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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this 9th day of June, 1998 by and between Farah Incorporated, a Texas
corporation (hereinafter, the "Company" which term shall include the Company's
other subsidiaries, affiliates and successors), and Xxxxx Xxxxxx (hereinafter,
"Executive"), to be effective as of the Effective Date, as defined in Section 1.
BACKGROUND
Executive is the Senior Vice President of Farah U.S.A., Inc., an
affiliate of the Company. Pursuant to an Agreement and Plan of Merger, dated as
of May 1, 1998 (the "Merger Agreement"), the Company will be acquired by
Tropical Sportswear Int'l Corporation (the "Merger").
The Company desires to retain Executive from and after the Merger as an
executive of the Company, and Executive is willing to serve as such, all in
accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. The effective date of this Agreement (the
"Effective Date") will be the date on which the effective time of the Merger
occurs.
2. Employment. As of the Effective Date, Executive will be employed in
the capacity of Vice President and Chief Accounting Officer of the Company.
Executive's responsibilities under this Agreement shall be in accordance with
the policies and objectives established by the Chief Executive Officer of the
Company.
3. Employment Period. Unless earlier terminated herein in accordance
with Section 6 hereof, Executive's employment shall be for a one-year term (the
"Employment Period"), beginning on the Effective Date. The Employment Period
shall, without further action by Executive or the Company, be extended by an
additional one-year period on the first and each subsequent anniversary of the
Effective Date; provided, however, that either party may, by notice to the
other, cause the Employment Period to cease to extend automatically. Upon such
notice, the Employment Period shall terminate upon the expiration of the
then-current term, including any prior extensions.
4. Extent of Service. During the Employment Period, and excluding any
periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote her
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business time, attention, skill and efforts exclusively to the faithful
performance of her duties hereunder; provided, however, that it shall not be a
violation of this Agreement for Executive to (i) devote reasonable periods of
time to charitable and community activities and, with the approval of the
Company, industry or professional activities, and/or (ii) manage personal
business interests and investments, so long as such activities do not materially
interfere with the performance of Executive's responsibilities under this
Agreement.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Company
will pay to Executive a base salary in the amount of $100,000 per year ("Base
Salary"), less normal withholdings, payable in equal monthly or more frequent
installments as are customary under the Company's payroll practices from time to
time. The Compensation Committee of the Board of Directors of the Company shall
review Executive's Base Salary annually and in its sole discretion, subject to
approval of the Board of Directors of the Company, may increase Executive's Base
Salary from year to year. The annual review of Executive's salary by the Board
will consider, among other things, Executive's own performance and the Company's
performance.
(b) Incentive, Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in all incentive,
savings and retirement plans (including without limitation, the Company's 401(k)
plan), practices, policies and programs applicable generally to peer executives
of the Company and its affiliated companies ("Peer Executives"), and on the same
basis as such Peer Executives.
(c) Welfare Benefit Plans. During the Employment Period,
Executive and Executive's family shall be eligible for participation in and
shall receive all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies (including,
without limitation, medical, disability, employee life, group life, and
accidental death insurance plans and programs) to the extent applicable
generally to Peer Executives.
(d) Expenses. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliated companies to the extent applicable generally to Peer
Executives.
(e) Fringe Benefits. During the Employment Period, Executive
shall be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of the Company and its affiliated companies in effect for
Peer Executives.
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6. Termination of Employment.
(a) Death, Retirement or Disability. Executive's employment
shall terminate automatically upon Executive's death or Retirement during the
Employment Period. For purposes of this Agreement, "Retirement" shall mean
normal retirement as defined in the Company's then-current retirement plan, or
there is no such retirement plan, "Retirement" shall mean voluntary termination
after age 65 with ten years of service. If the Company determines in good faith
that the Disability of Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), it may give to
Executive written notice in accordance with Section 14(f) of this Agreement of
its intention to terminate Executive's employment. In such event, Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such written notice by Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, Executive shall not have
returned to full-time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean a mental or physical disability as determined
by the Board of Directors of the Company in accordance with standards and
procedures similar to those under the Company's employee long-term disability
plan, if any. At any time that the Company does not maintain such a long-term
disability plan, Disability shall mean the inability of Executive, as determined
by the Board, to substantially perform the essential functions of her regular
duties and responsibilities due to a medically determinable physical or mental
illness which has lasted (or can reasonably be expected to last) for a period of
six consecutive months.
