EXHIBIT 10.15
EXECUTION VERSION
EMPLOYMENT AGREEMENT
AGREEMENT, made this 28th day of May, 2002, by an among L.S. Wholesale,
Inc., a Massachusetts corporation with its main office in St. Xxxxxx, U.S.V.I.
("Employer"), Little Switzerland, Inc., a Delaware corporation with its main
office in St. Xxxxxx, U.S.V.I ("Little Switzerland"), and Xxxxxx X. Xxxxxxxxxxx
("Executive").
WHEREAS, Employer and Little Switzerland wish to continue to employ
Executive as president and chief executive officer of Little Switzerland and
Employer and in various other capacities with respect to Little Switzerland and
the various companies, including Employer, that are controlled, directly or
indirectly, by Little Switzerland (Little Switzerland and such companies are
herein referred to, all and singularly as "Affiliates"); and
WHEREAS, Executive wishes to be so employed;
NOW THEREFORE, in consideration of the foregoing and the mutual
promises hereinafter set forth, Employer, Little Switzerland and Executive
mutually agree between and among themselves as follows:
1. EMPLOYMENT
Employer agrees to employ Executive, and Executive hereby agrees to be
employed, on the terms and conditions hereinafter set forth.
2. TERM
Subject to the provisions of Section 5 hereof, the term of Executive's
employment hereunder shall expire on August 18, 2004, which date is
sometimes referred to herein as the "Expiration Date."
3. COMPENSATION AND BENEFITS
The compensation and benefits payable to Executive under this Agreement
shall be as follows:
(A) SALARY
For all services rendered by Executive under this Agreement,
including services rendered in all capacities to any
Affiliate, whether as employee, officer or director, Employer
shall pay Executive at an annual rate (the "Base Salary") of
Three Hundred Thousand Dollars ($300,000) for the fiscal year
ending in 2002 and Three Hundred Seven Thousand Two Hundred
($307,200) for fiscal years ending thereafter. The Base Salary
shall be payable in periodic installments in accordance with
Employer's usual practice for payment of compensation to its
senior executives.
(B) BONUS
For each of Little Switzerland's fiscal years ending in 2002,
2003 and 2004, the Executive shall be eligible to earn a
bonus. For the fiscal year ending in 2002 a bonus of $100,000
will be paid unless a higher bonus is determined to be
appropriate by the Compensation Committee, as defined below.
The amount of said bonus for subsequent fiscal years shall be
determined on the basis of performance criteria established by
the Compensation Committee of the Board of Directors of Little
Switzerland (the "Compensation Committee"). Executive's annual
target bonus is seventy-five percent (75%) of Base Salary.
Payment of the target bonus is contingent upon achievement of
all of the performance criteria, but, in the discretion of the
Compensation Committee, may be prorated if such performance
criteria are not fully satisfied. In the discretion of the
Compensation Committee, a higher bonus may be paid if the
performance criteria are exceeded. Nothing in this section
shall constitute an entitlement to a bonus should the
performance criteria not be met. The Compensation Committee
shall establish performance criteria for the fiscal years
ending in 2003 and 2004 no later than July 30, 2002 and 2003,
respectively, which criteria shall be based upon the
consolidated financial performance of Little Switzerland and
its Affiliates and other objectively measurable criteria for
Executive's performance as may be determined by said
Compensation Committee. For each such fiscal year, the
Compensation Committee shall determine whether the performance
criteria have been met and the amount of the bonus, if any,
payable. Such determination shall be binding and conclusive on
the parties hereto. The Compensation Committee shall make such
determination no later than ninety (90) days after the end of
the fiscal year in question and the bonus, if any, shall be
paid within ten (10) days after such determination.
(C) SPECIAL BENEFITS
(1) MONTHLY COMMUTE
Executive shall be entitled to reimbursement for
reasonable expenses actually incurred in connection
with one round trip commute per month between his
place of residence in Boca Raton, Florida and his
place of residence in St. Xxxxxx, U.S.V.I. for so
long as the corporate headquarters of Little
Switzerland and its Affiliates is located in St.
