EXHIBIT 10.23
EMPLOYMENT AND NON-SOLICITATION AGREEMENT
THIS EMPLOYMENT AND NON-SOLICITATION AGREEMENT (the "Agreement"), dated
as of September 30, 2003, is by and between DELTA APPAREL, INC., a Georgia
corporation (the "Company"), and Xxxxxx X. Xxxxxx, a South Carolina resident
("Executive").
WHEREAS, Executive and the Company want to enter into a written
agreement providing for the terms of Executive's employment by the Company, such
agreement to replace and supersede that certain Employment and Non-Solicitation
Agreement between Executive and the Company dated November 7, 2000 (the "Prior
Agreement"); and
WHEREAS, Executive agrees that the Company's promises set out in this
Agreement provide good and sufficient consideration for the promises of
Executive set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. Executive agrees to continue his employment with the
Company, and the Company agrees to employ Executive, on the terms and conditions
set forth in this Agreement. This Agreement shall replace and supersede the
Prior Agreement, the term of which shall end upon the signing of this Agreement.
Executive agrees during the term of this Agreement to devote substantially all
of his business time, efforts, skills and abilities to the performance of his
duties to the Company and to the furtherance of the Company's business.
Executive's initial job title will be Vice President and
Company Secretary and his duties will be those as are designated by the Chief
Executive Officer of the Company.
2. Compensation.
(a) Base Salary. During the term of Executive's employment
with the Company pursuant to this Agreement, the Company shall pay to Executive
as compensation for his services an annual base salary of not less than
$129,500.00 ("Base Salary"). Executive's Base Salary will be payable in arrears
in accordance with the Company's normal payroll procedures and will be reviewed
annually and subject to upward adjustment at the discretion of the Company.
(b) Incentive Bonus. During the term of Executive's employment
with the Company pursuant to this Agreement, Executive shall be entitled to
participate in the Company's Short-Term Incentive Compensation Plan as in effect
from time to time. Any cash compensation payable under this paragraph shall be
referred to as "Incentive Compensation" in this Agreement.
(c) Executive Perquisites. During the term of Executive's
employment with the Company pursuant to this Agreement, Executive shall be
entitled to receive such executive perquisites and fringe benefits as are
provided to the executives in comparable positions and their families under any
of the Company's plans and/or programs in effect from time to time for which
Executive is eligible to participate and to receive such other benefits as are
customarily available to executives of the Company and their families,
including, without limitation, vacations and life, medical and disability
insurance.
(d) Tax Withholding. The Company shall have the right to
deduct from any compensation payable to Executive under this Agreement social
security (FICA) taxes and all federal, state, municipal or other taxes or
charges as may now be in effect or that may hereafter be enacted or required.
(e) Expense Reimbursements. The Company shall pay or reimburse
Executive for all reasonable business expenses incurred or paid by Executive in
the course of performing his duties hereunder, including, but not limited to,
reasonable travel expenses for Executive. As a condition to such payment or
reimbursement, however, Executive shall maintain and provide to the Company
reasonable documentation and receipts for such expenses.
3. Term. Unless sooner terminated pursuant to Section 4 of this
Agreement, and subject to the provisions of Section 5 hereof, the term of this
Agreement (the "Term") shall commence as of the date hereof and shall continue
until December 31, 2006.
4. Termination. Notwithstanding the provisions of Section 3 hereof, but
subject to the provisions of Section 5 hereof, Executive's employment under this
Agreement shall terminate as follows:
(a) Death. Executive's employment shall terminate upon the
death of Executive; provided, however, that the Company shall continue to pay
(in accordance with its normal payroll procedures) the Base Salary to
Executive's estate for a period of six (6) months after the date of Executive's
death if Executive is employed by the Company on date of his death.