(b) Termination by the Company. The Company may terminate
Executive's employment during the Employment Period with or without Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive
to perform substantially Executive's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness, and
specifically excluding any failure by Executive, after reasonable efforts, to
meet performance expectations), after a written demand for substantial
performance is delivered to Executive which specifically identifies the manner
in which Executive has not substantially performed Executive's duties, or
(ii) the willful engaging by Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company, or
(iii) Executive engages in any misconduct involving moral
turpitude whether occurring in the performance of her duties or otherwise.
(c) Termination by Executive. Executive's employment may be
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, "Good Reason" shall mean a material reduction by the Company in
Executive's Base Salary and benefits as in effect on the Effective Date or as
the came may be increased from time to time.
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(d) Notice of Termination. Any termination by the Company for
Cause, or by Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 14(f) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than 30 days after
the giving of such notice). The failure by Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of Executive or the
Company, respectively, hereunder or preclude Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" has the following
meaning: (i) if Executive's employment is terminated by the Company or by
Executive other than by reason of death, Retirement or Disability, the Date of
Termination will be the date specified in the Notice of termination, and (ii) if
Executive's employment is terminated by reason of death, Retirement or
Disability, the Date of Termination will be the date of death or Retirement of
Executive or the Disability Effective Date, as the case may be.
7. Obligations of the Company upon Termination.
(a) Termination by Executive for Good Reason; Termination by the
Company Other Than for Cause, Death or Disability. If, during the Employment
Period, the Company shall terminate Executive's employment other than for Cause,
death or Disability, or Executive shall terminate employment for Good Reason,
then in consideration of Executive's services rendered prior to such termination
and as reasonable compensation for her compliance with the Restrictive Covenants
in Section 12 hereof:
(i) the Company shall pay to Executive the aggregate of
the following amounts:
A. the sum of (1) Executive's Base Salary through the
Date of Termination to the extent not theretofore paid, (2) the product
of (x) Executive's target annual bonus that would have been payable
with respect to the fiscal year in which the Date of Termination
occurs, and (y) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination (or in
the case of 1998, the number of days between the Effective Date and the
Date of Termination), and the denominator of which is 365, and (3) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore
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paid (the sum of the amounts described in clauses (1), (2) and (3)
shall be hereinafter referred to as the "Accrued Obligations"); and
B. the Retention Bonus, to the extent not
theretofore paid; and
(ii) Executive will continue to receive her Base Salary
(subject to withholding of all applicable taxes) for the remainder of the
Employment Period in the same manner as the same was being paid as of the Date
of Termination; provided, however, that such payments shall be paid in a single
lump sum payment, to be paid not later than thirty (30) days after the Date of
Termination; and provided further, that the amount of such lump sum payment
shall be determined by taking the payments to be made and discounting them to
their Present Value (as such term is defined in Code Section 280G(d)(4) or any
successor Code provision); and
(iii) for the remainder of the Employment Period, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue benefits to Executive and/or
Executive's family in accordance with the plans, programs, practices and
policies described in Section 5(c) of this Agreement (including the Split-Dollar
Insurance Premium Commitment) if Executive's employment had not been terminated;
and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to receive under
any plan, program, policy or practice or contract or agreement of the Company
and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
(b) Death. If Executive's employment is terminated by reason
of Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to Executive's legal representatives under
this Agreement, other than for payment of Accrued Obligations, the Retention
Bonus (to the extent not theretofore paid), and the timely payment or provision
of Other Benefits. The term Other Benefits as utilized in this Section 7(b)
shall include, without limitation, and Executive's estate and/or beneficiaries
shall be entitled to receive, any death benefits applicable to Executive at the
date of her death.
(c) Disability. If Executive's employment is terminated by
reason of Executive's Disability during the Employment Period, this Agreement
shall terminate without further obligations to Executive, other than for payment
of Accrued Obligations, the Retention Bonus (to the extent not theretofore
paid), and the timely payment or provision of Other Benefits. The term Other
Benefits as utilized in this Section 7(c) shall include, without limitation, and
Executive's estate and/or beneficiaries shall be entitled to receive, any
disability benefits applicable to Executive at the Date of Termination.
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(d) Retirement. If Executive's employment is terminated by
reason of Executive's Retirement during the Employment Period, this Agreement
shall terminate without further obligations to Executive, other than for payment
of Accrued Obligations, the Retention Bonus (to the extent not theretofore
paid), and the timely payment or provision of Other Benefits. The term Other
Benefits as utilized in this Section 7(d) shall include, without limitation, and
Executive's estate and/or beneficiaries shall be entitled to receive, any
retirement benefits applicable to Executive at the Date of Termination.
