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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and effective as of the
date set forth in Section 1.4 of the Agreement, by and between THE SIRENA
APPAREL GROUP, INC., a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXX (the "Employee"), with respect to the following facts:
A. The Company desires to be assured of the continued association and
services of the Employee in order to take advantage of his experience, knowledge
and abilities in the Company's business, and is willing to employ the Employee,
and the Employee desires to be so employed, on the terms and conditions set
forth in the Agreement.
B. The Employee from time to time in the course of his employment may learn
trade secrets and other confidential information concerning the Company, and the
Company desires to safeguard such trade secrets and confidential information
against unauthorized use and disclosure.
ACCORDINGLY, on the basis of the representations, warranties and
covenants contained herein, the parties hereto agree as follows:
1. EMPLOYMENT
1.1 Employment. The Company hereby employs the Employee as Chief
Operating Officer, and the Employee hereby accepts such employment, on the terms
and conditions set forth below, to perform during the term of the Agreement such
services as are required hereunder. The Employee has, in addition, been elected
as Chairman of the Board of Directors of the Company, and has agreed to serve in
such capacity.
1.2 Duties. The Employee shall render such services to the
Company, and shall perform such duties and acts, as reasonably may be required
by the Company's Board of Directors in connection with any aspect of the
Company's business.
1.3 Service to Others. The Employee shall devote his entire
productive time, ability and attention to, and shall diligently and
conscientiously use his best efforts to further, the Company's business, and
shall not, without the prior written consent of the Company's Board of Directors
in each instance, perform services of any kind, whether or not for compensation,
for any person other than the Company, which services, in the sole opinion of
the Company's Board of Directors, might materially interfere with the
performance of his duties hereunder.
1.4 Effective Date. The Agreement shall be made and effective as
of September 29, 1997 (the "Effective Date").
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2. COMPENSATION
2.1 Compensation. As the total consideration for the services
which the Employee renders hereunder, the Employee shall be entitled to the
following:
(a) an annual base salary of $300,000, subject to such
periodic increases, if any, as the Company's Board of Directors may deem to be
appropriate in its sole discretion, less income tax and other applicable
withholdings, payable consistent with the payment practices generally applicable
to employees of the Company;
(b) an annual bonus not to exceed $200,000 upon the
realization of performance criteria set by the Compensation Committee of the
Company's Board of Directors, less income tax and other applicable withholdings;
(c) participation in all benefit plans or programs sponsored
by the Company for executive officers in general, including, without limitation,
participation in any group health plan, medical reimbursement plan, dental plan,
disability insurance plan (the costs, including premiums, for each of the
foregoing plans shall be paid exclusively by the Company), life insurance plan
and pension and profit sharing plan;
(d) reimbursement of any and all reasonable and documented
expenses incurred by the Employee from time to time in the performance of his
duties hereunder;
(e) four (4) weeks paid vacation per year, at such time or
times as the Company may authorize, and all paid holidays observed by the
Company; provided, however, that such vacation shall be taken annually and shall
not cumulate from year to year;
(f) an automobile allowance in the amount of $850 per month,
together with reimbursement of all expenses for insurance, fuel and maintenance;
(g) options to purchase up to 25,000 shares of Common Stock
of the Company on the terms and conditions set forth in the Non-Qualified Stock
Option Agreement attached hereto as Exhibit A, and options to purchase up to
80,000 shares of Common Stock of the Company on the terms and conditions set
forth in the Non-Qualified Stock Option Agreement attached hereto as Exhibit B;
and
(h) a special bonus of $30,000 to be paid on January 1,
1998.
2.2 Illness. Subject to the limitations contained in Section
3.2(c) and 3.3(i) of the Agreement, if the Employee shall be unable to render
the services required hereunder on account of personal injury or physical or
mental illness, he shall continue to receive all payments provided for in the
Agreement; provided, however, that any such payments may, at the sole option of
the Company, be reduced by any amount that the Employee receives for the period
covered by
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such payments as disability compensation under insurance policies, if any,
maintained by the Company or under government programs.
