EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is dated as of January 19, 1999 by and between Xxxxxx
Xxxxxxx (the "Employee") and X. XXXXX, INC., a Massachusetts corporation
together with any subsidiaries of the Company (the "Company").
WHEREAS, the Employee and the Company desire to set forth in writing the
terms and conditions of the Employee's employment agreement with the Company
from the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Employment. Under and subject to the terms and conditions set forth
herein, the Company hereby agrees to employ, or to continue to employ, the
Employee during the Term (as defined in Section 6 hereof) as its Senior Vice
President and General Merchandise Manager of the Company's WGS. Corp. subsidiary
and/or in such other senior executive management position(s) with the Company,
or any parent or subsidiary of the Company, as the Board of Directors of the
Company (the "Board") may determine from time to time, and the Employee hereby
accepts such employment.
2. Duties. The Employee agrees, during the Term and any extension of the
Term, faithfully to perform for the Company such duties as may be assigned to
him from time to time by the Company. The Employee further agrees to devote his
entire business time, attention and energies exclusively to such employment and
to conform to the rules, regulations, instructions, personnel practices and
policies of the Company and its subsidiaries, as existing and amended from time
to time. The Employee may be required to relocate his principal residence only
to an area in which the Company or a subsidiary of the Company has or determines
to have significant operations.
3. Compensation.
(a) The Company shall pay the Employee during the Term an annual base
salary of not less than $175,000, payable no less often than monthly, in equal
installments in accordance with the Company's regular pay intervals for its
senior executives.
(b) Cash Incentive Compensation. In addition to his annual base salary as
determined pursuant to Section 3(a), during the Term, the Employee shall also be
paid such amounts, if any, to which the Employee is entitled, as an officer of
the Company, under the Company's Cash Incentive Compensation Plan (the
"Incentive Plan"), as from time to time such Incentive Plan may be amended.
4. Other Benefits.
(a) Fringe Benefits. The Employee shall be entitled to participate in all
benefit programs that the Company establishes and makes available to management
generally and in any event shall be entitled to receive benefits at least
substantially comparable to those provided pursuant to the present practices of
the Company and its subsidiaries.
(b) Paid Vacations. The Employee shall be entitled to an annual paid
vacation of four (4) weeks in each calendar year, to be taken at such time or
times as the Employee and the Company shall mutually agree, provided, however,
that no more than two (2) weeks shall be taken during any three month period
unless otherwise agreed upon by the Company's Chief Executive Officer.
5. Expenses. The Company shall reimburse the Employee for all reasonable
travel, entertainment and other business expenses incurred or paid by the
Employee in performing his duties under this Agreement upon presentation by the
Employee of expense statements or vouchers and such other supporting information
as the Company may from time to time request, provided, however, that the amount
available for such expenses may be fixed in advance by the Board after
consultation with the Employee. The Company shall also pay or reimburse the
reasonable relocation expenses of the Employee (consistent with the present
policies of the Company) in connection with a relocation of the Employee's
principal residence outside of the greater Boston area required by the Company
pursuant to Section 2 hereof.
6. Effective Date and Term. This Agreement shall become effective as of the
date hereof and the Employee's employment under this Agreement shall commence on
such date and, unless sooner terminated as provided herein or extended, shall
continue for a term (the "Term") ending on January 19, 2000. The Employee and
the Company have obligations hereunder extending past the Term.
7. Non-competition.
(a) During the Employee's employment under this Agreement or otherwise and
for a period of twelve (12) months after the date of the Employee's voluntary
termination of such employment (through his voluntary resignation or otherwise
(the "Termination Date"), the Employee will not, without the express written
consent of the Company, anywhere in the United States: (i) compete with the
Company or any other entity directly or indirectly controlled by the Company
(each an "Affiliate"), in the Company's Business (as defined in Section 7(c)
hereof); or (ii) otherwise interfere with, disrupt or attempt to interfere with
or disrupt the relationship between the Company or an Affiliate and any person
or business that was a customer, supplier, lessor, licensor, contractor, or
employee of the Company or such Affiliate on the Termination Date.
(b) The term "compete" as used in this Section 7 means directly or
indirectly, or by association with any entity or business, either as a
proprietor, partner, employee, agent, consultant, director, officer, shareholder
(provided that the Employee may make passive investments in competitive
enterprises the shares of which are listed on a national securities exchange if
the Employee at no time owns directly or indirectly more than 2% of the
outstanding equity ownership of such enterprise) or in any other capacity or
manner to solicit, hire, purchase from, sell to, rent from, or otherwise conduct
business related to the Company's Business with any party that is a customer or
supplier of the Company or an Affiliate.
