Exhibit 10.1
XXXX EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This agreement dated as of January 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 "Employer"], and Xxxx X. Xxxxxx, residing at 00 Xxxxxx Xxx, Xxxxxxxx,
XX 00000.
In consideration of the premises together with other good and valuable
consideration, the parties agree as follows:
1. EMPLOYMENT. Employer employs Employee, and Employee accepts
employment, subject to the terms and conditions set forth in this agreement.
2. TERM. This agreement shall be effective from, January 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. Employer employs Employee as the chief financial officer of
Employer to perform services the same as, or generally consistent with, the
services generally performed by such an officer and to assist in such operations
of Employer, as may be reasonably requested by Employer.
4. EXTENT OF SERVICE. Employee shall devote his full business time,
attention and energies, as well as his best talents and abilities, to the
business of Employer in accordance with Employer's instructions and directions
and shall not, during the term of this agreement, be engaged in any other
employment for any other employer.
5. COMPENSATION.
(a) For all services rendered by Employee under this agreement,
Employer agrees to pay Employee an annual base salary of $200,000 commencing on
the date hereof.
(b) In addition to the base salary set forth above, the Employer
agrees to pay the Employee an annual bonus equal to twenty (20%) percent of the
Employee's then annual base salary, which bonus shall be increased or decreased
based upon the Employer's achieving its "before tax profits" ("EBIT") as set
forth in its annual budget and certified by the Employer's auditors and their
certificate shall be conclusive. For example; If "before tax profits" ("EBIT")
exceed budget by ten (10%) percent, then the bonus or incentive plan payment
will be thirty (30%) percent (20% plus 10%) of the annual base salary. Likewise,
if EBIT falls below budget by ten (10%), then the incentive plan payment will be
reduced by ten (10%) to ten (10%) percent.
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The bonus shall be paid to the Employee if the Employer achieves 100%
of its budgeted "before tax profits" (EBIT). That sum shall also increase or
decrease on a pro-rata basis if the "before tax profits" are greater or less
than budget.
(c) In addition to the compensation set forth above, the Employee
shall be considered for annual increases in the base salary and bonuses in
amounts determined by the Chief Executive Officer of the Employer.
(d) In the event of the death or termination of the employment of
the Employee, 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.
6. EMPLOYEE BENEFITS. In addition to any other items of compensation
provided for herein, the Employee shall be entitled to the following benefits:
(a) The Employee shall be entitled to coverage in a health and
medical plan, and shall be entitled to participate in (i) any retirement, life
insurance, dental, disability or other plans or benefits, whether insured or
self-insured, which the company may make available form time to time to its
executives and (ii) any bonus plans, incentive, profit-sharing arrangement or
similar plan, which the company, in its sole discretion, may establish from time
to time for its executives.
(b) The Employee 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 Employer, in its sole discretion, may make available from
time to time to its executives.
(c) The Employee shall be entitled to paid vacation during each
year of this agreement for such length of time which the company affords to its
senior executives, but in no event less than three weeks per year.
(d) The Employee shall be entitled to an automobile/commuting
allowance, payable monthly, which automobile allowance shall be commensurate
with his position and duties as the Chief Financial Officer of the Employer.
(e) The Employee shall be entitled to be reimbursed promptly for
all reasonable travel, meal, entertainment and other out-of-pocket expenses
which are incurred by him in the performance of his duties hereunder and
evidenced by appropriate documentation.
7. RESTRICTIVE COVENANTS. (a) The Employee 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 Employer,
unless such information has otherwise been previously publicly disclosed through
no fault or conduct of the Employee, or the Employee is required by law to
disclose such information, or such information is within the public domain.
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(b) The Employee shall not, without the prior written consent of
the Employer, within the one (1) year period following the termination or
expiration of this agreement solicit any employees, agents, or representatives
of the Employer to join the Employee as a partner, employee, agent, or
representative, in any competitive enterprise.
8. TERMINATION.
(a) FOR CAUSE: The Employer shall have the right to terminate the
employment of the Employee during the term of this agreement for cause.
(c) DISABILITY: If as a result of the Employee's incapacity due
to physical or mental illness, the Employee shall have been absent from the
full-time performance of his duties with the Employer for six (6) consecutive
months, and within 30 days after written notice of termination is given, the
Employee shall not have returned to said full-time performance of his duties,
the Employer may terminate the employment of the Employee.
9. INDEMNIFICATION. (a) The company agrees to indemnify and hold the
Employee 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 Employee to the fullest extent permitted by the Employer's
Certificate of Incorporation and Bylaws, as now in effect or as hereafter
amended.
(b) In addition to Section 9(a) above, the Employer shall at all
times indemnify and hold harmless the Employee, 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.
10. CHANGE IN CONTROL. If there is a change in control of the Employer
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 Employer enters into an agreement,
the consummation of which would result in such a change of control; or (c) the
stockholders of the Employer approve a merger or consolidation of the Employer
with any other corporation or business entity; or (d) the stockholders of the
Employer approve a plan of liquidation of the Employer or an agreement for the
sale or disposition by the Employer of all or substantially all of its assets,
then and in that event the Employee shall be entitled to and paid the following
benefits upon the subsequent termination of his 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 Employee's current annual base salary and bonus. Said payment shall be
made within five (5) days following termination; and
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(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 Employee as of the date of
termination.
11. INSURANCE. The Employer hereby agrees to include the Employee 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.
12. 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.
13. 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 Employer 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.
14. CONSTRUCTION AND JURISDICTION. This agreement shall be construed
and enforced in accordance with the laws of the State of New York.
15. 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.
16. 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.
17. 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.
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18. 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.
19. 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 Employer:
Everlast WorldWide Inc.
0000 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
If to the Employee:
Xx. Xxxx X. Xxxxxx
00 Xxxxxx Xxx
Xxxxxxxx, 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
Employee
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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