Exhibit 10.15
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is
made as of October 2, 2003, among Xxxxxx'x, Inc., a Delaware corporation
("Carter's"), The Xxxxxxx Xxxxxx Company, a Massachusetts corporation (the
"Company"), and Xxxxxxxxx X. Xxxxx, XX ("Executive") and shall replace in its
entirety the Amended and Restated Employment Agreement (the "Prior Agreement")
dated as of December 20, 2002 (the "Effective Date"). Certain capitalized terms
that are used in this Agreement are defined in paragraph 11.
The parties agree as follows:
1. EMPLOYMENT. Carter's and the Company agree to employ Executive, and
Executive hereby accepts employment with Carter's and the Company, upon the
terms and conditions set forth in this Agreement for the period beginning on the
"Effective Date" and ending as provided in paragraph 4 (the "Employment
Period").
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive shall serve as the
President, Chief Executive Officer and Chairman of the Board of Carter's and the
Company and shall have the normal duties, responsibilities and authority of such
positions, subject to any limitations imposed by the bylaws of Carter's or the
Company and to the power of the boards of directors of Carter's and the Company
to expand or limit such duties, responsibilities and authority and to override
actions of the Executive.
(b) Executive shall report to the boards of directors of Carter's
and the Company and Executive shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of Carter's and the Company. Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner.
(c) Executive's principal office and place of employment shall be at
the Company's facility located in the Atlanta, Georgia metropolitan area, unless
a different place is agreed upon by the Company and the Executive. For all
purposes of this Agreement, Carter's' and the Company's principal executive
offices shall be located wherever Executive has his principal office and place
of employment. This paragraph 2(c) is a material part of this Agreement.
3. COMPENSATION.
(a) BASE SALARY. Executive's base salary shall be $683,000 per annum
for the Company's fiscal year 2002. On each January 1 occurring after the
Effective Date and during the Employment Period, the Executive's base salary
then in effect shall be increased by the applicable Cost of Living Amount. The
Company's Board of Directors may in its discretion increase Executive's base
salary at such times and in such amounts as the Board of Directors
determines but at no time shall Executive's base salary, in effect from time to
time, be decreased. As used in this Agreement, "Base Salary" means the
Executive's base salary as adjusted and in effect from time to time. Executive's
Base Salary shall be payable by the Company in regular installments in
accordance with the Company's general payroll practices.
(b) ANNUAL CASH BONUS PLAN. Executive shall be a participant in the
Company's Annual Cash Bonus Plan and be eligible for an annual award under such
plan at a maximum award level equal to no less than one hundred percent (100%)
of Executive's Base Salary in effect during the calendar year for which the
award is made.
(c) VACATION. Executive shall be entitled to four (4) weeks paid
vacation annually.
(d) FRINGE BENEFITS. Executive shall receive the fringe benefits
described on Exhibit A to this Agreement and such other benefits as are made
available to executive level employees of the Company and such other benefits,
payments or allowances as the Company's Board of Directors (or an appropriate
committee of the board) may from time to time make available to Executive.
Without prejudice to Executive's rights under this Agreement, the Company
reserves the right (i) to modify the terms of any benefit plan that is generally
made available to executive level employees of the Company and in which
Executive participates so long as such changes affect all plan participants
equally (or in proportion to their respective interests), and (ii) to make
reasonable changes in benefits established for Executive at the direction of the
Company's Board of Directors, so long as the benefits available to Executive
after giving effect to such change are not materially different from those being
provided prior to such change.
(e) BUSINESS EXPENSES. The Company shall reimburse Executive for all
reasonable and necessary expenses incurred by him in connection with the
performance of his duties and responsibilities pursuant to this Agreement which
are consistent with the Company's policies in effect from time to time with
respect to travel, entertainment and other business expenses, subject to the
Company's reasonable requirements with respect to reporting and documentation of
such expenses.
4. TERM AND TERMINATION.
(a) The Employment Period shall extend until December 20, 2007;
provided that (i) the Employment Period shall terminate prior to such date upon
Executive's resignation, Retirement or death and (ii) the Employment Period may
be terminated by the Company at any time prior to such date for Cause,
Executive's Disability or Without Cause.