Xxxxxx, U.S.V.I. Executive shall account promptly for
such expenses to Employer in the manner reasonably
prescribed from time to time by the Employer and in
compliance with Employer's policy.
(2) AUTOMOBILE
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Employer shall provide the Executive with the use, in
St. Xxxxxx, U.S.V.I. (or the location of the
principal executive office of Little Switzerland and
its Affiliates), of an automobile owned or leased by
the Employer, and Employer shall be responsible for
all reasonable maintenance and operation costs of
such automobile.
(3) APARTMENT
Employer shall provide Executive with use of an
apartment in St. Xxxxxx, U.S.V.I., (for so
long as the corporate headquarters of Little
Switzerland and its Affiliates is located in
St. Xxxxxx, U.S.V.I.) which is leased by
Employer and Employer shall pay the costs of
rent and utilities for such apartment.
(4) TERM LIFE INSURANCE POLICY
Employer shall procure and pay all premiums necessary
to keep in force until the Expiration Date or any
earlier termination of Executive's employment a term
life insurance policy underwritten on the life of
Executive by an insurance company rated A+ or better
by A.M. Best and payable to a beneficiary named by
Executive with a death benefit of One Million Five
Hundred Thousand Dollars ($1,500,000), such policy to
be owned by Employee, provided, however, that
Employer's obligation to procure such a policy shall
be contingent upon Executive's submission to any
health exam and of any application required by the
insurer and an insurer's willingness to underwrite
such a policy at such insurer's standard rates for a
male of Executive's age. At such time as Employer's
obligation to pay premiums ceases, Employee shall be
assigned all of Employer's rights in such policy, if
any, and shall be free to maintain such policy in
force at his own cost and expense.
(5) DISABILITY INCOME POLICY
Employer shall procure and pay all premiums necessary
to keep in force until the Expiration Date or any
earlier termination of Executive's employment a long
term disability income insurance policy for the
benefit of Executive underwritten by an insurance
company rated A+ or better by A.M. Best; such policy
shall provide a benefit equal to 60% of covered
compensation (Base Salary plus Target Bonus) to a
maximum benefit of $18,000 per month provided,
however, that Employer's obligation to procure such a
policy shall be contingent upon Executive's
submission to any health exam and of any application
required by the insurer and an insurer's willingness
to underwrite such a policy at such insurer's
standard rates for a male of Executive's age. Such
policy shall have a six-month qualifying period and
shall define a
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qualifying disability in substantially the following
manner: an injury or sickness that requires the
insured to be under the regular care and attendance
of a doctor and prevents the insured from performing
the material duties of his regular occupation.
(d) REGULAR BENEFITS
Executive shall be entitled to four (4) weeks of vacation time
per year. Executive's entitlement to vacation shall, in all
other respects, be subject to Employer's vacation policies in
force from time to time for senior executive employees in
general. Executive shall be entitled to participate in any and
all employee benefit plans, medical insurance plans, life
insurance plans, disability income plans and other benefit
plans (including, without limitation, any 401(k) plans) from
time to time in effect for senior executives of the Employer.
Executive's participation in such plans shall be subject to
the terms of the applicable plan documents, generally
applicable policies of the Employer, applicable law and the
discretion of the Compensation Committee, Little Switzerland's
Board of Directors and any administrative or other committee
provided for in or contemplated by any such plan. Nothing
contained in this Agreement shall be construed to create any
obligation on the part of Employer to establish any such plan
or to maintain the effectiveness of any such plan which may be
in effect from time to time, nor shall Executive be deemed to
have any special or continuing rights to any benefit under any
such plan or plans (whether or not vested) by virtue of this
Agreement should the plan or plans in question be amended,
limited, discontinued, merged or terminated.
Executive also shall be entitled to reimbursement for all
ordinary and necessary business expenses incurred by Executive
in connection with the advancement of the Affiliates'
interests and the discharge of his duties and responsibilities
hereunder, including without limitation, all travel and
lodging expenses; provided however, that Executive accounts
promptly for such expenses to the Employer in the manner
reasonably prescribed from time to time by the Employer and in
compliance with Employer's policy.
(e) EXCLUSIVITY OF SALARY AND BENEFITS.
