Exhibit 10.9
FIRST ADDENDUM TO EMPLOYMENT AGREEMENT
This FIRST ADDENDUM TO EMPLOYMENT AGREEMENT (the "First Addendum") is
entered into as of, July 18, 2003, (" the Effective Date") by and between
TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation (the "Company"),
and XXXXXXX X. XXXXXX (the "Employee").
RECITALS:
The Company and Employee previously entered into that certain
Employment Agreement dated August 8, 1997 (the "Employment Agreement") which
became effective on the Effective Date as defined therein. By this First
Addendum, the Company and Employee intend to reaffirm all of the terms and
conditions of the Employment Agreement and to provide (by this First Addendum)
for a Change Of Control Payment (as defined hereafter) to the Employee upon
certain conditions as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
provisions contained herein, and for other good and valuable consideration, the
parties hereto agree with each other that the terms and conditions of the
Employment Agreement are reaffirmed and that the additional provisions contained
in this First Addendum are hereby added to the Employment Agreement:
1. CERTAIN DEFINITIONS APPLICABLE TO CHANGE OF CONTROL ONLY
A. Certain Definitions. In the event of a Change of Control (as
defined hereafter), the following terms have the meanings assigned to them
below:
"Acquiring Person" means any Person who or which, together with all
Affiliates and Associates of such Person, is or are the Beneficial Owner(s) of a
minimum of twenty five (25%) or more of the shares of Common Stock then
outstanding, but does not include any Exempt Person; provided, however, that a
Person shall not be or become an Acquiring Person if such Person, together with
its Affiliates and Associates, shall become the Beneficial Owner of a minimum of
twenty five percent (25%) or more of the shares of Common Stock then outstanding
solely as a result of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of Common Stock by the Company, unless and
until such time as such Person or any Affiliate or Associate of such Person
shall purchase or otherwise become the Beneficial Owner of additional shares of
Common Stock constituting one percent (1%) or more of the then outstanding
shares of Common Stock or any other Person (or Persons) who is (or collectively
are) the Beneficial Owner of shares of Common Stock constituting one percent
(1%) or more of the then outstanding shares of Common Stock shall become an
Affiliate or Associate of such Person, unless, in either such case, such Person,
together with all Affiliates and Associates of such Person, is not then the
Beneficial Owner of a minimum of twenty five percent (25%) or more of the shares
of Common Stock then outstanding.
"Affiliate" has the meaning ascribed to that term in Exchange Act Rule
12b-2.
"Associate" means, with reference to any Person,
(a) any corporation, firm, partnership, association,
unincorporated organization or other entity (other than the Company or a
subsidiary of the Company) of which that Person is an officer or general partner
(or officer or general partner of a general partner) or is, directly or
indirectly, the Beneficial Owner of 15% or more of any class of its equity
securities,
(b) any trust or other estate in which that Person has a
substantial beneficial interest or for or of which that Person serves as trustee
or in a similar fiduciary capacity and
(c) any relative or spouse of that Person, or any
relative of that spouse, who has the same home as that Person.
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"Base Salary" means the guaranteed minimum annual salary payable by the
Company to the Employee pursuant to Section 4(A) of the Employment Agreement.
"Beneficial Owner" means a specified Person who is deemed the
"Beneficial Owner" of, and is deemed to "beneficially own," any securities.
