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EXHIBIT 10.23.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated as of January 1, 1996 and entered
into this 6th day of February, 1996 by and between SUN SPORTSWEAR, INC., a
Washington corporation ("Employer"), and XXXXXX X. XXXXXX, a resident of Mercer
Island, Washington ("Employee").
AGREEMENTS
In consideration of the mutual promises and covenants set forth below, Employer
and Employee agree as follows:
1. Employment. Employer hereby employs Employee and Employee hereby
accepts employment with Employer in the Puget Sound area of Washington
State upon the terms and conditions set forth herein.
2. Term. The term of this Agreement shall begin on January 1, 1996 and
shall end on December 31, 1996, unless earlier terminated pursuant to
Paragraph 7 hereof.
3. Compensation. For all services rendered by Employee hereunder,
Employer agrees to pay and grant Employee and Employee agrees to
accept the following:
3.1 An annual base salary of two hundred fifty thousand dollars
($250,000) relating to Employee's duties as Senior Vice President of
Sales and Merchandising for the Women's and Men's Divisions of
Employer, payable at the times and in the manner set by Employer's
standard payroll policy;
3.2 An annual bonus as set forth on Exhibit A attached hereto and
by this reference incorporated herein.
4. Duties of Employee. Employee is employed as Senior Vice
President of Sales and Merchandising for the Women's and Men's
Divisions of Employer with such duties, responsibilities and
authority as are consistent with such position. Employee
shall report to the Chief Executive Officer and perform such
additional duties as are assigned to her by such Officer and/or
by the Board of Directors of Employer and which are within the
scope of duties and responsibilities normally performed by a
corporate officer in such position.
4.1 During the term of this Agreement, Employee shall devote her
full time, attention and efforts to the conduct of the business of
Employer and the performance of her duties hereunder. Employee shall
not engage in any other business activity, whether pursued for gain,
profit, or otherwise; provided that Employee shall not be prevented
from investing her personal assets in entities in a manner that will
not require her services to help conduct the affairs of such entities.
4.2 The parties have discussed the mutual importance to Employee
and Employer of development and succession planning in Employee's
Divisions. The parties therefore agree that Employee shall use her
best efforts to train, develop and strengthen her staff.
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5. Benefits. Employee shall be entitled to all rights and benefits for
which she is eligible under Employer's 401(k), health, life and
disability insurance plans to the extent Employer maintains any or all
such plans, provided that nothing herein shall obligate Employer to
establish or maintain any such plans.
6. Vacation. Employee shall be entitled to a total of four (4) weeks
vacation each year.
7. Termination and Extension. This Agreement may be terminated prior to
December 31, 1996 upon mutual agreement in writing and signed by both
parties. An extension of this Agreement continuing beyond December
31, 1996 may be mutually agreed to in a writing signed by both parties
prior to such date. Such extended agreement may contain such
additional and amended terms and conditions as are mutually agreed to
by both parties.
8. Nondisclosure of Confidential Information.
8.1 Employee will not, during or after the term of this Agreement,
directly or indirectly, except in the ordinary course of fulfilling
Employee's duties and responsibilities hereunder, use, disseminate, or
disclose to any person, firm, corporation or other business entity for
any purpose whatsoever, information disclosed to Employee or known by
Employee as a consequence of or through her employment hereunder,
which is not generally known in the industry in which Employer is or
may become engaged, about Employer's business or activities, including
without limitation, information about Employer's products, services,
procedures, pricing, research, development, inventions, manufacturing,
purchasing, accounting, engineering, marketing, merchandising or
selling.
8.2 Upon termination of this Agreement, Employee shall immediately
return to Employer all documents, records, files, notebooks, computer
disks, and similar repositories containing the information described
in Section 8.1 above, including copies thereof, then in Employee's
possession or under her control whether prepared by her or by others.
8.3 Employee agrees to keep the terms of this Agreement
confidential and not discuss any terms with any employee of Employer
other than its Chief Executive Officer, and with any person other than
the Chairman of the Compensation Committee of Employer, unless
disclosure is otherwise required by law.
8.4 So long as Employee is not in default under the terms of this
Agreement, should Employee be terminated by Employer prior to the
expiration of this Agreement, Employee shall be entitled to cash
severance pay on the date of termination in the amount of $62,500,
provided, however, no severance shall be due if the termination is for
cause as defined in Exhibit B, attached hereto and by this reference
made a part hereof.
