EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of October 22, 2001
between DESIGNS, INC., a Delaware corporation with an office at 00 X Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx, 00000 (the "Company"), and Xxxxxx X. Xxxxx (the
"Executive").
WITNESSETH:
WHEREAS, the Company desires that Executive be employed to serve in a
senior executive capacity with the Company, and Executive desires to be so
employed by the Company, upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises,
representations and covenants herein contained, the parties hereto agree as
follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby accepts such
employment, subject to the terms and conditions herein set forth. Executive
shall hold the office of Senior Vice President of Operations of the Company.
2. TERM
The term of employment under this Agreement shall begin on October
22, 2001(the "Employment Date") and shall continue for a period of one (1)
year from that date ("Initial Term"), subject to prior termination in
accordance with the terms hereof. The term hereof shall automatically be
extended for an additional one (1) year unless either party gives written
notice to the other, at least sixty (60) days prior to the end of the Initial
Term, of such party's intention to not extend this Agreement.
3. COMPENSATION
(a) As compensation for the employment services to be rendered by
Executive hereunder, the Company agrees to pay to Executive, and Executive
agrees to accept, payable in equal installments in accordance with Company
practice, an annual base salary of $240,000.
(b) In addition to the annual base salary, Executive may receive a
discretionary annual bonus of up to forty- percent (40%) of his annual base
salary (the "Discretionary Bonus"), depending on the performance of the Company.
The Compensation Committee of the Board of Directors shall determine, in its
sole discretion, the amount of any bonus to be paid to Executive. Executive
will receive a prepayment of the Discretionary Bonus in the amount of $2,000 per
month for the Initial Term only. Any Discretionary Bonus that the Compensation
Committee determines shall be paid to Executive shall be reduced by the amount
of any prepayments made to Executive.
(c) The Company will pay Executive the total amount of $85,000 for
moving costs associated with Executive's relocation to the Boston, Massachusetts
metropolitan area. ("Boston"), payable upon the listing of the Executive's
current home. However, if the Executive resigns his position with the Company
during the Initial Term, Executive shall reimburse to the Company the $85,000
payment within forty-five (45) days after the effective date of his resignation.
(d) The Executive must permanently relocate to Boston on or before
June 15, 2002. The Company will reimburse the Executive's reasonable air fare
related to his travel (round trip coach air fare with fourteen day advance
purchase only) between Boston and Dallas, TX. (which shall be limited to two
(2) trips per month) and provide Executive with temporary living quarters in
Boston. The Company's obligation to reimburse Executive for the reasonable
air fare and provide temporary living quarters as set forth in this Subsection
shall cease upon the earlier of (a) the date the Executive permanently
relocates to Boston or (b) June 15, 2002. If Executive resigns his position
with the Company during the term of this Agreement, Executive shall reimburse
to the Company the costs of any and all expenses for temporary living quarters
paid by the Company within forty-five (45) days after the effective date of
his resignation, based upon the following schedule: (a) If Executive resigns
during the first 90 days of the Initial Term then Executive shall be required
to reimburse the Company for 75% of such expenses, (b) If Executive resigns
between the 91st and 180th day of the Initial Term, then Executive shall be
required to reimburse the Company for 50% of such expenses, (c) If Executive
resigns between the 181st and the 270th day of the Initial Term, then Executive
shall be required to reimburse the Company for 25% of such expenses, and (d)
If Executive resigns subsequent to the 270th, then Executive shall not be
required to reimburse the Company for any of such expenses.
4. OPTIONS
The Company shall grant to the Executive 50,000 options under the
Company's 1992 Stock Incentive Plan, which are exercisable at a purchase price
per share equal to the closing price of the Common Stock on October 22, 2001.
The options will vest pro rata over a three (3) year period commencing on the
Employment Date, with one third of the total vesting and becoming exercisable
on each of the first, second and third anniversaries of the Employment Date.
In addition, the Executive must execute a standard Stock Option Agreement,
which sets the terms and conditions for the Executive's options. The stock
options must be exercised by October 22, 2011 or they shall become null and
void.
