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EXHIBIT (10n)
EMPLOYMENT AGREEMENT BY AND BETWEEN THE COMPANY AND
XXXXXXXX XXXXXXX DATED NOVEMBER 20, 1998
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), by and between
XXXXXXX CORPORATION, an Alabama corporation (the "Company"), and Xxxxxxxx
Xxxxxxx (the "Executive") is made and entered into on 11/20/98 to become
effective on the date the Executive (as hereinafter defined) actually commences
employment with the Company (as hereinafter defined) which shall be not later
than December 15, 1998 (the date such employment actually commences sometimes
referred to herein as the "Effective Date").
R E C I T A L S :
The Company and its affiliates are engaged in the casual wear
and athletic activewear industries. The Company desires to employ the Executive
as President and Chief Executive Officer of the Company's Jerzees Division, and
the Executive desires to be employed by the Company in that capacity.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations herein and the compensation the Company agrees herein to pay the
Executive, and of other good and valuable consideration, the receipt of which
is hereby acknowledged, the Company and the Executive agree as follows:
ARTICLE 1. EMPLOYMENT OF EXECUTIVE
Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs the Executive and the Executive hereby accepts such
employment for the period stated in ARTICLE 3 of this Agreement.
ARTICLE 2. POSITION, RESPONSIBILITY AND DUTIES
2.1 Position and Responsibilities. During the Term (as defined in
Section 3.1), the Executive shall serve as President and Chief Executive
Officer of the Company's Jerzees Division on the conditions herein provided.
The Executive shall provide such executive services in the management of the
Company?s business not inconsistent with his position and the provisions of
Section 2.2 as shall be assigned to him from time to time.
2.2 Duties. During the Term and except for illness and reasonable
vacation periods, the Executive shall devote his full business time, attention,
skill, energies and efforts to the faithful performance of his duties hereunder
and to the business and affairs of the Company and any subsidiary or affiliate
of the Company, such duties being those customary to executives at the same
level in companies of similar size.
ARTICLE 3. TERM
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3.1 Term of Employment. The term of the Executive's employment
under this Agreement shall commence on the Effective Date and shall continue
until the earliest to occur of the following dates (the "Termination Date"):
(i) the date of termination of Executive's employment by the Company other than
For Cause (as defined in Section 3.2); (ii) the date of death of the Executive;
(iii) the date coinciding with the end of one hundred eighty (180) days of the
disability of the Executive (as defined in the Company's disability benefit
plan applicable to the Executive); (iv) the date of termination For Cause (as
defined in Section 3.2); (v) the date the Executive terminates his employment
for Good Reason (as defined in Section 3.3) determined pursuant to Section 3.4;
(vi) the date the Executive terminates his employment other than for Good
Reason or (vii) the date which is four years from the Effective Date.
3.2 Termination for Cause; Automatic Termination. The Company
shall at all times have the right to discharge the Executive For Cause. For
purposes of this Agreement, "For Cause" shall be limited to: (i) conviction of
a felony other than those felonies involving the use of an automobile in
violation of any vehicle statute; (ii) a material breach of a provision of this
Agreement by the Executive, which breach is not cured within thirty (30) days
after notice has been give by the Company to the Executive, as provided in
Section 3.4; or (iii) the Final Determination of any action the effect of which
is to permanently enjoin the Executive from fulfilling his duties under this
Agreement. "Final Determination" as used herein shall mean the exhaustion of
all available remedies and appeals by the Executive or the Executive's refusal
to pursue such remedies and appeals.
3.3 Good Reason. Subject to the requirements of Section 3.4 of
this Agreement, the Executive may terminate his employment at any time for Good
Reason (as defined in this Section 3.3). If the Executive desires to terminate
his employment for Good Reason, he shall give notice to the Company as provided
in Section 3.4. For purposes of this Section 3.3, "Good Reason" shall mean the
Executive's resignation from the Company's employment for any of the following
reasons:
(a) A material reduction of the duties, functions and
responsibilities of the Executive without Executive's consent given within six
(6) months prior to such reduction;
(b) The Executive's resignation from employment by the
Company during the term of this Agreement if at any time Xxxx X. Xxxx ceases to
be employed by the Company for any reason other than Xx. Xxxx'x death or
disability (as defined in Xx. Xxxx'x employment agreement with the Company);
provided, that the Executive may terminate his employment pursuant to this
Section 3.3(b) only during the one-year period following Xx. Xxxx'x ceasing to
be an employee of the Company;
(c) The Executive's resignation from the employment by
the Company on account of any material breach of a provision of this Agreement
by the Company, which breach is not cured within thirty (30) days after notice
has been given to the Company by the Executive as provided in Section 3.4.
