EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 1st day of January, 1997,
between BRAZOS SPORTSWEAR, INC., a Texas corporation (the "Company"), and F.
XXXXXXX XXXXXXXX, a resident of Xxxxxxxx County, Ohio (the "Employee");
1. EMPLOYMENT TERM. The Company hereby employs the Employee for a
term commencing on date hereof and, subject to earlier termination as provided
in Section 5 hereof, ending on December 31, 1999 (such term being herein
referred to as the "term of this Agreement"). The Employee agrees to accept such
employment and to perform the services specified herein, all upon the terms and
conditions hereinafter stated.
2. DUTIES. The Employee shall serve the Company in an executive
capacity and shall be subject to the general direction and control of the Board
of Directors of the Company or its Chairman (the "Board"). The Employee shall
report to the President and Chief Executive Officer of the Company and shall
perform the executive, management and administrative duties of Vice President
and Chief Financial Officer of the Company. The Employee shall also serve as
Vice President and Chief Financial Officer of each of BSI Holdings, Inc., a
Delaware corporation ("BSI"), and Brazos Embroidery, Inc., a Pennsylvania
corporation ("BEI"), and shall perform such other executive, management and
administrative functions that are consistent with the foregoing and assigned to
him by the Board. The Company agrees that it will assign the Employee those
duties, and only those duties, of the type, nature and dignity that are normally
assigned to an employee of his position in a corporation of the size, stature
and nature of the Company.
3. EXTENT OF SERVICE. The Employee shall devote his full business
time and attention to the business of the Company, and, except as may be
specifically permitted by the Company, shall not be engaged in any other
business activity during the term of this Agreement. The foregoing shall not be
construed as preventing the Employee from making passive investments in other
businesses or enterprises, provided, however, that such investments will not
require services on the part of the Employee which would in any way impair the
performance of his duties under this Agreement.
4. SALARY AND BENEFITS. (a) The Company shall pay the Employee a
base salary of $12,500.00 per full calendar month of service completed during
the term of this Agreement, appropriately prorated for partial months at the
beginning and end of the term of this Agreement. Such salary shall be payable in
accordance with the normal payroll policies of the Company from time to time in
effect. The Company shall have the right to deduct from any payment of all
compensation to the Employee hereunder (x) any federal, state or local taxes
required by law to be withheld with respect to such payments, and (y) any other
amounts specifically authorized to be withheld or deducted by the Employee.
(b) During the term of this Agreement, the Employee shall be
entitled to receive the following benefits:
(i) The Employee shall be entitled to participate in the
Company's Key Employee Incentive Plan, and may receive benefits
under such Plan in an amount of up to 100% of the Employee's base
salary under paragraph (a) above.
(ii) For each calendar year during the term of this
Agreement, the Employee:
(A) shall receive a minimum cash bonus of $5,000 for the
calendar year ending December 31, 1997, $7,500 for the
calendar year ending December 31, 1998 and $10,000 for the
calendar year ending December 31, 1999; and
(B) may receive such additional bonuses for such
calendar years as may be awarded by the Board's Compensation
Committee in its sole discretion, taking into account such
factors it deems relevant, which may include the Company's
actual financial performance in each of those years in
relation to its business plan for such years.
Each bonus for a calendar year under this subparagraph (ii) shall be
payable by no later than March 31 of the following year.
(iii) The Employee shall be entitled to reimbursement for
country club dues in an amount not to exceed $200 per month.
(iv) The Employee agrees to relocate from his present home in
Cincinnati, Ohio in the event the Board determines during the term
of this Agreement that his duties are such that such relocation
would be in the Company's best interests. In such event, the Company
agrees to pay the reasonable cost of travel and transportation
associated with such relocation, and to provide the Employee and his
family with temporary living quarters in the area to which he is
being relocated, for up to a maximum of six months, until the
Employee obtains permanent living arrangements. If the Company
requests such relocation within three years after the date of this
Agreement, and if in connection with the Employee's sale of his
residence incident to such relocation the net sales price (after
deducting brokers' commissions and other reasonable out-of-pocket
expenses incurred pursuant to the sale) is less than his original
purchase price thereof (the Company having the right to be consulted
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about, and a right of reasonable approval over, such sales price),
then the Company shall pay to the Employee the amount of the
difference.
(v) The Employee shall also be entitled to receive such other
benefits as are generally available to employees of the Company.
5. TERMINATION.
(a) DEATH. If the Employee dies during the term of this Agreement
and while in the employ of the Company, this Agreement shall automatically
terminate and the Company shall have no further obligation to the Employee
or his estate, except that the Company shall pay the Employee's estate
that portion of the Employee's salary accrued through the end of the month
in which the Employee's death occurred.
(b) DISABILITY. If during the term of this Agreement, the Employee
shall be prevented from performing his duties hereunder by reason of
disability, and such disability shall continue for a period of twelve
weeks, then the Company may terminate this Agreement at any time after the
expiration of such twelve-week period while such disability is continuing.
For purposes of this Agreement, the Employee shall be deemed to have
become disabled when the Company, upon the advice of a qualified
physician, shall have determined that the Employee has become physically
or mentally incapable (excluding infrequent and temporary absences due to
ordinary illness) of performing his duties under this Agreement. In the
event of a termination pursuant to this paragraph (b), the Company shall
be relieved of all its obligations under this Agreement, except that the
Company shall pay to the Employee his base salary through the end of the
month during which such termination shall have occurred, less any benefits
received by the Employee during such period of disability under any
disability benefits plan maintained by the Company.
(c) CERTAIN DISCHARGES.
