Exhibit 10.23
EMPLOYMENT CONTRACT
EMPLOYMENT CONTRACT dated December __, 1996 among Macpherson Meistergram,
Inc., a North Carolina corporation ("MAC"), whose business address is 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, and Xxxxx X. Xxx, whose
address is 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Employee").
MAC desires to engage Employee to perform services as an executive officer
of MAC and Employee desires to perform such services, on the terms and
conditions hereinafter set forth.
Accordingly, MAC and Employee agree as follows:
1. Term.
MAC agrees to employ Employee to perform services as an executive
officer for a period which will commence with the closing (the "Closing") of the
sale of the capital stock of MAC and Xxxxxxxx X. Xxxxxxxxxx Canada, Inc.
("GEMC") to WG Apparel, Inc. ("WG Apparel") pursuant to the Stock Purchase
Agreement among MAC, GEMC, Xxxxxxx & Xxxxx, Inc. ("W&G"), WG Apparel and the
stockholders of MAC, dated as of November 27, 1996 (the "Stock Purchase
Agreement") and shall continue indefinitely until terminated as provided in this
Section 1 or Section 10 hereof (the "Employment Period"). At any time after one
(1) year from the date of the Closing, MAC may terminate this Employment
Contract by providing not less than one (1) year advance written notice to
Employee; provided, however, that MAC may terminate the Employee as of such
notice by paying one year's salary to Employee and providing for the
continuation and funding of the
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benefits provided for in Sections 6(iii), (iv) and (v) hereof. Employee may
terminate this Employment Contract at any time by providing ninety (90) day's
written notice to MAC. If the Closing does not occur for any reason, this
Employment Contract shall be null and void and neither party shall have any
rights hereunder.
2. Nature of Services.
During the Employment Period, Employee shall at all times be
employed in an executive capacity in the business of MAC in Greensboro, North
Carolina. Employee shall serve as the President and Chief Operating Officer of
MAC upon commencement of the Employment Period and thereafter for so long as
requested by MAC's Board of Directors. In the performance of his duties,
Employee shall have responsibility for the overall operations of MAC including
without limitation the supervision and direction of MAC's sales, marketing,
financial, operations and other departments and executives therein, subject to
the policy direction of the Board of Directors of MAC and the chief executive
officer of W&G or his designee.
3. Agreement to Serve.
Employee agrees to his employment as described in Section 2 and
agrees to devote all his business time and efforts (except immaterial time and
effort devoted to personal business affairs and investments) to the performance
of his duties under this employment contract. Employee agrees that in the course
of his employment, he will use good faith efforts to faithfully
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observe and carry out all of the duties and responsibilities customarily owed by
an employee to his employer.
4. Compensation.
Employee's salary during the Employment Period shall be fixed from
time to time by the Compensation Committee of the Board of Directors of W&G (the
"Committee") but shall not be less than $145,236 per annum, payable in equal
installments no less frequently than monthly. Employee's salary shall be
reviewed during the first quarter of each calendar year during the Employment
Period (with the first review to occur during the first quarter of 1997). Salary
increases, if any, shall be effective as of April 1 of each year.
5. Incentive Compensation.
Employee shall be entitled to receive bonus or bonuses during the
Employment Period pursuant to an incentive compensation plan and/or a stock
option plan described on Schedule A annexed hereto
6. Expenses; Vacations; Fringe Benefits.
During the Employment Period, Employee shall be entitled to: (i)
reimbursement for reasonable travel, entertainment and other expenses incurred
in the performance of his duties hereunder upon submission and approval of
written statements in accordance with MAC's standard policies as in effect from
time to time; (ii) vacations, holidays and sick leave in accordance with MAC's
then current regular policies governing executives; (iii) continued medical,
hospital and disability insurance benefits, which shall be at least equal to
those
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benefits in effect on the date hereof; (iv) use of an automobile comparable to
that presently being used by him in the business of MAC if applicable; (v) such
additional compensation, in the form of incentive compensation or otherwise, and
such participation in W&G stock option, stock award, stock purchase or other
stock plans, as the Committee may from time to time provide, if any; and (vi)
participate in all other employee benefit plans, in accordance with the
provisions thereof, made available by MAC to its executive employees generally.
7. Non-Competition.
Employee agrees that he will not, directly or indirectly
(individually or for, with or through any other person, firm or corporation, by
equity ownership or otherwise), (i) compete with W&G, MAC, or any subsidiary or
other affiliate of either of them or any successors or assigns of their
businesses during the Employment Period with respect to any business carried on
by W&G, MAC, or any such subsidiary or other affiliate, successor or assign, or
(ii) for a period of (A) one year after the end of the Employment Period, if
Employee terminates this Employment Contract pursuant to Section 1 or (B) two
years after MAC terminates this Employment Contract pursuant to Section 10 as a
result of Employee's material breach of the Employment Contract, or (C) or when
the Employee's salary ceases to be paid by MAC, if MAC terminates this
Employment Contract for any other reason, compete with MAC, with respect to its
business in the United States, Mexico, Central America & South America.
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(A) Notwithstanding the foregoing, if MAC wrongfully terminates the
Employment Period or otherwise materially breaches the terms of this Employment
Contract, the foregoing provisions of this Section 7 shall cease to apply from
and after such wrongful termination or breach.
(B) Notwithstanding the foregoing, Employee shall be permitted to
own not in excess of one percent of any class of securities of any public
company which, at the time of Employee's acquisition of the securities, is not
engaged in competition with W&G, MAC or any subsidiary or other affiliate of
either of them or any such successor or assign notwithstanding the fact that
such company thereafter (without assistance from Employee) becomes engaged in
such competition, provided Employee is not part of any controlling group and is
solely a passive investor.
