Exhibit 10.32
EMPLOYMENT AGREEMENT
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This Agreement made this 28th day of February, 1997 by and between
Xxxxxxxx Image Apparel, a division of Xxxxxxxx Corporation (hereinafter
called "Xxxxxxxx") and Xxxxxxx X. Xxxxxx, Xx. (hereinafter called
"Employee").
For and in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. Xxxxxxxx hereby employs Employee and Employee hereby accepts
such employment as Executive Vice President - Operations of Xxxxxxxx
Image Apparel. Employee agrees to devote such of his time, attention
and energy to the business of Xxxxxxxx as may be required to perform the
duties and responsibilities assigned to him to the best of his ability
and with reasonable diligence.
2. Employee's base salary will be $130,000 per annum, payable
in accordance with Angelica's current payroll practices. For the
current fiscal year, Employee will participate in Xxxxxxxx Corporation's
Incentive Compensation Plan for Xxxxxxxx Image Apparel and will be
assigned a targeted bonus of $35,000. Employee's fiscal year 1998 bonus
shall be the total annualized bonus (based on the targeted bonus
assigned at this time) multiplied times a fraction, the numerator of
which shall be the number of days he is employed by Xxxxxxxx during
fiscal year 1998 and the denominator of which shall be 365. Such bonus
payment shall otherwise be subject to the terms and conditions of such
plan and will be paid at the time that other executives bonuses are
paid, approximately March 15, 1998. Bonus for Fiscal Year 1998 will be
guaranteed to equal, at a minimum, the pro rata portion of the targeted
bonus.
3. Xxxxxxxx agrees to reimburse Employee for relocation
expenses in accordance with current Xxxxxxxx policies, or as the parties
may otherwise mutually agree.
4. Management agrees to recommend to the Compensation and
Organization Committee of the Board of Directors that a grant be made to
Employee of an option for 10,000 shares of Xxxxxxxx Corporation common
stock under the Xxxxxxxx Corporation 1994 Performance Plan, such grant
to be made at the next grant date that options are granted to employees.
Such grant would be on the terms and conditions as grants made to
employees in comparable positions.
5. Employee is eligible to participate in the Xxxxxxxx
Corporation Stock Bonus and Incentive Plan, based on current eligibility
requirements, and subject to the terms and conditions of the Plan.
6. In the event Xxxxxxxx terminates Employee's employment
without Good Cause within the first year of employment, Xxxxxxxx will
pay to Employee severance equal to one year of base salary. In the
event Xxxxxxxx terminates Employee's employment without Good Cause
anytime after the first year of employment, severance shall be equal to
one year of then current base salary, plus one month of then current
base salary for each two (2) months of service in excess of the first
one year of employment, provided however, that such total severance due
shall not exceed two (2) years of base pay.
7. It is understood and agreed that Employee, pursuant to prior
service with Xxxxxxxx from March 1, 1975, to December 31, 1991, has a
vested interest in the Xxxxxxxx Corporation Pension Plan (the "Pension
Plan"), the Xxxxxxxx Corporation Supplemental Plan (formerly known as
the Deferred Compensation Plan and referred to herein as the
"Supplemental Plan") and the Xxxxxxxx Corporation Deferred Compensation
Option Plan (the "Deferred Compensation Plan").
Employee will immediately become eligible to participate in the
Pension Plan on the same basis as if Employee had been continuously
employed without any break in service, provided, however, that Employee
will not receive any credit or earn any benefit for any period of time
in which Employee was not an employee of Xxxxxxxx.
Employee will immediately be entitled to participate in the
Supplemental Plan at an assigned formula amount of 33%. Employee's
retirement benefit due pursuant to the Supplemental Plan shall be
calculated pursuant to the terms of the Supplemental Plan, as if
Employee had been continuously employed by Xxxxxxxx, provided however,
that Employee will not receive credit for any period of time in which
Employee was not an employee of Xxxxxxxx.
Employee's participation in the Deferred Compensation Option Plan
will be immediately reinstated on the same basis as if Employee had been
continuously employed without any break in service, provided, however,
that Employee will not receive any credit or earn any benefit for any
period of time in which Employee was not an employee of Xxxxxxxx.
It is understood and agreed that any benefit calculations provided
to Employee at the time of his termination of employment in 1991 are
hereby void and any benefits due Employee pursuant to the benefit plans
set out in this Section 7 shall be calculated in accordance with the
terms of such benefit plans at the time of calculation and the
provisions of this Section 7.