(b) Any termination of Executive's employment by the Company
pursuant to clause 4(a) (ii) above, and any termination of Executive's
employment by the Executive pursuant to paragraph 4(a) (i) above, shall be
communicated by written Termination Notice given to the other party hereto;
provided that in the case of Executive's death, a Termination Notice shall be
deemed to have been given as of the date of his death; and, provided further
that, in the case of a termination for Cause, there shall also have been
delivered to the Executive the Board of Directors' resolution to be delivered if
and as provided in the definition of Cause. For purposes of
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this Agreement, a "Termination Notice" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
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.
(c) "Termination Date" means (i) if this Agreement is terminated for
Disability, 30 days after Termination Notice is given (provided that the
Executive shall not have returned to the performance of his duties on a
full-time basis during such 30-day period), (ii) if Executive resigns or takes
Retirement, the date specified in the Executive's Termination Notice (or if no
Termination Notice is given, the date upon which such termination is effective),
(iii) if Executive dies, on the last day of the month next succeeding the month
during which Executive's death occurs, and (iv) if the Executive's employment is
terminated for any other reason, the date on which a Termination Notice is
given.
5. SEVERANCE COMPENSATION.
(a) GENERAL. If Executive resigns, terminates employment by his
death or Retirement or is terminated for Cause, the Company will pay Executive
his Base Salary in effect at the time the Termination Notice is given (or deemed
given) through the Termination Date and neither Carter's nor the Company shall
have any further obligations to Executive under this Agreement. Without
prejudice to any accrued and vested rights Executive may have under the
Supplemental Retirement Agreement, the Annual Cash Bonus Plan, the Retirement
Savings Plan or the Severance Pay Plan and except as otherwise required by law,
all of Executive's rights to fringe benefits from the Company will cease as of
the Termination Date.
(b) DISABILITY. During any period that the Executive fails to
perform his duties as a result of incapacity due to mental illness or physical
illness or injury, he shall continue to receive his full Base Salary and
benefits until the Company terminates his employment for Disability. Thereafter,
he will be entitled to major medical health insurance coverage under the
Company's employee group health insurance (or substantially similar health
insurance) until the third anniversary of the Termination Date or until the
Executive obtains employment with another employer that makes health insurance
available to its employees, whichever occurs first, and shall be entitled to
receive disability benefits in accordance with the disability income insurance
plan or plans maintained by the Company covering Executive at the Termination
Date. Without prejudice to any accrued and vested rights Executive may have
under the Supplemental Retirement Agreement, the Annual Cash Bonus Plan or the
Retirement Savings Plan and except as otherwise required by law or as provided
in this paragraph 5(b), all of Executive's rights to fringe benefits from the
Company will cease as of the Termination Date.
(c) WITHOUT CAUSE. If Executive is involuntarily terminated by the
Company Without Cause, (i) Executive shall be entitled to continue to receive
his Base Salary (as in effect on the Termination Date) for thirty-six (36)
months following the Termination Date (such date, the "End Date") so long as
Executive has not breached the provisions of paragraphs 6, 7 or 8, (ii) the
Company will maintain in full force and effect, for Executive's continued
benefit, until the End Date, all life, medical and dental insurance programs in
which Executive was entitled to participate so long as his continued
participation is possible under the general terms and provisions of such
programs (provided that, in the event Executive's participation in any such
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program is barred, the Company will arrange to provide the Executive with
benefits substantially similar to those which he was entitled to receive under
such program), (iii) notwithstanding any provision in the Annual Cash Bonus Plan
to the contrary, the Executive shall become fully vested and have a
non-forfeitable interest in the benefit which he has accrued under the Annual
Cash Bonus Plan as of the Termination Date (and shall be given full credit under
the Annual Cash Bonus Plan for the benefit that he would have accrued for the
plan year during which the Termination Date occurs (which determination may take
into account whether Company performance goals established by the plan or its
administrator for such year have been met, but which may not take into account
whether personal performance goals established by the plan or its administrator
for such year have been met) if he were employed by the Company on the last day
of such plan year), and (iv) Executive will be entitled to service credit under
the Supplemental Retirement Agreement through the End Date. The amounts payable
in respect of accrued benefits under the Annual Cash Bonus Plan shall be payable
at the time provided for in, and in accordance with the provisions of, the
Annual Cash Bonus Plan. The amounts payable pursuant to this paragraph 5(c) in
respect of Base Salary may be payable, at Executive's discretion, in one lump
sum payment within 30 days following the Termination Date equal to the present
value (determined using a discount rate equal to the "prime" rate of interest
charged by Chase Manhattan Bank in New York plus two percentage points) of the
payments otherwise payable pursuant to this paragraph 5(c). This paragraph 5(c)
sets forth Executive's exclusive remedy for a termination of his employment
Without Cause and Executive shall have no other right or remedy against Carter's
or the Company in connection therewith.