(i) DISCHARGE WITHOUT CAUSE. Prior to the end of the term of
this Agreement, the Company, on 30 days' prior written notice to the
Employee, may discharge the Employee for any reason, without Cause
(as defined in subparagraph (ii) below), in which case the Company
may terminate this Agreement without further liability to the
Employee or his estate in the event of his subsequent death, other
than to pay to the Employee or to his estate the Employee's base
salary and minimum guaranteed bonuses pursuant to Section 4 for the
remainder of the term of this Agreement. Such payments to the
Employee shall be made in the same manner and at the same times as
they
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would have been paid had the Employee not been discharged.
(ii) DISCHARGE WITH CAUSE. Prior to the end of the term of
this Agreement, the Company may discharge the Employee with Cause
(as hereinafter defined) without prior written notice, and terminate
this Agreement without any further liability hereunder to the
Employee or his estate other than to pay to the Employee his base
salary accrued to the date of discharge. For purposes of this
Agreement, the Company shall have "Cause" to discharge the Employee
or terminate the Employee's employment hereunder upon (i) the
Employee's commission of any felony or other crime involving moral
turpitude, (ii) the Employee's willful or persistent failure or
refusal to follow policies or directives established by the Company,
(iii) the Employee's commission of acts amounting to gross
negligence or willful misconduct to the detriment of the Company or
its affiliates or (iv) the Employee's breach of this Agreement.
6. CONFIDENTIAL INFORMATION. The Employee acknowledges that in the
course of his employment by the Company and its affiliates he has received and
will receive certain trade secrets, programs, lists of customers and other
confidential information and knowledge concerning the business of the Company
and its predecessor (hereinafter collectively referred to as "Information")
which the Company desires to protect. The Employee understands that the
Information is confidential and he agrees not to reveal the Information to
anyone outside the Company so long as the confidential or secret nature of the
Information shall continue. The Employee further agrees that he will at no time
use the Information in competing with the Company. Upon termination of this
Agreement, the Employee shall surrender to the Company all papers, documents,
writings and other property produced by him or coming into his possession by or
through his employment or relating to the Information and the Employee agrees
that all such materials will at all times remain the property of the Company.
The provisions of this Section 6 shall survive any termination of this
Agreement.
7. RESTRICTIVE COVENANTS. During the term of this Agreement and for
a period of two (2) years thereafter, the Employee shall not: (i) engage, as
principal, agent, trustee or through the agency of any corporation, partnership,
association or agent or agency, anywhere within the United States (hereafter the
"Territory"), in the business of the design, manufacture, sale, marketing or
distribution of blank, printed or embroidered apparel products (the "Industry");
(ii) own or hold any beneficial interest of more than the Applicable Percentage
of the voting securities in any corporation, partnership or other business
entity which conducts its operations, in whole or in part, within the Industry
and within the Territory; or (iii) become an employee of or consultant
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to, or serve in any similar capacity with, any business within the Industry
which conducts its operations in whole or in part within the Territory. In
addition, in any such event and during such period, the Employee further agrees
that he shall not, either directly or indirectly, through any person, firm,
association or corporation with which the Employee is now or may hereafter
become associated, cause or induce any present or future employee of the Company
to leave the employ of the Company to accept employment with the Employee or
with such person, firm, association or corporation. For purposes of the
foregoing, "Applicable Percentage" means (x) one percent (1%), in the case of
corporations, partnerships and other business entities having a class of
securities registered pursuant to Section 12 of the Securities Exchange Act of
1934, as amended, or (y) five percent (5%) in all other cases. The foregoing
covenants shall not be held invalid or unenforceable because of the scope of the
territory or actions subject thereto or restricted thereby, or the period of
time within which such covenants are operative; but any judgment of a court of
competent jurisdiction may define the maximum territory and actions subject to
and restricted by this Section 7 and the period of time during which such
covenants are enforceable. The provisions of this Section 7 shall survive any
termination of this Agreement. The two-year period referred to above shall
commence and be effective regardless of the reason for any termination of this
Agreement, including (without limitation) the Employee's voluntary resignation
or discharge without Cause, provided that in case of a discharge without Cause,
this Section 7 shall remain in effect for only so long (if less than two years)
after such termination that the Company is continuing to make payments to the
Employee pursuant to Section 5(c)(i).
8. NOTICES. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or on the date mailed, postage
prepaid, by certified mail, return receipt requested, or telegraphed and
confirmed if addressed to the respective parties as follows:
If to the Employee: Mr. F. Xxxxxxx Xxxxxxxx
7910 Greylock
Xxxxxxxxxx, Xxxx 00000
If to the Company: Brazos Sportswear, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Chairman of the Board
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
9. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be ef-
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fective and valid under applicable law but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such provision or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
10. ASSIGNMENT. This Agreement may not be assigned by the Employee.
Neither the Employee nor his estate shall have any right to commute, encumber or
dispose of any right to receive payments hereunder, it being agreed that such
payments and the right thereto are nonassignable and nontransferable.
11. BINDING EFFECT. Subject to the provisions of Sec- tion 10 of
this Agreement, this Agreement shall be binding upon and inure to the benefit of
the parties hereto, the Employee's heirs and personal representatives, and the
successors and assigns of the Company.
12. CAPTIONS. The section and paragraph headings in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. COMPLETE AGREEMENT. This Agreement represents the entire
agreement between the parties concerning the subject hereof and supersedes all
prior agreements between the parties concerning the subject thereof.
14. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Ohio.
15. COUNTERPARTS. This Agreement may be executed in multiple
original 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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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the date and year first above written.
THE COMPANY:
BRAZOS SPORTSWEAR, INC.
By: _____________________________
XXXXXXX X. XXXX,
Chairman of the Board
THE EMPLOYEE:
_________________________________
F. XXXXXXX XXXXXXXX
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