Exhibit 10(ddd)
---------------
NANTUCKET INDUSTRIES, INC.
---------------
EMPLOYMENT AGREEMENT
Employment Agreement, made as of the 3rd day of April 2000, by and between
Nantucket Industries, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
(the "Company")*
and
Xxxx Xxxxxxx
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(the "Employee")
--------------
Now therefore, in consideration of the premises and of the mutual promises
and covenants hereinafter set forth, the parties agree as follows:
1. Employment
The Company agrees to employ the Employee and the Employee agrees to
accept the employment described in this Agreement.
2. Duties
The Employee shall serve as President, performing the duties of chief
executive officer, and Secretary of the Company. His powers and duties in those
capacities shall be determined by the Board of Directors of the Company. During
the term of this agreement, the Employee shall serve also, without additional
compensation, in such other offices of the Company to which he may be elected or
appointed by the Board of Directors. With respect to all capacities in which the
Employee shall serve, he shall report solely to the Board of Directors of the
Company.
3. Extent of Services
The Employee shall devote such working time, attention, and energies to
the performance of his duties as shall be reasonably required. The Employee
shall at all times faithfully and to the best of his ability perform his duties
under this Agreement. The duties shall be rendered at the Company's office in
New York, NY, or at such other place or places and at such times as the needs of
the Company may from time-to-time dictate.
4. Term
The term of this Agreement shall be deemed to have begun on April 3, 2000
(the "Effective Date") and shall continue for the three year period which
commenced on the Effective Date and shall end on April 2, 2003. The parties
presently anticipate that the employment relationship may continue beyond this
three-year term. This Agreement shall not give the Employee any enforceable
right to employment beyond this term.
5. Compensation
As his entire compensation for the services to the Company, during the
term of this agreement, in whatever capacity rendered, the Company shall pay to
the Employee a salary in the amount of one hundred fifty thousand dollars
($150,000) per year.
The above stated salary will be payable in accordance with the Company's
standard payroll procedures. The Employee's performance shall be reviewed every
six months with respect to his eligibility for performance-based raises and
bonuses, but there is no assurance or expectation that raises or bonuses will be
granted or paid. Raises will be granted and bonuses will be paid, if at all, in
the sole discretion of the Board of Directors.
6. Issuance of Stock in Lieu of Base Salary
6.1 Compensation Shares. In the event that, from time to time, the Board
of Directors, in its sole discretion, determines that the Company does not have
adequate financial resources to fully compensate the Employee in cash, then the
Company's obligation to pay such compensation will be satisfied by the issuance
to the Employee of shares of the common stock of the Company, $.10 par value per
share ("Compensation Shares"), which shares shall constitute compensation
pursuant to the terms of this Employee Agreement.
6.2 Valuation. All Compensation Shares will be issued to the Employee at a
value equal to the average of the high and low bid prices of the Company's
common stock as traded in the over-the-counter market and quoted in the NASD
Electronic Bulletin Board during the period
when such Compensation Shares were earned, or at a discounted value which the
Board of Directors, in its sole discretion, shall determine.
6.3 Registration Rights. From time to time, all or part of the
Compensation Shares may be registered by the Company under a Registration
Statement on Form S-8, including a Re-offer Prospectus, as and at such time as
the Board of Directors of the Company shall determine.
7. Benefits
The Employee shall receive medical insurance and other fringe benefits to
the extent that such benefits are provided to other executive employees of the
Company or as shall be otherwise determined by the Board of Directors.
8. Expenses
The Company shall reimburse the Employee for reasonable, documented,
out-of-pocket expenses incurred by the Employee in fulfilling his duties.
9. Termination
9.1 For Cause. The Company may terminate the Employee's employment at any
time "for cause" with immediate effect upon delivering written notice to the
Employee. For purposes of this Agreement, "for cause" shall include: (a)
embezzlement, theft, larceny, material fraud, or other acts of dishonesty; (b)
material violation by employee of any of his obligations under this Agreement;
(c) conviction of or entrance of a plea of guilty or nolo contendere to a felony
or other crime which has or may have a material adverse effect on the Employee's
ability to carry out his duties under this Agreement or upon the reputation of
the Company; (d) conduct involving moral turpitude; (e) gross insubordination or
repeated insubordination after written warning by the Board of Directors; or (f)
material and continuing failure by the Employee to perform the duties described
in Section 2 above in a quality and professional manner for at least thirty (30)
days after written warning by the Board of Directors of the Company. Upon
termination for cause, the Company's sole and exclusive obligation will be to
pay the Employee his compensation earned through the date of termination, and
the Employee shall not be entitled to any compensation after the date of
termination.
9.2 Upon Death. In the event of the Employee's death during the term of
the this Agreement, the Company's sole and exclusive obligation will be to pay
to the Employee's spouse, if living, or to his estate, if his spouse is not then
living, the Employee's compensation earned through the date of death.
9.3 Upon Disability. The Company may terminate the Employee's employment
upon the Employee's total disability. The Employee shall be deemed to be totally
disabled if he is unable to perform his duties under this Agreement by reason of
mental or physical illness or accident for a period of three consecutive months.
Upon termination by reason of the Employee's disability, the Company's sole and
exclusive obligation will be to pay the Employee his compensation earned through
the date of termination.
