Exhibit
10.1
XXXXXX XXXXXX,
LTD.
00-00 XXXXXXX
XXXXXX
XXXX XXXXXX
XXXX, XX 00000
T (000) 000-0000
January 10, 2014
Dear Xx. Xxxxxx Xxxxxx:
This letter
will set forth below the amended and restated terms and conditions of your employment with Xxxxxx Xxxxxx, Ltd. (the “Company”):
| 1. | Term
of
Agreement.
January
1,
2014
through
December
31,
2016
(the
“Term”),
unless
sooner
terminated
in
accordance
with
Paragraph
7
of
this
Agreement. |
| 2. | Position.
Executive
Vice
President
–
Wholesale.
You
shall
report
to
the
Chief
Operating
Officer
or
such
other
person
as
the
Chief
Executive
Officer
(the
“CEO”)
shall
direct. |
| 3. | Salary.
$500,000
per
annum
(paid
in
accordance
with
normal
Company
practice)
from
January
1,
2014
through
December
31,
2016. |
| 4. | Annual
Wholesale
Bonus.
You
shall
receive
a
performance
bonus
for
each
of
2014,
2015
and
2016
equal
to
2%
of
the
increase,
if
any,
in
Wholesale
division
EBIT
(earnings
before
interest
and
taxes)
for
that
year
over
Wholesale
division
EBIT
for
the
immediately
prior
year,
less
any
deductions
as
shall
be
required
to
be
withheld
by
any
applicable
laws
and
regulations.
EBIT
from
any
business
acquired
after
the
date
hereof
shall
not
be
included
in
the
bonus
calculation
until
the
second
full
calendar
year
under
Company
ownership.
Such
bonus
(net
of
any
deductions
required
to
be
withheld
by
any
applicable
laws
and
regulations)
shall
be
payable
on
or
about
March
15
of
the
following
year. |
| 5. | Options.
You
shall
be
granted
100,000
options
on
February
3,
2014.
All
options
shall
vest
25%
each
year
for
four
years,
commencing
on
the
first
anniversary
date
of
the
grant
of
the
options,
have
a
term
of
seven
years
and
have
an
exercise
price
equal
to
the
market
price
on
the
last
trading
day
prior
to
the
grant
date. |
| 6. | Car
Allowance.
During
the
Term,
you
shall
receive
a
car
allowance
of
$1,250
per
month. |
| (a) | Involuntary
Termination.
The
Company
has
the
right
to
terminate
your
employment,
on
written
notice
to
you,
at
any
time
without
Cause
(as
defined
below).
In
the
event
the
Company
terminates
your
employment
without
Cause,
then
the
Term
shall
terminate
immediately,
and
you
shall
be
entitled
to
receive
only
(i)
Salary
payments
described
in
Paragraph
3,
at
the
regular
intervals
of
payment,
from
the
date
of
termination
through
the
date
this
Agreement
would
have
otherwise
terminated
but
for
the
involuntary
termination
plus
(ii)
any
accrued
and
unpaid
Bonus
amount
described
in
Paragraph
4
for
the
year
prior
to
termination
which
such
Bonus
shall
still
be
payable
on
or
about
March
15
of
the
year
following
their
accrual. |
| (b) | Voluntary
Termination
by
you
or
Termination
for
Cause.
You
shall
have
the
right
to
terminate
your
employment
at
any
time
for
any
reason
(“Voluntary
Termination”)
and
the
Company
shall
have
the
right
to
terminate
your
employment
at
any
time
for
Cause,
on
written
notice
to
you,
setting
forth
in
reasonable
detail
the
facts
and
circumstances
resulting
in
the
Cause
upon
which
such
termination
is
based.
In
the
event
of
a
Voluntary
Termination
or
a
termination
by
the
Company
for
Cause,
the
Term
shall
terminate
immediately
and
you
shall
be
entitled
only
to
any
accrued
and
unpaid
Salary
described
in
Paragraph
3
through
the
date
of
termination.
