EXHIBIT 10.11
Agreement
THIS AGREEMENT is entered into as of the 14th day of November, 2000,
by and between Paragon Trade Brands, Inc., a Delaware corporation (the
"Company"), Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company has offered to continue to employ the Executive,
and the Executive desires to accept such continued employment, on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. EFFECTIVENESS OF AGREEMENT
This Agreement shall become effective as of the date first
written above (the "Effective Date").
2. EMPLOYMENT AND DUTIES
2.1 GENERAL. The Company hereby employs the Executive, and the
Executive agrees to serve, as Vice President Manufacturing of the Company, upon
the terms and conditions herein contained. The Executive shall have such duties
and responsibilities as are reasonably assigned by the Company's Chairman,
President and Chief Executive Officer. The Executive agrees to serve the Company
faithfully and to the best of his ability under the direction of the Company's
Chairman, President and Chief Executive Officer or such other person or persons
as he may designate.
2.2 EXCLUSIVE SERVICE. Except as may otherwise be approved in
advance by the Company's Chairman, President and Chief Executive Officer, the
Executive shall devote his full working time throughout the Employment Term (as
defined in Section 2.3) to the services required of him hereunder. The Executive
shall render his services exclusively to the
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Company during the Employment Term, and shall use his best efforts, judgment and
energy to improve and advance the business interests of the Company in a manner
consistent with the duties and responsibilities of his position. Notwithstanding
the foregoing, but subject to the provisions of Section 10, the Executive may
serve on civic or charitable boards and engage in civic and charitable
activities, PROVIDED that none of the foregoing activities interferes with the
performance of the Executive's duties and responsibilities under this Agreement.
2.3 TERM OF EMPLOYMENT. The Executive's employment under this
Agreement shall commence as of the Effective Date and shall terminate on the
earlier of (i) the third anniversary of the Effective Date, or (ii) the
termination of the Executive's employment pursuant to Section 6 or Section 7 of
this Agreement; PROVIDED, HOWEVER, that the term of the Executive's employment
shall be extended automatically without further action of either party for
additional one year periods, unless written notice of either party's intention
not to extend has been given to the other party hereto at least ninety (90) days
prior to the expiration of the then effective term. The period commencing as of
the Effective Date and ending on the third anniversary of the Effective Date or
such later date to which the term of the Executive's employment under this
Agreement shall have been extended is hereinafter referred to as the "Employment
Term."
3. COMPENSATION
3.1 BASE SALARY. From the Effective Date, the Executive shall be
entitled to receive a base salary ("Base Salary") at the rate of $180,000 per
annum, payable in arrears in equal installments in accordance with the Company's
payroll practices, with such increases as may be provided in accordance with the
terms hereof. Once increased, such higher amount shall constitute the
Executive's Base Salary.
3.2 ANNUAL REVIEW. The Executive's Base Salary shall be reviewed by
the Company, based upon the Executive's performance, not less often than
annually, and may be increased but not decreased. In addition to any increases
effected as a result of such review, the Company at any time may in its sole
discretion increase the Executive's Base Salary.
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3.3 BONUS. Each fiscal year the Executive will be eligible to
participate in a bonus plan under which the Executive may earn a bonus equal to
from zero to 200% of his target bonus of 40 percent, based on performance
targets established by the Company's Board of Directors (hereinafter referred to
as the "Board").
3.4 STOCK OPTIONS. Subject to all of the terms and conditions of the
Paragon Trade Brands, Inc. Stock Option Plan (Effective as of January 28, 2000),
hereinafter referred to as the "Stock Option Plan," the Executive will be
granted options (the "Options") to purchase 60,000 shares of the Company's
common stock, par value $.01 per share, at a price of Ten Dollars ($10.00) per
share. Executive acknowledges that, pursuant to the terms and conditions of the
Stock Option Plan, he will be required to enter into a "Stock Option Agreement"
(as defined in the Stock Option Plan) with the Company as a condition of
receiving the Options and that the Date of Grant of the Options will be
established in accordance with the terms of the Stock Option Plan.