3. TERM OF EMPLOYMENT AND TERMINATION
3.1 Term. Unless sooner terminated pursuant to Section 3.2 of the
Agreement, the term of employment under the Agreement shall be for a period
commencing on the Effective Date and ending on the second anniversary date
thereof; provided, however, that such term of employment automatically shall be
renewed for successive two (2) year terms unless written notice of termination
is given by either the Company or the Employee not less than ninety (90) days
prior to the end of the initial term or any subsequent two (2) year term.
3.2 Termination. Employment under the Agreement shall terminate
prior to the expiration of its term upon the happening of any of the following
events:
(a) the mutual agreement of the Company and the Employee;
(b) the death of the Employee;
(c) at the Company's option if, in the reasonable judgment
of the Company's Board of Directors, the Employee has become so physically or
mentally disabled as to be incapable of substantially performing his duties
hereunder for a period of six (6) consecutive months or an aggregate of 180 days
in any twelve (12) month period;
(d) at the Company's option, in the event of (i) a material
breach of the Agreement by reason of the Employee's continued and willful
failure or refusal to substantially perform his duties in accordance with the
Agreement or (ii) the conviction of the Employee of a felony or of a misdemeanor
involving financial impropriety or (iii) the material breach of the Employee's
fiduciary duty to the Company; provided, however, that no termination shall
occur under clause (i) of this Section 3.2(d) unless the Employee first shall
have received written notice specifying the acts or omissions alleged to
constitute such breach and, if such breach can be corrected, it continues after
the Employee shall have had reasonable opportunity to correct it;
(e) at the Employee's option, in the event of (i) a material
breach of the Agreement by the Company or (ii) the assignment to the Employee of
duties inconsistent with his status as Chief Operating Officer of the Company or
(iii) a substantial alteration in the Employee's reporting responsibility, title
or office or (iv) a move of the Company's principal executive offices outside
the County of Los Angeles; provided, however, that no termination shall occur
under clause (i) of this Section 3.2(e) unless the Company first shall have
received written notice specifying the acts or omissions alleged to constitute
such breach and, if such breach can be corrected, it continues after the Company
shall have had reasonable opportunity to correct it; or
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(f) at the Company's option by resolution of the Board of
Directors for any reason whatsoever without cause.
3.3 Duties Upon Termination. In the event that employment under
the Agreement is terminated, whether at the expiration of the initial term or
any subsequent two (2) year term or prior thereto pursuant to Section 3.2 of the
Agreement, neither the Company nor the Employee shall have any remaining duties
or obligations hereunder, except that (i) the Company shall pay to the Employee,
or his estate, such compensation as is due pursuant to Section 2.1, prorated
through the date of termination, (ii) the Employee shall continue to be bound by
Section 4 of the Agreement, (iii) in the event that such termination shall occur
pursuant to Section 3.2(a), (b), (c), (e) or (f) of the Agreement or the Company
shall terminate the Agreement under Section 3.1 hereof effective at the end of
the initial term or any renewal term, except for any such termination for any
reason described in Section 3.2(d) hereof, the Company shall pay to the
Employee, or his estate, in cash on the effective date of termination such
compensation as would otherwise be due pursuant to Sections 2.1(a) and (c)
during the period commencing on the effective date of such termination and
ending on the date occurring ninety (90) days after such effective date and (iv)
the Employee shall resign as a Director of the Company, if he then be such,
immediately upon the request of a majority of the Board of Directors (other than
the Employee).