(b) Termination for Cause. The Company may terminate
Executive's employment at any time for "Cause" (as hereinafter defined) by
delivering a written termination notice to Executive. For purposes of this
Agreement, "Cause" shall mean any of the following: (i) Executive's commission
of a felony or a crime involving moral turpitude; (ii) Executive's commission of
an act constituting fraud, deceit or material misrepresentation with respect to
the Company or any of its affiliates; (iii) Executive's embezzlement of funds or
assets from the Company or any of its affiliates; (iv) evidence sufficient to
conclude that Executive is addicted to any alcoholic, controlled or illegal
substance or drug; (v) Executive's commission of any act or omission of gross
negligence or willful misconduct in the performance of his duties to the
Company; or (vi) Executive's failure to correct or cure any material breach of
or default under this Agreement not described in any of the preceding clauses
within ten (10) days after receiving written notice of such breach or default
from the Company. Determinations pursuant to this section shall be made by the
Compensation Committee of the Company's Board of Directors, if any, and
otherwise by the Company's Chief Executive Officer.
(c) Termination Without Cause. The Company may terminate
Executive's employment at any time for any or no reason by delivering a written
termination notice to Executive.
(d) Termination by Executive. Executive may terminate his
employment at any time by delivering sixty (60) days prior written notice to the
Company; provided, however, that the terms, conditions and benefits specified in
Section 5 hereof shall apply or be payable to Executive only if such termination
occurs as a result of a material breach by the Company of any provision of this
Agreement which breach is not cured within ten (10) days after the Chief
Executive Officer of the Company receives from Executive a written notice
detailing such breach.
(e) Termination Following Disability. In the event Executive
becomes "disabled" (as defined in the Company's disability insurance policy as
in effect on the date of such disability) and is unable to perform his material
duties and responsibilities hereunder for a period of at least ninety (90) days
in the aggregate during any one hundred twenty (120) consecutive day period, the
Company may terminate Executive's employment by delivering a written termination
notice to Executive. Notwithstanding the foregoing, Executive shall continue to
receive his full Base Salary and benefits to which he is entitled under this
Agreement for a period of six (6) months after the effective date of such
termination.
(f) Payments. Following any expiration or termination of this
Agreement or Executive's employment hereunder, and in addition to (but not in
duplication of) any amounts owed pursuant to Section 5 hereof, the Company shall
pay to Executive all amounts earned by Executive hereunder prior to the date of
such expiration or termination.
(g) Non-Disparagement. Executive agrees that during and
following the termination of his employment he will not publicly (or in a manner
he reasonably should have expected to be made public) disparage or otherwise
make negative comments regarding the Company, its employees or its affiliates,
provided, however, that the foregoing shall in no way restrict the Executive
from in good faith reporting any concerns that he may have to (i) any authority
within the Company designated to receive complaints or concerns from employees,
including, without limitation, the Company's Board of Directors or a committee
thereof, or (ii) any regulator or other governmental authority with supervisory
responsibility for the Company (including, without limitation, the Securities
and Exchange Commission) or the Company's independent auditors.
6. Certain Termination Benefits. In the event that:
(i) the provisions of Section 6 do not apply;
(ii) either (y) the Company terminates Executive's
employment without Cause pursuant to Section 4(c) or
(z) Executive terminates his employment pursuant to
Section 4(d) as a result of an uncured material
breach by the Company of any provision of this
Agreement; and
(iii) the Executive executes and delivers the release
contemplated in Section (f) below,
then in such case the Company will provide Executive the
benefits described in subsection (a) below and, if and to the
extent that Executive is eligible to participate in such
plans, subsections (b) through (c) below.
(a) Base Salary and Incentive Compensation. For a period of
twelve (12) months following the termination, the Company shall continue to pay
to Executive (i) his Base Salary (as in effect as of the date of his
termination) and (ii) Incentive Compensation (in an aggregate amount equal to
the cash Incentive Compensation received by the Executive for the most recent
fiscal year prior to his termination).
(b) Life and Group Disability Insurance. If and to the extent
that the Company's plans in effect from time to time permit such coverage, the
Company shall continue to provide Executive with the opportunity to obtain group
life and disability insurance coverage for a period of twelve (12) months
following termination at coverage levels and rates equal to those applicable to
Executive immediately prior to such termination or, if different, as provided to
other executive level employees during such twelve-month period.