Without limiting the generality of the foregoing sentence, the Company shall be
in material breach of its obligations hereunder if, for example, the Company
shall not permit the Executive to exercise such responsibilities as are
consistent with the Executive's position as set forth in Section 2.1 herein and
are of such a nature as are usually associated with officers holding similar
positions, or the Executive shall at any time be required to report to anyone
other than directly to the Chief Executive Officer of the Company or required to
move without his consent from Atlanta,
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Georgia metropolitan area, or the Company shall fail to make a payment when due
to the Executive. Notwithstanding the foregoing, if the Executive desires to
terminate his employment for Good Reason as defined in this Section 3.3(c), he
shall give notice to the Company as provided in 3.4 and the Company shall have
thirty (30) days after notice has been given to it in which to cure the reason
for the Executive's desire to terminate his employment for Good Reason. If the
reason for the Executive's desire to terminate his employment for Good Reason
as defined in this Section 3.3(c) is timely cured by the Company, the
Executive's notice shall become null and void.
3.4 Notice of Termination. Any termination by the Executive for
Good Reason or by the Company, either For Cause or other than For Cause, shall
be communicated by Notice of Termination to the Company or the Executive, as
the case may be. For purposes hereof, a "Notice of Termination" means a written
notice which (i) indicates the specific termination provision relied upon in
this Agreement, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, if required, and (iii) sets forth
the Termination Date. If the Executive's employment is terminated by reason of
one of the events described in Section 3.2 (other than 3.2(i)), 3.3(b) or
3.3(c), the Termination Date shall be not less than thirty (30) days nor more
than forty-five (45) days after the receipt of the Notice of Termination by the
Company. If the Executive's employment is terminated for any other reason,
other for reason of events described in Section 3.1(ii) or 3.1(iii), the
Termination Date shall be not more than fifteen (15) days after the receipt of
the Notice of Termination by the Company.
ARTICLE 4. COMPENSATION
4.1 Base Salary. For all services rendered by the Executive during
the Term, the Company shall pay the Executive as compensation a base annual
salary (the "Base Salary"), payable in appropriate installments to conform with
regular payroll dates for salaried personnel of the Company. On the Effective
Date, the annual rate of the Executive's Base Salary shall be $265,000 (the
"Annual Base Salary Rate"). The Executive's Annual Base Salary Rate shall be
increased annually by the Chief Executive Officer in his sole discretion but
with the concurrence of the Board of Directors of the Company (the "Board").
The timing of the annual increase shall coincide with increases of other top
executives, in accordance with Company policy.
4.2 Bonus. In addition to the Base Salary provided for in Section
4.1 and the other benefits provided for in this Agreement, the Executive shall
(i) be paid a signing bonus of $65,000 as promptly as
practicable following commencement of his employment hereunder, and
(ii) be eligible, upon the achievement of certain goals
established by the Board, to receive an annual bonus of up to 100% of his base
salary (with a midpoint/target of 50% of his base salary as described in the
Company's executive bonus plan) for the year for which the bonus is to be paid,
provided that the bonus for the portion of calendar year 1998 beginning on the
Effective Date shall be at least 50% of the Annual Base Salary Rate for 1998
and the bonus for calendar year 1999 shall be at least 50% of the Executive's
Base Salary for 1999, each such bonus to be paid within 90 days after the end
of the applicable year.
