EXHIBIT 10-F-2
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AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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THE EMPLOYMENT AGREEMENT entered into as of the 1st day of August, 1996,
by and between HARTMARX CORPORATION, a Delaware corporation ("Company"), and
XXXX X. XXXXX ("Executive") is herein amended and restated effective as of
November 27, 2000.
WITNESSETH THAT:
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WHEREAS, the Executive is a party to an Employment Agreement with the
Company dated August 1, 1996, as amended (the "Prior Agreement");
WHEREAS, the parties hereto desire to enter into this amended and
restated Agreement pertaining to the terms of Executive's employment by the
Company and to replace the Prior Agreement; and
WHEREAS, the Company and the Executive intend to enter into an amended
and restated Severance Agreement ("Severance Agreement"), coincident herewith;
and
WHEREAS, upon the execution of this Agreement by the Company and
Executive the terms and conditions of this Agreement shall control and govern
the employment relationship between the Company and Executive.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby covenanted and agreed by the parties hereto as
follows:
1. Agreement Period. The Company hereby employs Executive and
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Executive hereby agrees to remain in the employ of the Company for an employment
term ("Agreement Period") beginning on the date of this Agreement, and
continuing in effect through December 31, 2002; provided, however, that (a) on
December 31, 2001 and each anniversary thereof the Agreement Period shall be
automatically extended by one year unless prior to such date the Company
delivers written notice to Executive or Executive delivers written notice to the
Company, in either case to the effect that the Agreement Period shall not be so
extended; (b) if the Executive's employment is terminated for any reason
following a Change in Control (as defined in the Severance Agreement), the
Agreement Period shall terminate upon such termination of employment and the
Executive's rights with respect to such termination of employment (including the
reasons therefor) shall be governed by the provisions of the Severance Agreement
unless the Severance Agreement is not then in effect in which case the
Executive's rights with respect to such termination shall be governed by the
provisions of this Agreement; and (c) if an Imminent Control Change Date (as
defined in the Severance Agreement) occurs before the end of the Agreement
Period, then the notice not to extend the Agreement Period shall be void and of
no further effect. While Executive is employed by the
Company during the Agreement Period, the Company shall use its best efforts to
have the Board of Directors elect Executive to the offices of President and
Chief Operating Officer of the Company. As President and Chief Operating
Officer, Executive shall assume the authority, duties and responsibilities as
are commensurate and consistent with such positions and titles.
2. Performance of Duties. While employed by the Company Executive
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shall devote substantially all his full working time, attention and energies
during normal business hours to the performance of his duties for the Company
and its subsidiaries and shall perform his duties faithfully and efficiently,
subject to the direction of the Company Board of Directors; provided, however,
that Executive may become a director of other corporations and engage in
charitable, civic, professional and other similar pursuits to the extent that
such activities do not significantly interfere with his duties hereunder.
3. Compensation. As compensation for the performance by Executive of
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his obligations hereunder:
(a) Base Salary. During the Agreement Period the Company shall pay
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Executive an annual base salary of not less than $560,000 ("Base Salary"). Base
Salary shall be paid in accordance with the Company's customary payroll
practices. Base Salary may be increased at the discretion of the Compensation
and Stock Option Committee of the Company Board of Directors (the "Committee")
and once so increased shall not thereafter be decreased, except for across-the-
board reductions similarly affecting all executives of the Company.
(b) Management Incentive Plan. Executive shall participate in the
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Company Management Incentive Plan (the "MIP") and/or any successor plan.
(c) Long Term Incentive Plan. Executive shall participate in any
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long-term incentive plan maintained by the Company ("LTI Plan") for such period
of time as such plan may be in effect.
(d) Participation in Benefit Plans. During the Agreement Period the
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Executive shall be eligible to participate in all savings, retirement and
welfare benefit plans and programs now or hereafter applicable to any other
senior executives of the Company on a basis no less favorable than is made
available to any other senior executive of the Company.
(e) Perquisites. During the Agreement Period, the Company shall make
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available to the Executive all perquisites that are made available to Company's
senior executives.
4. Termination. The Executive's employment hereunder may be terminated
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under the following circumstances:
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(a) Death. The Executive's employment hereunder shall terminate
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upon his death.
(b) Disability. The Company may terminate the Executive's employment
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hereunder for "Disability". Disability means a mental or physical condition
which renders Executive unable or incompetent to carry out the material job
responsibilities which such Executive held or the material duties to which
Executive was assigned at the time the disability was incurred, which has
existed for at least six (6) months and which in the certified opinion of a
physician mutually agreed upon by the Company and Executive (which agreement
neither party shall unreasonably withhold) is expected to be permanent or to
last for an indefinite duration or a duration in excess of six (6) months.