4. OTHER EMPLOYEE BENEFITS
The Executive's eligibility to participate in other employee
compensation or benefit plans or programs sponsored by the Company, as in effect
now or from time to time hereafter, will be governed solely by the terms and
provisions of such plans and programs. Nothing in this Agreement shall require
the Company to establish, or preclude the Company from amending or terminating,
any such plan or program.
5. WITHHOLDING
The payment of any amount pursuant to this Agreement shall be subject
to the applicable withholding and payroll taxes, and such other deductions as
may be required under the Company's employee benefit plans, if any.
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6. TERMINATION OF EMPLOYMENT BY COMPANY OR EXECUTIVE
6.1 TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON. Subject to
the provisions of Section 6.2 and Section 10.6, if, prior to the expiration of
the Employment Term, the Company terminates the Executive's employment without
Cause (as defined in Section 6.5), or the Executive terminates his employment by
resignation for Good Reason (as defined in Section 6.6), the Company shall pay
to the Executive within sixty (60) days after the date of termination an amount
equal to two times the Executive's annual Base Salary (at the rate in effect on
the date of such termination). In addition, if the Executive and/or any of the
Executive's dependents are eligible for, and timely elect, continuation of
medical and/or dental coverage under the Company's group heath care plan
pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation Act
of 1985, the Company will pay the applicable premium(s) for that coverage for
the statutorily required duration of that coverage, not to exceed eighteen
months. The Executive shall have no further right to receive any other
compensation or benefits after such termination of employment except as
determined in accordance with the terms of the employee benefit plans of the
Company.
6.2 GENERAL RELEASE REQUIRED. The Company shall not be obligated to
make any payment or to provide any benefit specified in Section 6.1 unless the
Executive first executes a legally binding and effective General Release and
Separation Agreement satisfactory to the Company in form, substance and scope of
persons and entities released. Said General Release and Separation Agreement
will include, but not be limited to, a release of any and all claims the
Executive may have, or claim to have, arising out of or relating in any way to
the Paragon Trade Brands, Inc. Severance Pay Plan established effective February
2, 1993, and restated February 28, 2000, or any other plan or program of the
Company that provides severance benefits.
6.3 TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON. If, prior
to the expiration of the Employment Term, the Company terminates the Executive's
employment for Cause (as defined in Section 6.5), or the Executive terminates
his
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employment by resignation without Good Reason (as defined in Section 6.6), the
Executive shall be entitled only to payment of his Base Salary and other
compensation and benefits through and including the date of termination, except
as determined in accordance with the terms of the employee benefit plans and
programs of the Company.
6.4 DATE OF TERMINATION. The date of termination of employment without
Cause shall be the later of (i) the date specified in a written notice of
termination from the Company to the Executive, or (ii) the receipt by the
Executive of such written notice (as determined under Section 12). The date of
termination of employment in the event of the Executive's resignation for Good
Reason shall be the tenth business day following the date on which the
Executive's written notice of resignation is received by the Company (as
determined under Section 12), unless the Company terminates the Executive's
employment with or without Cause prior to said tenth business day.
6.5 CAUSE DEFINED. Termination for "Cause" shall mean termination of
the Executive's employment because of:
(i) any material breach by the Executive of any of his material
obligations under this Agreement;
(ii) any failure or refusal of the Executive to substantially
perform the duties and responsibilities reasonably required of him as an
employee of the Company which the Executive fails to cure to the reasonable
satisfaction of the Company within thirty days of receiving written notice of
the failure or refusal from the Company;
(iii) the Executive's conviction of, or plea of no contest to,
any misdemeanor involving dishonesty or moral turpitude or any felony; or
(iv) any willful misconduct by the Executive which is injurious
to the financial condition or business reputation of the Company or any of the
Company's affiliates or subsidiaries.