5. EXPENSES
The Company shall pay or reimburse Executive, in accordance with the
Company's policies and procedures and upon presentment of suitable vouchers,
for all reasonable business and travel expenses, which may be incurred or paid
by Executive in connection with his employment hereunder. Executive shall
comply with such restrictions and shall keep such records as the Company may
reasonably deem necessary to meet the requirements of the Internal Revenue
Code of 1986, as amended from time to time, and regulations promulgated
thereunder.
6 OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to participate
in and receive any other benefits customarily provided by the Company to its
senior management (including any profit sharing, pension, 401 (k), short and
long-term disability insurance, major medical insurance and group life
insurance plans in accordance with the terms of such plans), all as determined
from time to time by the Compensation Committee of the Board of Directors.
However, the vacation, fully accrued, shall not be less than 4 weeks per year.
Said vacation time shall be pro rated in the event Executive does not complete
any full year of employment.
(b) The Company will, during the term of Executive's employment
hereunder, provide Executive with an automobile for his use in performing his
employment duties and obligations hereunder. If the Company provides an
automobile, the Company shall pay for the costs of insurance, repairs and
maintenance. If the Company does not provide Executive within automobile, the
Company will pay an automobile allowance to Executive in the total amount of
$600.00 per month. In that event, Executive shall pay and be responsible for
all insurance, repairs and maintenance costs associated with operating that
automobile. In either case, Executive is responsible for his gasoline, unless
the gasoline expense is reimbursable under the Company's policies and
procedures.
7. DUTIES
(a) Executive shall perform such duties and functions consistent with
his position as Senior Vice President, and as the President and/or as the
Board of Directors of the Company shall from time to time determine and
Executive shall comply in the performance of his duties with the policies of,
and be subject to the direction of, the Board of Directors. If requested,
Executive shall serve as a corporate officer and or director of the Company
without further compensation.
(b) At the request of President or the Board of Directors, Executive
shall serve, without further compensation, as an executive officer, corporate
officer and/or director of any subsidiary or affiliate of the Company and, in
the performance of such duties, Executive shall comply with the directives and
policies of the Board of Directors of each such subsidiary or affiliate.
(c) During the term of this Agreement, Executive shall devote
substantially all of his time and attention, vacation time and absences for
sickness excepted, to the business of the Company, as necessary to fulfill his
duties. Executive shall perform the duties assigned to him with fidelity and
to the best of his ability. Notwithstanding anything herein to the contrary,
and subject to the foregoing, Executive may engage in other activities so long
as such activities do not unreasonably interfere with Executive's performance
of his duties hereunder and do not violate Section 10 hereof.
(d) The principal location at which the Executive shall perform his duties
hereunder shall be at the Company's offices in Needham, Massachusetts or at such
other location as may be designated from time to time by the Board of Directors
of the Company. Notwithstanding the foregoing, Executive shall perform such
services at such other locations as may be required for the proper performance
of his duties hereunder, and Executive recognizes that such duties may involve
travel.
8. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated by the Company
at any time:
(i) upon the determination by the President or the Board of
Directors that Executive's performance of his duties has not been fully
satisfactory for any reason which would not constitute justifiable cause (as
hereinafter defined) upon thirty (30) days' prior written notice to Executive;
or
(ii) upon the reasonable determination by the President or the
Board of Directors that there is justifiable cause (as hereinafter defined)
for such termination upon ten (10) days' prior written notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter defined in
Subsection(c) herein) pursuant to Subsection (g) hereof.
(c) For the purposes of this Agreement, the term "disability" shall
mean the inability of Executive, due to illness, accident or any other physical
or mental incapacity, substantially to perform his duties for a period of two
(2) consecutive months or for a total of four (4) months (whether or not
consecutive) in any twelve (12) month period during the term of this
Agreement, as reasonably determined by the Board of Directors of the Company
after examination of Executive by an independent physician reasonably
acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause" shall mean:
any repeated willful failure or refusal to perform any of the duties pursuant
to this Agreement where such conduct shall not have ceased within 5 days
following written warning from the Company; Executive's conviction (which,
through lapse of time or otherwise, is not subject to appeal) of any crime or
offense involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction involved;
Executive's performance of any act or his failure to act, as to which if
Executive were prosecuted and convicted, a crime or offense involving money or
property of the Company or its subsidiaries or affiliates, or a crime or
offense constituting a felony in the jurisdiction involved, would have
occurred; any unauthorized disclosure by Executive to any person, firm or
corporation other than the Company, its subsidiaries or affiliates and their
respective directors, officers and employees (or other persons fulfilling
similar functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by Executive to
secure any personal profit in connection with the business of the Company or
any of its subsidiaries and affiliates; or the engaging by Executive in any
business other than the business of the Company and its subsidiaries and
affiliates which unreasonably interferes with the performance of his duties
hereunder. Upon termination of Executive's employment for justifiable cause,
this Agreement shall terminate immediately and Executive shall not be entitled
to any amounts or benefits hereunder other than such portion of Executive's
annual salary and reimbursement of expenses pursuant to Section 5 hereof as
have been accrued through the date of his termination of employment.