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ARTICLE 5. STOCK OPTIONS AND RESTRICTED SHARES
In addition to the Base Salary and bonus provided to the Executive
pursuant to Article 4, the Executive shall receive a minimum of the following
options for the purchase of the following number of shares of Xxxxxxx
Corporation common stock during the term of this Agreement (the number of such
options to be adjusted for any stock splits or recombinations or stock
dividends occurring after the Effective Date), which amount may be increased at
the Board's discretion based on the Executive's performance: (i) options to
purchase 125,000 shares to be granted on the Effective Date upon employment of
the Executive pursuant to this Agreement and (ii) options to purchase 25,000
shares to be granted in February 1999. The exercise price for these options
shall equal the average of the high and low of the stock price on the day the
grant is made. Such options shall have a term of ten years and the options
given in any year shall vest and become exercisable over a four-year period
from the date of grant, with 25% of the options granted vesting and becoming
exercisable on each anniversary of the date of grant of such options. If the
Executive's employment is terminated by reason of the provisions of Sections
3.1(ii) and 3.1(iii), by the Company for any reason other than For Cause or by
the Executive for Good Reason, all options granted under this Article 5 shall
immediately become vested and shall be exercisable at the Executive's option
for a period of three (3) years from the date of termination; if the
Executive's employment is terminated by the Company For Cause or by the
Executive other than for Good Reason, all options granted under this Article 5
that are not vested as of the Termination Date shall lapse and be forfeited to
the Company. The Executive shall also be granted 50,000 shares of restricted
common stock of the Company on the Effective Date with the restrictions lapsing
as to one-third of such shares at the end of each year of employment by the
Executive with the Company. If the Executive's employment is terminated by
reason of the provisions of Sections 3.1(ii) and 3.1(iii), by the Company for
any reason other than For Cause or by the Executive for Good Reason, all
restrictions on such restricted shares shall immediately lapse; if the
Executive's employment is terminated by the Company For Cause or by the
Executive other than for Good Reason, all shares of restricted common stock
granted under this Article 5 as to which the restrictions have not lapsed as of
the Termination Date shall be forfeited to the Company.
ARTICLE 6. OTHER EMPLOYEE BENEFITS
The Executive shall be entitled to participate in any and all
retirement, health, disability, life insurance, long-term disability insurance,
long-term incentive plans, nonqualified deferred compensation and tax-qualified
retirement plans or any other plans or benefits offered by the Company to its
executives generally, if and to the extent the Executive is eligible to
participate in accordance with the terms and provisions of any such plan or
benefit program. Notwithstanding the foregoing, all vesting periods under all
Xxxxxxx benefit plans shall be waived (except where waiving such period would
violate ERISA) and the Executive, upon termination of employment for any reason
before the age of retirement under those plans, shall be considered to have
attained the minimum retirement age provided in those plans. Nothing in this
ARTICLE 6 is intended, or shall be construed, to require the Company to
institute any particular plan, program or benefit. If the Executive is
prohibited from participating in, or accruing benefits under, any such plan or
policy, the Company shall provide the Executive comparable benefits outside
such plan or policy.
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ARTICLE 7. VACATION
The Executive shall be entitled to a minimum four (4) weeks of paid
vacation during each Employment Year.
ARTICLE 8. TERMINATION COMPENSATION
8.1 Monthly Compensation. Upon the expiration of the Term for any
reason, the Executive shall be entitled to continue to receive his Base Salary
through the last day of the month in which the Termination Date occurs (the
"Termination Month").
8.2 Compensation Continuance. In addition to the compensation
provided for in Section 8.1, upon the termination of the Executive's employment
by the Executive for Good Reason or by the Company other than For Cause, the
Executive (or in the event of his subsequent death, his designated beneficiary)
shall receive the bonus for which he was eligible in the year of termination,
prorated for the portion of such year for which Executive was employed (such
period to be deemed to end on the Termination Date) at the rate such bonus was
earned but in no event less than 50% of the Executive's Base Salary for such
period and he shall continue to receive (i) from the last day of the
Termination Month through the end of the twelfth calendar month following the
Termination Month (the "Compensation Continuance Period") the Base Salary that
he would have received pursuant to Section 4.1 during the Compensation
Continuance Period as if the Term had not expired and (ii) a bonus with respect
to the Compensation Continuance Period paid at a rate of 50% of the Base Salary
of the Executive during the Compensation Continuance Period to be paid at such
times as bonus payments are normally paid to other executives of the Company.
ARTICLE 9. RELOCATION
The Company shall
(i) pay all relocation expenses, including any necessary
tax gross up, for any relocation to the Atlanta, Georgia metropolitan area (or
such other area as may be mutually agreed by the Company and the Executive)
made by the Executive within nine months from the date of employment,
(ii) pay temporary living expenses in Alexander City,
Alabama or Atlanta, Georgia, as appropriate, during such nine month period, and
(iii) purchase, or cause its agent to purchase, his
principal residence in accordance with the terms of the Company's relocation
policy which will be applicable to specified employee transfers, and which is
expected to be announced shortly after the execution of this Agreement, in the
event the Executive is unable to sell such principal residence within the time
period specified in such policy.