Executive shall not be entitled to any payments or benefits
from any Affiliate other than those expressly provided for
under this Agreement or under stock option plans, grants
and/or agreements which have been or may be established or
granted.
4. CAPACITY AND EXTENT OF SERVICE
(a) Executive shall serve Little Switzerland and Employer as
President and Chief Executive Officer until the Expiration
Date and, without further compensation except as expressly
provided for herein, shall serve the
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Affiliates in such other or additional offices in which he
may be reasonably requested to serve.
(b) Executive shall continue to serve as a member of the Board of
Directors of Little Switzerland until his successor is duly
elected and qualified; provided, however, that upon
termination of Executive's employment with Employer for any
reason, Executive agrees to promptly resign as a director of
Little Switzerland (if he is then serving in such position)
and to resign from such other positions of director or officer
of any Affiliate he then holds. Executive shall not vote in
his capacity as a director of Little Switzerland on any
matters related to this Agreement on which the Board of
Directors of Little Switzerland or any committee thereof shall
vote, including, without limitation, any termination pursuant
to Section 5 below; provided, however, if he participates in a
meeting of said Board of Directors then he may be included for
purposes of determining whether a quorum for such meeting
exists if he would otherwise be included for such purpose
under applicable law. Executive hereby agrees that he shall
not be entitled to, and hereby waives, any right to any salary
or compensation for his service as a director or officer of
Employer, Little Switzerland or any Affiliate, except as
expressly provided for in this Agreement.
(c) During his employment hereunder, Executive shall, subject to
the direction and supervision of Little Switzerland's Board of
Directors, devote his full business time, best efforts and
business judgment, skill and knowledge to the advancement of
the Affiliates' interests and to the discharge of his duties
and responsibilities hereunder. In accordance with the
foregoing, Executive shall not engage in any other business
activity, except as may be approved by said Board of
Directors; provided, however, that nothing herein shall be
construed as preventing Executive from:
(1) investing his assets in a manner not otherwise
prohibited by this Agreement, and in such form or
manner as shall not require any material services on
his part in the operations or affairs of the
companies or other entities in which such investments
are made;
(2) serving on the board of directors of any company
(other than a company that competes with any
Affiliate), provided that he shall not be required to
render any material services with respect to the
operations or affairs of any such company; or
(3) engaging in religious, charitable or other community
or nonprofit activities which do not impair his
ability to fulfill his duties and responsibilities
under this Agreement.
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5. TERMINATION
Notwithstanding the provisions of Section 2 hereof, Executive's
employment shall terminate or may be terminated as hereinafter
provided, without liability on the part of Employer, Little Switzerland
or any other Affiliate except as specifically provided below:
(A) DEATH
In the event of Executive's death, Executive's employment
shall terminate on the date of his death.
(B) BY EMPLOYER FOR CAUSE
Executive's employment may be terminated for cause (as defined
below) by written notice to Executive setting forth in
reasonable detail the nature of such cause, such termination
to be effective upon delivery of such notice, provided that
the determination that cause for termination exists and that
said notice should be sent, shall have been made by vote or
written consent of at least two-thirds of the members of the
Board of Directors of Little Switzerland (the "Requisite
Directors") . Only the following shall constitute "cause" for
termination pursuant to this Section 5(b):
(1) deliberate dishonesty of the Executive with respect
to the Employer, Little Switzerland or any Affiliate;
(2) conviction of Executive of (A) a felony or (B) any
crime involving moral turpitude, deceit, dishonesty
or fraud;
(3) gross negligence or willful misconduct of Executive
with respect to Employer, Little Switzerland or any
Affiliate;
(4) failure to perform, to the reasonable satisfaction of
the Requisite Directors, a substantial portion of
Executive's duties and responsibilities, which
failure continues for more than thirty (30) days
after written notice of failure given to Executive by
person acting on behalf of the Requisite Directors;
or
(5) material breach of Executive of any Executive's
obligations under this Agreement.