(c) Medical Insurance. If and to the extent that the Company's
plans in effect from time to time permit such coverage, the Company shall
continue to provide Executive and his family with the opportunity to obtain
group medical insurance coverage under the Company's medical plans (as the same
may change from time to time) or other substantially similar health insurance
for a period of twelve (12) months following termination at coverage levels and
rates equal to those applicable to Executive immediately prior to such
termination or, if different, as provided to other executive level employees
during such twelve-month period or, at the Company's option, pay COBRA premiums
during such twelve-month period.
(d) Offset. Any fringe benefits received by Executive in
connection with any other employment accepted by Executive that are reasonably
comparable, even if not necessarily as beneficial to Executive, to the fringe
benefits then being provided by the Company pursuant to paragraphs (b) and (c)
of this Section 5, shall be deemed to be the equivalent of such benefits, and
shall terminate the Company's responsibility to continue providing the fringe
benefits package, taken as a whole, then being provided by the Company pursuant
to paragraphs (b) and (c) of this Section 5. The Company agrees that if
Executive's employment with the Company is terminated, Executive shall have no
duty to mitigate damages.
(e) Payment Default. Any amounts owed by the Company to
Executive under this Section 5 that are not paid when due shall bear interest at
a rate of 10% per annum.
(f) General Release. Acceptance by Executive of any amounts
pursuant to this Section 5 shall constitute a full and complete release by
Executive of any and all claims Executive may have against the Company, its
officers, directors and affiliates, including, but not limited to, claims he
might have relating to Executive's employment with the Company and cessation
thereof; provided, however, that there may properly be excluded from the scope
of such general release the following:
(i) claims that Executive may have against the
Company for reimbursement of ordinary and necessary business
expenses incurred by him during the course of his employment;
(ii) claims that may be made by the Executive for
payment of Base Salary, bonuses, fringe benefits, stock upon
vesting of inactive stock awards, stock upon exercise of stock
options properly due to him, or other amounts or benefits due
to him under this Agreement;
(iii) claims respecting any matters for which the
Executive is entitled to be indemnified under the Company's
Certificate of Incorporation or By-laws or applicable law
respecting third party claims asserted or third party
litigation pending or threatened against the Executive; and
(iv) any claims prohibited by applicable law from
being included in the release.
A condition to Executive's receipt of any amounts pursuant to this Section 5
shall be Executive's execution and delivery of a general release as described
above. In exchange for such release, the Company shall, if Executive's
employment is terminated without Cause, provide a release to Executive, but only
with respect to claims against Executive that Executive identifies in writing to
the Company at the time of such termination.
6. Effect of Change of Control.
(a) If within one (1) year following a "Change of Control" (as
hereinafter defined), Executive terminates his employment with the Company for
"Good Reason" (as hereinafter defined) or the Company terminates Executive's
employment for any reason other than Cause, death or disability (as defined in
Section 4(e)), the Company shall pay to Executive: (i) an amount equal to one
times the Executive's Base Salary as of the date of termination; and (ii) an
amount equal to the cash Incentive Compensation received by the Executive for
the most recent fiscal year prior to his termination. In addition, the Company
shall provide the Executive with out-placement assistance. In addition, the
Company shall continue to provide the Executive with the opportunity to obtain
coverage under the Company's various welfare and benefit plans, including
retirement and group healthcare, dental and life in which Executive participates
at the time of termination, for the period equal to twelve (12) months from the
date of termination at coverage levels and rates substantially equal to those
applicable to Executive immediately prior to such termination.
(b) "Change of Control" shall mean the date as of which: (i)
there shall be consummated (1) any consolidation or merger of the Company other
than a merger of the Company in which the holders of the Company's common stock
immediately prior to the merger have the majority ownership of common stock of
the surviving corporation immediately after the merger, or (2) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company; or
(ii) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or (iii) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of 30% of the Company's
outstanding common stock; or (iv) during any period of two (2) consecutive
years, individuals who at the beginning of such period constitute the entire
Board of Directors of the Company shall cease for any reason to constitute a
majority thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period. Notwithstanding anything to the contrary herein, the
consummation of the transactions contemplated by the Stock Purchase Agreement by
and among the Company, X.X. Xxxxx Co., a North Carolina company ("Soffe"), and
the shareholders of Soffe, shall not constitute or give rise to a "Change of
Control" within the meaning of this Agreement.