6.6 GOOD REASON DEFINED. Termination by resignation for "Good Reason"
shall mean the Executive's resignation of employment because of:
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(i) any material breach by the Company of any of its material
obligations under this Agreement; or
(ii) a substantial and material diminution of the duties,
responsibilities or title of the Executive from those specified in this
Agreement or in effect immediately prior to the Effective Date of this
Agreement; or
(iii) the Company's permanent relocation of the Executive's
assigned office to a place more than fifty miles from the Company's current
headquarters at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx.
7. TERMINATION OF EMPLOYMENT BY DEATH OR DISABILITY
If not previously terminated, the Executive's employment shall
terminate upon the Executive's death or permanent disability. In the case of
the Executive's death, termination of this Agreement shall be immediate and
automatic. In the case of the Executive's permanent disability, termination of
the Executive's employment shall be effective upon receipt by the Executive (as
determined under Section 12) of the Company's written notice of termination due
to the Executive's permanent disability. As used herein, the term "permanent
disability" means a physical or mental impairment which renders the Executive
unable to perform one or more of the essential functions of his position and
which reasonably can be expected to continue either for 180 days, or until
death.
8. TERMINATION DUE TO NON-EXTENSION BY COMPANY
8.1 PAYMENT TO EXECUTIVE. If the Executive's employment by the Company
is terminated solely as a result of the Company giving written notice of its
intention not to extend the Executive's term of employment, as provided for in
Section 2.3 above, the Company shall pay to the Executive within sixty (60) days
after the date of termination an amount equal to the Executive's annual Base
Salary (at the rate in effect on the date of such termination). The Executive
shall have no further right to receive any other compensation or benefits after
such termination of employment except as determined in accordance with the terms
of the employee benefit plans of the Company.
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8.2 GENERAL RELEASE REQUIRED. The Company shall not be obligated to
make any payment or to provide any benefit specified in Section 8.1 unless the
Executive first executes a legally binding and effective General Release and
Separation Agreement satisfactory to the Company in form, substance and scope of
persons and entities released. Said General Release and Separation Agreement
will include, but not be limited to, a release of any and all claims the
Executive may have, or claim to have, arising out of or relating in any way to
the Paragon Trade Brands, Inc. Severance Pay Plan established effective February
2, 1993, and restated February 28, 2000, or any other plan or program of the
Company that provides severance benefits.
9. NO MITIGATION OR OFFSET
The Executive shall not be required to mitigate the amount of any
payment or benefit provided for herein by seeking other employment or otherwise,
and no such payment or benefit will be reduced in the event such other
employment is obtained, except as provided in Section 6.1 concerning
continuation of benefits under a group health plan or in Section 10.6.
10. SPECIAL COVENANTS
10.1 NONSOLICITATION OF CUSTOMERS. For so long as the Executive is
employed by the Company and continuing for two years thereafter, the Executive
shall not on behalf of himself or any other Person, directly or otherwise,
communicate with any Customer for the purpose of providing, or offering to
provide, any product or service that is identical to or substantially similar to
any product or service offered or provided by the Company or any of the
Company's affiliates or subsidiaries.
10.2 NONSOLICITATION OF EMPLOYEES. For so long as the Executive is
employed by the Company and continuing for two years thereafter, the Executive
shall not on behalf of himself or any other Person, directly or otherwise, take
any action for the purpose of causing any Co-Employee to leave the employment of
the Company or provide any assistance to any other Person for such purpose. As
used in this Section, the term "Co-Employee" means any
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individual who was an employee of the Company or any of the Company's affiliates
or subsidiaries at any time during the last six months of the Executive's
employment by the Company.