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8. Employee will be entitled to enroll in the Xxxxxxxx
Corporation Retirement Savings Plan (the "401-k Plan") at the next
Enrollment Date, as such term is defined in the 401-k Plan, following
employment with Xxxxxxxx.
9. Employee represents that he is not subject to any form of
agreement which would restrict or prevent him from engaging in any
duties to be performed now or in the future by him for Xxxxxxxx and that
Xxxxxxxx has not required or requested that he disclose any trade
secrets of any company formerly employing him.
10. While employed hereunder Employee shall not become
interested, directly or indirectly, as a partner, officer, director,
stockholder, advisor, employee, or in any other form or capacity, in any
other business similar to Angelica's businesses or the businesses of
Angelica's affiliate companies. This requirement, however, will not
limit Employee's right to invest any of his surplus funds in the capital
stock or other securities of any corporation the stock or securities of
which are publicly owned or regularly traded on any public exchange.
11. For two years immediately following the Date of Termination,
or the termination of payment of salary in accordance with Section 6,
whichever later occurs, whether such termination is occasioned by
Employee, by Xxxxxxxx or by mutual agreement, and regardless of whether
such termination is for Good Reason by Employee or without Good Cause by
Employer, Employee shall not, either for himself or on behalf of any
person, firm or corporation (whether for profit or otherwise) engage in
any form of competition with Xxxxxxxx, directly or indirectly, through
any commercial venture, as employee, consultant, salesman, advisor,
shareholder (provided, however, nothing shall prevent Employee from
investing in the capital stock or other equity securities of any
corporation the stock or securities of which are publicly owned or are
regularly traded on any public exchange), venturer, partner, or
otherwise in the business of manufacturing, marketing, or selling career
apparel in the United States, Canada, England, or any other country in
which Xxxxxxxx does business. Notwithstanding the above, if Employee is
terminated by Xxxxxxxx without Good Cause or if the Employee terminates
his employment for Good Reason, and such termination is in connection
with a Triggering Transaction, then Employee will not be subject to the
restrictions of this Section 11.
During such two year period, Employee will neither lend nor
advance money, or extend credit to any competitor of Xxxxxxxx or its
affiliated companies or directly or indirectly for Employee or on behalf
of any other person, firm or corporation, solicit or attempt to solicit
the business or patronage of any person, firm or
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corporation with whom Employee had business relations on Angelica's
behalf.
Employee also agrees that during this two year period, he
will not hire, engage, suggest or assist in or influence the engagement
or hiring by any competing organization of any salesperson, distributor,
contractor, or employee of Xxxxxxxx nor will he encourage or induce in
any way any other employee, salesman, distributor, source or contractor
of Xxxxxxxx to sever its relationship with, or commit any act inimical
to the best interest of Xxxxxxxx.
Employee acknowledges that during his employment with
Xxxxxxxx he may develop or be exposed to confidential information
concerning Angelica's inventions, processes, methods and confidential
affairs, property of a proprietary nature and trade secrets of Xxxxxxxx
or its licensors or customers. Employee agrees that maintenance of the
proprietary character of such information and property to the full
extent feasible is important and that for so long as any such
confidential information and trade secrets may remain confidential,
secret or otherwise wholly or partially protectable either during or
after his employment, shall not use or divulge such information except
as permitted or required by the duties of employment with Xxxxxxxx, nor
shall he remove any property of a proprietary nature from company
premises except as required by the duties of his employment.
Employee shall return to Xxxxxxxx upon termination of his
employment, all models, drawings, photographs, writing, records, papers
and other properties produced by him or coming into his possession by or
through employment.
Both during and for two years after Employee's employment,
Employee shall not directly or indirectly or by aid to others, do
anything which would tend to divert from Xxxxxxxx any trade or business
with any customer with whom he had any contact or association during the
one year immediately preceding termination of his employment.
This Agreement shall remain in force notwithstanding
subsequent changes in Employee's compensation, location of employment,
duties or authority or any changes in the identity of the corporation(s)
to which his compensation is charged, so long as said corporation(s) is
a subsidiary or affiliate of Xxxxxxxx, and any such change or
modification so accomplished shall be deemed an integral part of this
Agreement.
Employee agrees that the period and areas of restriction
following the Date of Termination, as set forth above, are
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reasonably required for the protection of Xxxxxxxx and its good will, as
well as for the continued protection of Angelica's employees. If a
court of competent jurisdiction determines that any part of this
Agreement, including, without limitation, such restrictions, is
unenforceable or invalid, such part as well as the remaining parts of
this Agreement shall nevertheless continue to be valid and enforceable
to the extent deemed valid and enforceable by such court.