(a) of which that Person or any of that Person's
Associates or controlled Affiliates, directly or indirectly, is the "beneficial
owner" (as determined pursuant to Exchange Act Rule 13d-3) or otherwise has the
right to vote or dispose of, including pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided, however, that a Person
shall not be deemed the "Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (a) as a result of an agreement, arrangement or
understanding to vote that security if that agreement, arrangement or
understanding: 1) arises solely from a revocable proxy or consent given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the Exchange Act (that is, the
exclusions in these subparagraphs (a) and (b) give effect to the exemption for a
proxy or consent solicitation in Exchange Act rule 14a-2(b) (2); and (2) is not
then reportable by such Person on Exchange Act Schedule 13D (or any comparable
or successor report);
(b) which that Person or any of that Person's Affiliates
or Associates, directly or indirectly, has the right or obligation to acquire
(provided that right or obligation is exercisable or effective immediately or
only after the passage of time or the occurrence of an event) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or on the
exercise of conversion rights, exchange rights, other rights, warrants or
options, with an exercise price equal to or below the public trading price at
the time of calculation; provided, however, that a Person shall not be deemed
the "Beneficial Owner" of, or to "beneficially own," securities tendered
pursuant to a tender or exchange offer made by that Person or any of that
Person's Affiliates or Associates until those tendered securities are accepted
for purchase or exchange; or
(c) which are beneficially owned, directly or indirectly,
by (1) any other Person (or any Affiliate or Associate thereof) with which the
specified Person or any of the specified Person's Affiliates or Associates has
any agreement, arrangement or understanding (whether or not in writing) for the
purpose of acquiring, or holding with the right to vote or of voting (except
pursuant to a revocable proxy or consent as described in the proviso to
subparagraph (a) of this definition) or disposing of any voting securities of
the Company or (2) any group (as that term is used in Exchange Act Rule
13d-5(b)) of which that specified Person is a member; provided, however, that
nothing in this definition shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such a Person's participation in good
faith in a firm commitment underwriting until the expiration of forty (40) days
after the date of that acquisition and the security has been placed in an
investment account. For purposes of this Agreement, "voting" a security shall
include voting, granting a proxy, acting by consent, making a request or demand
relating to corporate action (including, without limitation, calling a
stockholder meeting) or otherwise giving an authorization (within the meaning of
Section 14(a) of the Exchange Act) in respect of such security.
"Change of Control" means the occurrence of any of the following events
that occurs after the Effective Date:
(a) any Person becomes an Acquiring Person;
(b) a merger of the Company with or into, or a sale by
the Company of its properties and assets substantially as an entirety to,
another Person occurs and, immediately after that occurrence, any Person, other
than any Exempt Person, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of twenty five percent (25%), or more of
the total voting power of the then outstanding Voting Shares of the Person
surviving that transaction (in the case of a merger or consolidation) or the
Person acquiring those properties and assets substantially as an entirety.
"Change of Control Payment" means an amount equal to the Employee's
annual Base Salary as in effect immediately prior to the Termination Date
multiplied by two (2), which payment shall be made in lieu of the payment to
Employee of his "Annual Base Salary through the term, and any extension thereto
of this Agreement" under Section 5. B. of the Employment Agreement.
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"Code" means the Internal Revenue Code of 1986.
"Common Stock" means the common stock or any other voting securities of
the Company.
"Company" means
(a) Tropical Sportswear Int'l Corporation, a Florida
corporation, and any successor thereto;
(b) any Person that assumes the obligations of "the
Company" hereunder, by operation of law, including but not limited to Tropical
Sportswear Int'l Corporation, a Florida corporation.
"Exempt Person" means
(a) (1) the Company, any subsidiary of the Company, any
employee benefit plan of the Company or of any subsidiary of the Company, and
(2) any Person organized, appointed or established by
the Company for or pursuant to the terms of any such plan or for the purpose of
funding any such plan or funding other employee benefits for employees of the
Company or any subsidiary of the Company and
(b) the Employee, any Affiliate or Associate of the
Employee or any group (as that term is used in Exchange Act Rule 1 3d-5(b)) of
which the Employee or any Affiliate or Associate of the Employee is a member.
(c) Xxxxxxx X. Xxxxxxx, any Affiliate or Associate of
Xxxxxxx X. Xxxxxxx or any group (as that term is used in Exchange Act Rule 1
3d-5(b)) of which Xxxxxxx X. Xxxxxxx or any Affiliate or Associate of Xxxxxxx X.
Xxxxxxx is a member.
(d) Xxxxxxx Xxxxx, any Affiliate or Associate of Xxxxxxx
Xxxxx or any group (as that term is used in Exchange Act Rule 1 3d-5(b)) of
which Xxxxxxx Xxxxx or any Affiliate or Associate of Xxxxxxx Xxxxx is a member.
(e) Accel, S.A. de C.V., any Affiliate or Associate of
said Accel or any group (as that term is used in said rule) of which said Accel
or any Affiliate or Associate of said Accel is a member.
"Notice of Termination (Change of Control)" to or from the Employee
means a written notice that:
(a) to the extent applicable, sets forth that a Change of
Control has occurred as a basis for termination of the Employee's Employment,
and if the Termination Date is other than the date of receipt of the notice,
(b) sets forth that Termination Date.