(c) "Good Reason" shall mean any of the following actions
taken by the Company without the Executive's written consent after a Change of
Control:
(i) the assignment to the Executive by the
Company of duties inconsistent with, or the
reduction of the powers and functions
associated with, the Executive's position,
duties, responsibilities and status with the
Company immediately prior to a Change of
Control or Potential Change of Control (as
defined below), or an adverse change in
Executive's titles or offices as in effect
immediately prior to a Change of Control or
Potential Change of Control, or any removal
of the Executive from or any failure to
re-elect Executive to any of such positions,
except in connection with the termination of
his employment for disability (as provided
in Section 4(e)) or Cause or as a result of
Executive's death, except to the extent that
a change in duties relates to the
elimination of responsibilities attendant to
the Company's no longer being a publicly
traded company;
(ii) a reduction by the Company in the
Executive's Base Salary as in effect on the
date of a Change of Control or Potential
Change of Control, or as the same may be
increased from time to time during the term
of his Agreement;
(iii) the Company shall require the Executive to
be based anywhere other than at or within a
25-mile radius of the Company's principal
executive offices or the location where the
Executive is based on the date of a Change
of Control or Potential Change of Control,
or if Executive agrees to such relocation,
the Company fails to reimburse the Executive
for moving and all other expenses reasonably
incurred in connection with such move;
(iv) a significant increase in Executive's
required travel on behalf of the Company;
(v) the Company shall fail to continue in effect
any Company-sponsored plan or benefit that
is in effect on the date of a Change of
Control or Potential Change of Control
(other than the Incentive Stock Award Plan
or the Company's stock option plan) and
pursuant to which Executive has received
awards or benefits and that provides (A)
incentive or bonus compensation, (B) fringe
benefits such as vacation, medical benefits,
life insurance and accident insurance, (C)
reimbursement for reasonable expenses
incurred by the Executive in connection with
the performance of duties with the Company,
or (D) retirement benefits such as a
Internal Revenue Code Section 401(k) plan,
except to the extent that such plans taken
as a whole are replaced with substantially
comparable plans;
(vi) any material breach by the Company of any
provision of this Agreement which is not
cured within ten (10) days of the Company's
receipt from Executive of notice thereof;
and
(vii) any failure by the Company to obtain the
assumption of this Agreement by any
successor or assign of the Company effected
in accordance with the provisions of Section
12.
(d) "Potential Change of Control" shall mean the date as of
which (i) the Company enters into an agreement the consummation of which, or the
approval by shareholders of which, would constitute a Change of Control; (ii)
proxies for the election of directors of the Board of Directors of the Company
are solicited by anyone other than the Company; (iii) any person (including, but
not limited to, any individual, partnership, joint venture, corporation,
association or trust) publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change of Control; or
(iv) any other event occurs which is deemed to be a Potential Change of Control
by the Board of Directors of the Company and the Board adopts a resolution to
the effect that a Potential Change of Control has occurred.
(e) In the event that (i) Executive would otherwise be
entitled to the compensation and benefits described in Section 5 or 6(a) hereof
("Compensation Payments"), and (ii) the Company determines, based upon the
advice of tax counsel, that, as a result of such Compensation Payments and any
other benefits or payments required to be taken into account under the Internal
Revenue Code of 1986, as amended (the "Code"), Section 280G(b)(2) ("Parachute
Payments"), any of such Parachute Payments would be reportable by the Company as
an "excess parachute payment" under Code Section 280G, such Compensation
Payments shall be reduced to the extent necessary to cause the aggregate present
value (determined in accordance with Code Section 280G and applicable
regulations promulgated thereunder) of the Executive's Parachute Payments to
equal 2.99 times the "base amount" as defined in Code Section 280G(b)(3) with
respect to such Executive. However, such reduction in the Compensation Payments
shall be made only if, in the opinion of such tax counsel, it would result in a
larger Parachute Payment to the Executive than payment of the unreduced
Parachute Payments after deduction in each case of tax imposed on and payable by
the Executive under Section 4999 of the Code ("Excise Tax"). The value of any
non-cash benefits or any deferred payment or benefit for purposes of this
paragraph shall be determined by a firm of independent auditors selected by the
Company.