Any action by Employee contrary to the restrictive covenants
contained herein may as a matter of course be restrained by process
issued out of any court of competent jurisdiction, in addition to any
other remedies provided by law. In the event of a breach of his
undertaking, and Angelica's obtaining injunctive relief, the period of
the restriction herein contained shall commence from the date of the
order which enjoins such activity.
12. Upon termination of his employment with Xxxxxxxx, Employee
shall pay any personal debt, liability or obligation due Xxxxxxxx, or
its affiliates.
13. It is hereby acknowledged that the employment relationship
described herein shall be governed by company policies as they are
established from time to time so long as such policies do not conflict
with the terms hereof.
14. The waiver by any party hereto of a breach of any of the
provisions of this Agreement by any other party shall not operate or be
construed as a waiver of any subsequent breach.
15. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Missouri.
16. This Agreement shall be binding on and inure to the benefit
of any successor of Xxxxxxxx and any such successor shall be deemed
substituted for Xxxxxxxx under the terms of this Agreement. Xxxxxxxx
shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Xxxxxxxx to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that
Xxxxxxxx would be required to perform it if no such succession had taken
place. Failure of Xxxxxxxx to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to terminate the Agreement at his option on
or after the Triggering Transaction Date for Good Reason. As used in
this Agreement, "Xxxxxxxx" shall mean Xxxxxxxx as hereinbefore defined
and any successor to its business and/or assets which
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assumes and agrees to perform this Agreement by operation of law, or
otherwise.
17. If any one or more covenants, agreements or provisions
herein contained shall be held contrary to the policy of a specific law,
though not expressly prohibited, or against public policy, or shall for
any other reason whatsoever be held invalid, then such particular
covenant(s), agreement(s) or provisions(s) shall be null and void and
shall be deemed separable from the remaining covenants, agreements and
provisions, and shall in no way affect the validity of any of the other
provisions hereof. The parties hereto agree that in the event that
either the length of time or the geographic area set forth herein is
deemed too restrictive in any court proceeding, the court may reduce
such restrictions to those which it deems reasonable under the
circumstances.
18. This instrument contains the entire agreement of the parties
with respect to the subject matter hereof and supersedes any prior
written or oral agreements or understandings with respect thereto.
19. For purposes of this Agreement, the following words and
phrases, whether or not capitalized, shall have the meanings specified
below, unless the context plainly requires a different meaning.
19.1 "Change in Control" shall mean:
(i) The acquisition by any individual, entity or
group, or a Person [(as used within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")] of ownership of 30% or more of either (a) the then
outstanding shares of common stock of Xxxxxxxx (the "Outstanding
Xxxxxxxx Common Stock") or (b) the combined voting power of the then
outstanding voting securities of Xxxxxxxx entitled to vote generally in
the election of directors (the "Outstanding Xxxxxxxx Voting
Securities"); or
(ii) Individuals who, as the date hereof, constitute
the Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors, provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by Angelica's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, as a member of the Incumbent Board, any such individual whose
initial assumption of office
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occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board of
Directors; or
(iii) Approval by the stockholders of Xxxxxxxx of a
reorganization, merger or consolidation, in each case, unless, following
such reorganization, merger or consolidation, (a) more than 50% of,
respectively, the then outstanding shares of common stock of Xxxxxxxx
resulting from such reorganization, merger or consolidation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Xxxxxxxx Common Stock and Outstanding
Xxxxxxxx Voting Securities immediately prior to such reorganization,
merger or consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Xxxxxxxx Common Stock and Outstanding
Xxxxxxxx Voting Securities, as the case may be, (b) no Person
beneficially owns, directly or indirectly, 30% or more of, respectively,
the then outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation or the combined voting
power of the then outstanding voting securities of such corporation,
entitled to vote generally in the election of directors and (c) at least
a majority of the members of the board of directors of the corporation
resulting from such reorganization, merger or consolidation were members
of the Incumber Board at the time of the execution of the initial
agreement providing for such reorganization, merger or consolidation; or
(iv) Approval by the stockholders of Xxxxxxxx of (a)
a complete liquidation or dissolution of Xxxxxxxx or (b) the sale or
other disposition of all or substantially all of the assets of Xxxxxxxx,
other than to a corporation, with respect to which following such sale
or other disposition, (1) more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Xxxxxxxx Common Stock and Outstanding
Xxxxxxxx Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding
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Xxxxxxxx Common Stock and Outstanding Xxxxxxxx Voting Securities,
as the case may be, (2) no Person beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares
of common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (3) at least
a majority of the members of the board of directors of such
corporation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board of Directors
providing for such sale or other disposition of assets of Xxxxxxxx.