"Person" means any natural person, sole proprietorship, corporation,
partnership
of any kind having a separate legal status, limited liability company, business
trust, unincorporated organization or association, mutual company, joint stock
company, joint venture, estate, trust, union or employee organization or
governmental authority.
"Publicly Traded" with respect to shares of stock of a company means
traded on a national securities exchange or listed for quotation on NASDAQ.
"Terminating Party (Change of Control)" means the Employee or the
Company, as the case may be, who or which terminates the Employee's Employment
by means of a Notice of Termination (Change of Control).
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"Termination Date (Change of Control)" means:
(b) if the Employee's Employment is terminated by reason
of the Employee's giving a Notice of Termination (Change of Control) following a
Change of Control, sixty (60) days from the Notice of Termination (Change of
Control); provided that the Termination Date (Change of Control) shall be no
earlier than 275 days after the Change of Control and further provided that the
Notice of Termination (Change of Control) shall be no later than 365 days after
the Change of Control.
"Voting" shall include, in respect of a security, voting, granting a
proxy, acting by consent, making a request or demand relating to corporate
action (including calling a stockholder meeting) or otherwise giving an
authorization (within the meaning of Section 14 (a) of the Securities Exchange
Act of 1934) in respect of such security.
"Voting Shares" means:
(a) in the case of any corporation, stock of that
corporation of the class or classes having general voting power under ordinary
circumstances to elect a majority of that corporation's board of directors; and
(b) in the case of any other entity, equity interests of
the class or classes having general voting power under ordinary circumstances
equivalent to the Voting Shares of a corporation.
5. TERMINATION (CHANGE OF CONTROL)
A. Termination of Employment by the Company Upon Change of
Control.
(i) The Company shall be entitled to terminate the
Employee's employment as a result of a Change of Control at any time within
three hundred and sixty-five (365) days immediately following said Change of
Control.
(ii) If the Company terminates the Employee's employment
as a result of a Change of Control, by giving a Notice of Termination (Change of
Control) at any time within three hundred sixty-five (365) days after that
Change of Control occurs, such termination shall be effective on the applicable
Termination Date (Change of Control) and the Company's obligations shall be as
follows:
(a) the Company shall promptly thereafter, and in any
event within five (5) business days of the Termination Date (Change of Control),
pay the Employee, without right of set off, any accrued obligations including
the current Base Salary prorated through the Termination Date (Change of
Control) together with the Change of Control Payment, to the extent not
theretofore paid, which payments shall be in lieu of the payment to Employee of
his "Annual Base Salary through the term, and any extension thereto of this
Agreement" otherwise applicable under Section 5. B. of the Employment Agreement;
and
(b) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Employee any other obligations
that remain unpaid; and
(c) Employees shall be entitled to medical benefits
as provided in paragraph 5B of the Employment Contract.
B. Termination of Employment by Employee Upon Change of Control.
The Employee shall be entitled to terminate the employment as a result of a
Change of Control, by giving a Notice of Termination (Change of Control) at any
time within three hundred sixty-five (365) days after that Change of Control
occurs. Such termination shall be effective on the applicable Termination Date
(Change of Control). If the Employee terminates his employment by reason of a
Change of Control:
(i) the Company shall promptly thereafter, and in any event
within five (5) business days of the Termination Date (Change of Control), pay
the Employee, without right of set off, any accrued obligations including
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the current Base Salary prorated through the Termination Date (Change of
Control) together with the Change of Control Payment, to the extent not
theretofore paid, which payments shall be in lieu of the payment to Employee of
his "Annual Base Salary through the term, and any extension thereto of this
Agreement" otherwise applicable under Section 5. B. of the Employment Agreement;
and
(ii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Employee any other obligations that
remain unpaid; and
(iii) Employees shall be entitled to medical benefits as
provided in paragraph 5B of the Employment Contract.
6. ENTIRE AGREEMENT The terms and conditions of the Employment Agreement
as amended by the First Addendum constitute the entire agreement
between the Company and the Employee. Except to the extent modified by the First
Addendum, the terms and conditions of the Employment Agreement remain binding
and enforceable. The Company and the Employee agree that the Employment
Agreement as amended by the First Addendum supersede all prior written and oral
agreements between them with respect to the employment of the Employee by the
Company.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year indicated above.
TROPICAL SPORTSWEAR INT'L CORPORATION
By: /s/ Xxxxxxx Xxxxx
Its: Xxxxxxx Xxxxx, CEO
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx 7/28/03
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