10.3 NO CONFLICTING EMPLOYMENT. For so long as the Executive is
employed by the Company and continuing for two years thereafter, the Executive
shall not within the United States or Canada render to any Competitor any
service that is the same as or substantially similar to any service that formed
a material part of the Executive's employment with the Company. As used in this
Section, the term "Competitor" means any Person engaged in the business of
manufacturing infant disposable diapers and disposable pants products who
reasonably could be expected to benefit from knowledge of Confidential
Information (as defined in Section 10.8.1), including, but not limited to, any
of the following companies: Xxxxxxx Confab Retail Group, Drypers Corporation,
Arquest Inc., DSG International, LTD, The Procter & Xxxxxx Company, Xxxxxxxx-
Xxxxx Corporation and Hospital Specialty Company.
10.4 PROTECTION OF CONFIDENTIAL INFORMATION. The Executive shall
forever hold in a fiduciary capacity for the exclusive benefit of the Company
all Confidential Information which has been, or hereafter is, obtained by the
Executive by reason of his association with the Company or any of its affiliates
or subsidiaries. Except as otherwise stated in this Subsection 10.4, the
Executive shall always safeguard all such Confidential Information and shall
never use or disclose any such Confidential Information, except in the
performance of his obligations to the Company. The Executive may otherwise
disclose Confidential Information only to the extent that disclosure is required
by force of law (such as by subpoena, court order or civil investigative
demand), but then only if he both notifies the Company in writing of the
required disclosure and furnishes the Company with a copy of each instrument
purporting to require disclosure as far in advance of the date for disclosure as
the circumstances permit so that the Company and/or the Company's affiliates or
subsidiaries may take such action as any of them deems proper to obviate the
requirement for disclosure or otherwise protect its interests.
10.5 EXCLUSIVE PROPERTY. The Executive confirms that all
Confidential Information is and shall remain the exclusive property of the
Company. All business records, papers and documents (regardless of form) kept
or made by the Executive relating to the business of the Company or to the
business of any of the Company's affiliates or subsidiaries shall be and remain
the property of the Company, except for such papers customarily deemed by the
Company to be the personal copies of the Executive and such other papers as the
Company's Chief Executive Officer may, in his sole discretion, authorize in
writing.
10.6 CESSATION OF COMPANY OBLIGATIONS. If the Executive violates any
of the provisions under this Section 10, the Company shall have no further
obligation under this Agreement except to pay any portion of Base Salary earned
by him but unpaid as of the date of such violation.
10.7 RELIEF. Without intending to limit the remedies available to the
Company, the Executive acknowledges that a breach of any of the covenants
contained in this Section 10 would result in material and irreparable injury to
the Company or its affiliates or subsidiaries for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the Company
shall be entitled to seek a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in activities
prohibited by this Section 10 or such other relief as may be required
specifically to enforce any of the covenants in this Section 10. If for any
reason, it is held that the restrictions under this Section 10 are not
reasonable or that consideration therefor is inadequate, such restrictions shall
be interpreted or modified to include as much of the duration and scope
identified in this Section 10 as will render such restrictions valid and
enforceable. The provisions of this Agreement do not in any way limit or abridge
the Company's rights under the laws of unfair competition, trade secret,
copyright, patent, or trademark, or under any other applicable law(s), all of
which are in addition to and cumulative of the Company's rights under this
Agreement. The Executive further agrees that the existence of any claim by him
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to enforcement by the Company of any or all of such
provisions.
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10.8 DEFINITIONS. The following definitions apply to this Section
10:
10.8.1 CONFIDENTIAL INFORMATION. The term "Confidential
Information" means information, regardless of form, that (i) the Company,
including the Company's affiliates and subsidiaries, keeps confidential from
competitors and the general public; (ii) relates to one or more businesses in
which the Company, including the Company's affiliates and subsidiaries, are
engaged; and (iii) either derives actual or potential economic value from not
being generally known by competitors of the Company, including the Company's
affiliates and subsidiaries, or the public, or might result in harm to the
Company, including the Company's affiliates and subsidiaries, if disclosed to
competitors or the public. Confidential Information does not include
information that is generally available to or known by the public other than as
a result of a breach of this Agreement. From and after the third anniversary of
the termination of the Executive's employment with the Company, the term
"Confidential Information" does not include any information that is not a Trade
Secret. Whether any particular information constitutes Confidential Information
shall be determined as of the time of any alleged violation of any provision of
this Agreement.