(f) The parties hereto agree that the payments provided under
Section 6(a) above are reasonable compensation in light of Executive's services
rendered to the Company and that neither party shall assert that the payment of
such benefits constitutes an "excess parachute payment" within the meaning of
Section 280G(b)(1) of the Code.
(g) Unless the Company determines that any Parachute Payments
made hereunder must be reported as "excess parachute payments" in accordance
with Section 6(e) above, neither party shall file any return taking the position
that the payment of such benefits constitutes an "excess parachute payment"
within the meaning of Section 280G(b)(1) of the Code.
7. Non-Competition. Executive agrees that during the Term and for a
period of four months from the date of the termination of Executive's employment
with the Company pursuant to Sections 4(b), 4(c), 4(d), 4(e) or 6 herein or for
any other reason that results in the Executive being entitled to the benefits
described in Section 5, he will not, directly or indirectly, compete with the
Company by providing to any company that is in a "Competing Business" services
substantially similar to the services provided by Executive at the time of
termination. Competing Business shall be defined as any business that engages,
in whole or in part, in the manufacturing or marketing of activewear tee shirts
in the United States of America (the "Restricted Territory"), and Executive's
employment function or affiliation is directly or indirectly in such business of
activewear tee shirt manufacturing or marketing.
8. Non-Solicitation. For a period of two years after the later of the
expiration of the Term or the termination or cessation of his employment with
the Company for any reason whatsoever, Executive shall not, on his own behalf or
on behalf of any other person, partnership, association, corporation, or other
entity, (a) solicit or in any manner attempt to influence or induce any employee
of the Company or its subsidiaries or affiliates (known by the Executive to be
such) to leave the employment of the Company or its subsidiaries or affiliates
(other than through general advertisements not directed at any particular
employee or group of employees), nor shall he use or disclose to any person,
partnership, association, corporation or other entity any information obtained
while an employee of the Company concerning the names and addresses of the
Company's employees, or (b) solicit, entice or induce any customer or supplier
of the Company (or any actively sought customer or supplier of the Company) at
the time of expiration or termination for or on behalf of any Competing Business
in the Restricted Territory.
9. Non-Disclosure of Trade Secrets. During and prior to the Term of
this Agreement, Executive has had access to and became familiar with and will
have access to and become familiar with various trade secrets and proprietary
and
confidential information of the Company and its affiliates, including, but not
limited to, processes, computer programs, compilations of information, records,
sales procedures, customer requirements, pricing techniques, customer lists,
methods of doing business and other confidential information (collectively,
referred to as "Trade Secrets") which are owned by the Company and/or its
affiliates and regularly used in the operation of its or their business, and as
to which the Company and/or its affiliates take precautions to prevent
dissemination to persons other than certain directors, officers and employees.
