EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 1st day of January, 1998 (the
"Effective Date") by and between Happy Kids Inc., a New York corporation with
its principal place of business at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 (the "Company"), and Xxxxx Xxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee in
accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to accept employment with the
Company in accordance herewith.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby agrees to employ the Employee and the
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Employee hereby agrees to serve the Company pursuant to the terms and conditions
of this Agreement as Senior Vice President of the Company, or in a position at
least commensurate therewith in all material respects, for a term commencing on
the Effective Date hereof and expiring on the second anniversary thereof,
provided that the Employee is elected to such office, or a comparable or higher
office, at each annual meeting of the Board of Directors of the Company (the
"Board of Directors") during the term of this Agreement. If the Employee shall
not be so elected at any such annual meeting of the Board of Directors, the
Employee's employment hereunder shall
forthwith terminate and the Company shall be obligated to compensate the
Employee in accordance with Section 6(a) of this Agreement.
2. Positions and Duties.
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(a) Duties. The Employee's duties hereunder shall be those which
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shall be prescribed from time to time by the Board of Directors in accordance
with the bylaws of the Company and shall include such executive duties, powers
and responsibilities as customarily attend the office of Senior Vice President
of a company comparable to the Company. The Employee will hold, in addition to
the office of Senior Vice President of the Company, such other executive offices
in the Company and its subsidiaries to which he may be elected, appointed or
assigned by the Board of Directors from time to time and will discharge such
executive duties in connection therewith. During the employment period, the
Employee's position (including status, offices and reporting requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned immediately preceding the Effective Date. The Employee shall devote
his full working time, energy and skill (reasonable absences for vacations and
illness excepted), to the business of the Company as is necessary in order to
perform such duties faithfully, competently and diligently; provided, however,
that notwithstanding any provision in this Agreement to the contrary, the
Employee shall not be precluded from devoting reasonable periods of time
required for serving as a member of boards of companies or organizations which
have been approved by the Board of Directors so long as such memberships or
activities do not interfere with the performance of the Employee's duties
hereunder.
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(b) Board Nomination. So long as the Employee is Senior Vice
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President of the Company, the Company will use diligent efforts to obtain the
nomination and election of the Employee as a director of the Company. In the
event that the Employee is elected as a director of the Company, the Employee
shall perform all duties incident to such directorship faithfully, diligently
and competently and in the best interests of the Company.
3. Compensation. During the term of this Agreement, the Employee shall
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receive, for all services rendered to the Company hereunder, the following
(hereinafter referred to as "Compensation"):
(a) Base Salary. For the term hereof, the Employee shall be paid an
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annual base salary equal to three hundred thousand dollars ($300,000.00).
The Employee's annual base salary shall be payable in equal installments in
accordance with the Company's general salary payment policies but no less
frequently than monthly.
(b) Bonuses. The Employee shall be eligible for and may receive
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bonuses. The amount of such bonuses, if any, shall be solely within the
discretion of the Board of Directors or, if formed, the Compensation Committee
thereof.
(c) Incentive Compensation. The Employee shall be eligible for awards
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from the Company's incentive compensation plans, including without limitation
any stock option plans, applicable to high level executive officers of the
Company or to key employees of the Company or its subsidiaries, in accordance
with the terms thereof and on a basis commensurate with his position and
responsibilities.
(d) Benefits. The Employee and his "dependents," as that term may be
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defined under the applicable benefit plan(s) of the Company, shall be included,
to the extent
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eligible thereunder, in any and all plans, programs and policies which provide
benefits for employees and their dependents. Such plans, programs and policies
may include health care insurance, long-term disability plans, life insurance,
supplemental disability insurance, supplemental life insurance, holidays and
other similar or comparable benefits made available to the Company's employees.
(e) Expenses. Subject to and in accordance with the Company's
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policies and procedures, the Employee hereby is authorized to incur, and, upon
presentation of itemized accounts, shall be reimbursed by the Company for, any
and all reasonable and necessary business-related expenses, which expenses are
incurred by the Employee on behalf of the Company or any of its subsidiaries.
4. Absences. The Employee shall be entitled to vacations, absences
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because of illness or other incapacity, and such other absences, whether for
holiday, personal time, or for any other purpose, as set forth in the Company's
employment manual or current procedures and policies, as the case may be, as
same may be amended from time-to-time.