19.2 "Date of Termination" means: (i) if the Employee's
employment is terminated by Xxxxxxxx for Good Cause, or by Employee for
Good Reason, the Date of Termination shall be the date of receipt of the
Notice of Termination or any later date specified therein, as the case
may be, (ii) if the Employee's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death
of the Employee or the Disability Effective Date, as the case may be, or
(iii) if the Executive's employment is terminated by Xxxxxxxx other than
for Good Cause, death or Disability, the Date of Termination shall be
the date of receipt of the Notice of Termination; provided that if
within thirty (30) days after any Notice of Termination is given, the
party receiving such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of Termination
shall be the date on which the dispute is finally determined, either by
mutual written agreement of the parties, or by a final judgment, order
or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
19.3 "Disability" means the Employee has been unable to
perform the services required of the Employee hereunder on a full-time
basis for a period of one hundred eighty (180) consecutive business days
by reason of a physical and/or mental condition. Disability shall be
deemed to exist when certified by a physician selected by Xxxxxxxx and
acceptable to Employee of the Employee's legal representative (such
agreement as to acceptability not to be withheld unreasonably). The
Employee will submit to such medical or psychiatric examinations and
tests as such physician deems necessary to make any such disability
determination.
19.4 "Disability Effective Date" means the thirtieth (30th)
day after receipt of written notice by Employee from Xxxxxxxx of
Angelica's intent to terminate the Employee's employment as a result of
Angelica's good faith determination that
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the Disability (as defined in Section 19.3 above) of the Employee has
occurred during the Employment Period.
19.5 "Disposition of a Major Part" means:
(i) when used with reference to the stock of the
Operating Line of Business that is or becomes a separate corporation,
limited liability corporation, partnership or other business entity, the
sale, exchange, transfer, distribution or other disposition of the
ownership, either beneficially or of record or both, by Xxxxxxxx of more
than 50% of either (a) the then outstanding shares of common stock of
the Operating Line of Business, or (b) the combined voting power of the
then outstanding voting securities of the Operating Line of Business
entitled to vote generally in the election of the Board of Directors or
the equivalent governing body of the Operating Line of Business;
(ii) when used with reference to the merger or
consolidation of the Operating Line of Business that is or becomes a
separate corporations, limited liability corporation, partnership or
other business entity, any such transaction that results in Xxxxxxxx
owning, either beneficially or of record or both, less than 50% of
either (a) the then outstanding shares of common stock of the Operating
Line of Business, or (b) the combined voting power of the then
outstanding voting securities of the Operating Line of Business entitled
to vote generally in the election of the Board of Directors or the
equivalent governing body of the Operating Line of Business; or
(iii) when used with reference to the assets of the
Operating Line of Business, the sale, exchange, transfer, liquidation,
distribution or other disposition of assets of the Operating Line of
Business (a) having a fair market value (as determined by the Incumbent
Board) aggregating more than 50% of the aggregate fair market value of
all of the assets of the Operating Line of Business as of the Triggering
Transaction Date, (b) accounting for more than 50% of the aggregate book
value (net of depreciation and amortization) of all of the assets of the
Operating Line of Business, as would be shown on a balance sheet for the
Operating Line of Business, prepared in accordance with generally
accepted accounting principles then in effect, as of the Triggering
Transaction Date, or (c) accounting for more than 50% of the net income
of the Operating Line of Business, as would be shown on an income
statement, prepared in accordance with generally accepted accounting
principles then in effect, for the 12 months ending on the last day of
the month immediately preceding the month in which the Triggering
Transaction Date occurs.
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For purposes of this Section 19.5, the term "Operating Line of
Business" shall mean the uniform and business apparel manufacturing and
marketing, which manufactures and sells uniforms and business apparel to
a wide variety of institutions and businesses in the United States,
Canada and the United Kingdom.
19.6 "Effective Date" means the date of this Agreement.
19.7 "Employment Period" means the period beginning on the
Effective Date and ending on the later of (i) a date two years after the
Effective Date ("Ending Date") or (ii) the same date as the Ending Date
of any succeeding fiscal year during which notice is given by either
party of such party's intent not to renew this Agreement.
