EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of August 19, 2002
between CASUAL MALE RETAIL GROUP, INC., a Delaware corporation with an office
at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (the "Company"), and
Xxxxxxx Xxxxxx (the "Executive") having an address at 00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Company desires that Executive be promoted to serve as
President of the Casual Male Division of the Company, and Executive desires to
be so employed by the Company.
WHEREAS, Executive and the Company desire to set forth in writing the
terms and conditions of the Executive's employment with the Company from the
date hereof.
NOW, THEREFORE, in consideration of the premises and the mutual promises,
representations and covenants herein contained, the parties hereto agree as
follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby accepts such
employment, subject to the terms and conditions herein set forth. Executive
shall hold the office of President, Casual Male Division.
2. TERM
The term of employment under this Agreement shall begin on August
19, 2002 (the "Employment Date") and shall continue for a period of one (1)
year from that date (the Term"), subject to prior termination in accordance
with the terms hereof. Upon the expiration of the Executive's initial one (1)
year term of employment, the Company has the option to extend the term of this
Agreement for an additional one (1) year, under the terms and conditions set
forth herein.
3. COMPENSATION
(a) As compensation for the employment services to be rendered by
Executive hereunder, the Company agrees to pay to Executive, and Executive
agrees to accept, payable in equal installments in accordance with Company
practice, an annual base salary of $350,000.
(b) If the Company does not exercise its option to extend the term of
this Agreement for additional one (1) year as provided in Section 2 above, the
Company will pay Executive one half of his annual base salary, in equal
biweekly payments over a six month period commencing on the expiration of the
initial term of employment. This Subsection shall not apply if Executive is
terminated pursuant to Section 8 of this Agreement.
(c) In addition to the annual base salary, Executive will receive a
bonus payable at the time of normal distribution of bonuses for the year
ending February 1, 2003 (the "Bonus"); such Bonus shall be determined in
accordance with the Company's bonus program in effect at the time, but in no
event shall the amount of the Bonus be less than $70,000 ("Minimum Bonus").
4. OPTIONS
The Company shall grant to the Executive 50,000 options under the
Company's 1992 Stock Incentive Plan, which are exercisable at a purchase price
per share equal to the closing price of the Common Stock on August 22, 2002
(the "Grant Date"). The options will vest pro rata over a three (3) year
period commencing on the Grant Date, with one third of the total vesting and
becoming exercisable on each of the first, second and third anniversaries of
the Grant Date. In addition, the Executive must execute a standard Stock
Option Agreement, which sets the terms and conditions for the Executive's
options. The stock options must be exercised by August 22, 2012 or they shall
become null and void.
5. EXPENSES
The Company shall pay or reimburse Executive, in accordance with the
Company's policies and procedures and upon presentment of suitable vouchers,
for all reasonable business and travel expenses, which may be incurred or paid
by Executive in connection with his employment hereunder. Executive shall
comply with such restrictions and shall keep such records as the Company may
reasonably deem necessary to meet the requirements of the Internal Revenue
Code of 1986, as amended from time to time, and regulations promulgated
thereunder.
6. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to participate
in and receive any other benefits customarily provided by the Company to its
senior management (including any profit sharing, pension, 401 (k), short and
long-term disability insurance, major medical insurance and group life
insurance plans in accordance with the terms of such plans), all as determined
from time to time by the Compensation Committee of the Board of Directors.
(b) The Company will, during the term of Executive's employment
hereunder, provide Executive with an automobile for his use in
performing his employment duties and obligations hereunder. If
the Company provides an automobile, the Company shall pay for the
costs of insurance, repairs and maintenance. If the Company does
not provide Executive with an automobile, the Company will pay an
automobile allowance to Executive in the total amount of $700.00
per month. In that event, Executive shall pay and be responsible
for all insurance, repairs and maintenance costs associated with
operating that automobile. In either case, Executive is
responsible for his gasoline, unless the gasoline expense is
reimbursable under the Company's policies and procedures.
7. DUTIES
(a) Executive shall perform such duties and functions consistent with
his position as divisional President, and as the President and/or as the Board
of Directors of the Company shall from time to time determine and Executive
shall comply in the performance of his duties with the policies of, and be
subject to the direction of, the Board of Directors. If requested, Executive
shall serve as a corporate officer and or director of the Company without
further compensation.
(b) At the request of President or the Board of Directors, Executive
shall serve, without further compensation, as an executive officer, corporate
officer and/or director of any subsidiary or affiliate of the Company and, in
the performance of such duties, Executive shall comply with the directives and
policies of the Board of Directors of each such subsidiary or affiliate.