(e) Cause or Voluntary Termination without Good Reason. If
Executive's employment shall be terminated for Cause during the Employment
Period, or if Executive voluntarily terminates employment during the Employment
Period without Good Reason, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations (other
than the prorata bonus described in Section 7(a)(i)(A)(2)) and the timely
payment or provision of Other Benefits.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which Executive may qualify, nor, subject to Section 14(d),
shall anything herein limit or otherwise affect such rights as Executive may
have under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
9. Limitation of Benefits.
(a) Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any benefit, payment or
distribution by the Company to or for the benefit of Executive (whether payable
or distributable pursuant to the terms of this Agreement or otherwise) (such
benefits, payments or distributions are hereinafter referred to as "Payments")
would, if paid, be subject to the excise tax (the "Excise Tax") imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then
the aggregate present value of the Payments shall be reduced (but not below
zero) to an amount expressed in present value that maximizes the aggregate
present value of the Payments without causing the Payments or any part thereof
to be subject to the Excise Tax and therefore nondeductible by the Company
because of Section 280G of the Code (the "Reduced Amount"). For purposes of this
Section 9, present value shall be determined in accordance with Section
280G(d)(4) of the Code. In the event, after the exhaustion of all remedies, it
is necessary to reduce the Payments, the difference between the Payments and the
Reduced Amount shall be treated for all purposes as a loan to Executive, which
Executive shall repay to the Company together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code.
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(b) All determinations required to be made under this Section 9,
including whether an Excise Tax would otherwise be imposed, whether the Payments
shall be reduced, the amount of the Reduced Amount, and the assumptions to be
utilized in arriving at such determinations, shall be made by the Company's
regular independent accounting firm at the expense of the Company or, at the
election and expense of Executive, another nationally recognized independent
accounting firm (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days of the
receipt of notice from Executive that a Payment is due to be made, or such
earlier time as is requested by the Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Payments hereunder will have been unnecessarily limited by this Section 9
("Underpayment"), consistent with the calculations required to be made
hereunder. The Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive together with interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Code.
10. Costs of Enforcement. Each party to the Agreement shall pay its own
costs and expenses in any contest of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement).
11. Representations and Warranties. Executive hereby represents and
warrants to the Company that Executive is not a party to, or otherwise subject
to, any covenant not to compete (other than as contained herein) with any person
or entity, and Executive's execution of this Agreement and performance of her
obligations hereunder will not violate the terms or conditions of any contract
or obligation, written or oral, between Executive and any other person or
entity.
12. Restrictions on Conduct of Executive.
(a) General. Executive and the Company understand and agree that
the purpose of the provisions of this Section 12 is to protect legitimate
business interests of the Company, as more fully described below, and is not
intended to eliminate Executive's post-employment competition with the Company
per se, nor is it intended to impair or infringe upon Executive's right to work,
earn a living, or acquire and possess property from the fruits of her labor.
Executive hereby acknowledges that the post-employment restrictions set forth in
this Section 12 are reasonable and that they do not, and will not, unduly impair
her ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law upon the
restrictions set forth herein by the time and geographical area described below,
Executive shall be subject to the restrictions set forth in this Section 12.
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(b) Definitions. The following capitalized terms used in this
Section 12 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
"Competitive Position" means any employment with a Competitor
in which Executive will use or is likely to use any Confidential Information or
Trade Secrets, or in which Executive has duties for such Competitor that relate
to Competitive Services and that are the same or similar to those services
actually performed by Executive for the Company;
"Competitive Services" means the merchandising,
manufacturing, distribution, selling or marketing of men's, women's, boys' or
girls' sportswear (tops and bottoms), each of which activities is engaged in by
the Company and its subsidiaries on the date of this Agreement.
"Competitor" means any Person engaged, wholly or in part, in
Competitive Services.
"Confidential Information" means all information regarding
the Company, its activities, business or clients that is the subject of
reasonable efforts by the Company to maintain its confidentiality and that is
not generally disclosed by practice or authority to persons not employed by the
Company, but that does not rise to the level of a Trade Secret. "Confidential
Information" shall include, but is not limited to, sales and marketing
techniques and plans, lists of contact data, technical data relating to the
Company's products or production techniques, purchase and supply information,
details of client or consultant contracts, current and anticipated customer
requirements, pricing policies, client billing information, price lists, market
studies, business plans, operational methods, marketing plans or strategies,
product development techniques or plans, financial plans and data concerning the
Company, and management planning information). "Confidential Information" shall
not include information that has become generally available to the public by the
act of one who has the right to disclose such information without violating any
right or privilege of the Company. This definition shall not limit any
definition of "confidential information" or any equivalent term under state or
federal law.