Executive acknowledges and agrees that the Trade Secrets (1) are secret and not
known in the industry; (2) give the Company and/or its affiliates an advantage
over competitors who do not know or use the Trade Secrets; (3) are of such value
and nature as to make it reasonable and necessary to protect and preserve the
confidentiality and secrecy of the Trade Secrets; and (4) are valuable, special
and unique assets of the Company and/or its affiliates, the disclosure of which
could cause substantial injury and loss of profits and goodwill to the Company
and/or its affiliates. Executive may not use in any way or disclose any of the
Trade Secrets, directly or indirectly, either during the Term or at any time
after the expiration of the Term or the termination of Executive's employment
with the Company for any reason whatsoever, except as required in the course of
his employment under this Agreement, as required in connection with a judicial
or administrative proceeding, or if the information becomes public knowledge
other than as a result of an unauthorized disclosure by the Executive. All
files, records, documents, information, data and similar items relating to the
business of the Company and/or its affiliates, whether prepared by Executive or
otherwise coming into his possession, will remain the exclusive property of the
Company and/or its affiliates (as the case may be) and may not be removed from
the premises of the Company under any circumstances without the prior written
consent of the Board of Directors of the Company and/or its affiliates (as the
case may be) (except in the ordinary course of business during Executive's
period of active employment under this Agreement), and in any event must be
promptly delivered to the Chief Executive Officer of the Company upon
termination of Executive's employment with the Company. Executive agrees that
upon his receipt of any subpoena, process or other request to produce or
divulge, directly or indirectly, any Trade Secrets to any entity, agency,
tribunal or person, Executive shall timely notify and promptly hand deliver a
copy of the subpoena, process or other request to the Board of Directors of the
Company. For this purpose, Executive irrevocably nominates and appoints the
Company (including any attorney retained by the Company), as his true and lawful
attorney-in-fact, to act in Executive's name, place and stead to perform any act
that Executive might perform to defend and protect against any disclosure of any
Trade Secrets. The rights granted to the Company and/or its affiliates in this
Section 9 are intended to be in addition to and not in replacement of any
protection of trade secrets provided by equity, any statute, judicially created
law or other agreement.
10. Remedies. In the event that Executive violates any of the
provisions of Sections 7, 8 or 9 hereof (the "Protective Covenants") or fails to
provide the notice required by Section 4(d) hereof, in addition to any other
remedy that may be available at law, in equity or hereunder, the Company shall
be entitled to receive from Executive the profits, if any, received by Executive
upon exercise of any Company granted stock options or incentive stock awards or
upon lapse of the restrictions on any grant of restricted stock to the extent
such options or rights were exercised, or such restrictions lapsed, subsequent
to the commencement of the six-month period prior to the termination of
Executive's employment. In addition, Executive acknowledges and agrees that any
breach of a Protective Covenant by him will cause irreparable damage to the
Company and/or its affiliates, the exact amount of which will be difficult to
determine, and that the remedies at law for any such breach will be inadequate.
Accordingly, Executive agrees that, in addition to any other remedy that may be
available at law, in equity or hereunder, the Company, and/or its affiliates
shall be entitled to specific performance and injunctive relief, without posting
bond or other security, to enforce or prevent any violation of any of the
Protective Covenants by him.
11. Severability. The parties hereto intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law. The provisions
of this Agreement are severable. The covenants on the part of the Executive
contained in the Protective Covenants shall be construed as independent
covenants and agreements of the Executive, independently supported by good and
adequate consideration, shall be construed independently of the other provisions
in this Agreement and shall survive this Agreement. The existence of any claim
or cause of action of Executive against the Company or any of its affiliates,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company or its affiliates of the covenants of
Executive contained in this Agreement. The parties in no way intend to include a
provision that contravenes public policy. Therefore, if any of the provisions,
clauses, sentences, or paragraphs, or portions ("provisions") of this Agreement
is unlawful, against public policy, or otherwise declared void or unenforceable,
such provision shall be deemed excluded from this Agreement, which shall in all
other respects remain in effect. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there shall be added as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable. If any Court
should construe any portion of this Agreement to be too broad to prevent
enforcement to its fullest extent then such portion shall be enforced to the
maximum extent that the Court finds reasonable and enforceable.
12. Miscellaneous.
n. Notices. Any notices, consents, demands, requests,
approvals and other communications to be given
under this Agreement by either party to the other must be in writing and must be
either (i) personally delivered, (ii) mailed by registered or certified mail,
postage prepaid with return receipt requested, (iii) delivered by reputable
overnight express delivery service or reputable same-day local courier service,
or (iv) delivered by telex or facsimile transmission, with confirmed receipt, to
the address set forth below, or to such other address as may be designated by
the parties from time to time in accordance with this Section 12(a):
If to the Company:
Delta Apparel, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Fax No.: (000) 000-0000
If to Executive:
Xxxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Notices delivered personally or by overnight express
delivery service or by local courier service are deemed given as of actual
receipt. Mailed notices are deemed given three (3) business days after mailing.
