EXHIBIT 10.17
EMPLOYMENT AGREEMENT
XXXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
1st day of January, 2004, by and between PHOENIX FOOTWEAR GROUP, INC., a
Delaware corporation ("Employer" or the "Company"), and XXXXX X. XXXXXXX
("Employee" or "Xxxxxxx").
RECITALS:
WHEREAS, the Board of Directors ("Board") of the Company has approved the
engagement of Xxxxxxx as its Chief Executive Officer, subject to the execution
and delivery of this Agreement by the parties hereto; and
WHEREAS, Xxxxxxx is willing to serve in that capacity on the terms and
conditions hereinafter set forth.
PROVISIONS:
NOW, THEREFORE, in consideration of the premises and the agreements
contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company agrees to employ Xxxxxxx and Xxxxxxx hereby
accepts such employment by the Company upon the terms and conditions set forth
herein.
2. DUTIES OF EMPLOYEE. The Company hereby employs Xxxxxxx as the Chief
Executive Officer of the Company and Xxxxxxx agrees to exercise such powers and
authority as are inherent in the position and to perform such duties as the
Board of Directors of the Company (the "Board") may direct during the Term of
Employment as defined below. Xxxxxxx shall devote substantially his whole
working time, efforts and attention to the business and affairs of the Company
(except for vacation time, absence for sickness or similar disability) and shall
carry out his duties honestly, diligently, in good faith and in the best
interests of the Company. Xxxxxxx shall make such reports, written or verbal, to
the Board as he or it may request regarding the Company's business, operations
and other activities undertaken by Xxxxxxx on behalf of the Company.
3. TERM OF EMPLOYMENT. As used in this Agreement, "Term of Employment"
means the three (3) year period commencing on January 1, 2004 (the "Initial
Term") and each one (1) year renewal term (the "Renewal Term"), if any. Upon the
conclusion of the Initial Term and for any Renewal Term, this Agreement shall
automatically renew for one year (Renewal
Term) unless either party gives notice of intent not to renew this Agreement at
least ninety (90) days prior to the end of the Initial Term or the end of any
Renewal Term.
4. BASE SALARY, EXPENSES AND BENEFITS. The Company shall pay Xxxxxxx as
compensation for his services an annual base salary of not less than Three
Hundred Twenty-Five Thousand Dollars ($325,000) payable in accordance with the
Company's usual payment practices.
(a) Xxxxxxx shall participate in such executive bonus or incentive
plans as may be established from time to time by the Board of Directors.
(b) Upon submission of supporting documentation, Xxxxxxx shall be
reimbursed for all reasonable actual costs and expenses incurred by him in
connection with performance of his duties.
(c) Xxxxxxx shall be entitled to four (4) weeks paid vacation time
each year. Xxxxxxx shall also be eligible to participate in any group life,
medical, health, dental, disability and/or other benefit plans which are
provided for other officers of the Company under the same terms and conditions
as other officers of the Company. Xxxxxxx shall also be eligible to participate
in any other benefit plan adopted by the Company for similarly situated
employees as a group during the term of this Agreement.
5. RESTRICTIVE COVENANTS.
(a) During the term of this Agreement and for one (1) year
thereafter, Xxxxxxx agrees to keep confidential, not to use or to disclose to
others, except as expressly consented to in writing by the Company, or as
required by law to be disclosed, any trade secrets or confidential technology,
proprietary information, customer lists, or knowledge belonging to or relating
to the affairs of the Company, which term as used in this Section shall include
any and all subsidiaries of the Company, or any matter or thing ascertained by
Xxxxxxx through Xxxxxxx'x association with the Company, the use or disclosure of
which matter or thing might reasonably be construed to be contrary to the best
interest of the Company. Xxxxxxx further agrees that should he leave the active
service of the Company, Xxxxxxx will neither take nor retain, without prior
written authorization from the Company, any papers, data, client lists, books,
records, files, or other documents (or copies thereof) or other confidential
information of any kind belonging to the Company pertaining to the business,
sales, financial condition, products or services of the Company.
(b) While employed by the Company and for a period of one (1) year
thereafter, Xxxxxxx agrees that he shall not, directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association or
other entity, attempt to employ or enter into any contractual arrangement with
any employee or former employee of the Company or any of its direct or indirect
subsidiaries, unless such employee or former employee has not been employed by
such entity for a period in excess of six months.