4. TRADE SECRETS
4.1 Trade Secrets. The Employee shall not, without the prior
written consent of the Company's Board of Directors in each instance, disclose
or use in any way, during the term of his employment by the Company and for one
(1) year thereafter, except as required in the course of such employment, any
confidential business or technical information or trade secret of the Company
acquired in the course of such employment, whether or not patentable,
copyrightable or otherwise protected by law, and whether or not conceived of or
prepared by him (collectively, the "Trade Secrets") including, without
limitation, any information concerning designs, patterns, customer lists,
products, procedures, operations, investments, financing, costs, employees,
purchasing, accounting, marketing, merchandising, sales, salaries, pricing,
profits and plans for future development, the identity, requirements,
preferences, practices and methods of doing business of specific parties with
whom the Company transacts business, and all other information which is related
to any product, service or business of the Company, other than information which
is generally known in the industry in which the Company transacts business or is
acquired from public sources; all of which Trade Secrets are the exclusive and
valuable property of the Company.
4.2 Tangible Items. All files, accounts, records, documents,
books, forms, notes, reports, memoranda, studies, compilations of information,
correspondence and all copies, abstracts and summaries of the foregoing, and all
other physical items related to the Company, other than a merely personal item,
whether of a public nature or not, and whether prepared by the Employee or not,
are and shall remain the exclusive property of the Company and shall not be
removed from the premises of the Company, except as required in the course of
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employment by the Company, without the prior written consent of the Company's
Board of Directors in each instance, and the same shall be promptly returned to
the Company by the Employee on the expiration or termination of his employment
by the Company or at any time prior thereto upon the request of the Company.
4.3 Solicitation of Employees. During the term of his employment
by the Company and for one (1) year thereafter (such period not to include any
period of violation hereof by the Employee or period which is required for
litigation to enforce this paragraph and during which the Employee is in
violation hereof), the Employee shall not, directly or indirectly, either for
his own benefit or purposes or the benefit or purposes of any other person,
employ or offer to employ, call on, solicit, interfere with or attempt to divert
or entice away any employee of the Company in any capacity if that person
possesses or has knowledge of any Trade Secrets of the Company.
4.4 Injunctive Relief. The Employee hereby acknowledges and
agrees that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of this Section 4 and,
accordingly, that the Company shall be entitled to seek temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages and without the necessity of posting any bond or other
undertaking in connection therewith. This provision with respect to injunctive
relief shall not, however, diminish the Company's right to claim and recover
damages.
4.5 "Company". For the purposes of this Section 4 of the
Agreement only, the term "Company" shall mean collectively The Sirena Apparel
Group, Inc., a Delaware corporation, and its successors, assigns and nominees,
and all individuals, corporations and other entities that directly, or
indirectly through one or more intermediaries, control or are controlled by or
are under common control with any of the foregoing.
5. RELEASE
5.1 Termination of Prior Agreements. The rights and obligations
of the Company and the Employee, if any, under that certain letter agreement
dated September 12, 1997, a copy of which is attached as Exhibit C hereto (the
"Prior Agreement"), hereby are terminated effective as of the date hereof. From
and after the date hereof, neither the Company nor the Employee shall have any
further rights or obligations whatsoever under the Prior Agreement.
5.2 General Release.
(a) Except as expressly set forth in the Agreement, each
party hereto hereby fully, forever and unconditionally releases, exonerates,
waives, relinquishes, discharges, acquits, relieves and covenants not to xxx or
charge each other party hereto and its agents, employees, representatives,
attorneys, stockholders, officers, directors, successors and
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assigns (collectively, "all related persons"), and all affiliated, parent and
subsidiary corporation, and each of them, and all related persons connected
therewith, from any and all rights, claims, demands, debts, obligations,
liabilities, promises, acts, agreements, costs, expenses (including but not
limited to, attorneys' fees), damages, disputes, controversies, actions and
causes of action, of whatever kind or nature, in law or equity, whether known or
unknown, suspected or unsuspected, potential or actual, based on, arising out
of, or in any way connected with or related to the Prior Agreement.
(b) Except as expressly set forth in the Agreement, each
party hereto acknowledges that no statement, representation, promise or
inducement has been made by any other party hereto in connection with the
Agreement, and each party hereto specifically acknowledges that it has not
relied upon any statement, representation, promise or inducement of any other
party hereto in executing the Agreement. The Agreement supersedes all prior
negotiations and understandings of any kind with respect to the subject matter
hereof and contains all of the agreement of the parties hereto. There are no
oral understandings not incorporated herein. The Agreement shall not be amended,
modified, supplemented or abrogated other than by a written instrument duly
executed by all parties hereto.