10.8.2 CUSTOMER. The term "Customer" means any customer of the
Company or any of the Company's affiliates or subsidiaries (i) with whom the
Executive dealt on behalf of the Company or any of the Company's affiliates or
subsidiaries, (ii) whose dealings with Company or any of the Company's
affiliates or subsidiaries were coordinated or supervised directly or otherwise
by the Executive, or (iii) about whom the Executive obtained Confidential
Information during the two (2) years immediately prior to the termination of the
Executive's employment with the Company.
10.8.3 PERSON. The term "Person" means any natural person and
any firm, partnership, corporation, organization or other legal entity.
10.8.4 TRADE SECRET. The term "Trade Secret" means any
information, regardless of form, constituting a trade secret of the Company or
any of the Company's affiliates or subsidiaries under applicable state law.
Whether any particular
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information constitutes a Trade Secret shall be determined as of the time of any
alleged violation of any provision of this Agreement.
11. ARBITRATION
Except as provided in Section 10.7, any controversy or claim arising
out of or relating to any employment relationship between the parties hereto or
to this contract, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association (the "AAA") under its
National Rules for the Resolution of Employment Disputes (the "AAA Rules"), and
judgment upon the award rendered by a majority of arbitrators may be entered by
any court having jurisdiction thereof. A panel of three arbitrators shall be
selected in accordance with the AAA Rules for any arbitration conducted under
this Agreement. The Company shall advance any fees or costs of arbitration
imposed by the AAA and any fees of the arbitrators, and the allocation of such
fees and costs shall be included in any award of the arbitrators.
12. NOTICES
All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company:
Paragon Trade Brands, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Attention: Vice President Human Resources
To the Executive:
Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
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All such notices shall be conclusively deemed to be received and shall
be effective, (i) if sent by hand delivery, upon receipt, (ii) if sent by
telecopy or facsimile transmission, upon confirmation of receipt by the sender
of such transmission or (iii) if sent by registered or certified mail, on the
fifth day after the day on which such notice is mailed.
13. SEVERABILITY
Each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
14. ASSIGNMENT
The Company's rights and obligations under this Agreement shall not be
assignable by the Company except as incident to a reorganization, merger or
consolidation, or transfer of all or substantially all of the Company's business
and properties. The Company shall require any permitted successor or assign to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it had no such
succession or assignment taken place. This Agreement shall not be assignable or
otherwise subject to hypothecation by the Executive without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
15. ENTIRE AGREEMENT
This Agreement and the Employee Invention Agreement signed by the
Executive and accepted on or about January 11, 1993 by the Company or the
Company's Majority Owned Subsidiary contains the entire understanding between
the Company and the Executive and
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supersedes any and all prior understandings, agreements and arrangements between
the Company and the Executive (whether or not in writing).
16. MODIFICATION AND WAIVER
This Agreement may not be modified or amended except in a writing
signed by the parties. No term or condition of this Agreement will be deemed to
have been waived unless the waiver is specifically stated in a writing signed by
the party charged with the waiver. A waiver shall operate only as to the
specific term or condition waived and will not constitute a waiver for the
future or affect anything other than that which is specifically waived.
17. SURVIVAL
The restrictions and obligations set forth in Section 10 of this
Agreement shall survive any expiration, termination or cancellation of this
Agreement and shall continue to bind the parties forever.
18. HEADINGS
The headings of sections and subsections of this Agreement are merely
for the convenience of the parties and form no part of this Agreement.
19. GOVERNING LAW
This Agreement shall be construed, interpreted, and governed in
accordance with the laws of the State of Georgia without reference to rules
relating to conflicts of law.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive has hereunto set his hand, as of the date first
written above.
PARAGON TRADE BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
Chairman, President and Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
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