8. Patents; Inventions.
All of Employee's interest in patents, patent applications,
inventions, technological innovations, copyrights, developments and processes
now or hereafter during the Employment Period owned or developed by Employee
relating to the business of W&G, MAC, or any subsidiary or other affiliate of
either of them shall belong to MAC, and without further compensation, but at
MAC's expense, forthwith upon request of the MAC, Employee shall execute any and
all such assignments and other documents and take any and all such other action
as MAC may reasonably request in order to vest in MAC all Employee's right,
title and interest in and to such patents, patent applications, inventions,
technological innovations, copyrights, developments or processes,
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free and clear of liens, charges and encumbrances in favor of Employee.
9. Confidential Information.
No confidential information which Employee may now have or may
obtain during the Employment Period relating to the business of W&G, MAC, or any
subsidiary or other affiliate of either of them shall be disclosed to any other
persons either during or after the termination of the Employment Period without
the prior written permission of MAC, and, at MAC's written request, Employee
shall return all tangible evidence of such confidential information to MAC prior
to or at the termination of the Employment Period. Notwithstanding the
foregoing, this provision shall not preclude the Employee from the use or
disclosure of information known generally to the public (other than information
known generally to the public as a result of violation of this Section 9 by
Employee), from the use or disclosure of information required by law or court
order, or from disclosure or use of information appropriate and in the ordinary
course of carrying out his duties as an employee of MAC.
10. Termination
Notwithstanding anything herein contained:
(A) If Employee shall, during the Employment Period, die or become
physically or mentally incapacitated or disabled for a period of six (6)
consecutive months (and MAC is not in breach of any condition hereof (including,
without limitation, the provisions of Section 6), then MAC shall have the right
to give immediate notice of termination of Employee's services
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hereunder. Additionally, if, during the Employment Period, Employee shall
materially breach any of the terms hereof, MAC shall have the right to give
notice of termination of Employee's services hereunder as of a date (not earlier
than thirty [30] days from such notice) to be specified in such notice;
provided, however, that Employee shall have the right during such 30-day period
to correct such breach (if capable of being corrected) or pay compensation which
does not exceed MAC's reasonable estimate of the aggregate loss, damage,
deficiency or expense attributable to such breach (if not capable of being
corrected) and thereby avoid termination.
(B) In the event of termination pursuant to Section 10(A): (i)
Employee (or his estate) shall be entitled to receive his salary at the rate
provided in Section 4 to the end of the calendar month in which termination
occurs; and (ii) Employee (or his estate) shall be entitled to incentive
compensation for portions of the year prior to the effective date of such
termination which is in the same ratio to the amount of incentive compensation
that would have been payable for the full year as the ratio of the portions of
the year prior to termination to the full year (such incentive compensation to
be determined and paid at the time provided for in Section 5 for the full year).
(C) If any legal action or other proceeding is brought for the
enforcement of this Employment Contract or because of a dispute regarding an
alleged breach, default or misrepresentation in connection herewith, the
prevailing party in such action or other proceeding shall be entitled to recover
reasonable
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attorneys' fees and other litigation costs (including cost of appeal) and all
reasonable related costs and expenses thereby incurred, in addition to any other
relief to which such prevailing party may be entitled.
11. Entire Agreement; Severability.
This Employment Contract sets forth the entire
understanding of the parties with respect to the subject matter herein and may
be modified only by a written instrument duly executed by each party. The
invalidity or unenforceability of any provision of this Employment Contract
shall not affect the validity or enforceability of any other provision.
12. Notices.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed given (a) on the same day if
delivered personally, (b) three business days after being mailed by registered
or certified mail (return receipt requested) as determined by reference to the
postmark; or (c) on the same day if sent by facsimile, confirmation received, at
the address of such party first above set forth or to such other address as the
parties shall furnish in writing.
13. Assignment.
In the event of a future disposition of (or including) the
properties and business of W&G or MAC, substantially as an entirety, by merger,
consolidation, sale of stock or assets then MAC may elect to assign this
Employment Contract and all of its and W&G's rights and obligations hereunder to
the acquiring or
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surviving corporation, provided that such corporation shall assume in writing
all of the obligations of MAC and W&G hereunder and provided further that MAC
and W&G shall remain liable for the performance of their obligations hereunder
in the event of unjustified failure of the acquiring corporation to perform its
obligation. Employee's rights under this Employment Contract shall not be
transferrable by assignment or otherwise, shall not be subject to commutation or
encumbrance and shall not be subject to the claims of Employee's creditors.
14. Binding Effect; Inurement
This Employment Contract shall be binding upon and inure to the
benefit of MAC, W&G and (in each case) its successors and those who are its
assigns under Section 13.
15. Governing Law
This Employment Contract shall be governed by and construed in
accordance with the laws of the State of North Carolina, without giving effect
to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this employment
contract as of the date first above written.
MACPHERSON MEISTERGRAM, INC.
BY: ________________________________
XXXX X. XXXXXXX, Chairman
________________________________
XXXXX X. XXX
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GUARANTEE OF XXXXXXX & XXXXX, INC.
To induce Employee to enter into the foregoing Employment Contract with
MAC, W&G hereby unconditionally guarantees to Employee the prompt payment and
performance of all obligations of MAC under the Employment Contract.
XXXXXXX & XXXXX, INC.
BY: ________________________________
XXXX X. XXXXXXX, Chairman
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SCHEDULE A
OPTIONS TO ACQUIRE FIVE THOUSAND (5,000) SHARES OF
XXXXXXX & XXXXX, INC. CLASS A STOCK PURSUANT
TO THE WG, INC. 1994 STOCK INCENTIVE PLAN