(c) Cause. The Company may terminate the Executive's employment
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hereunder for Cause (as defined in Section 4(c)(iii)) solely in accordance with
the procedures set forth in Section 4(c)(i) if such termination occurs on or
after a Change in Control (as defined in the Severance Agreement) and Section
4(c)(ii) if such termination occurs prior to a Change in Control. If the
Company fails to comply with each of the requirements described in Section
4(c)(i) or Section 4(c)(ii), as applicable, any termination of employment shall
be deemed a termination by the Company without Cause for purposes of this
Agreement.
(i) The Company may terminate the Executive's employment on or after
a Change in Control (as defined in the Severance Agreement) for Cause only
upon satisfying each of the following requirements:
(A) The Company shall have notified Executive in writing of the
conduct allegedly constituting Cause and the Executive shall
have failed to correct such conduct within thirty (30) days of
the date of his receipt of such written notice from the Company;
(B) A meeting of the Board shall be called for the stated purpose of
determining whether Executive's acts or omissions constitute
Cause, whether the Executive failed to correct such conduct and,
if so, whether to terminate Executive's employment for Cause;
(C) No fewer than forty-five (45) days prior to the date of such
meeting, the Company provides Executive and each member of the
Board with written notice (the "Notice of Consideration") of its
intent to consider
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termination of Executive's employment for Cause, including (1) a
detailed description of the specific reasons which form the
basis for such consideration, (2) the
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date, time and location of such meeting of the Board, and (3)
Executive's rights under clause (D) below;
(D) Executive shall have the opportunity, if he so elects, to appear
before the Board in person and, at Executive's option, with
legal counsel, and to present to the Board a written response to
the Notice of Consideration;
(E) Executive's employment may be terminated for Cause only if (1)
the Executive failed to correct the conduct constituting Cause
within thirty (30) days of his receipt of the notice described
in clause (A) above, (2) the acts or omissions specified in the
Notice of Consideration did in fact occur and do constitute
Cause as defined in this Agreement, (3) the Board makes a
specific determination by an affirmative vote of all of the
members of the Board (excluding for these purposes Executive) to
such effect and to the effect that Executive's employment should
be terminated for Cause and (4) the Company thereafter provides
Executive with a Notice of Termination which specifies in detail
the basis of such termination of employment for Cause and which
notice shall be consistent with the reasons set forth in the
Notice of Consideration.
(ii) The Company may terminate Executive's employment prior to a
Change in Control (as defined in the Severance Agreement) for Cause only after
the Company shall have notified Executive in writing of the conduct allegedly
constituting Cause and the Executive shall have failed to correct such conduct
within thirty (30) days of the date of his receipt of such written notice from
the Company.
(iii) For purposes of this Agreement, the Company shall have "Cause"
to terminate the Executive's employment hereunder upon the Executive's:
(A) conviction for the commission of a felony; or
(B) willful failure to substantially perform his duties hereunder;
or
(C) willful or grossly negligent wrongful conduct that is
demonstrably and materially injurious to the Company or its
affiliates; or
(D) willful and material breach of this Agreement, including but not
limited to Section 7 hereof.
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For purposes of clauses (B), (C) and (D) of Section 4(c)(iii), Cause shall not
include any act or omission that Executive believed in good faith to have been
in or not opposed to the interest of the Company (without intent of Executive to
gain therefrom, directly or indirectly, a profit to which he was not legally
entitled), or any act or omission of which any member of the Board, the Chief
Executive Officer or any other executive officer of the Company who is not a
party to such act or omission has had actual knowledge for at least twelve
months.
In the event that the existence of Cause shall become an issue in any action or
proceeding between the parties, the Company shall (a) in the case of Section
4(c)(ii) have the burden of establishing by clear and convincing evidence that
the conduct allegedly constituting Cause did in fact occur and does constitute
Cause and that Executive failed to correct such conduct and (b) in the case of
Section 4(c)(i), notwithstanding the determination referenced in clause (E) of
Section 4(c)(i) above, have the burden of establishing by clear and convincing
evidence that the actions or omissions specified in the Notice of Consideration
did in fact occur and do constitute Cause, that Executive failed to correct such
conduct and that the Company has satisfied the substantive and procedural
requirements of Section 4(c). Unless the Company so establishes, by clear and
convincing evidence, any termination of employment shall be deemed a termination
by the Company without Cause for all purposes of this Agreement.