(d) The Executive's right to receive payments under this Agreement
shall not decrease the amount of, or otherwise adversely affect, any other
benefits payable to the Executive under any plan, agreement or arrangement
relating to employee benefits provided by the Company (or an Affiliated
Corporation); provided, however, that the amounts payable to the Executive under
paragraph 5(c)(i) shall be reduced by the amount of any severance compensation
payable to Executive under the Company's Severance Pay Plan.
(e) The Executive shall not be required to mitigate the amount of
any payment provided for in this paragraph 5 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
paragraph 5 be reduced by any compensation earned by the Executive as the result
of employment by another employer or by reason of the Executive's receipt of or
right to receive any retirement or other benefits after the date of termination
of employment or otherwise (except as otherwise provided in this paragraph 5).
6. CONFIDENTIAL INFORMATION. The Executive acknowledges that the
non-public information obtained by him while employed by Carter's and the
Company concerning the business or affairs of Carter's, the Company or any other
Subsidiary of Carter's ("Confidential Information") are the property of
Carter's, the Company or such other Subsidiary. For purposes of this Agreement,
the term "Confidential Information" does not include information that Executive
can demonstrate (a) was in Executive's possession prior to his initial
employment by the Company, provided that such information is not known by
Executive to be subject to another confidentiality agreement with, or other
obligation of secrecy to, the Company or another party, (b) is generally
available to the public and became generally available to the public other than
as a result of a disclosure in violation of this Agreement, or (c) became
available to Executive on a non-confidential basis from a third party, provided
that such third party is not known by
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Executive to be bound by a confidentiality agreement with, or other obligation
of secrecy to, the Company or another party or is otherwise prohibited from
providing such information to Executive by a contractual, legal or fiduciary
obligation. Executive agrees that he will not disclose Confidential Information
to any person (other than employees of Carter's, the Company or any Subsidiary
thereof or any other person expressly authorized by Carter's the Carter's Board
of Directors to receive Confidential Information) or use for his own account any
Confidential Information without the prior written consent of Carter's the
Carter's Board of Directors. Executive shall deliver to the Company at the
termination of the Employment Period, or at any other time Carter's the Carter's
Board of Directors may request in writing, all memoranda, notes, plans, records,
reports, computer tapes and software and other documents and data (and copies
thereof) containing Confidential Information or Work Product which he may then
possess or have under his control.
7. WORK PRODUCT. Executive agrees that all inventions, innovations,
improvements, developments, methods, designs, analyses, reports and all similar
or related information which relate to Carter's' or the Company's or any of its
Subsidiaries' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive while employed with the Company ("Work Product") belong to
Carter's, the Company or such Subsidiary. Upon the written request of Carter's
the Carter's Board of Directors, Executive will promptly disclose such Work
Product to Carter's Board of Directors and perform all actions reasonably
requested by the Carter's Board of Directors (whether during or after the
Employment Period) to establish and confirm such ownership.
