Exhibit 10.2
ERE RETAINER AGREEMENT
RETAINER AGREEMENT
This agreement dated as of July 1, 2006, between Everlast WorldWide Inc., a
corporation incorporated under the laws of the State of Delaware, with its
principal place of business located at 0000 Xxxxxxxx (Xxxxx 0000), Xxx Xxxx, XX
00000 [the "Client"], and Xxxxxx X. Xxxxxxx Esq. who maintains his principal
office at 915 Middle River Drive, (Suite 419), Xxxx Xxxxxxxxxx, Xxxxxxx 00000
[the "Attorney"].
In consideration of the premises together with other good and valuable
consideration, the parties agree as follows:
1. RETAINER AND EMPLOYMENT. Client retains and employs Attorney as
General Counsel and Consultant of the Client and the Attorney accepts such
retainer and employment, subject to the terms and conditions set forth in this
agreement.
2. TERM. This agreement shall be effective from, July 1, 2006, for an
initial term of three (3) years and shall be automatically renewed for
consecutive one year terms thereafter unless terminated by written notice made
by either party at least 60 days prior to the expiration date of the original
term or any renewal thereof.
3. DUTIES. Attorney shall act as the General Counsel and Consultant to
the client and shall perform services the same as, or generally consistent with,
the services generally performed by a General Counsel and Consultant and
consistent with the services he has employed for the Client in the past and as
may be reasonably requested by Client from time to time. In that regard, Client
agrees that Attorney shall perform those services from his principal office
located in Fort Lauderdale, Florida
4. COMPENSATION.
(a) For all services rendered by the Attorney under this
agreement, the Client agrees to pay Attorney an annual base salary of $300,000
commencing on the date hereof and payable in monthly installments of $25,000 on
the first day of each month. [It is understood and agreed by the parties that
$3,000 of the aforesaid monthly sum shall be for the compensation of Xxxxx
Xxxxxxx'x paralegal services.]
(b) The Attorney shall be entitled to be reimbursed promptly for
all reasonable costs, disbursements, travel, meal, and other out-of-pocket
expenses which are incurred by him in the performance of his duties hereunder
and evidenced by appropriate documentation.
(c) In addition to the base salary set forth above, the Client
agrees to pay the Attorney an annual bonus as determined by the Client's Chief
Executive Officer in his sole discretion.
(d) In addition to the compensation set forth above, the Client
shall also be considered for annual increases in the aforesaid base salary and
bonuses in amounts to be determined by the Client's Chief Executive Officer.
(e) In the event of the death or termination of the Attorney, the
aforesaid bonuses shall be calculated and payable to him or his estate at the
end of the fiscal year of his death or such termination on a pro-rata basis.
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5. BENEFITS. In addition to any other items of compensation provided
for herein, the Attorney shall be entitled to participate in any stock option,
stock bonus or stock purchase plan or program or any other similar plan or
program which the Client, in its sole discretion, may make available from time
to time to its executives.
6. RESTRICTIVE COVENANTS. (a) The Attorney shall at no time during the
Term and for a period of one (1) year thereafter disclose to any person or
entity, or use for personal gain, any trade secrets belonging to the Client,
unless such information has otherwise been previously publicly disclosed through
no fault or conduct of the Attorney, or the Attorney is required by law to
disclose such information, or such information is within the public domain.
(b) The Attorney shall not, without the prior written consent of
the Client, within the one (1) year period following the termination or
expiration of this agreement solicit any employees, agents, or representatives
of the Client to join the Attorney as a partner, employee, agent, or
representative, in any competitive enterprise.
7. TERMINATION.
(a) FOR CAUSE: The Client shall have the right to terminate the
employment of the Attorney during the term of this agreement for cause.
(b) DISABILITY: If as a result of the Attorney's incapacity due
to physical or mental illness the Attorney shall have been absent from the
full-time performance of his duties with the Client for six (6) consecutive
months, and within 30 days after written notice of termination is given, the
Attorney shall not have returned to said full-time performance of his duties,
the Client may terminate the retainer and employment of the Attorney.