5. Termination. In addition to the events of termination and expiration
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of this Agreement provided for in Section 1 hereof, the Employee's employment
hereunder may be terminated only as follows:
(a) Without Cause. The Company may terminate the Employee's
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employment hereunder without cause only upon action by the Board of Directors,
and upon no less than sixty (60) days prior written notice to the Employee. The
Employee may terminate employment hereunder without cause upon no less than
sixty (60) days prior written notice to the Company.
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(b) For Cause, by the Company. The Company may terminate the
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Employee's employment hereunder for cause immediately and with prompt notice to
the Employee, which cause shall be determined in good faith solely by the Board
of Directors. "Cause" for termination shall include, but is not limited to, the
following conduct of the Employee:
(1) Material breach of any provision of this Agreement by the
Employee, which breach, if susceptible to cure, shall not have been cured by the
Employee within thirty (30) days of receipt of written notice of said breach;
(2) Misconduct as an employee of the Company, including but not
limited to: misappropriating any funds or property of the Company; attempting to
willfully obtain any personal profit from any transaction in which the Employee
has an interest which is adverse to the interests of the Company; or any other
act or omission which substantially impairs the Company's ability to conduct its
ordinary business in its usual manner;
(3) Unreasonable neglect or refusal to perform the duties assigned
to the Employee under or pursuant to this Agreement;
(4) Conviction of a felony; or
(5) Any other act or omission which subjects the Company or any of
its subsidiaries to substantial public disrespect, scandal or ridicule.
(c) For Good Reason by Employee. The Employee may terminate employment
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hereunder for good reason immediately and with prompt notice to the Company.
"Good reason" for termination by the Employee shall include, but is not limited
to, the following conduct of the Company:
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(1) Material breach of any provision of this Agreement by the
Company, which breach shall not have been cured by the Company within thirty
(30) days of receipt of written notice of said breach;
(2) Failure to maintain the Employee in a position
commensurate with that referred to in Section 2 of this Agreement without his
consent; or
(3) The assignment to the Employee without his consent of any
duties inconsistent with the Employee's position, authority, duties or
responsibilities as contemplated by Section 2 of this Agreement, or any other
action by the Company which results in a diminution of such position, authority,
duties or responsibilities, excluding for this purpose any isolated action not
taken in bad faith and which is promptly remedied by the Company after receipt
of notice thereof given by the Employee.
(d) Death. The period of active employment of the Employee
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hereunder shall terminate automatically in the event of his death.
(e) Disability. In the event that the Employee shall be unable to
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perform duties hereunder for a period of ninety (90) consecutive calendar days
or any one hundred eighty (180) days in any calendar year by reason of
disability as a result of illness, accident or other physical or mental
incapacity or disability, the Company may, in its discretion, by giving written
notice to the Employee, terminate the Employee's employment hereunder as long as
the Employee is still disabled on the effective date of such termination.
(f) Mutual Agreement. This Agreement may be terminated at any time
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by mutual agreement of the Employee and the Company.
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6. Compensation in the Event of Termination. In the event that the
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Employee's employment pursuant to this Agreement terminates prior to the end of
the term of this Agreement because he is not reelected pursuant to Section 1 or
for a reason provided in Section 5 hereof, the Company shall pay the Employee
compensation as set forth below:
(a) Employee not Elected by Board of Directors; By Employee for Good
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Reason; By Company Without Cause. In the event that the Employee's employment
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hereunder is terminated: (i) because the Employee is not elected to the office
of Senior Vice President of the Company, or in a position at least commensurate
therewith in all material respects, at any annual meeting of the Company's Board
of Directors during the term of this Agreement, as contemplated by Section 1
hereof, in each instance without Employee's consent; (ii) by the Employee for
good reason pursuant to Section 5(c) hereof; or (iii) by the Company without
cause, then the Company shall continue to pay or provide, as applicable, the
following compensation to the Employee:
(1) Annual base salary as set forth in Section 3(a) hereof; and
(2) Continuing coverage, but only to the extent required by law,
for the Employee and his eligible dependents under all of the Company's benefit
plans, programs and policies in effect as of the date of termination.
Such compensation shall continue to be paid or provided, as
applicable, in the same manner as before termination, and for a period of time
ending on the date when the term of this Agreement would otherwise have expired
in accordance with Section 1 of this Agreement. The Employee shall not be
required to mitigate the amount of any payment provided for in this Section 6(a)
by seeking employment or otherwise, nor shall any amounts received from
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employment or otherwise by the Employee offset in any manner the obligations of
the Company hereunder.
(b) By Company Upon Termination of Agreement Due to Employee's Death
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or Disability. In the event of the Employee's death or if the Company shall
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terminate the Employee's employment hereunder for disability pursuant to Section
5(e) hereof, the base salary payable hereunder shall continue to be paid at the
then current rate for three (3) months after the termination of employment to
the Employee or his personal representative, as applicable.