"Determination Date" means the date of termination of
Executive's employment with the Company for any reason whatsoever or any earlier
date (during the Employment Period) of an alleged breach of the Restrictive
Covenants by Executive.
"Person" means any individual or any corporation,
partnership, joint venture, limited liability company, association or other
entity or enterprise.
"Principal or Representative" means a principal, owner,
partner, shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
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"Protected Customers" means any Person to whom the Company
has sold its products or services or solicited to sell its products or services
during the twelve (12) months prior to the Determination Date.
"Protected Employees" means employees of the Company who were
employed by the Company at any time within six (6) months prior to the
Determination Date.
"Restricted Period" means the Period of Employment and a
period extending two (2) years from the termination of Executive's employment
with the Company for any reason whatsoever.
"Restricted Territory" means the United States and North,
Central and South America, the United Kingdom, Western Europe, Australia, New
Zealand, and Fiji. The Company and Executive acknowledge and agree that the
Company and its subsidiaries do business and sell men's, women's, boys' and
girls' sportswear (tops and bottoms) in all 50 states of the United States and
in each other country in the Restricted Territory.
"Restrictive Covenants" means the restrictive covenants
contained in Section 12(c) hereof.
"Trade Secret" means all information, without regard to form,
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, distribution lists or a
list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of Confidential Information
that constitutes a "trade secret(s)" under the common law or statutory law of
the State of Texas.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential
Information and Trade Secrets. Executive understands and agrees that the
Confidential Information and Trade Secrets constitute valuable assets of the
Company and its affiliated entities, and may not be converted to Executive's own
use. Accordingly, Executive hereby agrees that Executive shall not, directly or
indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by the Company any Confidential
Information, and Executive shall not, directly or indirectly, at any time during
the Restricted Period use or make use of any Confidential Information in
connection with
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any business activity other than that of the Company. Throughout the term of
this Agreement and at all times after the date that this Agreement terminates
for any reason, Executive shall not directly or indirectly transmit or disclose
any Trade Secret of the Company to any Person, and shall not make use of any
such Trade Secret, directly or indirectly, for himself or for others, without
the prior written consent of the Company. The parties acknowledge and agree that
this Agreement is not intended to, and does not, alter either the Company's
rights or Executive's obligations under any state or federal statutory or common
law regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Executive shall not be
restricted from disclosing or using Confidential Information that is required to
be disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, Executive shall provide the Company
with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by Executive.
(ii) Nonsolicitation of Protected Employees.
Executive understands and agrees that the relationship between the Company and
each of its Protected Employees constitutes a valuable asset of the Company and
may not be converted to Executive's own use. Accordingly, Executive hereby
agrees that during the Restricted Period Executive shall not directly or
indirectly on Executive's own behalf or as a Principal or Representative of any
Person or otherwise solicit or induce any Protected Employee to terminate her or
her employment relationship with the Company or to enter into employment with
any other Person.
(iii) Restriction on Relationships with Protected
Customers. Executive understands and agrees that the relationship between the
Company and each of its Protected Customers constitutes a valuable asset of the
Company and may not be converted to Executive's own use. Accordingly, Executive
hereby agrees that, during the Restricted Period, Executive shall not, without
the prior written consent of the Company, directly or indirectly, on Executive's
own behalf or as a Principal or Representative of any Person, solicit, divert,
take away or attempt to solicit, divert or take away a Protected Customer for
the purpose of providing or selling Competitive Services; provided, however,
that the prohibition of this covenant shall apply only to Protected Customers
with whom Executive had Material Contact on the Company's behalf during the
twelve (12) months immediately preceding the termination of her employment
hereunder. For purposes of this Agreement, Executive had "Material Contact" with
a Protected Customer if (a) she had business dealings with the Protected
Customer on the Company's behalf; (b) she was responsible for supervising or
coordinating the dealings between the Company and the Protected Customer; or (c)
she obtained Trade Secrets or Confidential Information about the customer as a
result of her association with the Company.