(c) The term "Company's Business" as used in this Section 7 means the
operation of any of the following specialty retail businesses, as a principal
business unit, either alone or in combination: (i) Leased Departments in
discount or mass merchandising department stores; (ii) retail stores offering
casual clothing for "Big and Tall" men; or (iii) retail stores offering
primarily work related clothing and uniforms for medical and laboratory purposes
or the mail order catalog or corporate ("business to business") sales thereof.
The term shall also include any additional specialty retail businesses which the
Company may acquire subsequent to the date hereof and which are operated as
principal business units of the Company on the Termination Date.
(d) The term "supplier" as used in this Section 7 shall mean any party or
affiliate of a party from which, on the Termination Date the Company or an
Affiliate was purchasing or, in the one (1) year prior to the Termination Date
had purchased products sold by the Company or an Affiliate or was in contact in
connection with the purchase of products sold by the Company or an Affiliate on
or before the Termination Date.
(e) The term "customer" as used in this Section 7 shall mean any party or
affiliate of a party, that on the Termination Date or within one year prior to
the Termination Date, was a wholesale vendee or prospective wholesale vendee of
the Company or an Affiliate or in connection with whose business the Company or
an Affiliate operated a Leased Department, a retail store for the sale of casual
clothing for "Big and Tall" men, work related clothing and uniforms for medical
and laboratory purposes or any other specialty retail business which the Company
operated as a principal business unit on the Termination Date, had contacted in
connection with the potential operation of such businesses within one year prior
to the Termination Date or which the Company or an Affiliate was actively
planning to contact in connection with the potential operation of any such
businesses on the Termination Date.
8. Confidential Information. The Employee will never use for his own
advantage or disclose any proprietary or confidential information relating to
the business operations or properties of the Company, any Affiliate or any of
their respective customers, suppliers, landlords, licensors or licensees. Upon
termination of the Employee's employment, the Employee will surrender and
deliver to the Company all documents and information of every kind relating to
or connected with the Company and Affiliates and their respective businesses,
customers, suppliers, landlords, licensors and licensees.
9. Termination.
(a) Death. In any event of the death of the Employee during the Term, his
employment shall terminate and the Company shall pay to the Employee's surviving
spouse, or to the Employee's estate if their is no surviving spouse, the
Employee's base salary for nine (9) months from the date of death. Upon the
death of the Employee, the rights of the Employee's surviving spouse or estate
hereunder, as the case may be, shall be limited solely to the benefits set forth
in this Section 9(a).
(b) Disability. In the event that the Employee shall become disabled (as
hereinafter defined) during the Term, the Company shall have the right to
terminate the Employee's employment upon written notice, provided, however, that
in such event the Company shall continue to pay the Employee's base salary for
nine (9) months from the date such termination occurs, payable in accordance
with the Company's regular pay intervals for its senior executives. For purposes
of this Agreement, the Employee shall be considered disabled on the date when
any physical or mental illness or other incapacity shall, in the judgment of a
majority of the members of the Board, after consulting with or being advised by
one or more physicians (it being understood that one of such physicians may be
the Employee's physician but that the Board shall not be bound by his views),
have prevented the performance in a manner reasonably satisfactory to the
Company of the Employees duties under this Agreement for a period of six
consecutive months.
(c) For Cause. For purposes of this Agreement, "Cause" shall mean the
occurrence of one or more of the following: (i) Employee is convicted of, pleads
guilty to, or confesses to any felony or any act of fraud, misappropriation or
embezzlement which has an immediate and materially adverse effect on the Company
or any Subsidiary, as determined by the Board in good faith in its sole
discretion, (ii) Employee engages in a fraudulent act to the material damage or
prejudice of the Company or any subsidiary or in conduct or activities
materially damaging to the property, business or reputation of the Company or
any Subsidiary, all as determined by the Board in good faith in its sole
discretion, (iii) any material act or omission by Employee involving malfeasance
or negligence in the performance of Employee's duties to the Company or any
Subsidiary to the material detriment of the Company or any Subsidiary, as
determined by the Board in good faith in its sole discretion, which has not been
corrected by Employee within 30 days after written notice from the Company of
any such act or omission, (iv) failure by Employee to comply in any material
respect with the terms of his employment agreement, if any, or any written
policies or directives of the Board as determined by the Board in good faith in
its sole discretion, which has not been corrected by Employee within 30 days
after written notice from the Company of such failure, or (v) material breach by
Employee of his non-competition agreement with the Company, if any, as
determined by the Board in good faith in its sole discretion.