8. NONCOMPETE; NON-SOLICITATION.
(a) Executive acknowledges that in the course of his employment with
Carter's and the Company he will become familiar with the trade secrets and
other confidential information of Carter's, the Company and other Subsidiaries
of Carter's and that his services will be of special, unique and extraordinary
value to Carter's and the Company. Therefore, Executive agrees that, during the
Employment Period and for two years thereafter (or one year thereafter, if
Executive's employment is terminated Without Cause) (the "Noncompete Period"),
he shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of Carter's and the Company or any of its
Subsidiaries which (i) exist on the date of the termination of Executive's
employment or (ii) are commenced during the Noncompete Period (but, for purposes
of this clause (ii) only if Carter's, the Company or such Subsidiary had
determined prior to the Termination Date to enter into such business or had
committed substantial resources prior to the Termination Date to determine the
feasibility of entering into such business), within the United States and any
other geographical area in which Carter's or any of its Subsidiaries engage in
such businesses. Nothing herein shall prohibit Executive from being a passive
owner of not more than 2% of the outstanding stock of any class of a corporation
which is publicly traded so long as Executive has no active participation in the
business of such corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of Carter's, the Company or any other Subsidiary of Carter's to leave the employ
of such person, or in any way interfere with the employee relationship between
Carter's, the Company or any other Subsidiary of Carter's
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and any employee thereof, (ii) hire any person who was an employee of Carter's,
the Company or any other Subsidiary of Carter's at any time during the
Employment Period (other than individuals who have not been employed by
Carter's, the Company or any other Subsidiary of Carter's for a period of at
least one year prior to employment by Executive directly or indirectly through
another entity), or (iii) induce or attempt to induce any customer, supplier,
licensee or other person having a business relationship with Carter's, the
Company or any other Subsidiary of Carter's to cease doing business with
Carter's, the Company or such other Subsidiary of Carter's, or interfere
materially with the relationship between any such customer, supplier, licensee
or other person having a business relationship with Carter's, the Company or any
other Subsidiary of Carter's.
(c) If, at the time of enforcement of this paragraph 8, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(d) In the event of the breach or a threatened breach by Executive
of any of the provisions of this paragraph 8, each of Carter's and the Company,
in addition and supplementary to other rights and remedies existing in its
favor, may apply to any court of law or equity of competent jurisdiction for
specific performance or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security).
9. INCAPACITY. Without prejudice to Executive's rights under this
Agreement, if at any time during the term of this Agreement Executive is absent
from his duties with the Company for 30 consecutive days as a result of
incapacity due to mental illness or physical illness or injury, each of
Carter's' and the Company's boards of directors may appoint an interim Chairman
of the Board, President and Chief Executive Officer or assume extended
management responsibilities for the duration of Executive's absence. Unless
Executive's employment has been terminated previously under this Agreement,
Executive shall be permitted to resume performance of his duties and
responsibilities under this Agreement upon regaining the capacity to do so.
10. EXECUTIVE REPRESENTATIONS. Executive hereby represents and warrants
to Carter's and the Company that (a) the execution, delivery and performance of
this Agreement by Executive does not and will not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity with which this
Agreement would conflict or constitute a breach thereof and (c) upon the
execution and delivery of this Agreement by Carter's and the Company, this
Agreement shall be the valid and binding obligation of Executive, enforceable
against Executive in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting the enforceability of contractual obligations and creditor's rights
generally
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and to federal and state constitutional proscriptions and by the application of
equitable principles by courts of competent jurisdiction, sitting at law or in
equity.
11. CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliated Corporation" means any corporation that is a member of the
"affiliated group" (as defined in Section 1504 of the Code) of which the Company
is a member.
"Anniversary Date" means any or a specific anniversary of the Effective
Date, as the context requires.
"Cause" means (a) conviction of Executive for a felony, or the entry by
Executive of a plea of guilty or nolo contendere to a felony, (b) a willful and
material breach by Executive of paragraph 6, 7 or 8 of this Agreement, (c) the
commission of an act of fraud involving dishonesty for personal gain which is
materially injurious to the Company, (d) the willful and continued refusal by
the Executive to substantially perform his duties with the Company (other than
any such refusal resulting from his incapacity due to mental illness or physical
illness or injury), after a demand for substantial performance is delivered to
the Executive by the Company's Board of Directors, where such demand
specifically identifies the manner in which the Company's Board of Directors
believes that the Executive has refused to substantially perform his duties and
the passage of a reasonable period of time for Executive to comply with such
demand or (e) the willful engaging by the Executive in gross misconduct
materially and demonstrably injurious to the Company or its Subsidiaries. For
purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or its Subsidiaries.