(c) Except with the prior written consent of the Company, Xxxxxxx
will not during the term undertake or engage in any other employment, occupation
or business enterprise other than one in which he is an inactive investor as
described below (except that he may conclude obligations remaining subsequent to
the sale of Xxxxxxx Corporation). Xxxxxxx will also not acquire, assume or
participate in, directly or indirectly, any position, investment or interest
adverse or antagonistic to the Company, its business or prospects, financial or
otherwise, or take any action towards any of the foregoing. Further, during the
term, except on behalf of the Company or its subsidiaries, Xxxxxxx will not,
directly or indirectly, whether as an officer, director, employee, stockholder,
partner, proprietor or associate, representative or otherwise, become or be
interested in any other person, corporation, firm, partnership or other entity
whatsoever which directly competes with the Company or any of its direct or
indirect subsidiaries, in any part of the world, in any line of business engaged
in by any such entities (or in which any such entities have made plans to be
engaged in); provided however, that anything above to the contrary
notwithstanding, Xxxxxxx may own, as an inactive investor, securities of any
competitor corporation, so long as his holdings in any one such corporation
shall not in the aggregate constitute more than 1% of the voting stock of such
corporation.
(d) For one (1) year after termination of this Agreement, Xxxxxxx
agrees that he shall not in any way, directly or indirectly, solicit or sell to
any persons or entities which were customers of the Company during any portion
of the 12 months preceding termination products which are similar to products
which the Company has sold at any time during the term of this Agreement.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH. Xxxxxxx'x employment hereunder shall terminate
immediately upon his death, except for bonus compensation for services to date
of death, the amount of which shall be determined by the Board in its sole
discretion.
(b) FOR CAUSE. The Company may terminate Xxxxxxx'x employment at any
time, effective immediately upon written notice, for cause. For the purpose of
this Agreement, "for cause" means:
(i) repeated and persistent neglect or refusal by Xxxxxxx to
substantially perform his duties under this Agreement other than any such
failure resulting from Xxxxxxx'x incapacity due to physical or mental illness.
Prior to termination for cause under this section (7.b.i.), the Company shall
give written notice to Xxxxxxx identifying the manner in which it believes he is
not substantially performing his duties under this Agreement and failure by
Xxxxxxx within thirty (30) days to cure the identified problem or problems shall
be cause;
(ii) the engaging by Xxxxxxx in criminal conduct (including
embezzlement and criminal fraud);
(iii) the commission by Xxxxxxx of a felony, or a misdemeanor
which impairs his ability substantially to perform his duties with the Company;
(iv) any material misappropriation of funds or intentional
material damage to the property or business of the Company; or
(v) the material breach of this Agreement by Xxxxxxx other
than as specified above.
In the event Xxxxxxx is terminated for cause, the Company shall pay
Xxxxxxx his base salary through the date of termination and the Company shall
have no further obligation to provide compensation under this Agreement.
(c) LONG-TERM DISABILITY. Should Xxxxxxx commence a long-term
disability, as defined below, Xxxxxxx'x base compensation shall be continued
during the first six (6) months of such disability. Should such long-term
disability continue beyond six (6) months, Xxxxxxx'x employment hereunder shall
automatically terminate and the Company shall have no further obligations to
Xxxxxxx under this Agreement. Xxxxxxx shall have commenced a "long-term
disability" if:
(i) Xxxxxxx cannot perform the essential functions of his
position, without reasonable accommodation for his disability; or
(ii) Xxxxxxx can perform the essential functions of his
position with an accommodation that would be an undue hardship for the Company
to provide; and
(iii) because of his disability, Xxxxxxx is qualified to
receive benefits under the Company's long-term disability plan.
(d) WITHOUT CAUSE. Xxxxxxx'x employment may be terminated by the
Company at any time without cause, effective upon one (1) month written notice
of termination and the Company shall be obligated to continue to pay Xxxxxxx as
severance an amount equal to Xxxxxxx'x salary and benefits (other than incentive
compensation amounts) for 18 months, payable under the same terms as provided
while Xxxxxxx was an employee. Should Xxxxxxx'x employment be terminated by the
Company without cause in connection with a "change of control," the Company
shall be obligated to pay to Xxxxxxx within 30 days after the occurrence
thereof, as severance and in lieu of any and all other payments due under the
Agreement (except such as have accrued to the date of termination) an amount
equal to three (3) times the "base amount" paid to Xxxxxxx in the "base period."