For
the
purpose
of
this
Agreement,
Cause
shall
mean: |
| (i) | a
material
breach
by
you
of
your
material
duties
or
obligations
to
the
Company
which
is
not
remedied
to
the
reasonable
satisfaction
of
the
Company
within
ten
(10)
days
after
the
receipt
by
you
of
written
notice
of
such
breach
from
the
Company; |
| (ii) | you
are
convicted
of,
or
enter
a
guilty
or
“no
contest”
plea
with
respect
to
a
felony
or
a
crime
of
mural
turpitude
(whether
or
not
a
felony); |
| (iii) | you
have
an
alcohol
or
substance
abuse
problem,
which
in
the
reasonable
opinion
of
the
Company
materially
interferes
with
your
ability
to
perform
your
duties; |
| (iv) | any
act
or
acts
of
personal
dishonesty,
fraud,
embezzlement,
misappropriation
or
conversion
intended
to
result
in
your
personal
enrichment
at
the
expense
of
the
Company,
or
any
of
its
subsidiaries
or
affiliates,
or
any
other
material
breach
or
violation
of
fiduciary
duty
owed
to
the
Company,
or
any
of
its
subsidiaries
or
affiliates; |
| (v) | any
grossly
negligent
act
or
omission
or
any
willful
and
deliberate
misconduct
by
you
that
results,
or
is
likely
to
result,
in
material
economic,
or
other
harm,
to
the
Company,
or
any
of
its
subsidiaries
or
affiliates;
or |
| (vi) | you
violate
or
pay
fines,
suffer
sanctions
or
injunctive
relief
relating
to
(whether
or
not
you
are
found
to
have
violated)
any
federal
or
state
securities
laws,
rules
or
regulations
or
the
rules
and
regulations
of
any
stock
exchange
on
which
the
Company
is
listed
or
included. |
| (c) | Disability.
You
shall
be
considered
to
be
“Disabled”
if,
in
the
Company’s
reasonable
opinion
after
receiving
the
written
report
of
an
independent
physician
selected
by
the
Company,
you
are
incapable,
due
to
mental
or
physical
disability,
of
performing
the
essential
functions
of
your
duties
for
a
period
of
sixty
(60)
days
(whether
or
not
consecutive)
during
any
period
of
one
hundred
twenty
(120)
days.
In
the
event
you
shall
become
Disabled
during
the
Term,
the
Company
may
terminate
your
employment
and
the
Term
and
the
Company
shall
have
no
further
obligation
or
liabilities
to
you,
except
payment
of
accrued
and
unpaid
Salary
described
in
Paragraph
3
through
the
date
of
termination
plus
any
accrued
and
unpaid
Bonus
amount
described
in
Paragraph
4
for
the
year
prior
to
termination,
which
such
Bonus
shall
still
be
payable
on
or
about
March
15
of
the
year
following
their
accrual. |
| (d) | Death.
In
the
event
of
your
death,
your
employment
and
the
Term
shall
terminate
immediately
and
the
Company
shall
have
no
further
obligation
or
liabilities
to
you
or
your
estate
except
that
your
estate
shall
be
entitled
to
receive
payment
of
accrued
and
unpaid
Salary
described
in
Paragraph
3
through
the
date
of
termination
plus
any
accrued
and
unpaid
Bonus
amount
described
in
Paragraph
4
for
the
year
prior
to
your
death,
which
such
Bonus
shall
still
be
payable
on
or
about
March
15
of
the
year
following
their
accrual. |
| (e) | Change
of
Control.
The
term
“Change
of
Control”,
as
used
herein,
shall
mean
when
any
person
or
group
(excluding
the
Company
or
any
of
its
affiliates)
becomes
the
beneficial
owner
of
securities
representing
50%
or
more
of
the
combined
voting
power
of
the
Company’s
then
outstanding
securities.
If,
during
the
period
commencing
30
days
prior
to
a
Change
of
Control
and
ending
180
days
after
a
Change
of
Control,
you
are
terminated
by
the
Company
other
than
for
Cause,
you
are
entitled
to
receive
an
amount
equal
to
the
lesser
of
(i)
the
average
amount
of
total
compensation
actually
received
by
you
for
the
preceding
three
calendar
years
multiplied
by
3
or
(ii)
the
maximum
amount
which
is
tax
deductible
to
the
Company
under
Internal
Revenue
Code
Section
280G.