Notwithstanding the foregoing, with respect to termination for Cause arising out
of conduct described in clause (b), (c), (d) or (e) above, the Executive may not
be terminated for Cause unless there shall have been delivered to the Executive
a copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire Board of Directors of the Company, at a meeting of
such board called and held for that purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel or
other advisors, to be heard at such meeting), finding that in the good faith
opinion of the board the Executive had engaged in conduct described above in
clause (b), (c), (d), or (e) of the first sentence of this paragraph and
specifying the particulars thereof in detail. Such a finding by the Board of
Directors of the Company is a prerequisite to a termination for Cause pursuant
to clauses (b), (c), (d) or (e) above; provided, however, that such a finding
may be challenged, by appropriate judicial process, on the merits (i.e., that
Cause did not exist) or on the basis that the board's finding was not made in
good faith (provided that proof that Cause for termination existed shall be a
complete defense to any showing that the board's findings was not made in good
faith).
"Code" means the Internal Revenue Code of 1986, as amended.
"Cost of Living Amount" means an amount calculated by multiplying the
Base Salary then in effect by a fraction, (a) the numerator of which shall be
the amount (not less than zero) by which the latest Cost of Living Index
available as of the time of determination exceeds the Cost
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of Living Index for the same period during the immediately preceding year, and
(b) the denominator of which shall be the latest Cost of Living Index for the
same period during the immediately preceding year.
"Cost of Living Index" means the Consumer Price Index for All Urban
Consumers, Atlanta, Georgia (1967-100) prepared by the Bureau of Labor
Statistics of the United States Department of Labor for the relevant period;
provided that if the index shall cease to be published, the parties shall use as
the index, the most comparable index published by the United States Government.
"Disability" means the Executive shall have been absent from his duties
with the Company for 26 consecutive weeks as a result of incapacity due to
mental illness or physical illness or injury, and he shall not have returned to
the full-time performance of his duties within 30 days after written notice of
termination of this Agreement is given by the Company's Board of Directors.
"End Date" is defined in paragraph 5(c).
"Good Reason" means, unless Executive shall have consented in writing
thereto, any of the following:
(a) except as provided in paragraph 9, a material reduction in
Executive's title, duties, responsibilities or status, as compared to such
title, duties, responsibilities or status on the Effective Date;
(b) the assignment to Executive of a material amount of different or
additional duties that are significantly inconsistent with Executive's office on
the Effective Date;
(c) the imposition on Executive of business travel obligations
substantially greater than his business travel obligations during the year prior
to the Effective Date; or
(d) any material breach of this Agreement on the part of Carter's or
the Company;
provided, however, that Executive shall not have the right to terminate his
employment for "Good Reason" unless he shall have given thirty (30) days prior
written notice to the Board of Directors of the Company in which Executive sets
forth in reasonable detail the circumstances that Executive believes constitute
"Good Reason" pursuant to the preceding clauses (a) through (d) and the Company
shall not have remedied the matter within said thirty (30) day period; and
provided, further, however that the fact that the Company does or does not so
remedy said matter shall not be deemed an admission by the Company that such
circumstances constitute "Good Reason".
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability company,
a trust, an unincorporated organization or a government or any department or
agency or political subdivision thereof.
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"Retirement" means termination of Executive's employment in accordance
with the Company's normal retirement policy generally applicable to its salaried
employees (or, at Executive's election, at any time) or in accordance with any
other retirement arrangement established with the Executive's consent with
respect to the Executive.
"Retirement Savings Plan" means the Company's Defined Contribution
40l(k) savings plan in effect as of the Effective Date as the same is amended
from time to time.
"Severance Pay Plan" means the Company's Severance Pay Plan for Exempt
Employees, in effect as of the Effective Date, as the same is amended from time
to time.
"Subsidiary" means with respect to any corporation, another corporation
of which the securities having a majority of the voting power in electing
directors are, at the time of determination, owned by the first corporation,
directly or through one or more Subsidiaries.
"Supplemental Retirement Agreement" means the Supplemental Executive
Retirement Agreement between the Executive and the Company as amended though the
date hereof.
"Termination Date" is defined in paragraph 4(c).
"Termination Notice" is defined in paragraph 4(b).