8. INDEMNIFICATION. (a) The Client agrees to indemnify and hold the
Attorney harmless from and against any and all damages, liability, costs,
claims, fees, obligations or expenses, including reasonable attorneys' fees and
expenses incurred arising out of or in connection with the rendering of any
services by the Attorney to the fullest extent permitted by the Client's
Certificate of Incorporation and Bylaws with respect to any executive or officer
of the Client, as now in effect or as hereafter amended.
(b) In addition to Section 8(a) above, the Client shall at all
times indemnify and hold harmless the Attorney, his executors and administrators
against and from any and all attorneys' fees and court costs arising out of any
legal proceedings to enforce the terms of this agreement.
9. CHANGE IN CONTROL. If there is a change in control of the Client of
a nature that (a) would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Act of 1934, as
amended (the "Exchange Act"); or (b) the Client enters into an agreement, the
consummation of which would result in such a change of control; or (c) the
stockholders of the Client approve a merger or consolidation of the Client with
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any other corporation or business entity; or (d) the stockholders of the Client
approve a plan of liquidation of the Client or an agreement for the sale or
disposition by the Client of all or substantially all of its assets, then and in
that event the Attorney shall be entitled to and paid the following benefits
upon the subsequent termination of his retainer or employment or an assignment
to a new position not commensurate with his previous commission during the term
of this agreement and in addition to the compensation and benefits otherwise set
forth herein:
(i) A lump sum severance payment equal to 2.99 times the sum
of the Attorney's current annual base salary and bonus. Said payment shall be
made within five (5) days following termination; and
(ii) Any and all legal fees including all such fees and
expenses incurred as a result of such termination (including all such fees and
expenses, if any, incurred in contesting or disputing any such termination) or
in seeking to obtain or enforce any right or benefit provided by this agreement
or in connection with any tax audit or proceeding to the extent attributable to
the application of Section 4399 of the Internal Revenue Code of 1986, as
amended, to any payment or benefit provided herein.
(iii) Any deferred compensation, including, but not limited
to deferred bonuses allocated or credited to the Attorney as of the date of
termination.
10. INSURANCE. The Client hereby agrees to include the Attorney as
named insured in any director and officer liability insurance policy it
maintains on the same basis as is made available to the directors and other
executive officers of the company.
11. ENTIRE AGREEMENT. This agreement constitutes the entire agreement
between the parties in connection with the subject matter hereof No change or
modification of this agreement shall be valid unless in writing and signed by
the party against whom such change or modification is sought to be enforced.
12. ASSIGNMENT. This agreement is personal in its nature and the
parties hereto shall not, without the consent of the other, assign or transfer
this agreement or any of its rights or obligations hereunder; provided, however,
that the provisions hereof shall inure to the benefit of, and be binding upon
each successor of the Client whether by merger, consolidation, transfer of all
or substantially all assets, or otherwise. This agreement shall be binding upon
the parties hereto and their successors and assigns.
13. CONSTRUCTION AND JURISDICTION. This agreement shall be construed
and enforced in accordance with the laws of the State of New York.
14. SEVERABILITY. The invalidity or unenforceability of any provision
of this agreement shall not affect the other provisions hereof, and this
agreement shall be construed in all respects as if such invalid or unenforceable
provision or provisions were omitted.
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15. SECTION HEADINGS. The section headings contained herein have been
inserted for convenience or reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
16. WAIVER OF BREACH. The waiver by any part hereto of a breach of any
provision of this agreement shall not operate or be construed as a waiver by
said party of any other or subsequent breach.
17. ARBITRATION. Any controversy or claim arising out of or relating
to this agreement, or the breach of it, shall be settled by arbitration before
three (3) arbitrators and in accordance with the Commercial Arbitration Rules of
the American Arbitration Association , and judgment upon the award rendered by
the Arbitrator(s) may be entered in any court having jurisdiction thereof.
18. NOTICES. All notices required or permitted to be given under this
agreement shall be given in writing and delivered by registered or certified
mail, postage prepaid, to the following addresses or to such other addresses
which may have been designated by the respective parties hereto for this
purpose, and shall be deemed to be given five days after the date of mailing:
If to the Client:
Everlast WorldWide Inc.
0000 Xxxxxxxx (Xxxxx 0000)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
If to the Attorney:
Xxxxxx X. Xxxxxxx, Esq.
915 Middle River Drive
(Suite 419)
Xxxx Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first written above.
Everlast WorldWide Inc.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
CEO and President
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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