9. Saving Provision. Employer and Employee agree that the nondisclosure
provisions set forth above, including, without limitation, the scope,
duration and geographic extent of such restrictions, are fair and
reasonably necessary for the protection of Employer's legitimate
business interests. In the event a court of competent jurisdiction
should decline to enforce any of such provisions, they shall be deemed
to be modified to restrict Employee to the maximum extent which the
court shall find enforceable.
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10. Injunctive Relief. Employee acknowledges that the breach or
threatened breach of any of the nondisclosure provisions or other
agreements contained in this Agreement would give rise to irreparable
injury to Employer, which injury would be inadequately compensable in
money damages. Employer may, therefore, seek and obtain a restraining
order or injunction prohibiting the breach or any threatened breach of
any provision, requirement or covenant of this Agreement, in addition
to and not in limitation of any other legal remedies which may be
available.
11. Miscellaneous.
11.1 All rights of Employer and Employee pursuant to this Agreement
shall survive termination of employment hereunder.
11.2 Any notice required to be given under this Agreement shall be
sufficient if in writing and delivered personally or sent by
registered or certified mail to Employee at her last known address and
to Employer at its principal office.
11.3 This Agreement contains the entire agreement between Employer
and Employee relating to the subject matter hereof and no modification
of this Agreement shall be valid unless made in writing and signed by
both parties.
11.4 No waiver by Employer of any default or breach by Employee of
any term, condition or covenant of this Agreement shall be deemed to
be a waiver of any subsequent default or breach of the same or any
other term, condition or covenant contained herein.
11.5 The rights and obligation of Employee hereunder are personal
and may not be assigned to any other person. This Agreement will bind
and benefit any successor of Employer, whether by merger, sale of
assets, reorganization or other form of acquisition, disposition or
business reorganization. In the event of Employee's death, any
benefits due or to become due under this Agreement, including
compensation, shall become a part of Employee's estate and shall be
distributed to her personal representative.
11.6 If Employer or Employee brings an action or other proceeding
against the other to enforce any of the terms or conditions of this
Agreement, the prevailing party in any such action or proceeding shall
be paid reasonable attorneys' fees and costs by the other party.
11.7 This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
EXECUTED as of the day and year first above written.
EMPLOYER: EMPLOYEE:
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By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxx
Chief Executive Officer
Sun Sportswear, Inc.
By: /S/ Xxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxx, Xx., Chairman
Compensation Committee
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EXHIBIT A
The following sets forth the terms of the Incentive Compensation Plan referred
to in Paragraph 3.2 defining Employee's annual bonus, it being agreed by
Employer and Employee that Employee's annual bonus for 1996 shall be
determined, as follows:
I. Contribution Margin Criteria.
Employee shall receive as an annual bonus for 1996 for meeting the
"Consolidated Divisional Contribution Margin Criteria" bonus component four
percent (4%) of the amount by which the "Consolidated Divisional Contribution
Margin" exceeds $5,461,000, it being agreed that the maximum Employee can earn
under this Criteria I is $350,000, subject to the following conditions:
(i) The Women's and Men's Divisions shall have a 1996 "Consolidated Divisional
Contribution Margin" of $5,461,000 or greater before any bonus is due under
this Section I (which shall be calculated in accordance with the standard
method used by Employer to prepare its books and records).
(ii) The reserves referenced in Section II shall be deducted from the
"Consolidated Divisional Margin Contribution" for purposes of calculating the
bonus due hereunder, except that in no case shall the bonus due hereunder be
reduced below $50,000 as a result of such deduction.
II. Inventory Criteria.
A reserve shall be created based on the status of the Employer's inventories at
year end based on the following criteria:
(i) For inventory twelve months old and older, a reserve of 50% of
the cost thereof.
(ii) For inventory between nine and twelve months old, a reserve of
25% of the cost thereof.
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EXHIBIT B
For purposes of the Section 8.4, "cause" shall be defined as a material breach
by Employee of any term or condition of the Employment Agreement, a material
failure by Employee to perform her duties or to comply with Employer's policies
and regulations applicable to Employee, misconduct by Employee which is
materially detrimental to Employer, or acts of dishonesty by Employee or her
conviction of a felony. A material breach by Employee of any term or condition
of the Employment Agreement, and a material failure by Employee to perform her
duties or to comply with Employer's policies and regulations applicable to
Employee, shall not be regarded as "cause" as defined hereunder, unless and
until Employee is given written notice of such breach or failure within a
reasonable period of time following its discovery by Employer, and Employee
fails to cure the breach or correct the failure within ten (10) days
thereafter.
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