ARTICLE 10. REIMBURSEMENT OF CERTAIN EXPENSES
The Company shall reimburse the Executive for all legal costs and
expenses, including
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attorneys' fees, reasonably incurred by the Executive in connection with any
dispute or disputes arising out of alleged violations of agreements between the
Executive and his prior employer provided that
(i) the Company is notified of each such agreement or
agreements prior to the execution of this Agreement;
(ii) the alleged violations of such agreement or
agreements arise from the Executive's acceptance of employment with and
employment by the Company; and
(iii) the Executive is not in fact in violation of any
provision which is the subject of such a dispute.
ARTICLE 11. POST-TERMINATION OBLIGATIONS
All payments and benefits to the Executive under this Agreement shall
be subject to the Executive's compliance with the following provisions during
the Term and following the termination of the Executive's employment:
11.1 Assistance in Litigation. The Executive shall, upon reasonable
notice, furnish such information and assistance to the Company as may
reasonably be required by the Company in connection with any litigation in
which it is, or may become, a party, and which arises out of facts and
circumstances known to the Executive. The Company shall promptly reimburse the
Executive for his out-of-pocket expenses incurred in connection with the
fulfillment of his obligations under this Section 11.1
11.2 Confidential Information. The Executive shall not disclose or
reveal to any unauthorized person any trade secret or other confidential
information relating to the Company, its subsidiaries or affiliates, or to any
businesses operated by them, and the Executive confirms that such information
constitutes the exclusive property of the Company; provided, however, that the
foregoing shall not prohibit the Executive from disclosing such information to
the extent necessary or desirable in connection with obtaining financing for
the Company (or furnishing such information under any agreements, documents or
instruments under which such financing may have been obtained) or otherwise
disclosing such information to third parties or governmental agencies in
furtherance of the interests of the Company, or as may be required by law.
11.3 Noncompetition. The Executive shall not: (i) during the
Compensation Continuation Period, without the prior written consent of the
Company, engage directly or indirectly, as a licensee, owner, manager,
consultant, officer, employee, director, investor or otherwise, in any business
in material competition with the Company; or (ii) usurp for his own benefit any
corporate opportunity under consideration by the Company during his employment,
unless the Company shall have finally decided not to take advantage of such
corporate opportunity. The restrictions of part (i) of this Section 11.3 shall
not apply to a passive investment by the Executive constituting ownership of
less than five percent (5%) of the equity of any entity engaged in any business
described in part (i) of this Section 11.3. The Executive acknowledges that the
possible restrictions on his activities which may occur as a result of his
performance of his obligations under this Section 11.3 are required for the
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reasonable protection of the Company.
11.4 Failure to Comply. In the event that the Executive shall fail
to comply with any provision of this ARTICLE 11, and such failure shall
continue for thirty (30) days following delivery of notice thereof by the
Company to the Executive, all rights hereunder of the Executive and any person
claiming under or through him shall thereupon terminate and no person shall be
entitled thereafter to receive any payments or benefits hereunder (except for
benefits under employee benefit plans or programs as provided in ARTICLE 6
which have been earned or otherwise fixed or determined to be payable prior to
such termination).
ARTICLE 12. BENEFICIARY
The Executive shall name one or more primary beneficiaries and one or
more contingent beneficiaries, who shall be entitled to receive any amounts
payable following the death of the Executive under ARTICLE 8, which beneficiary
or beneficiaries shall be subject to change from time to time by notice in
writing to the Board. A beneficiary may be a trust, an individual or the
Executive's estate. If the Executive fails to designate a beneficiary, primary
or contingent, then and in such event, such benefit shall be paid to the
surviving spouse of the Executive or, if he shall leave no surviving spouse,
then to the Executive's estate. If a named beneficiary entitled to receive any
death benefit is not living or in existence at the death of the Executive or
dies prior to asserting a written claim for any such death benefit, then an in
any such event, such death benefit shall be paid to the other primary
beneficiary or beneficiaries named by the Executive who shall be living or in
existence, if any, otherwise to the contingent beneficiary or beneficiaries
named by the Executive who shall then be living or in existence, if any; but if
there are no primary or contingent beneficiaries then living or in existence,
such benefit shall be paid to the surviving spouse of the Executive or, if he
shall leave no surviving spouse, then to the Executive's estate. If a named
beneficiary is receiving or is entitled to receive payments of any such death
benefits and dies before receiving all of the payments due him, any remaining
benefits shall be paid to the other primary beneficiary or beneficiaries named
by the Executive who shall then be living or in existence, if any, otherwise to
the contingent beneficiary or beneficiaries named by the Executive who shall
then be living or in existence, if any but if there are not primary or
contingent beneficiaries then living or in existence, the balance shall be paid
to the estate of the beneficiary who was last receiving the payments.
