EIGHTH AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT 10.5
EIGHTH AMENDMENT TO EMPLOYMENT AGREEMENT
THIS EIGHTH AMENDMENT (this “Amendment”) is made as of the 28th day of December,
2010 to that certain AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of May 15, 2002, as
heretofore amended (collectively, the “Employment Agreement”), by and between XXXXXXX X. XXXXXX
(“Executive”) and XXX. A BANK CLOTHIERS, INC. (“Employer”).
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, Employer and Executive, being the sole parties of the Employment Agreement, hereby
amend the Employment Agreement and agree as follows:
1. Section 3.2 is amended to substitute the following for the sentence which reads “The Bonus
earned for any Bonus Year shall be payable promptly following the determination thereof, but in no
event later than 90 days following the end of each Bonus Year.”:
The Bonus earned for any Bonus Year shall be payable promptly following the determination
thereof after the end of the Bonus Year, but in no event later than two and one-half (2 1/2) months
following the end of each Bonus Year.
2. Section 4.3 is amended in its entirety to read as follows:
Executive may, at any time during the Employment Period by notice to Employer, terminate the
Employment Period under this Agreement effective immediately for “good reason”. For the purposes
hereof, “good reason” means any material breach by Employer of any provision of this Agreement
which, if susceptible of being cured, is not cured within thirty (30) days of delivery of notice
thereof to Employer by Executive; it being agreed, however, that the cure period applicable to any
failure timely to pay (or any reduction in) compensation or benefits paid or payable to Executive
pursuant to the provisions of Section 3 hereof shall be limited to seven (7) days after delivery of
notice thereof to Employer. Without limitation of the generality of the foregoing, each of the
following shall be deemed to be a material breach of this Agreement by Employer: (x) any failure
timely to pay (or any reduction in) compensation (including benefits) paid or payable to Executive
pursuant to the provisions of Section 3 hereof; (y) any reduction in the duties, responsibilities
or perquisites of Executive as provided in this Employment Agreement and (z) any transfer of the
Company’s principal executive offices outside the geographic area described in Section 2.2 hereof
or requirement that Executive principally perform his duties in other than such office. The parties
acknowledge and agree that as of the date hereof, no event has occurred giving Executive “good
reason” to terminate the Employment Period. The parties further acknowledge that a material breach
owing to the failure to timely pay compensation or benefits to Executive was never intended to
include an administrative or ministerial lapse by Employer resulting in an inadvertent delay of
such payment and that the foregoing seven (7) day cure period will serve to permit the
Employer to correct such a lapse.
3. A new Section 5.7 is added which provides as follows:
5.7 Section 409A. It is the intent of this Agreement to comply with the requirements
of Section 409A of the Internal Revenue Code of 1986, as amended, (“Code”) and any ambiguities
herein will be interpreted and this agreement will be administered to so comply. Each installment
payment under Sections 4.1, 5.1 and 5.3 shall be regarded as a separate payment for purposes of
Code Section 409A.
(i) Termination Payments. If any compensation to be paid to
Executive under Section 5 is “nonqualified deferred compensation”
subject to Code Section 409A, such compensation shall be paid no
earlier than the date of Executive’s “separation from service” from
the Company within the meaning of Code Section 409A(a)(2)(A)(i). If
the Executive is a “specified employee” within the meaning of Code
Section 409A(a)(2)(B)(i) at the time of the Executive’s termination
of employment, any nonqualified deferred compensation subject to
Section 409A that would otherwise have been payable as a result of,
and within the first six (6) months following, the Executive’s
“separation from service”, and not by reason of another event under
Section 409A(a)(2)(A), will become payable six (6) months and one (1)
day following the date of the Executive’s separation from service or,
if earlier, the date of Executive’s death.
(ii) Reimbursements. Consistent with the requirements of
Section 409A of the Code, to the extent that any expense
reimbursement or in-kind benefit provided to Executive under the
Employment Agreement is taxable, unless stated otherwise: (i)
reimbursements and in-kind benefits will be provided only for
expenses incurred during the Executive’s employment with the
Employer; (ii) the expenses eligible for reimbursement or the in-kind
benefits provided in any given calendar year will not affect the
expenses eligible for reimbursement or the in-kind benefits provided
in any other calendar year; (iii) the reimbursement of an eligible
expense must be made no later than the last day of calendar year
following the calendar year in which the expense was incurred; and
(iv) the right to reimbursements or in-kind benefits cannot be
liquidated or exchanged for any other benefit.
Except as specifically amended hereby, the Employment Agreement shall remain in full force and
effect according to its terms. To the extent of any conflict between the terms of this Amendment
and the terms of the remainder of the Employment Agreement, the terms of this Amendment shall
control and prevail. Capitalized terms used but not defined herein shall have those respective
meanings attributed to them in the Employment Agreement. This Amendment shall hereafter be deemed
a part of the Employment Agreement for all purposes. The terms of employment set forth in this
Amendment have been approved by the Compensation Committee of the Board of Directors of the
Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above
written.
XXX. A. BANK CLOTHIERS, INC.
By
|
/s/ XXXXX X. XXXXXX | /s/ XXXXXXX X. XXXXXX | ||||
| Executive Vice President- | ||||||
| Chief Financial Officer |