The terms "base amount" and "base period" shall have the meaning given to them
in Internal Revenue Code ("Code") Section 280G(b)(3)(A) and Section 280G(d)(2),
respectively, and the Regulations enacted thereunder. In no event shall the
aggregate amount payable to Xxxxxxx hereunder be such as to constitute an Excess
Parachute Payment as that term is used in Section 280G(b) of the Code. In the
event the aggregate payments due hereunder constitute an Excess Parachute
Payment, such payments as selected by Xxxxxxx shall be reduced or negated in
sufficient amount as to render the aggregate of the remaining payments not an
Excess Parachute Payment. A "change of control" shall mean the occurrence of an
event which would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended.
7. AUTOMOBILE ALLOWANCE. During the term of this Agreement, the Company
will provide Xxxxxxx an automobile allowance of $600.00 per month. The vehicle
may be used by Xxxxxxx for business and personal purposes. The Company shall
have no right or claim to any automobile purchased by Xxxxxxx in whole or in
part with the automobile allowance.
8. NOTICES. Any notice, demand or communication required, permitted or
desired to be given under this Agreement shall be deemed effectively given when
personally delivered or mailed by prepaid, certified mail, return receipt
requested, addressed as follows:
Employee: Xxxxx X. Xxxxxxx
____________________________
____________________________
Company: Phoenix Footwear Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Xx., Esq.
9. GOVERNING LAW. This section is replaced in its entirety with the
following:
This Agreement shall be interpreted in accordance with and governed
by the laws of Delaware, without regard to conflict of laws.
(a) Any controversy or claim arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association (the "Rules") in effect at the time demand for
arbitration is made by any party. A single arbitrator
acceptable to both parties shall determine the matter. In the
event that the single arbitrator is not agreed upon, he or she
shall be named by the American Arbitration Association.
Arbitration shall occur in San Diego, California. The award
made by the arbitrator shall be final and binding and judgment
may be entered in any court of law having competent
jurisdiction. The prevailing party shall be entitled to an
award of reasonable attorney's fees, costs and expenses
incurred in connection with the arbitration and any judicial
proceedings related thereto.
(b) In the event of any breach or threatened breach by Xxxxxxx of
any of the provisions of Section 5 of the Agreement, the
Company shall be entitled to injunctive relief restraining
Xxxxxxx or any business, firm, partnership, individual,
corporation or entity participating in such breach or
threatened breach. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies
available at law or in equity for such breach or threatened
breach, including the recovery of damages and the
immediate termination of the employment of Employee hereunder.
If any of the provisions of or covenants contained in Section
5 are hereafter construed to be invalid or unenforceable in a
particular jurisdiction, the same shall not affect the
remainder of the provisions or the enforceability thereof in
that jurisdiction, which shall be given full effect, without
regard to the invalidity or unenforceability thereof in a
particular jurisdiction because of the duration and/or scope
of such provision or covenant in that jurisdiction and, in its
reduced form, said provision or covenant shall be enforceable.
In all other jurisdictions Section 5 shall at all times remain
in full force and effect. The obligations under this Section 5
shall survive any termination of this Agreement.
10. ASSIGNMENT. This Agreement shall be assignable by the Company and
shall inure to the benefit of and be binding upon, the Company, its successors
and assigns. Being a contract for personal services, this Agreement may not be
assigned by Xxxxxxx during his life, and upon his death will be binding upon and
inure to the benefit of his heirs, legatees, and legal representatives of his
estate.
11. MODIFICATION AND WAIVER. No modification, amendment or waiver of any
of the provisions of this Agreement shall be effective unless in writing and
signed by the party against which the same is sought to be enforced. No waiver
by either party at any time of any breach by the party of, or compliance with,
any condition or provision of this Agreement to be performed by the other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or at any prior or subsequent time.
12. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
13. LEGAL EXPENSES AND LIMITED INDEMNITY. If either party brings an action
to enforce the terms of this Agreement or to prevent a violation of this
Agreement, the prevailing party shall be entitled to recover his or its
reasonable attorneys' fees and legal expenses and costs from the losing party as
determined by the court.
14. HEADINGS. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
15. ENTIRE AGREEMENT. This Agreement supersedes any and all prior
discussions, negotiations, employment and similar agreements, written and/or
oral, between the Company and Xxxxxxx. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute the Agreement. This Agreement shall not become
effective until completely conforming counterparts have been signed and
delivered by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
PHOENIX FOOTWEAR GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President and CEO