(c) During the term of this Agreement, Executive shall devote
substantially all of his time and attention, vacation time and absences for
sickness excepted, to the business of the Company, as necessary to fulfill his
duties. Executive shall perform the duties assigned to him with fidelity and
to the best of his ability. Notwithstanding anything herein to the contrary,
and subject to the foregoing, Executive may engage in other activities so long
as such activities do not unreasonably interfere with Executive's performance
of his duties hereunder and do not violate Section 10 hereof.
(d) The principal location at which the Executive shall perform his
duties hereunder shall be at the Company's offices in Canton, Massachusetts or
at such other location as may be designated from time to time by the Board of
Directors of the Company. Notwithstanding the foregoing, Executive shall
perform such services at such other locations as may be required for the
proper performance of his duties hereunder, and Executive recognizes that such
duties may involve travel.
8. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated by the Company
at any time:
(i) upon the determination by the President or the Board of
Directors that Executive's performance of his duties has not been fully
satisfactory for any reason which would not constitute justifiable cause (as
hereinafter defined) upon thirty (30) days' prior written notice to Executive;
or
(ii) upon the determination by the President or the Board of
Directors that there is justifiable cause (as hereinafter defined) for such
termination upon ten (10) days' prior written notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "total disability" of Executive (as hereinafter
defined in Subsection
(c) herein) pursuant to Subsection (g) hereof.
(c) For the purposes of this Agreement, the term "total disability"
shall mean Executive is physically or mentally incapacitated so as to render
Executive incapable of performing the essentials of Executive's job, even with
reasonable accommodation, as reasonably determined by the Board of Directors
of the Company, (after examination of Executive by an independent physician
reasonably acceptable to Executive), which determination shall be final and
binding.
(d) For the purposes hereof, the term "justifiable cause" shall mean:
any repeated willful failure or refusal to perform any of the duties pursuant
to this Agreement where such conduct shall not have ceased within 5 days
following written warning from the Company; Executive's conviction (which,
through lapse of time or otherwise, is not subject to appeal) of any crime or
offense involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction involved;
Executive's performance of any act or his failure to act, as to which if
Executive were prosecuted and convicted, a crime or offense involving money or
property of the Company or its subsidiaries or affiliates, or a crime or
offense constituting a felony in the jurisdiction involved, would have
occurred; any unauthorized disclosure by Executive to any person, firm or
corporation other than the Company, its subsidiaries or affiliates and their
respective directors, officers and employees (or other persons fulfilling
similar functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by Executive to
secure any personal profit in connection with the business of the Company or
any of its subsidiaries and affiliates; or the engaging by Executive in any
business other than the business of the Company and its subsidiaries and
affiliates which unreasonably interferes with the performance of his duties
hereunder. Upon termination of Executive's employment for justifiable cause,
this Agreement shall terminate immediately and Executive shall not be entitled
to any amounts or benefits hereunder other than such portion of Executive's
annual salary and reimbursement of expenses pursuant to Section 5 hereof as
have been accrued through the date of his termination of employment.
(e) If the Company terminates this Agreement without "justifiable
cause" as provided in Subsection 8 (a)(i) above, the Company shall pay
Executive the greater of: (i) the base salary for the remaining term of this
Agreement plus a pro-rata amount of the Minimum Bonus if still unpaid (pro-
rated based upon the number of months elapsed in the Term up through the date
of termination of employment) or (ii) an amount equal to one half of
Executive's annual base salary plus a pro-rata amount of the Minimum Bonus if
still unpaid (pro-rated based upon the number of months elapsed in the Term up
through the date of termination of employment). However, if Executive is
employed or retained, as an employee, independent contractor, consultant or in
any other capacity ("New Employment") during the time he receives payment
under this Subsection or Subsection 3 (b), the Company is entitled to a credit
for all sums paid or earned by Executive during this period of time. The
Executive must make a good faith effort to find New Employment and mitigate
the amount of money to be paid by the Company to Executive under this
Subsection or Subsection 3(b). The Company will pay any amount due and owing
under 8 (a)(i) and 8(a)(ii) above in accordance with the payment schedule in
3(a), until paid in full.
(f) If Executive shall die during the term of his employment
hereunder, this Agreement shall terminate immediately. In such event, the
estate of Executive shall thereupon be entitled to receive such portion of
Executive's annual salary and reimbursement of expenses pursuant to Section 5
as have been accrued through the date of his death.