(c) By Company For Cause or By Employee Without Good Reason. Except
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as otherwise provided in Section 8(b) and 8(f) hereof, in the event that (i) the
Company shall terminate the Employee's employment hereunder for cause pursuant
to Section 5(b) hereof or (ii) the Employee shall terminate employment hereunder
without "good reason" as provided in Section 5(c) hereof, the Company shall not
be obligated to pay the Employee any compensation except for salary and other
Compensation which may have been earned and are due and payable but which have
not been paid as of the date of termination.
7. Effect of Termination. In the event of expiration or early termination
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of this Agreement as provided herein, neither the Company nor the Employee shall
have any remaining duties or obligations hereunder except that:
(a) The Company shall:
(1) Pay the Employee's accrued salary and any other accrued
benefits under Section 3 hereof;
(2) Reimburse the Employee for expenses already incurred in
accordance with Section 3(e) hereof;
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(3) To the extent required by law, pay or otherwise provide for
any benefits, payments or continuation or conversion rights in accordance with
the provisions of any benefit plan of which the Employee or any of his
dependents is or was a participant; and
(4) Pay the Employee or his beneficiaries any compensation due
pursuant to Section 6 hereof; and
(b) The Employee shall remain bound by the terms of Section 8 hereof
and Exhibit A attached hereto.
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8. Restrictive Covenant. (a) The Employee acknowledges and agrees that
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he has access to secret and confidential information of the Company and its
subsidiaries and that the following restrictive covenant is necessary to protect
the interests and continued success of the Company. Except as otherwise
expressly consented to in writing by the Company, until the termination of the
Employee's employment (for any reason and whether such employment was under this
Agreement or otherwise) and thereafter for twenty-four (24) months (the
"Restricted Period"), the Employee shall not, directly or indirectly, acting as
an employee, owner, shareholder, partner, joint venturer, officer, director,
agent, salesperson, consultant, advisor, investor or principal of any
corporation or other business entity:
(i) engage, in any state or territory of the United States of America
or other country where the Company is doing business (determined as of the date
the Employee's employment with the Company terminates), in direct or indirect
competition with the business conducted by the Company or activities which the
Company plans to conduct within one year of termination (determined as of the
date the Employee's employment with the Company terminates);
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(ii) request or otherwise attempt to induce or influence, directly or
indirectly, any present customer or supplier, or prospective customer or
supplier, of the Company, or other persons sharing a business relationship with
the Company, to cancel, limit or postpone their business with the Company, or
otherwise take action which might be to the material disadvantage of the
Company; or
(iii) hire or solicit for employment, directly or indirectly, or
induce or actively attempt to influence, any Employee of the Company or any
Affiliate, as such term is defined in the Securities Act of 1933, as amended, to
terminate his or her employment or discontinue such person's consultant,
contractor or other business association with the Company.
(b) If the Employee violates any of the restrictions contained in
Section 8(a) above, the Restrictive Period shall be increased by the period of
time from the commencement of any such violation until the time such violation
shall be cured by the Employee to the satisfaction of the Company, and the
Company may withhold any and all payments, except salary, otherwise due and
owing to the Employee under this Agreement.
(c) In the event that either the geographical area or the Restrictive
Period set forth in Section 8(a) of this Agreement is deemed to be unreasonably
restrictive in any court proceeding, the court may reduce such geographical area
and Restrictive Period to the extent which it deems reasonable under the
circumstances.
(d) Nothing in this Section 8, whether express or implied, shall
prevent the Employee from being a holder of securities of a company whose
securities are registered under Section 12 of the Securities Exchange Act of
1934, as amended; provided, however, that the
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Employee holds of record and beneficially less than two percent (2%) of the
votes eligible to be cast generally by holders of securities of such company for
the election of directors.
(e) The Employee, as a condition of his continued employment,
acknowledges and agrees that he has reviewed and will continue to be bound by
all of the provisions set forth in Exhibit A attached hereto, which is
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incorporated herein by reference and made a part hereof as though fully set
forth herein, during the term of this Agreement, and any time hereafter.
(f) Employee acknowledges and agrees that in the event of a breach or
threatened breach of the provisions of this Section 8 by Employee the Company
may suffer irreparable harm and therefore, the Company shall be entitled, to the
extent permissible by law, immediately to cease to pay or provide the Employee
any compensation being, or to be, paid or provided to him pursuant to Sections
3, except accrued salary, or 6 of this Agreement, and also to obtain immediate
injunctive relief restraining the Employee from conduct in breach or threatened
breach of the covenants contained in this Section 8. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach, including the recovery of damages
from the Employee.