(d) Good Reason. The Executive may terminate his employment hereunder
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for Good Reason. Good Reason shall mean the occurrence (without the Executive's
written consent) of any one of the following acts by the Company, or failures by
the Company to act:
(i) failure of the Board of Directors of the Company to elect
Executive to the office(s) described in Section 1 hereof; or
(ii) failure of the Executive to be elected a director of the
Company; or
(iii) any change in (A) the provisions of the Company's bylaws
describing, or (B) the relative duties and responsibilities of, the office of
President and Chief Operating Officer; or
(iv) the assignment to Executive of any duties inconsistent with
Executive's status as President and Chief Operating Officer or a substantial
adverse alteration in the nature or status of Executive's responsibilities; or
(v) any reduction by the Company in Executive's Base Salary, except
for across-the-board salary reductions similarly affecting all executives of
the Company; or
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(vi) the failure by the Company to pay to Executive any portion of
Executive's current compensation, or to pay to Executive any portion of an
installment of deferred compensation under any deferred compensation program
of the Company, within seven (7) days of the date such compensation is due; or
(vii) the taking of any action by the Company which directly or
indirectly causes Executive to cease to be eligible to participate in all
savings, retirement and welfare benefit plans and programs applicable to any
other senior executives of the Company on a basis no less favorable than is
made available to any other senior executive of the Company; the failure of
the Company to make available to the Executive all perquisites that are made
available to Company's senior executives; the failure by the Company to
calculate Executive's annual bonus compensation, if any, using at least the
valuation and number of accountability points used to determine the bonus
opportunity in any previous year during the Agreement Period for any corporate
officer position held by Executive; or the failure by the Company to provide
Executive with the number of paid vacation days to which Executive may then be
entitled; except (as to all of the foregoing) for changes (including
termination) in such benefits and/or policies similarly affecting all
executives of the Company; or
(viii) the relocation of the Executive's principal place of
employment to a location more than fifty (50) miles from the Executive's
principal place of employment as of the date hereof or the Company's requiring
the Executive to be based anywhere other than such principal place of
employment (or permitted relocation thereof) except for required travel on the
Company's business to an extent substantially consistent with the Executive's
present business travel obligations; or
(ix) the giving of notice by the Company of its decision not to
extend this Agreement, in accordance with Section 1; or any purported
termination of the Executive's employment by the Company other than in
accordance with this Agreement; or
(x) causing or requiring Executive to report to anyone other than
the Board or the Chief Executive Officer of the Company; or
(xi) the Company's material breach of this Agreement.
Notwithstanding the foregoing, no inadvertent and isolated event shall
constitute "Good Reason" unless the Executive shall have notified the Company in
writing of the conduct allegedly constituting Good Reason and the Company shall
have failed to correct such conduct within thirty (30) days of the date of its
receipt of such written notice from the Executive. Any determination by
Executive that any of the
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foregoing events has occurred and constitutes Good Reason shall be conclusive
and binding for all purposes unless the Company establishes by clear and
convincing evidence that Executive did not have any reasonable basis for such a
determination.
5. Termination Procedure.
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(a) Notice of Termination. Any termination of the Executive's
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employment by the Company or by the Executive (other than termination pursuant
to Section 4(a) hereof) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 9. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific provision in this Agreement relied upon and shall identify in
reasonable detail the reason for termination of the Executive's employment under
the provision so indicated.
(b) Date of Termination. "Date of Termination" shall mean (i) if the
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Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated pursuant to Section 4(b) above, the
date thirty (30) days after Notice of Termination (provided that the Executive
shall not have returned to the performance of his duties on a permanent full-
time basis during such thirty (30) day period), (iii) if the Executive's
employment is terminated pursuant to Section 4(c) or 4(d) above, the date thirty
(30) days after Notice of Termination and (iv) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of Termination
which shall be not more than thirty (30) days from the date of such Notice.
6. Compensation Upon Termination.
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(a) Termination due to Death or Disability. If the Executive's
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employment is terminated by his death or Disability, the Company shall have no
further obligations to provide Executive with the severance benefits described
under Sections 6(b)(i) through (ix) of this Agreement but shall continue to
provide the other payments and benefits provided for under this Agreement.
