EXHIBIT 10.9.1
AMENDMENT TO EMPLOYMENT AGREEMENT
The undersigned parties hereby agree to amend the Employment
Agreement, dated as July 1, 1998 (the "Employment Agreement"), between Periscope
Sportswear, Inc. (the "Company") and Xxxxx Xxxxxx (the "Executive") as follows:
(a) Section 1 of the Employment Agreement is amended and restated to
read as follows:
"1. Term of Agreement. Subject to the terms and conditions hereof, the
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term of employment of the Executive under this Employment Agreement shall be for
the period commencing on July 1, 1998 (the "Commencement Date") and terminating
on December 31, 2002, unless sooner terminated as provided in accordance with
the provisions of Section 6 hereof; provided, however, that the Company shall
have the option to extend the Executive's employment hereunder for two
additional one year periods (each, an "Extension Period") by giving the
Executive written notice of its exercise of such option no less than 90 days
prior to the expiration of the then current term. (Such term of employment is
herein sometimes called the "Employment Term".)"
(b) Section 8 of the Employment Agreement is amended and restated to
read as follows:
"8. Covenants Not to Compete. (a) During the Covered Period (as
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defined below), the Executive shall not any where in North America, directly or
indirectly, with or without compensation, engage in, be employed by or control,
advise, manage, finance or receive any economic benefit from, or have any
interest (whether as a shareholder, director, officer, employee, subcontractor,
partner, consultant, agent or otherwise) in, any business, company, firm or
other entity which is engaged in, or conducts activities substantially similar
to or likely to be competitive with the business of the Company as conducted
from the Commencement Date until the date of termination of this Agreement (the
"Competitive Business"); provided, however, that nothing herein shall prohibit
the Executive from owning not more than five (5%) percent of the outstanding
stock of any publicly held corporation. Without limiting the foregoing, during
the Covered Period, the Executive shall not, in competition with the Competitive
Business, (A) solicit or deal with any supplier, contractor or customer of the
Company; (B) seek to persuade any employee of the Company, or any of its
subsidiaries or divisions to discontinue his or her status or employment
therewith; or (C) hire or retain any employee of the Company or any of its
subsidiaries or divisions.
(b) For purposes of this Employment Agreement, the "Covered Period"
shall extend (i) from the Commencement Date until the date of termination of
this Agreement and for a period of three (3) years thereafter, if the Executive
shall terminate his employment with the Company, without cause, at any time
during the Employment Term (including during any Extension Period); or (ii) from
the Commencement Date until the date of termination of this Agreement and for a
period of one (1) year thereafter, if the Company shall exercise its option
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to extend the Executive's employment hereunder for an Extension Period and the
Executive shall determine not to so extend his employment with the Company.
(c) If the Executive shall continue to be employed by the Company
through December 31, 2004, the provisions of Section 8(a) above shall not apply
and, lieu thereof, the Executive agrees that, from the Commencement Date until
the date of termination of this Agreement and for a period of one (1) year
thereafter, the Executive shall not any where in North America, directly or
indirectly, on behalf of any business, company, firm or other entity which is
engaged in, or conducts activities substantially similar to or likely to be
competitive with the business of the Company as conducted from the Commencement
Date until the date of termination of this Agreement, (A) seek to persuade any
employee of the Company or any of its subsidiaries or divisions to discontinue
his or her status or employment therewith; or (B) hire or retain any employee of
the Company or any of its subsidiaries or divisions.
(d) In the event that the provisions of this Section 8 should ever be
deemed to exceed the time or geographic limitations or any other limitations
permitted by applicable law, then such provisions shall be deemed amended to the
maximum permitted by applicable law. The Executive specifically acknowledges and
agrees that (x) the remedy at law for any breach of the foregoing covenants will
be inadequate, and (y) the Company, in addition to any other relief available to
it, shall be entitled to temporary and permanent injunctive relief in the event
the Executive violates the provisions of this Section 8."
Dated: December 11, 1998
PERISCOPE SPORTSWEAR, INC.
By: /s/ Xxxxx Xxxxx
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Name:
Title: President
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