9.4 Without Cause. Subject to the terms of any future agreement between
the Company and the Employee, the Company may terminate the Employee's
employment without cause at any time after expiration of the three-year term of
this Agreement.
10. Covenant Not to Compete
10.1 Covenant. At all times during the terms of this Agreement, during any
period following the term of this Agreement when the Employee shall continue to
be employed by the Company in any capacity whatsoever, and during the one year
period after the Employee's employment with the Company has been terminated by
either party and for any reason, the Employee will not directly or indirectly:
(a) enter into or attempt to enter into a business which is directly or
indirectly engaged in the principal activity or activities being
engaged in by the Company, anywhere in the continental United
States;
(b) induce or attempt to persuade any former, current or future
employee, agent, manager, consultant, director, or other participant
in the Company's business to terminate such employment or other
relationship in order to enter into any relationship with the
Employee, any business organization in which the Employee is a
participant in any capacity whatsoever, or any other business
organization in competition with the Company's business; or
(c) use contracts, proprietary information, trade secrets, confidential
information, customer lists, mailing lists, goodwill, or other
intangible property used or useful in connection with the Company's
business.
10.2 Indirect Activity. The term "indirectly," as used in Section 10.1
above, includes acting as a paid or unpaid director, officer, agent,
representative, employee of, or consultant to any enterprise, or acting as a
proprietor of an enterprise, or holding any direct or indirect participation in
any enterprise as an owner, partner, limited partner, joint venturer,
shareholder, or creditor, except a 10% or less equity position in a publicly
traded company.
11. Severability
The covenants set forth in Section 10 above shall be construed as a series
of separate covenants, one for each county in each of the states of the United
States to which such restriction applies. If, in any judicial proceeding, a
court of competent jurisdiction shall refuse to enforce any of the separate
covenants deemed included in this Agreement, or shall find that the term or
geographic scope of one or more of the separate covenants is unreasonably broad,
the parties shall use their best good faith efforts to attempt to agree on a
valid provision which shall be a reasonable substitute for the invalid
provision. The reasonableness of the substitute provision shall be considered in
light of the purpose of the covenants and the reasonable protectable interests
of the Company and the Employee. The substitute provision shall be incorporated
into this Agreement. If the parties are unable to agree on a substitute
provision, then the invalid or unreasonably broad provision shall be deemed
deleted or modified to the minimum extent necessary to permit enforcement.
12. Confidentiality
The Employee acknowledges that he will develop and be exposed to
information that is or will be confidential and proprietary to the Company. The
information includes customer lists, technology designs, plans and information,
marketing plans, pricing data, product plans, software, and other intangible
information. Such information shall be deemed confidential to the extent not
generally known within the trade. The Employee agrees to make use of such
information only in the performance of his duties under this Agreement, to
maintain such information in confidence and to disclose the information only to
persons with a need to know.
13. Remedies
The Employee acknowledges that monetary damages would be inadequate to
compensate the Company for any breach by the Employee of the covenants set forth
in Sections 10 and 12 above. The Employee agrees that, in addition to other
remedies which may be available, the Company shall be entitled to obtain
injunctive relief against the threatened breach of this Agreement or the
continuation of any breach, or both, without the necessity of proving actual
damages.
14. Waiver
The waiver by the Company of the breach of any provision of this Agreement
by the Employee shall not operate or be construed as a waiver of any subsequent
breach by the Employee.
15. Assignment
This Agreement may be assigned by the Company as part of the sale of
substantially all of its business; provided, however, that the purchaser shall
expressly assume all obligations of the Company under this Agreement. Further,
this Agreement may be assigned by the Company to an affiliate, provided that any
such affiliate shall expressly assume all obligations of the Company under this
Agreement, and provided further that the Company shall then fully guarantee the
performance of the Agreement by such affiliate. Employee agrees that if this
Agreement is so assigned, all the terms and conditions of this Agreement shall
obtain between such assignee and himself with the same force and effect as if
said Agreement had been made with such assignee in the first instance. This
Agreement is personal to the Employee and shall not be assigned without written
consent of the Company.
16. Notices
All notices required or permitted to be given hereunder shall be mailed by
certified mail, or delivered by hand or by recognized overnight courier to the
party to whom such notice is required or permitted to be given hereunder, in all
cases with written proof of receipt required. Any such notice shall be deemed to
have been given when received by the party to whom notice is given, as evidenced
by written and dated receipt of the receiving party.
Any notice to the Company or to any assignee of the Company shall be
addressed as follows:
Nantucket Industries, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Any notice to Employee shall be addressed as follows:
Xxxx Xxxxxxx
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
17. General
17.1. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
17.2 Titles and Captions. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
17.3 Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
17.4 Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
17.5 Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
17.6 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
17.7 Survival of Certain Agreements. The covenants and agreements set
forth in Articles 10, 12, and 13 shall all survive the expiration of the term of
this Agreement and shall all survive termination of this Agreement and remain in
full force and effect regardless of the cause of such termination.
18. Prior Agreements
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
In Witness Whereof, the parties hereto have executed the above Agreement
as of the day and year first above written.
NANTUCKET INDUSTRIES, INC.
By /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, Treasurer
/s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