The
foregoing
shall
be
in
lieu
of,
and
not
in
addition
to,
any
other
payments
or
compensation
you
would
otherwise
be
entitled
to
hereunder
as
a
result
of
your
termination. |
| (f) | Termination
Payment.
Provided
the
Company
makes
the
payments
required
under
this
Letter
Agreement
that
are
attributable
to
the
termination
of
your
employment,
such
payments
shall
be
in
full
and
complete
satisfaction
and
release
of
any
and
all
claims
you
or
your
beneficiaries,
estate
or
legal
representatives
may
have
against
the
Company
and/or
its
subsidiaries
or
affiliates
hereunder. |
| 8. | Non-Solicitation/Non-Competition
Agreement.
You
recognize
that
the
services
to
be
performed
by
you
hereunder
are
special
and
unique.
In
consideration
of
the
compensation
granted
herein,
you
agree
that
for
as
long
as
you
are
receiving
your
Salary
under
this
Agreement
and,
if
you
are
terminated
by
the
Company
for
Cause
or
if
you
quit
or
resign
your
position,
through
December
31,
2016,
you
shall
not,
(i)
become
employed
by
or
otherwise
affiliated
with,
nor
furnish
services
to,
any
business
that
competes
with
the
Company,
(ii)
solicit
any
business
from
any
customers
of
the
Company,
or
(iii)
induce
or
encourage
any
employee
of
the
Company
(or
its
affiliates)
to
become
employed
by,
or
furnish
services
to,
any
business
that
competes
with
the
Company. |
| 9. | Covenant
Not
to
Disclose.
You
covenant
and
agree
that
you
will
not,
to
the
detriment
of
the
Company,
at
any
time
during
or
after
the
Term,
reveal,
divulge
or
make
known
to
any
person
(other
than
(i)
to
the
Company,
or
(ii)
in
the
regular
course
of
business
of
the
Company)
or
use
for
your
own
account
any
confidential
or
proprietary
records,
data,
processes,
ideas,
methods,
devices,
business
concepts,
inventions,
discoveries,
know-how,
trade
secrets
or
any
other
confidential
or
proprietary
information
whatsoever
(the
“Confidential
Information”)
previously
possessed
or
used
by
the
Company
or
any
of
its
subsidiaries
or
affiliates,
(whether
or
not
developed,
devised
or
otherwise
created
in
whole
or
in
part
by
your
efforts)
and
made
known
to
you
by
reason
of
your
employment
by
or
affiliation
with
the
Company.
You
further
covenant
and
agree
that
you
shall
retain
all
such
knowledge
and
information
which
you
shall
acquire
or
develop
respecting
such
Confidential
Information
in
trust
for
the
sole
benefit
of
the
Company
and
its
successors
and
assigns.
Additionally,
you
agree
that
all
right,
title
and
interest
in
and
to
any
discoveries,
processes,
ideas,
methods
and/or
business
concepts
that
you
develop
during
the
Term
relating
to
the
business
of
the
Company
are,
and
shall
remain
the
property
of
the
Company,
and
you
hereby
assign
to
the
Company
any
right,
title
and
interest
you
might
otherwise
claim
therein. |
| 10. | Business
Materials,
Covenant
to
Report.
All
written
materials,
records
and
documents
made
by
you
or
coming
into
your
possession
concerning
the
business
or
affairs
of
the
Company
shall
be
the
sole
property
of
the
Company
and,
upon
the
termination
of
your
employment
with
the
Company
or
upon
the
request
of
the
Company
at
any
time,
you
shall
promptly
deliver
the
same
to
the
Company
and
shall
retain
no
copies
thereof.
You
agree
to
render
to
the
Company
such
reports
of
your
activities
or
activities
of
others
under
your
direction
during
the
Term
as
the
Company
may
request. |
| 11. | Governing
Law;
Injunctive
Relief. |
| | 11.1 | The
validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of
New York, excluding choice of law rules thereof. |
| | | |
| 11.2 | You
acknowledge
and
agree
that,
in
the
event
you
shall
violate
any
of
the
restrictions
of
Paragraphs
8,
9
or
10
hereof,
the
Company
will
be
without
an
adequate
remedy
at
law
and
will
therefore
be
entitled
to
enforce
such
restrictions
by
temporary
or
permanent
injunctive
or
mandatory
relief
in
any
court
of
competent
jurisdiction
without
the
necessity
of
proving
damages
or
posting
a
bond
or
other
security,
and
without
prejudice
to
any
other
remedies
which
it
may
have
at
law
or
in
equity.