(C) TERMINATION BY THE EMPLOYER WITHOUT CAUSE
Executive's employment may be terminated without cause by
Little Switzerland upon the vote or written consent of the
Requisite Directors, such termination to be effective thirty
(30) days (or such lesser number of
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days as may be determined by the Requisite Directors in
light of the then existing facts and circumstances)
following the giving of written notice to such
effect, provided, however, that Executive shall be
entitled to the "Severance Benefit" and "Bonus
Entitlement" provided for in Section 5(f) below
should his employment be terminated in reliance upon
this provision 5(c).
(D) TERMINATION BY EXECUTIVE WITH CAUSE
Executive may terminate his employment for material breach of
Employer's obligations under this Agreement on written notice
to the Secretary of Little Switzerland effective on not less
than thirty (30) nor more than ninety (90) days after the
giving of such notice, as determined by the Requisite
Directors.
(E) DISABILITY
If, due to a physical or mental injury, illness or condition,
Executive shall be disabled so as to be unable to perform
substantially all of his duties and responsibilities hereunder
(a "Substantial Disability"), Employer may designate another
person to act in place of Executive during the period of such
disability. For a period of up to six (6) months subsequent to
the commencement of a Substantial Disability, Employer shall
continue to pay to Executive his salary and benefits in
accordance with Section 3 hereof. If, at the end of the two
(2) month period following onset of a Substantial Disability
Executive shall continue to have a Substantial Disability,
Executive's employment may be terminated by vote or written
consent of the Requisite Directors but the obligation set
forth in the prior sentence shall continue. If any question
shall arise as to whether the Executive has or had a
Substantial Disability, or the period of same, Executive may,
or at the request of Little Switzerland will, submit to the
Secretary of Little Switzerland a certification in reasonable
detail as to whether Executive was or is subject to a
Substantial Disability and the period of same signed by a
licensed physician or psychiatrist, board-certified in a
relevant specialty (which shall not be general or family
practice) selected by Executive or Executive's guardian, to
which physician Employer has no reasonable objections, and
such certification shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and
Executive shall fail to submit such certification, the
determination by vote or written consent of the Requisite
Directors shall be binding on Executive.
(F) SEVERANCE BENEFIT AND BONUS ENTITLEMENT
If Executive's employment is terminated pursuant to Section
5(c) hereof, on the effective date of such termination
Executive shall be paid, in addition to any sums then owed by
Employer to Executive, the following benefit by Employer: a
lump sum payment equal to Executive's Base
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Salary payable for twelve (12) months plus Executive's
target bonus for one year (the "Severance Benefit").
In addition to the Severance Benefit, but not in duplication
of sums then owed Executive by Employer, Executive's
entitlement to a bonus for fiscal years of employment
completed or partially completed at the time of termination
pursuant to Section 5(c) shall be determined as follows:
(1) for fiscal years completed as of such effective date,
but for which Executive's bonus has not been paid,
for the fiscal year ending in 2002, $100,000, or
for subsequent fiscal years, Executive's target
bonus referenced in Section 3(b) above; and
(2) for fiscal years partially completed as of the time
of such termination pursuant to Section 5(c),
Executive's annual target bonus multiplied by a
fraction, the numerator of which is the number of
months in the fiscal year completed as of the
effective date of termination and the denominator of
which is 12 (the "Bonus Entitlement").
It is hereby agreed that the Severance Benefit determined
under this Section 5(f) shall be in the nature of liquidated
damages for any claim by Executive that his termination was in
violation of any statute or principle of tort, contract law or
equity which would provide him with damages in the event that
a court were to rule that his termination violated any right
on his part to be terminated only for just cause. No severance
benefit shall be paid for any termination effected pursuant to
Sections 5(a), 5(b), 5(d) or 5(e) above.
(G) ACTION BY DIRECTORS
In determining whether a two-thirds vote or action by written
consent has been obtained for the purposes of Sections 5(b) or
5(e) above, Executive shall not be deemed to be a member of
said Board, although his presence at a meeting may be counted
in the determination of whether a quorum existed at the start
of the meeting.
6. TERMINATION SUBSEQUENT TO A CHANGE IN CONTROL
(a) In the event of a Terminating Event (as defined below) within
one (1) year from the date of a Change in Control (as defined
below), as of the date of such Terminating Event, Executive
shall be entitled to receive the following: the Severance
Benefit and the Bonus Entitlement, plus, without duplication,
any sums then owed Executive by his employer.