(e) If the Company terminates this Agreement without "justifiable
cause" as provided in Subsection 8 (a)(i) above, the Company shall pay
Executive the greater of: (i) the base salary for the remaining term of this
Agreement (plus, only in the event the termination occurs during the Initial
Term, the applicable remainder of the Discretionary Bonus payable with respect
to the remainder of the Initial Term) or (ii) an amount equal to one half of
Executive's annual base salary (plus, only in the event the termination occurs
during the Initial Term, one half of the Discretionary Bonus payable with
respect to the Initial Term). However, if Executive is employed or retained,
as an employee, independent contractor, consultant or in any other capacity
("New Employment") during the time he receives payment under this Subsection
or Subsection 3 (b), the Company is entitled to a credit for all sums paid or
earned by Executive during this period of time. The Executive must make a
good faith effort to find New Employment and mitigate the amount of money to
be paid by the Company to Executive under this Subsection or Subsection 3(b).
The Company will pay any amount due and owing under 8 (a)(i) and 8(a)(ii)
above in accordance with the payment schedule in 3(a), until paid in full.
(f) If Executive shall die during the term of his employment
hereunder, this Agreement shall terminate immediately. In such event, the
estate of Executive shall thereupon be entitled to receive such portion of
Executive's annual salary and reimbursement of expenses pursuant to Section 5
as have been accrued through the date of his death.
(g) Upon Executive's "disability", the Company shall have the right to
terminate Executive's employment. Notwithstanding any inability to perform
his duties, Executive shall be entitled to receive his base salary and
reimbursement of expenses pursuant to Section 5 as provided herein until he
begins to receive long-ten-n disability insurance benefits under the policy
provided by the Company pursuant to Section 6 hereof. Any termination
pursuant to this Subsection (g) shall be effective on the later of (i) the
date 30 days after which Executive shall have received written notice of the
Company's election to terminate or (ii) the date he begins to receive long-
term disability insurance benefits under the policy provided by the Company
pursuant to Section 6 hereof
(h) Upon the resignation of Executive in any capacity, that
resignation will be deemed to be a resignation from all offices and positions
that Executive holds with respect to the Company and any of its subsidiaries
and affiliates.
(i) Executive may terminate his employment with the Company upon (a)
ten (10) days' prior written notice to the Company, for "Cause" (as defined
below). For the purposes of this paragraph, "Cause" shall mean: (w) the
assignment to Executive, without his express consent, of a substantial amount
of duties which are inconsistent with his position with the Company, or a
change in Executive's responsibilities which materially diminishes his
responsibilities with the Company when considered as a whole; (x) a reduction
by the Company in Executive's base salary (or during the Initial Term only, a
reduction of the minimum discretionary bonus payable with respect to the
Initial Term); (y) failure by the Company to comply with Sections 5 or 6
hereof; or (z) the Company's requiring Executive to be permanently based
anywhere other than the Company's offices in Needham, Massachusetts, or within
fifty (50) miles of said office. If the Executive terminates his employment
hereunder for Cause (as defined in this paragraph), Executive shall be
entitled to receive the payments described in Section 8(e) of this Agreement,
and Executive shall not be required to make the reimbursements to the Company
described in Sections 3(c) and 3(d)of this Agreement.
9. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to enter into
this Agreement and to perform the duties required hereunder, and that there
are no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his
duties hereunder.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required
by any insurance company in connection with the Company's obtaining life
insurance on the life of Executive, and any other type of insurance or fringe
benefit as the Company shall determine from time to time to obtain.