(iv) Noncompetition with the Company. The parties
acknowledge: (A) that Executive's services under this Agreement require special
expertise and talent in the provision of Competitive Services and that Executive
will have substantial contacts
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with customers, suppliers, advertisers and vendors of the Company; (B) that
pursuant to this Agreement, Executive will be placed in a position of trust and
responsibility and she will have access to a substantial amount of Confidential
Information and Trade Secrets and that the Company is placing her in such
position and giving her access to such information in reliance upon her
agreement not to compete with the Company during the Restricted Period; (C) that
due to her management duties, Executive will be the repository of a substantial
portion of the goodwill of the Company and would have an unfair advantage in
competing with the Company; (D) that due to Executive's special experience and
talent, the loss of Executive's services to the Company under this Agreement
cannot reasonably or adequately be compensated solely by damages in an action at
law; (E) that Executive is capable of competing with the Company; and (F) that
Executive is capable of obtaining gainful, lucrative and desirable employment
that does not violate the restrictions contained in this Agreement. In
consideration of the compensation and benefits being paid and to be paid by the
Company to Executive hereunder, Executive hereby agrees that, during the
Restricted Period, Executive will not, without prior written consent of the
Company, directly or indirectly seek or obtain a Competitive Position in the
Restricted Territory with a Competitor; provided, however, that the provisions
of this Agreement shall not be deemed to prohibit the ownership by Executive of
any securities of the Company or its affiliated entities or not more than five
percent (5%) of any class of securities of any corporation having a class of
securities registered pursuant to the Securities Exchange Act of 1934, as
amended.
(d) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the event
Executive breaches, or threatens to commit a breach of, any of the provisions of
the Restrictive Covenants, the Company shall have the following rights and
remedies, which shall be independent of any others and severally enforceable,
and shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity:
(A) the right and remedy to enjoin, preliminarily
and permanently, Executive from violating or threatening to violate the
Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any breach
or threatened breach of the Restrictive Covenants would cause irreparable injury
to the Company and that money damages would not provide an adequate remedy to
the Company; and
(B) the right and remedy to require Executive to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by Executive as the
result of any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Executive acknowledges
and agrees that the Restrictive Covenants are reasonable and valid in time and
scope and in all other respects. The covenants set forth in this Agreement shall
be considered and construed as
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separate and independent covenants. Should any part or provision of any covenant
be held invalid, void or unenforceable in any court of competent jurisdiction,
such invalidity, voidness or unenforceability shall not render invalid, void or
unenforceable any other part or provision of this Agreement. If any portion of
the foregoing provisions is found to be invalid or unenforceable by a court of
competent jurisdiction because its duration, the territory, the definition of
activities or the definition of information covered is considered to be invalid
or unreasonable in scope, the invalid or unreasonable term shall be redefined,
or a new enforceable term provided, such that the intent of the Company and
Executive in agreeing to the provisions of this Agreement will not be impaired
and the provision in question shall be enforceable to the fullest extent of the
applicable laws.
(iii) Attorneys' Fees. In any action relating to the
enforcement of the Restrictive Covenants, the prevailing party in such action
shall be entitled to be paid any and all costs and expenses incurred by her or
it in enforcing or establishing her or its rights thereunder, including, without
limitation, reasonable attorneys' fees, whether suit be brought or not, and
whether or not incurred in trial, bankruptcy or appellate proceedings.
13. Assignment and Successors.
(a) Executive. This Agreement is personal to Executive and
without the prior written consent of the Company shall not be assignable by
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
14. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in
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whole or in part, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of the remaining provisions or
covenants, or any part thereof, of this Agreement, all of which shall remain in
full force and effect.
(c) Other Agents. Nothing in this Agreement is to be
interpreted as limiting the Company from employing other personnel on such terms
and conditions as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement between the Company and Executive with
respect to the subject matter hereof, and it supersedes and invalidates any
previous agreements or contracts between them which relate to the subject matter
hereof. No representations, inducements, promises or agreements, oral or
otherwise, which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal
law, and without regard to conflict of laws principles, the laws of the State of
Texas shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
To Company: Farah Incorporated
Attention: Xxxxxxx X. Xxxxxxx
Tropical Sportswear Int'l Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No. (000) 000-0000
To Executive: Xxxxx Xxxxxx
0000 X. Xxxx
Xx Xxxx, Xxxxx
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be
amended or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
FARAH INCORPORATED
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
Chief Financial Officer
EXECUTIVE:
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
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