Each
of
you
and
the
Company
acknowledges
and
agrees
that,
in
addition
to
any
other
state
having
proper
jurisdiction,
any
such
relief
may
be
sought
in,
and
for
such
purpose
each
of
you
and
the
Company
consents
to
the
jurisdiction
of,
the
courts
of
the
State
of
New
York. |
| 12. | Assignment.
This
Agreement,
as
it
relates
to
your
employment,
is
a
personal
contract
and
your
rights
and
interests
hereunder
may
not
be
sold,
transferred,
assigned,
pledged
or
hypothecated. |
| 13. | Notices.
Any
and
all
notices
or
other
communications
or
deliveries
required
or
permitted
to
be
given
or
made
pursuant
to
any
of
the
provisions
of
this
Agreement
shall
be
deemed
to
have
been
duly
given
or
made
for
all
purposes
when
hand
delivered
or
sent
by
certified
or
registered
mail,
return
receipt
requested
and
postage
prepaid,
overnight
mail
or
courier,
or
facsimile,
addressed,
if
to
the
Company,
at
the
Company’s
offices,
Attn:
CEO,
and
if
to
you,
at
the
address
of
your
personal
residence
as
maintained
in
the
Company’s
records,
or
at
such
other
address
as
any
party
shall
designate
by
notice
to
the
other
party
given
in
accordance
with
this
Paragraph
13. |
| 14. | Entire
Agreement.
This
Agreement
represents
the
entire
understanding
and
agreement
between
the
parties
hereto
with
respect
to
the
subject
matter
hereof,
supersedes
all
prior
agreements
between
such
parties
with
respect
to
the
subject
matter
hereof
(including,
without
limitation,
the
letter
agreement
between
you
and
the
Company
dated
April
29,
2008),
and
cannot
be
amended,
supplemented
or
modified
orally,
but
only
by
an
agreement
in
writing
signed
by
the
party
against
whom
enforcement
of
any
such
amendment,
supplement
or
modification
is
sought. |
| 15. | Execution
in
Counterparts;
Signatures;
Severability.
This
Agreement
may
be
executed
in
counterparts,
each
of
which
shall
be
deemed
to
be
an
original,
but
all
of
which
together
shall
constitute
one
and
the
same
instrument.
Facsimile
or
electronic
mail
signatures
hereon
shall
constitute
original
signatures.
If
any
provisions
of
this
Agreement
as
applied
to
any
part
or
to
any
circumstance
shall
be
adjudged
by
a
court
to
be
invalid
or
unenforceable,
the
same
shall
in
no
way
affect
any
other
provision
of
this
Agreement,
the
application
of
such
provision
in
any
other
circumstances
or
the
validity
or
enforceability
of
this
Agreement. |
| 16. | Representation
by
Counsel;
Interpretation.
Each
party
acknowledges
that
it
has
been
represented
by
counsel
or
has
had
the
opportunity
to
be
represented
by
counsel
in
connection
with
this
Agreement
and
the
transactions
contemplated
by
this
Agreement.
Accordingly,
any
rule
or
law
or
any
legal
decision
that
would
require
interpretation
of
any
claimed
ambiguities
in
this
Agreement
against
the
party
that
drafted
it
has
no
application
and
is
expressly
waived
by
such
parties.
The
provisions
of
this
Agreement
shall
be
interpreted
in
a
reasonable
manner
to
effect
the
intent
of
the
parties
hereto. |
| Signature: |
/s/ Xxxxxx X. Xxxxxxxxx |
|
| |
Xxxxxx X. Xxxxxxxxx, CEO |
| |
|
| Counter-signature: |
/s/ Xxxxxx Xxxxxx Xxxxxx |
|
| |
Xxxxxx Xxxxxx Xxxxxx |