"Without Cause" means an involuntary termination of Executive's
employment by the Company other than for Cause or due to Executive's death or
Disability or a termination of employment by Executive for Good Reason.
12. SURVIVAL. Paragraphs 6, 7 and 8 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Employment Period.
13. EXPENSES. The Company shall pay all of Executive's expenses
(including reasonable attorneys' fees and expenses) paid by Executive in
connection with the negotiation and preparation of this Agreement and all
related documents. In the event Executive prevails in any arbitration or
litigation arising out of his termination of employment or his seeking to obtain
or enforce any right or benefit provided by this Agreement or by any other plan
or arrangement maintained by the Company under which he is or may be entitled to
receive benefits, the Company shall pay all reasonable legal fees and related
expenses (including the costs of experts, evidence and counsel and other such
expenses included in connection with any litigation or appeal) incurred by the
Executive in such an arbitration or litigation. To the extent any of the
foregoing expense reimbursement generates taxable income to the Executive, the
Executive will be paid an additional amount to defray tax liability resulting
from such expense reimbursement (and such additional payment). The Company
further agrees to pay prejudgment interest on any money judgment against the
Company obtained by the Executive in any arbitration or litigation against it to
enforce such rights calculated at the Prime Rate as reported in the Wall Street
Journal in effect from time to time from the date it is determined that
payment(s) to him should have been made under this Agreement.
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14. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed by first class mail,
return receipt requested, to the recipient at the address below indicated:
NOTICES TO EXECUTIVE:
Xxxxxxxxx X. Xxxxx, XX
Chairman, Chief Executive Officer and President
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
NOTICES TO CARTER'S OR THE COMPANY:
c/o The Xxxxxxx Xxxxxx Company
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Executive Vice President
with copies to:
Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or on the second business day after being deposited for delivery with the United
States Postal Service.
15. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
16. COMPLETE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written
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or oral, which may have related to the subject matter hereof in any way,
including without limitation the Prior Agreement.
17. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
18. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, Carter's, the Company
and their respective heirs, successors and assigns, except that no party may
assign his or its rights or delegate his or its obligations hereunder without
the prior written consent of the other parties to this Agreement.
19. CHOICE OF LAW. This Agreement will be governed by and construed in
accordance with the domestic law of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New York.
20. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of Carter's, the Company
and Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
[The remainder of the page is left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXXXX'X, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Its: Executive V.P. and Chief Executive Officer
THE XXXXXXX XXXXXX COMPANY
By: Xxxxxxx X. Xxxxx
------------------------------------------
Its: Executive V.P. and Chief Executive Officer
/s/ Xxxxxxxxx X. Xxxxx, XX
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XXXXXXXXX X. XXXXX, XX
EXHIBIT A TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
In addition to those benefits set forth in the foregoing Amended and
Restated Employment Agreement, the Company will provide the following benefits
to Executive:
1. DISABILITY, HEALTH AND LIFE INSURANCE. The Company will provide
Executive with long-term disability insurance that provides coverage at 67% of
Base Salary (and if the Company fails to provide or keep in force such
disability insurance, the Company will be obligated to make payments to
Executive in such amounts and at such times as Executive would have been
entitled under such insurance), major medical health insurance and life
insurance (or additional compensation sufficient to purchase life insurance)
with a death benefit equal to 250% of Base Salary.
2. COMPANY CAR. Executive will be provided, on a basis that is fully
grossed up for taxes, either an automobile or an automobile allowance, in either
case with respect to an automobile (including any replacements) appropriate to
his position.
3. COUNTRY CLUB FEES AND DUES. The Company or Carter's will pay all
periodic dues and fees (not to exceed $4,000 annually) for Executive's
membership in one country club or similar club or organization of Executive's
choice (provided that to the extent that any of such fees or any initiation fee
heretofore paid by the Company or Carter's are refundable, any such refund shall
be made to the Company and if Executive sells such membership the Company will
be entitled to receive from (but only to the extent of) the sale proceeds, the
amount of the initiation fee it paid on Executive's behalf).
4. SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT AND TRUST. Executive,
Carter's and the Company will retain the Supplemental Executive Retirement
Agreement and The Xxxxxxxxx X. Xxxxx Retirement Trust.