9. Resolution of Differences Over Breaches of Agreement. Except as
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otherwise provided herein, any controversy or claim arising out of, or relating
to, this Agreement, or the breach hereof, shall be reviewed in the first
instance in accordance with the Company's internal review procedures, if any,
with recourse thereafter--for temporary or preliminary injunctive relief only--
to the courts having jurisdiction thereof, and if any relief other than
injunctive relief is sought, then to arbitration in New York County, New York in
accordance with the rules of the
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American Arbitration Association, and judgment upon the award rendered by the
Arbitrator(s) may be entered in any court having jurisdiction thereof.
10. Waiver. The waiver by a party hereto of any breach by the other party
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hereto of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by a party hereto.
11. Assignment. This Agreement shall be binding upon and inure to the
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benefit of the successors and assigns of the Company, and the Company shall be
obligated to require any successor to expressly assume its obligations
hereunder. This Agreement shall inure to the benefit of and be enforceable by
the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and of no
force and effect.
12. Notices. Any notices required or permitted to be given under this
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Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested--in the case of the Employee, to his residence address as set
forth below, and in the case of the Company, to the address of its principal
place of business as set forth below, in care of the Board of Directors--or to
such other person or at such other address with respect to each party as such
party shall notify the other in writing.
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13. Construction of Agreement.
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(a) Governing Law. This Agreement shall be governed by and its
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provisions construed and enforced in accordance with the internal laws of the
State of New York without reference to its principles regarding conflicts of
law.
(b) Severability. In the event that any one or more of the provisions
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of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several paragraphs of
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this Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
14. Entire Agreement. This Agreement contains the entire agreement of the
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parties concerning the Employee's employment and all promises, representations,
understandings, arrangements and prior agreements on such subject are merged
herein and superseded hereby. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification, repeal, waiver, extension or discharge is sought. No
person acting other than pursuant to a resolution of the Board of Directors
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto or to exercise any of the Company's rights to terminate or to
fail to extend this Agreement. I further understand and agree that if the
Company does not consummate an initial public offering of its common stock prior
to March 31, 1998 that this Agreement shall be of no further force or effect.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and
attested by its duly authorized officers, and the Employee has set his hand, all
as of the day and year first above written.
ATTEST: Happy Kids Inc.
__________________________ By:_____________________________
Xxxxxx Xxxxxx, Chief Financial Xxxx X. Xxxxx, President
Officer
Address:______________________________
______________________________
______________________________
WITNESS: EMPLOYEE
_________________________ ________________________________
Xxxxx Xxxx
Address:______________________________
______________________________
______________________________
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EXHIBIT A
HAPPY KIDS INC.
EMPLOYEE'S
INVENTION ASSIGNMENT AND CONFIDENTIALITY
AGREEMENT
In consideration of my employment or continued employment by Happy Kids
Inc., a New York corporation or any subsidiary or parent corporation thereof
(the "Company"), I hereby represent and agree as follows:
1. I understand that the Company is engaged in the business of designing
and distributing children's apparel, and that I may have access to or acquire
information with respect to Confidential Information (as defined below),
including processes and methods, development tools, scientific, technical and/or
business innovations.
2. Disclosure of Innovations. I agree to disclose in writing to the
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Company all inventions, improvements and other innovations of any kind that I
may make, conceive, develop or reduce to practice, alone or jointly with others,
during the term of my employment with the Company, whether or not they are
related to my work for the Company and whether or not they are eligible for
patent, copyright, trademark, trade secret or other legal protection
("Innovations"). Examples of Innovations shall include, but are not limited to,
discoveries, research, inventions, formulas, techniques, processes, tools, know-
how, marketing plans, new product plans, production processes, advertising,
packaging and marketing techniques and improvements to computer hardware or
software.
3. Assignment of Ownership of Innovations. I agree that all Innovations
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will be the sole and exclusive property of the Company and I hereby assign all
of my rights, title or interest in the Innovations and in all related patents,
copyrights, trademarks, trade secrets, rights of priority and other proprietary
rights to the Company. At the Company's request and expense, during and after
the period of my employment with the Company, I will assist and cooperate with
the Company in all respects and will execute documents, and, subject to my
reasonable availability, give testimony and take further acts requested by the
Company to obtain, maintain, perfect and enforce for the Company patent,
copyright, trademark, trade secret and other legal protection for the
Innovations. I hereby appoint the President and Chief Executive Officer of the
Company as my attorney-in-fact to execute documents on my behalf for this
purpose.