Notices delivered by telex or facsimile transmission are deemed given upon
receipt by the sender of the answer back (in the case of a telex) or
transmission confirmation (in the case of a facsimile transmission).
o. Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or written, between the parties with respect to
the subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect to the subject matter of this
Agreement.
p. Modification. No change or modification of this Agreement
is valid or binding upon the parties, nor will any waiver, termination or
discharge of any term or condition of this Agreement be so binding, unless
confirmed in writing and signed by the parties to this Agreement.
q. Governing Law and Venue. The parties acknowledge and agree
that this Agreement and the obligations and undertakings of the parties under
this Agreement will be performable in Georgia. This Agreement is governed by,
and construed in accordance with, the laws of the State of Georgia without
giving consideration to the conflict of laws provisions thereof. If any action
is brought to enforce or interpret this Agreement, the parties consent to the
jurisdiction and venue of the Federal District Court for the Northern District
of Georgia and any state or superior court located in Xxxxxx or Gwinett
Counties, Georgia.
r. Enforcement. Executive agrees that upon Executive's
violation or threatened violation of any of the provisions of this Agreement,
the Company shall, in addition to any other rights and remedies available to it,
at law, in equity, or otherwise, be entitled to specific performance and
injunctive relief including, without limitation, an injunction to be issued by
any court of competent jurisdiction enjoining and restraining Executive from
committing any violation or threatened violation of the provisions of this
Agreement and Executive consents to the issuance of such injunction without the
necessity of bond or other security in the event of a breach or threatened
breach by him of this Agreement. Furthermore and notwithstanding anything to the
contrary in this Agreement, the Company shall, in addition to any other rights
or remedies available to it, at law, in equity, or otherwise, be entitled to
reimbursement of court costs, reasonable attorneys' fees, and any other expenses
reasonably incurred by it or its affiliates as a result of a breach or
threatened breach of this agreement by Executive.
s. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement, and all of which, when taken together, shall be deemed to constitute
one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall
constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original agreement for all purposes. Signatures
of the parties transmitted by facsimile shall be deemed to be their original
signatures for any purpose whatsoever.
t. Costs. Except as provided in Section 12(e) above or except
as provided below, if any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, each party shall bear its own costs and
expenses (including, without limitation, attorneys' fees); provided, however,
that in the event Executive incurs costs or expenses in connection with
successfully enforcing this Agreement following a Change of Control, the Company
shall reimburse the Executive for all such reasonable costs and expenses
(including, without limitation, attorneys' fees).
u. Estate. If Executive dies prior to the expiration of the
term of employment or during a period when monies are owing to him, any monies
that may be due him from the Company under this Agreement as of the date of his
death shall be paid to his estate as and when otherwise payable.
v. Assignment. The rights, duties and benefits to Executive
hereunder are personal to him, and no such right, duty or benefit may be
assigned by him without the prior written consent of the Company. The rights and
obligations of the Company shall inure to the benefit and be binding upon it and
its successors and assigns, which assignment shall not require the consent of
Executive.
w. Binding Effect. This Agreement is binding upon and shall
inure to the benefit of the parties hereto, their respective executors,
administrators, successors, personal representatives, heirs and assigns
permitted under subsection 12(i) above.
x. Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person or
entity (other than affiliates of the Company as provided herein) any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
y. Waiver of Breach. The waiver by the Company or Executive of
a breach of any provision of this Agreement by Executive or the Company may not
operate or be construed as a waiver of any subsequent breach.
z. Construction. The parties agree that this Agreement was
freely negotiated among the parties and that Executive has had the opportunity
to consult with an attorney in negotiating its terms. Accordingly, the parties
agree that this Agreement shall not be construed in favor of any party or
against any party. The parties further agree that the headings and subheadings
are for convenience of the parties only and shall not be given effect in the
construction of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
IMPORTANT: READ CAREFULLY BEFORE SIGNING
"Company"
DELTA APPAREL, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President & CEO
"Executive"
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Xxxxxx X. Xxxxxx