(b) Termination By Company without Cause or By Executive for Good
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Reason. Upon termination of Executive's employment hereunder during the
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Agreement Period by the Company without Cause or by Executive for Good Reason
hereunder, then, in lieu of any further salary, bonus, or LTI Plan payments for
periods subsequent to the Date of Termination and in lieu of any severance
benefit otherwise payable to the Executive:
(i) The Company shall continue to pay to Executive Base Salary as of
the Date of Termination (without giving effect to any decrease therein which
constitutes the basis, or one of the bases, upon which the Notice of
Termination is based), for a period of twenty-four (24) months (the "Severance
Period"), payable semi-monthly or more frequently, in arrears, commencing on
the Date of Termination; provided, however, that if a Change
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in Control occurs during the Severance Period, the Company shall pay the
Executive by no later than five (5) days following the Change in Control a
lump sum in cash equal to the sum of the remaining payments that would have
been payable to the Executive hereunder had no Change in Control occurred, and
payments hereunder shall terminate.
(ii) The Company shall pay the Executive a lump sum in cash, within
ten (10) days of the Date of Termination, equal to the sum of any unpaid
incentive compensation (including the cash value, determined without regard to
any restrictions on the sale thereof, of restricted stock) allocated or
awarded to Executive under the MIP with respect to any fiscal year ending
prior to the year in which the Date of Termination occurs.
(iii) The Company shall pay the Executive as bonuses any amount
which would have been payable to Executive under the MIP for the full fiscal
year in which Executive was terminated and for the full fiscal year following
such year. Such payments will be made within five (5) days of the date on
which MIP payments are made to other MIP participants after the close of each
fiscal year and will include the cash value, determined without regard to any
restrictions on the sale thereof, of restricted stock. If a Change in Control
occurs prior to either of these two payments, then, in lieu of any further
bonus payments, the Company shall pay Executive, no later than ten (10) days
following the Change in Control, a lump sum in cash calculated at the "Target"
level for the then current fiscal year for each MIP bonus payment not yet
made.
(iv) The Company shall pay the Executive a lump sum in cash, within
ten (10) days of the Date of Termination, equal to the sum of (A) any unpaid
incentive compensation (including the cash value, determined without regard to
any restrictions on the sale thereof, of restricted stock) allocated or
awarded to Executive under the LTI Plan with respect to any performance period
ending prior to the Date of Termination; plus (B) a pro rata portion of the
aggregate value of all contingent incentive compensation (including the cash
value, determined without regard to any restrictions on the sale thereof, of
restricted stock) awards to Executive with respect to any performance periods
under the LTI Plan which are not completed as of the Date of Termination,
calculated based on the assumption that the Company's results from the
beginning of such performance period(s) to the Date of Termination would
continue at the same rate until the originally intended completion date(s) of
such performance period(s). The amount set forth in item (B) above shall be
payable to Executive regardless of whether the Company actually achieves the
performance level upon which the calculation of such amount is based.
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(v) During the Severance Period the Company shall arrange to provide
the Executive with life, disability, accident and health insurance benefits
("Welfare Benefits") substantially similar in all material respects to those
which the Executive is receiving immediately prior to the Date of Termination
(without giving effect to any decrease therein which constitutes the basis, or
one of the bases, upon which the Notice of Termination is based), of if such
benefits are not available or the provision of such benefits would not be
allowed under the terms of such plans, the Company shall pay Executive the
after-tax economic equivalent thereof. If the Executive receives, or becomes
eligible to receive, Welfare Benefits from another source, then the Welfare
Benefits otherwise receivable by the Executive pursuant to this Section
6(b)(v) shall be reduced to the extent of such other Welfare Benefits received
by, or made available to, the Executive during the Severance Period (and any
such Welfare Benefits received by or made available to the Executive shall be
reported to the Company by the Executive). Nothing herein shall be deemed to
limit Executive's rights, if any, to thereafter participate in any retiree
medical plan then in effect.
(vi) During the Severance Period, the Company shall arrange to
provide the Executive with such material perquisites as are provided to the
Executive immediately prior to the Date of Termination (without giving effect
to any decrease therein which constitutes the basis, or one of the bases, upon
which the Notice of Termination is based).
(vii) Effective as of the Date of Termination, all stock options
(whether or not then fully exercisable) granted to Executive under any of the
Company's stock option plans prior to the Date of Termination shall become
immediately exercisable and Executive shall be entitled to exercise any or all
of such options at any time prior to the respective expiration of the
term of such options as set forth in the grant document evidencing same, as
though Executive were to continue as an active employee of the Company for
such period of exercisability.