(c) Executive represents and warrants that he has never been convicted
of a felony and he has not been convicted or incarcerated for a misdemeanor
within the past five years, other than a first conviction for drunkenness,
simple assault, speeding, minor traffic violations, affray, or disturbance of
the peace.
(d) Executive represents and warrants that he has never been a party
to any judicial or administrative proceeding that resulted in a judgement,
decree, or final order (i) enjoining him from future violations of, or
prohibiting any violations of any federal or state securities law, or (ii)
finding any violations of any federal or state securities law.
(e) Executive represents and warrants that he has never been accused of
any impropriety in connection with any employment;Any breach of any of the above
representations and warranties is "justifiable cause" for termination under
Section 8 of this Agreement.
10. NON-COMPETITION
(a) Executive agrees that during his employment by the Company and
during the six month period following the termination of Executive's employment
hereunder (the "Non-Competitive Period"), Executive shall not, directly or
indirectly, as owner, partner, joint venturer, stockholder, employee, broker,
agent, principal, trustee, corporate officer, director, licensor, or in any
capacity whatsoever, engage in, become financially interested in, be employed
by, render any consultation or business advice with respect to, or have any
connection with, any business which is competitive with products or services of
the Company or any subsidiaries and affiliates, of the Company with respect to
whom the Executive exercised any significant responsibilities (as reasonably
determined by the Company) in any geographic area in the United States of
America and Puerto Rico where, at the time of the termination of his employment
hereunder, the business of the Company or any of such subsidiaries and
affiliates was being conducted or was proposed to be conducted in any manner
whatsoever; provided, however, that Executive may own any securities of any
corporation which is engaged in such business and is publicly owned and traded
but in an amount not to exceed at any one time one percent (1%) of any class of
stock or securities of such corporation. In addition, Executive shall not,
during the Non-Competitive Period, directly or indirectly, request or cause any
suppliers or customers with whom the Company or any of its subsidiaries and
affiliates has a business relationship to cancel or terminate any such business
relationship with the Company or any of its subsidiaries and affiliates or
solicit, hire, interfere with or entice from the Company any employee (or
former employee) of the Company.
(b) If any portion of the restrictions set forth in this Section 10
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected. For the purposes of
this Section 10, a business shall be deemed to be competitive with the
products and services of the Company (or such subsidiaries and affiliates) if
it sells exclusively in outlet or factory stores (i) a product assortment
comprised exclusively of Levi Xxxxxxx & Co. products (ii) a product assortment
of a singular nationally recognized brand that constitutes at least 80% of the
merchandise assortment of the Company stores or the stores of such Company
subsidiaries and affiliates.
(c) Executive acknowledges that the Company conducts business
throughout the Eastern portion of United States (all states east of the
Mississippi River and Missouri) and Puerto Rico, that its sales and marketing
prospects are for continued expansion throughout the United States and
therefore, the territorial and time limitations set forth in this Section 10
are reasonable and properly required for the adequate protection of the
business of the Company and its subsidiaries and affiliates. In the event any
such territorial or time limitation is deemed to be unreasonable by a court of
competent jurisdiction, Executive agrees to the reduction of the territorial
or time limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any non-material claim or cause of action (a
"non-material" claim or cause of action is defined as a claim or cause of
action which results from something other than a material breach of the terms
and provisions of this Agreement by the Company) by Executive against the
Company or any subsidiary or affiliate shall not constitute a defense to the
enforcement by the Company or any subsidiary or affiliate of the foregoing
restrictive covenants, but such claim or cause of action shall be litigated
separately.
11. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter, Executive shall
promptly and fully disclose to the Company, and with all necessary detail for
a complete understanding of the same, all existing and future developments,
know-how, discoveries, inventions, improvements, concepts, ideas, writings,
formulae, processes and Methods (whether copyrightable, patentable or
otherwise) made, received, conceived, acquired or written during working
hours, or otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with, or
rendering of advisory or consulting services to, the Company or any of its
subsidiaries and affiliates, solely or jointly with others, in or relating to
any activities of the Company or its subsidiaries and affiliates known to him
as a consequence of his employment or the rendering of advisory and consulting
services hereunder (collectively the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to assign and
transfer, to the Company, all his rights, title and interest in and to the
Subject Matter, and Executive further agrees to deliver to the Company any and
all drawings, notes, specifications and data relating to the Subject Matter,
and to execute, acknowledge and deliver all such further papers, including
applications for copyrights or patents, as may be necessary to obtain
copyrights and patents for any thereof in any and all countries and to vest
title thereto to the Company. Executive shall assist the Company in obtaining
such copyrights or patents during the term of this Agreement, and at any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving any of
the Subject Matter; provided, however, that Executive shall be compensated in
a timely manner at the rate of $250 per day (or portion thereof), plus out-of-
pocket expenses incurred in rendering such assistance or giving or preparing
to give such testimony if it is required after the termination of this
Agreement.
12. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement or at any
time following termination of this Agreement, directly or indirectly, disclose
or permit to be known (other than as is required in the regular course of his
duties (including without limitation disclosures to the Company's advisors and
consultants), as required by law (in which case Executive shall give the
Company prior written notice of such required disclosure) or with the prior
written consent of the Board of Directors of the Company), to any person,
firm, corporation, or other entity, any confidential information acquired by
him during the course of, or as an incident to, his employment or the
rendering of his advisory or consulting services hereunder, relating to the
Company or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any supplier or customer of the
Company or any of their subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or indirectly, by
any of the foregoing, or in which any of the foregoing has a beneficial
interest, including, but not limited to, the business affairs of each of the
foregoing. Such confidential information shall include, but shall not be
limited to, proprietary technology, trade secrets, patented processes,
research and development data, know-how, market studies and forecasts,
financial data, competitive analyses, pricing policies, employee lists,
personnel policies, the substance of agreements with customers, suppliers and
others, marketing or dealership arrangements, servicing and training programs
and arrangements, supplier lists, customer lists and any other documents
embodying such confidential information. This confidentiality obligation
shall not apply to any confidential information which is or becomes publicly
available other than pursuant to a breach of this Section 12(a) by Executive.
(b) All information and documents relating to the Company and its
affiliates as hereinabove described (or other business affairs) shall be the
exclusive property of the Company, and Executive shall use commercially
reasonable best efforts to prevent any publication or disclosure thereof.
Upon termination of Executive's employment with the Company, all documents,
records, reports, writings and other similar documents containing confidential
information, including copies thereof then in Executive's possession or
control shall be returned and left with the Company.
13. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit a breach of,
any of the
provisions of Sections 10, 11 or 12 (the "Restrictive Covenants"), the Company
shall have, in addition to, and not in lieu of, any other rights and remedies
available to the Company under law and in equity, the right to have the
Restrictive Covenants specifically enforced by a 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.
Notwithstanding the foregoing, nothing herein shall constitute a waiver by
Executive of his right to contest whether a breach or threatened breach of any
Restrictive Covenant has occurred.
14. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement shall be valid
Unless made in writing and signed by both of the parties hereto.
15. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
Accordance with the substantive laws of The Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
16. SEVERABILITY
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
17. NOTICES
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above or
such other address as either party may from time to time designate in writing
to the other, and shall be deemed given as of the date of the delivery or at
the expiration of three days in the event of a mailing.
18. WAIVER OR BREACH
It is agreed that a waiver by either party or a breach of any provision of
this Agreement shall not operate, or be construed as a waiver of any
subsequent breach by that same party.
19. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties with respect
to the subject matter hereof, supersedes all prior agreements, both written and
oral, between the parties with respect to the subject matter hereof, and shall
be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, heirs, distributors, successors and assigns.
20. SURVIVAL.
Except as otherwise expressly provided herein, the termination of Executive's
employment hereunder or the expiration of this Agreement shall not affect the
enforceability of Sections 5, 8, 10, 11, 12 and 13 hereof.
21. ARBITRATION
If any dispute arises between the parties that they cannot settle, the
parties agree to submit the dispute to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and both
parties agree to be bound by the arbitration award.
22. FURTHER ASSURANCES
The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
23. HEADINGS
The Section headings appearing in this Agreement are for the purposes of
easy reference and shall not be considered a part of this Agreement or in any
way modify, amend or affect its provisions.
24. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
under seal, as of the date and year first above written.
DESIGNS, INC.
By: /s/ XXXXX X. XXXXX
Its: President
EXECUTIVE
/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
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