4. Protection of Confidential Information of the Company. I understand
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that my work as an employee of the Company creates a relationship of trust and
confidence between myself and the Company. During and after the period of my
employment with the Company, I will not use or disclose or allow anyone else to
use or disclose any "Confidential Information" (as defined below) relating to
the Company, its products, suppliers or customers except as may be necessary in
the performance of my work for the Company or as may be authorized in ,
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advance by appropriate officers of the Company. "Confidential Information" shall
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include innovations methodologies, processes, tools, business strategies,
financial information, forecasts, personnel information, customer lists, trade
secrets and any other non-public technical or business information, whether in
writing or given to me orally, which I know or have reason to know the Company
would like to treat as confidential for any purpose, such as maintaining a
competitive advantage or avoiding undesirable publicity. I will keep
Confidential Information secret and will not allow any unauthorized use of the
same, whether or not any document containing it is marked as confidential. These
restrictions, however, will not apply to Confidential Information that has
become known to the public generally through no fault or breach of mine or that
the Company regularly gives to third parties without restriction on use or
disclosure. Upon termination of my work with the Company, I will promptly
deliver to the Company all documents and materials of any nature pertaining to
my work with the Company and I will not take with me any documents or materials
or copies thereof containing any Confidential Information.
5. Non-Solicitation. I understand that my work as an employee of the
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Company creates a relationship of trust and confidence between myself and the
Company. During and after the period of my employment with the Company, I will
not request or otherwise attempt to induce or influence, directly or indirectly,
any present customer or supplier, or prospective customer or supplier, of the
Company, or other persons sharing a business relationship with the Company to
cancel, to limit or postpone their business with the Company, or otherwise take
action which might be to the material disadvantage of the Company. During and
after the period of my employment with the Company, I will not hire or solicit
for employment, directly or indirectly, or induce or actively attempt to
influence, any Employee of the Company or any Affiliate of the Company, as such
term is defined in the Securities Act of 1933, as amended, to terminate his or
her employment or discontinue such person's consultant, contractor or other
business association with the Company.
6. Other Agreements. I represent that my performance of all the terms of
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this Agreement and my duties as an employee of the Company will not breach any
invention assignment agreement, confidential information agreement, non-
competition agreement or other agreement with any former employer or other
party. I represent that I have not and will not bring with me to the Company or
use in the performance of my duties for the Company any documents or materials
of a former employer that are not generally available to the public.
7. Disclosure of this Agreement. I hereby authorize the Company to notify
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others, including but not limited to customers of the Company and any of my
future employers, of the terms of this Agreement and my responsibilities
hereunder.
8. Injunctive Relief. I understand that in the event of a breach or
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threatened breach of this Agreement by me the Company may suffer irreparable
harm and monetary damages alone would not adequately compensate the Company.
The Company will therefore be entitled to injunctive relief to enforce this
Agreement.
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9. Enforcement and Severability. I acknowledge that each of the
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provisions in this Agreement are separate and independent covenants. I agree
that if any court shall determine that any provision of this Agreement is
unenforceable with respect to its term or scope such provision shall nonetheless
be enforceable by any such court upon such modified term or scope as may be
determined by such court to be reasonable and enforceable. The remainder of this
Agreement shall not be affected by the unenforceability or court ordered
modification of a specific provision.
10. Governing Law. I agree that this Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
11. Superseding Agreement. I understand and agree that this Agreement
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contains the entire agreement of the parties with respect to subject matter
hereof and supersedes all previous agreements and understandings between the
parties with respect to its subject matter.
12. Acknowledgments. I acknowledge that I have read this agreement, was
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given the opportunity to ask questions and sufficient time to consult an
attorney and I have either consulted an attorney or affirmatively decided not to
consult an attorney. I understand that this agreement does not alter the terms
of an executed Employment Agreement with the Company, or in the absence of an
Employment Agreement, this Agreement does not alter my status as an employee at
will and that my employment may be terminated at any time, with or without
cause. I also understand that my obligations under this Agreement survive the
termination of my employment with the Company.
*.*.*.*.*.*.*.*.*.*
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written below.
Date: _________________ ______________________________
Name of Employee: Xxxxx Xxxx
Address: ______________________
______________________
______________________
______________________
Happy Kids Inc.
Date:__________________ By:_____________________________
Xxxx X. Xxxxx, President
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