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(b) For purposes of this Agreement, a "Terminating Event" shall
mean termination of Executive's employment by Executive for
Good Reason, as defined below, or termination of Executive's
employment by the Employer, Little Switzerland or their
respective successor entities for any reason other than death,
cause or disability pursuant to Sections 5(a), 5(b) or 5(e)
above.
(c) For purposes of this Agreement, "Change in Control" shall be
deemed to have occurred in the following instances: (i) when
any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) becomes a "beneficial owner" (as such term
is defined in Rule 13d-3 promulgated under the 1934 Act),
directly or indirectly, of securities of Little Switzerland
representing fifty percent (50%) or more of the combined
voting power of Little Switzerland's then outstanding
securities; (ii) the sale, transfer or other disposition of
all or substantially all of the assets of Little Switzerland
to another person or entity; (iii) the stockholders of Little
Switzerland approve a plan of complete liquidation of Little
Switzerland; (iv) the merger, consolidation or other business
combination of Little Switzerland with any other corporation
or entity, other than (1) a merger or consolidation which
would result in the voting securities of Little Switzerland
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the voting
securities of Little Switzerland or such surviving entity
outstanding immediately after such merger or consolidation or
(2) a merger or consolidation effected to implement a
recapitalization of Little Switzerland (or similar
transaction) in which no "person" (as hereinabove defined)
acquires more than fifty person (50%) of the combined voting
power of Little Switzerland's then outstanding securities; or
(v) the signing of an agreement, contract or other arrangement
providing for any of the transactions described above in this
definition of Change in Control.
(d) For purposes of this Agreement, "Good Reason" shall be deemed
to include the following:
(i) a reduction of the Executive's salary or benefits; or
(ii) a significant change in the Executive's
responsibilities and/or duties which constitutes,
when compared to the Executive's responsibilities
and/or duties before the Change of Control, a
demotion; or
(iii) a material loss of title or office.
(e) The Executive shall provide the Employer with notice and an
opportunity to cure any of the events listed in Section 6.d.
above and shall not be
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entitled to compensation pursuant to this Section 6 unless the
Employer fails to cure within ten (10) days of such notice.
7. NONCOMPETITION AND CONFIDENTIAL INFORMATION
(A) NONCOMPETITION
During the period of the Executive's employment by the
Employer (whether such employment terminates before, on or
after the Expiration Date), and for a period of up to eight
(8) months thereafter (the "Noncompetition Period"), the
Executive will not, directly or indirectly, whether as owner,
partner, shareholder, consultant, agent, employee, co-venturer
or otherwise, or through any Person (as defined in Section 9
hereof), compete in the jewelry or watch business in any
Affiliate's market area in any country or other jurisdiction
(excluding the contiguous 48 states of the United States and
Hawaii but including Alaska) in which any Affiliate conducts
business as of the effective date of termination) with the
business conducted by any Affiliate during the period of his
employment hereunder (any or the foregoing, "Prohibited
Employment"). For the purposes of illustration and not by way
of limitation, Prohibited Employment would not include
employment with a jeweler or watch seller in the State of
Florida . In the event Executive contemplates engaging in any
activity which might reasonably be considered Prohibited
Employment, he shall provide, Employer, by notice to the
Secretary of Little Switzerland, with an accurate description
of the nature and scope of such activity. On receipt of such
description, Employer may elect as follows: to enforce this
covenant with respect to the notified activity for the balance
of the Noncompetition Period, in which case Employer shall pay
Executive $6,000 per month for each consecutive month during
the Noncompetition Period (up to eight) that it wishes to keep
the foregoing covenant in force; or to waive enforcement of
the covenant in respect of the notified activity, in which
case the Executive shall be free to engage in the notified
activity for the balance of the Noncompetition Period. During
the Noncompetition Period Executive shall not attempt to hire
any employee of Little Switzerland or the Employer, assist in
such hiring by any other Person, encourage any such employee
to terminate his or her relationship with Little Switzerland
or the Employer, or solicit or encourage any customer of
Little Switzerland or the Employer to terminate its
relationship with Little Switzerland or the Employer or to
conduct with any other Person any business or activity which
such customer conducts or could conduct with Little
Switzerland or the Employer.