(viii) Effective as of the Date of Termination, all restricted
stock granted to Executive prior to the date Executive's employment with the
Company is terminated shall become fully vested and all restrictions thereon
shall lapse.
(ix) The Executive shall receive payment of the incremental qualified
and supplemental defined benefit pension benefits Executive would have earned
had Executive's employment continued during the Severance Period, had he
received credit for service for the Severance Period for all purposes under
the applicable plans, and had the Executive received compensation during the
Severance Period of salary, at the annual rate equal to the Executive's Base
Salary in effect immediately prior to the Date of
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Termination (without giving effect to any decrease therein which constitutes
the basis, or one of the bases, upon which the Notice of Termination is
based), and bonus, at the annual rate equal to the Target Bonus. Anything in
the applicable plan to the contrary notwithstanding, the net present value of
the Executive's benefit (as increased hereunder) under any supplemental
defined benefit plan maintained by the Company ("SERP Benefit") or under any
other deferred compensation plan shall be paid to the Executive in a lump sum
in cash by no later than ten (10) days following the Date of Termination. In
the event that the supplemental defined benefit plan or other deferred
compensation plan does not specify the actuarial assumptions for determining
present value, the present value shall be determined using the actuarial
assumptions that would be used by the Pension Benefit Guaranty corporation for
purposes of determining the present value of a lump sum distribution on plan
termination.
(c) Termination by the Company for Cause or By Executive Other than
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for Good Reason. If the Executive's employment shall be terminated by the
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Company for Cause or by the Executive other than for Good Reason, the Company
shall have no obligations to provide Executive with the severance benefits
described under Sections 6(b)(i) through (ix) of this Agreement but shall
continue to provide the other payments and benefits provided under this
Agreement.
(d) Additional Payments. Following any termination of Executive's
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employment, the Company shall pay the Executive all unpaid amounts, if any, to
which the Executive is entitled as of the Date of Termination under any
compensation plan or program of the Company including but not limited to the
Company's deferred compensation, benefit or other compensation plans or
programs, at the time such payments are due. In addition, within ten (10) days
of the Date of Termination, the Company shall pay the Executive, or his legal
representative or estate, as applicable, any amounts accrued but not paid
pursuant to Sections 3(a), 3(b), 3(c), 3(d) and 3(e) in respect of periods
ending prior to the Date of Termination.
7. Confidentiality; Nondisparagement. The Executive shall hold in a
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fiduciary capacity for the benefit of the Company all trade secrets,
confidential information, and knowledge or data relating to the Company and its
affiliates which shall have been obtained by the Executive during the
Executive's employment by the Company and which shall not have been or now or
hereafter have become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). The Executive
shall not, without the prior written consent of the Company, or as may otherwise
be required by law or legal process, communicate or divulge any such trade
secrets, information, knowledge or data to anyone other than the Company and
those designated by the Company. In addition, the Executive and the Company or
its affiliates shall not disparage, discredit or otherwise publicly criticize
the other or engage in any act, directly or indirectly, for purposes of
disparaging, ridiculing or bringing scorn upon the Executive or the Company, any
affiliate thereof, or any of their
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respective officers, directors, businesses, tradenames or trademarks. In the
event of a breach or threatened breach of this Section 7, each party shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, the parties acknowledging that damages
would be inadequate and insufficient. Any termination of the Executive's
employment, Agreement Period or of this Agreement shall have no effect on the
continuing operation of this Section 7.
8. Amendment. This Agreement may be amended in writing by mutual
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agreement of the parties without the consent of any other person and, during the
life of Executive, no person, other than the parties hereto, shall have any
rights under or interest in this Agreement or the subject matter hereof.
9. Notice. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and, if (i) sent by registered mail
or certified mail, or (ii) personally delivered, or (iii) sent via nationally
recognized courier service, to the Company at its principal executive offices,
to the attention of its Chief Executive Officer, or to Executive at the last
address filed by him in writing with the Committee, as the case may be.
10. Nonalienation. The interests of Executive under this Agreement are
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not subject to the claims of his creditors, other than the Company and its
subsidiaries, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered.
11. Successors. This Agreement shall be binding upon, and inure to the
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benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
12. Severability. If, for any reason, any provision of this Agreement
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is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
13. Applicable Law. The provisions of this Agreement shall be construed
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in accordance with the internal laws of the State of Illinois without regard to
common law conflicts of laws principles.
14. Counterpart. The Agreement may be executed in two or more
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counterparts, any one of which shall be deemed the original without reference to
the others.