(c) Each party hereto understands and agrees that this
Section 5 extends to all claims of whatever nature and kind, known or unknown,
suspected or unsuspected, and they each expressly waive any and all rights under
Section 1542 of the Civil Code of the State of California, which provides as
follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
Each party hereto expressly waives and releases any right or benefit which it
has or may have under Section 1542 of the Civil Code of the State of California,
as well as under the provisions of all comparable or similar statutes,
provisions of common law or other decisional law of any and all states of the
United States. In connection with such waiver and relinquishment, each party
hereto acknowledges that it may hereafter discover claims presently unknown or
unsuspected, or facts in addition to or different from those which it now knows
or believes to be true, with respect to the matters released herein.
Nevertheless, it is the intention of each party hereto through the Agreement, to
fully, finally and forever settle and release all such matters, and all claims
relative thereto, which now exist, may exist or heretofore have existed between
them. In furtherance of such intention, the release herein given shall be and
remain in effect as a full and complete release notwithstanding the discovery or
existence of any such additional or different claims or facts relative thereto,
and each party hereto expressly assumes the risk of any injury, loss or damage
which may arise from this waiver.
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6. MISCELLANEOUS
6.1 Severable Provisions. The provisions of the Agreement are
severable, and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall nevertheless
be binding and enforceable.
6.2 Successors and Assigns. All of the terms, provisions and
obligations of the Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, representatives, successors
and assigns. Notwithstanding the foregoing, neither the Agreement nor any rights
hereunder shall be assigned, pledged, hypothecated or otherwise transferred by
the Employee without the prior written consent of the Company's Board of
Directors in each instance.
6.3 Governing Law. The validity, construction and interpretation
of the Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed within that State.
6.4 Arbitration. At the demand of either party any dispute except
under Paragraph 4 arising out of this Agreement shall be resolved through
binding arbitration. The Company shall pay all arbitration costs. Unless the
parties agree on a different arbitration procedure, arbitration shall take place
under the Expedited Labor Arbitration Rules of the American Arbitration
Association of Los Angeles, California. The decision of the Arbitrator shall be
final and binding on both parties.
6.5 Headings. Section and subsection headings are not to be
considered part of this Agreement and are included solely for convenience and
reference and in no way define, limit or describe the scope of the Agreement or
the intent of any provisions hereof.
6.6 Entire Agreement. The Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, relating to the subject matter of the
Agreement. No supplement, modification, waiver or termination of the Agreement
shall be valid unless executed by the party to be bound thereby. No waiver of
any of the provisions of the Agreement shall be deemed to or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
6.7 Notice. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given
(i) if personally delivered, when so delivered, (ii) if mailed, one (1) week
after having been placed in the United States mail, registered or certified,
postage prepaid, addressed to the party to whom it is directed at the address
set forth below or (iii) if given by telex or telecopier, when such notice or
other communication is
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transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received. Either party may
change the address to which such notices are to be addressed by giving the other
party notice in the manner herein set forth.
6.8 Attorneys' Fees. In the event any party takes legal action to
enforce any of the terms of the Agreement, the unsuccessful party to such action
shall pay the successful party's expenses, including attorneys' fees, incurred
in such action.
6.9 Third Parties. Nothing in the Agreement, expressed or
implied, is intended to confer upon any person other than the Company or the
Employee any rights or remedies under or by reason of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be
executed as of the date and year first set forth above.
THE SIRENA APPAREL GROUP, INC.
By /s/ XXXXXXX XXXXXXXX
----------------------------------
Authorized Representative
00000 Xxxxx Xxxxxx
Xxxxx Xx Xxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
/s/ XXXXXXX X. XXXXXX
------------------------------------
XXXXXXX X. XXXXXX
00 Xxxxxxxx Xxxxxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
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