19.8 "Good Cause" when used in connection with the
termination by Xxxxxxxx of Employee's employment with Xxxxxxxx, shall
refer to termination for the following reasons: (i) the Employee's
willful and continued failure to substantially perform his duties with
Xxxxxxxx (other than as a result of incapacity due to physical or mental
condition), after a written demand for substantial performance is
delivered to Employee by Xxxxxxxx, which specifically identifies the
manner in which Employee has not substantially performed his duties;
(ii) Employee's commission of an act constituting a criminal offense
involving moral turpitude, dishonesty or breach of trust; or (iii)
Employee's material breach of any provision of this Agreement. For
purposes of this Agreement, no act, or failure to act on the Employee's
part, shall be considered "willful" unless done, or omitted to be done,
without good faith and without reasonable belief that the act or
omission was in the best interest of Xxxxxxxx. Notwithstanding the
foregoing, Employee shall not be deemed to have been terminated for Good
Cause unless and until (i) he receives a Notice of Termination from
Xxxxxxxx, (ii) he is given the opportunity, with counsel, to be heard
before the Board, and (iii) the Board finds, in its good faith opinion,
Employee was guilty of the conduct set forth in the Notice of
Termination.
19.9 "Good Reason", when used in connection with the
termination of Employee's employment by Employee shall to termination
because of the following reasons:
19.9(a) the assignment to the Employee of any
duties inconsistent in any respect with the Employee's position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by this Agreement
or any other action by Xxxxxxxx which results in a material diminution
in such position, authority, duties or responsibilities, excluding for
this purpose any action not taken
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in bad faith and which is remedied by Xxxxxxxx promptly after receipt of
notice thereof given by Employee;
19.9(b) (i) the failure by Xxxxxxxx to continue
in effect any benefit or compensation plan, stock ownership plan, life
insurance plan, health and accident plan or disability plan to which
Employee is entitled, (ii) the taking of any action by Xxxxxxxx which
would adversely affect Employee's participation in, or materially reduce
Employee's benefits under, any plans in which he is then currently
participating, or (iii) the failure by Xxxxxxxx to provide Employee
with paid vacation to which Employee is entitled.
19.9(c) a material breach by Employer of any
provision of this Agreement;
19.9(d) any purported termination by Xxxxxxxx of
Employee's employment otherwise than as expressly permitted by this
Agreement; or
19.9(e) within a period ending at the close of
business on the date two (2) years after the Triggering Transaction Date
of any Change in Control, if Xxxxxxxx has failed to comply with and
satisfy Section 16 on or after such Triggering Transaction Date.
19.10 "Triggering Transaction" means (i) a Change in Control
of Xxxxxxxx or (ii) a Disposition of a Major Part of the Operating Line
of Business.
19.11 "Triggering Transaction Date" shall mean the date of
the Triggering Transaction.
20. In the event (a) a Triggering Transaction occurs during the
Employment Period and within two years after the Triggering Transaction
(i) Xxxxxxxx shall terminate Employee's employment without cause, or
(ii) Employee shall terminate employment with Xxxxxxxx for Good Reason,
or, alternatively, (b) if one of the above-described terminations of
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employment occurs within the six-month period prior to the earlier of
(i) a Triggering Transaction or (ii) the execution of a definitive
agreement or contract that eventually results in a Triggering
Transaction, then the Employee shall become entitled to the payment of
the benefits as provided below as of either (y) the Date of Termination,
in the case where the sequence of the requisite events is as set forth
in subsection (a) above or (z) the Triggering Transaction Date, in the
case where the sequence of the requisite events occurred as set forth in
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subsection 9b) above (the relevant date for purposes of entitlement to
the benefits as set forth in this Section 20 is hereinafter referred to
as the "Entitlement Date"), then, in such event and to the extent not
otherwise provided for under the terms of Angelica's stock option plans
or the Employee's stock option agreements, all stock options held by
Employee that have not expired in accordance with their respective terms
shall vest and become fully exercisable as of the Entitlement Date.
XXXXXXXX IMAGE APPAREL
("Xxxxxxxx")
By: /s/ X. X. Xxxxx
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X. X. XXXXX, President
Date: 3-1-97
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XXXXXXX X. XXXXXX, XX.
("Employee")
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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XXXXXXX X. XXXXXX, XX.
Date: 3/3/97
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