.


 


(e)           The Executive represents and warrants
that he fully understands the terms of this Agreement and that he knowingly and
voluntarily, of his own free will, without any duress, being fully informed and
after due deliberation, accepts the terms and signs the same as his own free
act.  The Executive understands that as
a result of entering into this Agreement he will not have the right to assert
that the Company unlawfully terminated his employment or violated any rights in
connection with this employment.


 


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19.           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts, and
shall be considered a sealed instrument thereunder.  Any and all legal proceedings regarding this Agreement or the
subject matter hereof shall be brought only in the state or federal courts of
the Commonwealth of Massachusetts, to whose jurisdiction the parties agree to
submit.


 


20.           Severability.  Should any provision of this Agreement be
declared or be determined to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby, and said
illegal or invalid part, term or provision shall be deemed not to be part of
this Agreement.


 


21.           Assignability.  This Agreement, and the Executive’s rights
and obligations hereunder, may not be assigned by the Executive; provided that
this Agreement shall inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.  If the Executive should die while any amount
would still be payable to the Executive or his family hereunder if the
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the Executive’s estate.


 


 


[Remainder of Page Intentionally Left Blank]


 


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IN WITNESS
WHEREOF, the parties have duly executed this Agreement as of the date first
written above.


 


	
   

  	
  SYRATECH
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Meers

  	
   

  
	
   

  	
   

  	
  Name:  Robert Meers

  	
   

  
	
   

  	
   

  	
  Title:  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Leonard
  Florence

  	
   

  
	
   

  	
   

  	
  Name:  Leonard Florence

  	
   

  



 


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