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15. Attorney's Fees. Company shall reimburse Executive for all
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reasonable legal fees, accounting, expert witness or other fees, costs or
expenses which Executive may incur (together with an additional amount such that
the net amount retained by Executive, after deduction of any federal, state and
local income and employment taxes on the total reimbursements made pursuant to
this paragraph equal the amount of fees, costs and expenses reimbursed pursuant
to this paragraph) in respect of any dispute or controversy arising under or in
connection with this Agreement; provided, however, that the Company shall not
reimburse such legal fees and costs and other fees and expenses if the fact
finder determines that the action brought by the Executive was frivolous. The
amount of taxes for which the additional amount is paid to Executive shall be
determined using the highest effective marginal rate of taxation in each case
(taking into account the phase out of itemized deductions, if applicable).
16. Interest on Late Payments. If the Company fails to pay any amount
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provided under this Agreement when due, the Company shall pay interest,
compounded monthly, on such amount at a rate equal to the lesser of (a) (i) the
highest rate of interest charged by the Company's principal lender on its
revolving credit agreements as in effect from time to time during the period of
such nonpayment plus 200 basis points, or (ii) in the absence of such a lender,
300 basis points over the prime commercial lending rate announced by The Wall
Street Journal in effect from time to time during the period of such nonpayment,
or (b) the highest legally-permissible interest rate allowed to be charged under
applicable law.
17. Beneficiaries. If Executive should die while any amount is payable
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to him hereunder, such amount shall be paid to Executive's devisee, legatee or
other designee or, if there is no such designee, to Executive's estate.
18. WAIVER OF JURY TRIAL. THE COMPANY AND EXECUTIVE WAIVE THEIR RIGHTS
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TO REQUEST A JURY TRIAL IN ANY LAWSUIT RELATING TO THIS AGREEMENT.
19. Mitigation. Executive shall not be required to mitigate damages or
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the amount of any payment provided for under this Agreement by seeking (and,
except as provided in Section 6(b)(v), no payment otherwise required hereunder
shall be reduced on account of) other employment.
20. Letter of Credit. The Company shall establish irrevocable standby
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letters of credit issued by The Bank of New York or another bank having combined
capital and surplus in excess of $500 million to secure the Company's
obligations to Executive. Said letters of credit shall be established prior to
an Imminent Control Change Date, and shall be as follows:
(a) one letter of credit, in substantially the form attached hereto,
to secure the payment of legal fees and related tax gross-up payment as provided
for under Section 16 of the Executive's Severance Agreement in the amount of $5
million, which
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amount shall be available to the Executive and each other person covered by the
letter of credit; and
(b) one letter of credit, in substantially the form attached hereto,
to secure the other payments and benefits provided for under the Executive's
Severance Agreement in an amount which is not less than the amount of severance
and other benefits (the "Severance Benefits") that would be payable to the
Executive pursuant to the Severance Agreement if the Executive is terminated by
the Company without Cause following a Change in Control, which amount shall be
available solely to the Executive.
The amount of the letter of credit described in Section 20(b) above, shall be
increased by the Company from time to time so that the amount is never less than
the amount of the Executive's Severance Benefits. The letters of credit
described in Sections 20(a) and 20(b) may expire on the date on which the
Imminent Control Change Date (as defined in the Severance Agreement) ceases to
exist. Upon a Change in Control, the letters of credit shall remain in effect
and shall not be subject to termination prior to their respective Expiry Dates
as provided in each such letter of credit.
21. Escrow Account. The Company shall establish an escrow account for
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each of the letters of credit described in Section 20 at the time the letters of
credit are established by entering into escrow agreements with LaSalle Bank
National Association, or another bank having combined capital and surplus in
excess of $100 million in substantially the forms attached hereto.
[Remainder of page intentionally left blank;
signatures appear on immediately following page]
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IN WITNESS WHEREOF, Executive has hereunto set his hand, and the Company
has caused these presents to be executed in its name and on its behalf, and its
corporate seal to be hereunto affixed and attested by its Secretary, all as of
the day and year first above written.
/S/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Attest: HARTMARX CORPORATION
/S/ XXXXX X. XXXXXXX /S/ Xxxxxx X. Hand
-------------------- BY:-----------------------------
Xxxxx X. Xxxxxxx Xxxxxx X. Hand, Chairman and
Secretary Chief Executive Officer
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EXHIBITS HAVE BEEN OMITTED AND WILL BE FURNISHED
TO THE COMMISSION UPON REQUEST