(d) Without Cause. During the Term hereof the Company may terminate this
Agreement at any time without cause. In such event, the Company shall pay to the
Employee, in accordance with the Company's regular pay intervals for its senior
executives, an amount equal to the greater of (i) the amount of Base Salary the
Employee would have received through the last day of the Term or (ii) nine (9)
months of Base Salary; provided, however, that any such payments shall be offset
by any salary or other compensation earned by the Employee from other
employment.
10. Approval of Board. The Company represents that this Agreement has been
duly approved by the Board and is in all respects valid and binding upon the
Company.
11. Key Person Insurance. The Employee agrees to take such actions as may
be reasonably required to permit the Company to maintain key person life
insurance on the Employee's life in such amounts and for such periods of time,
if any, as the Company deems appropriate, with all benefits being payable to the
Company. Upon payment by the Employee of the cash surrender value, if any, of
any such policy and any paid but unearned premiums for such policy, the Company
will assign such policy to the Employee upon termination (other than because of
the Employee's death) of the Employee's employment with the Company, provided,
however, that, in the event the Employee's employment is terminated by reason of
the disability of the Employee and the death of the Employee may reasonably be
expected within one year after such termination as a result of such disability,
the Company shall not be required to assign any such policy.
12. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been given and
received when actually delivered, one business day after dispatch by telegraphic
means, two business days after dispatch by recognized overnight delivery
service, or five days after mailing by certified or registered mail with proper
postage affixed, return receipt requested and addressed as follows (or to such
other address as a party entitled to receive notice hereunder may have
designated by notice pursuant to this Section 12):
(a) If to the Company:
X. Xxxxx, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
(b) If to the Employee:
Xxxxxx Xxxxxxx
000-X Xxxxx Xxxxxxxxx, Xxx. #0000
Xxxxxx, Xxxxxxxxxxxxx 00000
13. Severability. If any provision of this Agreement or its application to
any person or circumstances is invalid or unenforceable, then the remainder of
this Agreement or the application of such provision to other persons or
circumstances shall not be affected thereby. Further, if any provision or
application hereof is invalid or unenforceable, then a suitable and equitable
provision shall be substituted therefor in order to carry out so far as may be
valid or enforceable the intent and purposes of the invalid and unenforceable
provision.
14. Applicable Law. This Agreement shall be interpreted and construed in
accordance with, and shall be governed by, the laws of the Commonwealth of
Massachusetts without giving effect to the conflict of law provisions thereof.
15. Assignment. Neither of the parties hereto shall, without the written
consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, provided, however, that in the event that the Company
sells all or substantially all of its assets the Company may assign its rights
and transfer its obligations hereunder to the purchaser of such assets. A merger
of the Company with or into another corporation shall be deemed not to be an
assignment of this Agreement, and, in any such event, this Agreement shall inure
to the benefit of and be binding upon the surviving corporation and the
Employee. Subject to the foregoing, this Agreement shall be binding upon, and
shall inure to the benefit of, the parties and their respective successors,
heirs, administrators, executors, personal representatives and assigns.
16. Headings. This section and paragraph headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
17. Remedies. It is specifically understood and agreed that any breach of
the provisions of Section 7 or 8 of this Agreement is likely to result in
irreparable injury to the Company, that damages at law will be inadequate remedy
for such breach, and that in addition to any other remedy it may have, the
Company shall be entitled to enforce the specific performance of said Sections
and to seek both temporary and permanent injunctive relief therefor without the
necessity of proving actual damages.
18. Waiver of Breach. Any waiver by either the Company or the Employee of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
19. Amendment of Agreement. This Agreement may be altered, amended or
modified, in whole or in part, only by a writing signed by both the Employee and
the Company.
20. Integration. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter thereof and supersedes all prior
agreements with respect to such subject matter between the parties.
Intending to be legally bound, the Company and the Employee have signed
this Agreement as if under seal as of the date set forth at the head of the
first page.
X. XXXXX, INC.
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