ARTICLE 13. SEVERABILITY
All agreements and covenants contained herein are severable, and in
the event any of them shall be held to be invalid by an competent court, this
Agreement shall be interpreted as if such invalid agreements or covenants were
not contained herein.
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ARTICLE 14. ASSIGNMENT PROHIBITED
This Agreement is personal to each of the parties hereto, and neither
party may assign nor delegate any of his or its rights or obligations hereunder
without first obtaining the written consent of the other party; provided,
however, that nothing in this ARTICLE 14 shall preclude (i) the Executive from
designating a beneficiary to receive any benefit payable under this Agreement
upon his death or (ii) the executors, administrators, or other legal
representatives of the Executive or his estate from assigning any rights under
this Agreement to the person or persons entitled thereto.
ARTICLE 15. NO ATTACHMENT
Except as otherwise provided in this Agreement or required by
applicable law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation or to execution, attachment, levy,
or similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null, void and of
no effect.
ARTICLE 16. HEADINGS
The headings of articles, paragraphs and sections herein are included
solely for convenience of references and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
ARTICLE 17. GOVERNING LAW
The parties intend that this Agreement and the performance hereunder
and all suits and special proceedings hereunder shall be construed in
accordance with and under and pursuant to the laws of the State of Alabama and
that in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with, or by reason of this Agreement, the laws of
the State of Alabama shall be applicable and shall govern to the exclusion of
the law or any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
ARTICLE 18. BINDING EFFECT
This Agreement shall be binding upon, and inure to the benefit of, the
Executive and his heirs, executors, administrators and legal representatives
and the Company and its permitted successors and assigns.
ARTICLE 19. COUNTERPARTS
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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ARTICLE 20. NOTICES
All notices, request and other communications to any party under this
Agreement shall be in writing (including telefacsimile transmission or similar
writing) and shall be given to such party at its address or telefacsimile
number set forth below or such other address or telefacsimile number as such
party may hereafter specify for the purpose by notice to the other party:
(a) If to the Executive:
Xxxxxxxx Xxxxxxx
Xxxxxxx Corporation
000 Xxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx Xxxx, Xxxxxxx 00000
(b) If to the Company:
Xxxxxxx Corporation
000 Xxx Xxxxxx
Post Xxxxxx Xxx 000
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Each such notice, request or other communication shall be effective (i) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (ii) if given by any
other means, when delivered at the address specified in this ARTICLE 20.
ARTICLE 21. MODIFICATION OF AGREEMENT
No waiver or modification of this Agreement or of any covenant,
condition, or limitation herein contained shall be valid unless in writing and
duly executed by the party to be charged therewith. No evidence of any waiver
or modification shall be offered or received in evidence at any proceeding,
arbitration, or litigation between the parties hereto arising out of or
affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid. The parties further agree that the provisions of this ARTICLE 21 may
not be waived except as herein set forth.
ARTICLE 22. TAXES
To the extent required by applicable law, the Company shall deduct and
withhold all necessary Social Security taxes and all necessary federal and
state withholding taxes and any other similar sums required by law to be
withheld from any payments made pursuant to the terms of this Agreement.
ARTICLE 23. RECITALS
The Recitals to this Agreement are incorporated herein and shall
constitute an integral part
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of this Agreement.
ARTICLE 24. EFFECT OF PRIOR AGREEMENTS
This Agreement supersedes and replaces any prior employment agreement,
understanding or arrangement (whether written or oral) between the Company and
the Executive. Each of the parties hereto has relied on his or its own judgment
in entering into this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
EXECUTIVE
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------(SEAL)
Xxxxxxxx Xxxxxxx
WITNESS:
----------------------------
XXXXXXX CORPORATION
By: /s/ K. Xxxxx Xxxxxxxx
-----------------------------------------
K. Xxxxx Xxxxxxxx
Treasurer
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