(B) CONFIDENTIAL INFORMATION
The Executive will not disclose to any other Person (except as
required by applicable law or in connection with the
performance of his duties and responsibilities hereunder), or
use for his own benefit or gain, any
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confidential information of Little Switzerland or the Employer
obtained by him incident to his employment with the
Employer. The term "confidential information"
includes, without limitation, financial information,
business plans, customer, mailing and vendor lists,
employee lists and in-house telephone directories,
leases and lease data, merchandise standards, pricing
and commission structures, merchandise cost or
discount information, prospects and opportunities
(such as lending relationships financial product
developments, or possible acquisitions or
dispositions of business or facilities) of any
Affiliate but does not include any information which
has become part of the public domain by means other
than the Executive's non-observance of his
obligations hereunder.
(C) RELIEF; INTERPRETATION
The Executive agrees that any Affiliate shall be entitled to
injunctive relief for any breach by him of the covenants
contained in this Section 7. In the event that any provision
of this Section 7 shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its
being extended over to great a period of time, too large a
geographic area, or too great a range of activities, it shall
be interpreted to extend only over the maximum period of time,
geographic area, or range of activities as to which it may be
enforceable.
8. NO CONFLICTING AGREEMENTS
The Executive hereby represents and warrants that the execution of
this Agreement and the performance of his obligations
hereunder will not breach nor be in conflict with any other
agreement to which he is a party or is bound, and that he is
not now subject to any covenants against competition or
similar covenants which would affect the performance of his
obligations hereunder.
9. DEFINITION OF "PERSON"
For purpose of this Agreement: the term "Person" shall mean an
individual, a corporation, an association, a partnership, a limited
liability company, an estate, a trust and any other entity or
organization.
10. TAXATION OF PAYMENTS
The Employer all undertake to make deductions, withholdings
and tax reports with respect to payments and benefits under
this Agreement to the extent that it reasonably and in good
faith believes that it is required to make such deductions,
withholdings and tax reports. All payments made by the
Employer under this Agreement shall be net of any tax or other
amounts required to be withheld by the Employer under
applicable law. Nothing in this Agreement shall be construed
to require the Employer to make any payments to compensate the
Executive for any adverse tax
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effect associated with any payments or benefits or for any
deduction or withholding from any payment or benefit.
11. ARBITRATION OF DISPUTES
Any controversy of claim arising out of or relating to this Agreement
or the breach thereof or otherwise arising out of the Executive's
employment or the termination of that employment (including, without
limitation, any claims of unlawful employment discrimination whether
based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by arbitration in any forum and form agreed upon by the
parties or, in the absence of such an agreement, under the auspices of
the American Arbitration Association ("AAA") in Wilmington, Delaware in
accordance with the Employment Dispute Resolution Rules of the AAA,
including, but not limited to, the rules and procedures applicable to
the selection of arbitrators. In the event that any person or entity
other than a party to this Agreement may be a party with regard to any
such controversy or claim shall be submitted to arbitration subject to
such other person or entity's agreement. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof. This Section 11 shall be specifically
enforceable. Notwithstanding the foregoing, this Section 11 shall not
preclude either party from pursuing a court action for the sole purpose
of obtaining a temporary retraining order or a preliminary injunction
in circumstances in which such relief is appropriate; PROVIDED,
HOWEVER, that any other relief shall be pursued through an arbitration
proceeding pursuant to this Section 11.
12. ASSIGNMENT; SUCCESSORS AND ASSIGNS; SURVIVAL OF CERTAIN PROVISIONS
Neither the Employer nor the Executive may make any assignment
of this Agreement or any interest herein, by operation of law
or otherwise, without the prior written consent of the other
party; PROVIDED, HOWEVER, that the Employer may assign its
rights under this Agreement without the consent of the
Executive in the event that the Employer shall hereinafter
effect a reorganization, consolidate with or merge into any
other Person, or transfer all or substantially all of its
properties or assets to any other Person. This Agreement shall
inure to the benefit of and be binding upon the Employer,
Little Switzerland and the Executive, their respective
successors, executors, administrators, heirs and permitted
assigns. The provisions of Sections 5(c), 5(f), 6 and 7 shall
survive the Expiration Date and any earlier termination of
employment.