(g) Upon Executive's "total disability", the Company shall have the
right to terminate Executive's employment. Notwithstanding any inability to
perform his duties, Executive shall be entitled to receive his base salary and
reimbursement of expenses pursuant to Section 5 as provided herein until he
begins to receive long-term disability insurance benefits under the policy
provided by the Company pursuant to Section 6 hereof. Any termination
pursuant to this Subsection (g) shall be effective on the later of (i) the
date 30 days after which Executive shall have received written notice of the
Company's election to terminate or (ii) the date he begins to receive long-
term disability insurance benefits under the policy provided by the Company
pursuant to Section 6 hereof
(h) Upon the resignation of Executive in any capacity, that
resignation will be deemed to be a resignation from all offices and positions
that Executive holds with respect to the Company and any of its subsidiaries
and affiliates.
9. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to enter into
this Agreement and to perform the duties required hereunder, and that there
are no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing the performance of his
duties hereunder.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required
by any insurance company in connection with the Company's obtaining life
insurance on the life of Executive, and any other type of insurance or fringe
benefit as the Company shall determine from time to time to obtain.
(c) Executive represents and warrants that he has never been convicted
of a felony and he has not been convicted or incarcerated for a misdemeanor
within the past five years, other than a first conviction for drunkenness,
simple assault, speeding, minor traffic violations, affray, or disturbance of
the peace.
(d) Executive represents and warrants that he has never been a party
to any judicial or administrative proceeding that resulted in a judgement,
decree, or final order (i) enjoining him from future violations of, or
prohibiting any violations of any federal or state securities law, or (ii)
finding any violations of any federal or state securities law.
(e) Executive represents and warrants that he has never been accused
of any impropriety in connection with any employment;
Any breach of any of the above representations and warranties is "justifiable
cause" for termination under Section 8 of this Agreement.
10. NON-COMPETITION
(a) Executive agrees that during his employment by the Company and
during the one (1) year period following the termination of Executive's
employment hereunder (the "Non-Competitive Period"), Executive shall not,
directly or indirectly, as owner, partner, joint venturer, stockholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever, engage in, become financially
interested in, be employed by, render any consultation or business advice with
respect to, or have any connection with any business which is competitive with
products or services of the Company or any subsidiaries and affiliates, in any
geographic area in the United States of America and Puerto Rico where, at the
time of the termination of his employment hereunder, the business of the
Company or any of such subsidiaries and affiliates was being conducted or was
proposed to be conducted in any manner whatsoever; provided, however, that
Executive may own any securities of any corporation which is engaged in such
business and is publicly owned and traded but in an amount not to exceed at
any one time one percent (1%) of any class of stock or securities of such
corporation. In addition, Executive shall not, during the Non-Competitive
Period, directly or indirectly, request or cause any suppliers or customers
with whom the Company or any of its subsidiaries and affiliates has a business
relationship to cancel or terminate any such business relationship with the
Company or any of its subsidiaries and affiliates or solicit, hire, interfere
with or entice from the Company any employee (or former employee) of the
Company.
(b) If any portion of the restrictions set forth in this Section 10
should, for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected. For the purposes of
this Section 10, a business competitive with the products and services of the
Company (or such subsidiaries and affiliates) shall include, without
limitation, a business which primarily distributes, sells or markets so-called
"big and tall" apparel of any kind for men or which utilizes the "big and
tall" retail or wholesale marketing concept as part of its business.
(c) Executive acknowledges that the Company conducts business
throughout the United States and Puerto Rico, that its sales and marketing
prospects are for continued expansion throughout the United States and
therefore, the territorial and time limitations set forth in this Section 10
are reasonable and properly required for the adequate protection of the
business of the Company and its subsidiaries and affiliates. In the event any
such territorial or time limitation is deemed to be unreasonable by a court of
competent jurisdiction, Executive agrees to the reduction of the territorial
or time limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any non-material claim or cause of action (a
"non-material" claim or cause of action is defined as a claim or cause of
action which results from something other than a material breach of the terms
and provisions of this Agreement by the Company) by Executive against the
Company or any subsidiary or affiliate shall not constitute a defense to the
enforcement by the Company or any subsidiary or affiliate of the foregoing
restrictive covenants, but such claim or cause of action shall be litigated
separately.
11. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter, Executive shall
promptly and fully disclose to the Company, and with all necessary detail for
a complete understanding of the same, all existing and future developments,
know-how, discoveries, inventions, improvements, concepts, ideas, writings,
formulae, processes and Methods (whether copyrightable, patentable or
otherwise) made, received, conceived, acquired or written during working
hours, or otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with, or
rendering of advisory or consulting services to, the Company or any of its
subsidiaries and affiliates, solely or jointly with others, in or relating to
any activities of the Company or its subsidiaries and affiliates known to him
as a consequence of his employment or the rendering of advisory and consulting
services hereunder (collectively the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to assign and
transfer, to the Company, all his rights, title and interest in and to the
Subject Matter, and Executive further agrees to deliver to the Company any and
all drawings, notes, specifications and data relating to the Subject Matter,
and to execute, acknowledge and deliver all such further papers, including
applications for copyrights or patents, as may be necessary to obtain
copyrights and patents for any thereof in any and all countries and to vest
title thereto to the Company. Executive shall assist the Company in obtaining
such copyrights or patents during the term of this Agreement, and at any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving any of
the Subject Matter; provided, however, that Executive shall be compensated in
a timely manner at the rate of $250 per day (or portion thereof), plus out-of-
pocket expenses incurred in rendering such assistance or giving or preparing
to give such testimony if it is required after the termination of this
Agreement.
12. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement or at any
time following termination of this Agreement, directly or indirectly, disclose
or permit to be known (other than as is required in the regular course of his
duties (including without limitation disclosures to the Company's advisors and
consultants), as required by law (in which case Executive shall give the
Company prior written notice of such required disclosure) or with the prior
written consent of the Board of Directors of the Company), to any person,
firm, corporation, or other entity, any confidential information acquired by
him during the course of, or as an incident to, his employment or the
rendering of his advisory or consulting services hereunder, relating to the
Company or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any supplier or customer of the
Company or any of their subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or indirectly, by
any of the foregoing, or in which any of the foregoing has a beneficial
interest, including, but not limited to, the business affairs of each of the
foregoing. Such confidential information shall include, but shall not be
limited to, proprietary technology, trade secrets, patented processes,
research and development data, know-how, market studies and forecasts,
financial data, competitive analyses, pricing policies, employee lists,
personnel policies, the substance of agreements with customers, suppliers and
others, marketing or dealership arrangements, servicing and training programs
and arrangements, supplier lists, customer lists and any other documents
embodying such confidential information. This confidentiality obligation
shall not apply to any confidential information, which is or becomes publicly
available other than pursuant to a breach of this Section 12(a) by Executive.
(b) All information and documents relating to the Company and its
affiliates as herein above described (or other business affairs) shall be the
exclusive property of the Company, and Executive shall use commercially
reasonable best efforts to prevent any publication or disclosure thereof.
Upon termination of Executive's employment with the Company, all documents,
records, reports, writings and other similar documents containing confidential
information, including copies thereof then in Executive's possession or
control shall be returned and left with the Company.
13. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit a breach
of, any of the provisions of Sections 10, 11 or 12 (the "Restrictive
Covenants"), the Company shall have, in addition to, and not in lieu of, any
other rights and remedies available to the Company under law and in equity,
the right to have the Restrictive Covenants specifically enforced by a court
of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to the
Company. Notwithstanding the foregoing, nothing herein shall constitute a
waiver by Executive of his right to contest whether a breach or threatened
breach of any Restrictive Covenant has occurred.
14. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement shall be valid
unless made in writing and signed by both of the parties hereto.
15. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
accordance with the substantive laws of The Commonwealth of Massachusetts,
without regard to its principles of conflicts of laws.
16. SEVERABILITY
The holding of any provision of this Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Agreement, which shall remain in full force and effect.
17. NOTICES
Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand or courier, or sent by
certified mail, return receipt requested, to the addresses set forth above or
such other address as either party may from time to time designate in writing
to the other, and shall be deemed given as of the date of the delivery or at
the expiration of three days in the event of a mailing.
18. WAIVER OR BREACH
It is agreed that a waiver by either party or a breach of any provision
of this Agreement shall not operate, or be construed as a waiver of any
subsequent breach by that same party.
19. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties with respect
to the subject matter hereof, supersedes all prior agreements, both written
and oral, between the parties with respect to the subject matter hereof,
including the Severance Compensation Agreement between Casual Male Retail
Group, Inc. (as successor to Casual Male Corp.) and Xxxxxxx Xxxxxx effective
August 22, 2001, and shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, heirs,
distributors, successors and assigns.
20. SURVIVAL.
Except as otherwise expressly provided herein, the termination of
Executive's employment hereunder or the expiration of this Agreement shall not
affect the enforceability of Sections 5, 8, 10, 11, 12 and 13 hereof.
21. ARBITRATION
If any dispute arises between the parties that they cannot settle, the
parties agree to submit the dispute to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and both
parties agree to be bound by the arbitration award.
22. FURTHER ASSURANCES
The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Agreement.
23. HEADINGS
The Section headings appearing in this Agreement are for the purposes of
easy reference and shall not be considered a part of this Agreement or in any
way modify, amend or affect its provisions.
24. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, under seal, as of the date and year first above written.
CASUAL MALE RETAIL GROUP, INC.
By: ___________________________
Name: Xxxxx X. Xxxxx
Its: President, Chief Executive Officer
_______________________________
Xxxxxxx Xxxxxx
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