EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 1st day of May, 1998 by and between
Periscope Sportswear, Inc., a Delaware corporation, having a principal place of
business at 0000 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
"Periscope") and Xxxxxxx Xxxxxxxxx having a principal place of residence at 0
Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter "Employee") .
WITNESSETH
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WHEREAS, Periscope is a corporation primarily involved in the design,
manufacture and sale of women's garments; and
WHEREAS, Periscope has employed Employee in various executive capacities;
WHEREAS, the parties hereto are desirous of entering into an agreement for
Employee's continued employment pursuant to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties agree as follows:
1. Employment
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Periscope hereby agrees to retain Employee as Vice President, Chief
Financial Officer, Treasurer and Secretary under the terms and conditions set
forth herein.
2. Term
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Subject to the provisions for termination as hereinafter provided, the
term of this Agreement shall be for five years and shall begin on the date first
above written and shall terminate on April 30, 2003.
3. Employee Representations
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Employee agrees that during the term of this Agreement he will:
(a) Perform all such reasonable and lawful duties as are normally
consistent with his title and position;
(b) Devote all his time and effort to the performance of his duties as
Vice President, Treasurer and Secretary of Periscope;
(c) Not be engaged either directly or indirectly, in any other
business venture, employment or enterprise in competition with his services
hereunder except that Employee may own stock of any publicly traded corporation;
(d) Employee further represents that he is not aware of any matter or
event which would restrict in any way his right to perform the services required
of him hereunder. Specifically, Employee represents that he is not a party to
any contract of employment with any prior employer which would prohibit him from
performing the duties required hereunder. In the event Employee's employment is
so restricted and/or any former employer brings suit challenging Employee's
right to perform hereunder, Periscope retains the right to unilaterally
terminate this Agreement and all obligations hereunder shall be deemed null and
void unless Employee indemnifies Periscope, to Periscope's sole satisfaction,
for all costs and liability for said actions by prior employers.
4. Compensation
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Periscope agrees to pay Employee the following compensation:
(a) A base salary at the rate of $168,220.00 per annum, payable in
equal weekly installments ("base salary") subject to any and all Federal, State
or local withholding tax requirements as required by law;
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(b) Periscope shall further reimburse Employee for any and all
expenses incurred by him in conjunction and in furtherance of his employment.
(c) Periscope shall directly pay Employee's automobile related
expenses e.g. lease payments, loan payments, liability insurance, maintenance,
repair and parking. The monthly lease and/or loan payment assumed hereunder
shall not exceed $1,000.00 per month. All other automobile related expenses
shall be in the amount realized without limit.
(d) Periscope shall, in its sole and subjective discretion, reserves
the right to further compensate Employee by way of bonus at the end of each
calendar year hereunder.
5. Severance
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In the event Employee's employment is terminated, either voluntarily or
involuntarily during the course of or subsequent to the expiration of this
Agreement, Employee shall be entitled to two weeks severance pay at his base
salary rate for every year employed by Periscope since the commencement of his
employment. This severance compensation will be paid in one lump sum payment
within thirty (30) days of any termination.
6. Benefits
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Employee shall be entitled to the normal group health, medical and
pension insurance and other benefits and bonuses (if any) generally available to
executive employees of Periscope.
7. Death of Employee
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In the event of Employee's death during the term, this Agreement shall
terminate immediately and Employee's legal representative shall be entitled to
receive the base salary due Employee through the last day of the calendar month
next following the date of his death shall have occurred.
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8. Termination for Cause
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If the Employee is convicted of a felony, or any crime involving
Periscope (other than in furtherance of Periscope's business or pursuant to
actions taken at the direction or with the approval of the Company's Board of
Directors) Periscope may terminate the Employee's employment hereunder at any
time within thirty (30) days of the occurrence of said event, by written notice
to the Employee. Except as otherwise provided herein, the Employee shall have no
right to receive any compensation or benefit hereunder on and after the
effective date of the notice provided in the preceding sentence other than the
salary and other benefits accrued prior to the date of termination and
reimbursement for expenses incurred prior to the date of termination.
9. Notices
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Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by certified mail, return receipt
requested to the residence in case of Employee and to Periscope's business
address as hereinabove set forth or at such other addresses as the parties may
designate in writing hereafter.
10. Waiver of Breach
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The waiver by Periscope of a breach or any provisions of this
Agreement by Employee shall not operate or be construed as a waiver of any
subsequent breach by Employee.
11. Assignment
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In the event of any corporate restructure or sale of Periscope's
assets or stock, this Agreement will be binding upon any purchaser and/or
successor entity.
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12. Entire Agreement
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This instrument contains the entire Agreement of the parties. It may
not be changed orally but only by agreement in writing signed by the party
against whom enforcement of any wavier, change, modification, extension or
discharge is sought.
13. Interdependence of Provisions
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Each of the provisions and covenants contained herein shall be
enforceable independently of every other provision and covenant of this
Agreement and the invalidity or non enforceability of any provision or covenant
shall not invalidate or render non enforceable any other provision or covenant
contained herein. To the extent any provision herein is deemed nonenforceable by
a reviewing Court, said Court shall have the power, in its discretion, to modify
said provision to any degree necessary to make it enforceable. The foregoing
shall not be deemed to limit any other rights that Periscope may elect to
pursue.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
PERISCOPE SPORTSWEAR, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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