13. ENFORCEABILITY
If any portion or provision of this Agreement shall to any
extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the remainder of this Agreement,
or the application of such portion or provision in
circumstances other than those as to which it is so declared
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illegal or unenforceable, shall not be affected thereby, and
each portion and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
14. WAIVER
No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure
of any party to require the performance of any term or
obligation of this Agreement, or the waiver by any party of
any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver
of any subsequent breach.
15. NOTICES
All notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in
writing and delivered in person or sent by registered or
certified mail, postage prepaid, to the Executive at the last
address the Executive has filed in writing with the Employer
or, in the case of the Employer or Little Switzerland, to the
attention of the corporate Secretary of Little Switzerland.
Any such notice shall be deemed to be effective and therefore
given upon the following dates; (i) if such notice is
delivered in person the date on which such delivery is done;
or (ii) if such notice is sent by registered or certified
mail, postage prepaid, the date which is six (6) days
subsequent to the date on which such notice is mailed.
16. AMENDMENT
This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized
representative of the Employer and Little Switzerland.
17. GOVERNING LAW; CONSENT TO JURISDICTION
It is the parties' intention that the terms of employment
under this Agreement shall be construed under and be governed
in all respects by the laws of the state of Delaware. To the
extent that any court action is permitted consistent with or
to enforce Section 11 of this Agreement, the parties hereby
consent to the jurisdiction of the courts of Delaware.
Accordingly, with respect to any such court action, the
Executive (a) submits to the personal jurisdiction of such
courts; (b) consents to service of process; and (c) waives any
other requirement (whether imposed by statute, rule of court,
or otherwise) with respect to personal jurisdiction or service
of process.
18. CONTINUATION OF EMPLOYMENT
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If, following the Expiration Date, Executive remains employed
by Employer, or continues in any office with any Affiliate,
such employment or continuation shall not result in nor be
construed as an extension of the Expiration Date nor a renewal
of any term of employment or right hereunder. If, following
the Expiration Date, Executive remains employed, such
employment shall be on an "at-will" basis meaning the either
Executive or Employer may terminate such employment with or
without cause and without payment of any severance benefit
except as expressly provided in Section 6 above.
19. TIME FOR PAYMENT; INTEREST ON LATE PAYMENTS
If any payment to Executive is required hereunder and such
payment is required to be made subsequent to the termination
of Executive's employment with Employer, such payment shall be
made no later than thirty (30) days following the later of the
date the obligation to make such payment has arisen or the
amount of such payment can be determined. Failing that,
interest at the rate of eight percent (8%) per annum shall be
payable on any late payment and Executive shall be entitled to
recover reasonable attorneys fees and costs necessary to
recover same.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be taken to
be an original, but such counterparts shall together
constitute one and the same document.
21. COMPLETE AGREEMENT
This Agreement contains the entire understanding of the
parties with respect to the transactions contemplated hereby
and supersedes all prior agreements, arrangements or
understandings with respect thereto. There are no
restrictions, agreements, promises, representations,
warranties, covenants or undertakings by or on behalf of any
party hereto with respect to the transactions contemplated
hereby or thereby, other than those expressly set forth herein
or therein; notwithstanding the foregoing, nothing stated
herein shall be deemed to modify or negate prior stock option
grants made by Little Switzerland to Executive or to modify or
negate the terms of Employer's employee benefit plans in
respect of Executive's participation therein.
IN WITNESS WHEREOF, this Agreement, has been executed as a sealed
instrument by each of the Employer and Little Switzerland, by their duly
authorized officers and/or directors, and by the Executive, as of the date first
above written.
L.S. WHOLESALE, INC.
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By:_____________________
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
LITTLE SWITZERLAND, INC.
By______________________
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
EXECUTIVE:
-----------------------
Xxxxxx X. Xxxxxxxxxxx
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