Exhibit 10.10
TROPICAL SPORTSWEAR INT'L CORPORATION
0000 XXXX XXXXXX XXXXXX
XXXXX, XXXXXXX 00000-0000
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Memorandum of Agreement
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TO: Xx. Xxxxx X. Xxxxx
FROM: Board of Directors
DATE: August 11, 2003 (the "Effective Date")
RE: Employment Arrangement
We are pleased to confirm the terms of your employment arrangement with
the Company.
You are employed by the Company as its Executive Vice President and
Chief Financial Officer. The term of your employment will be for twelve months,
but the term will automatically renew every day for an additional day so that
there will be a continuously remaining term of twelve months.
Your annual base salary is $200,000. You are eligible to receive an
annual cash bonus of up to 100% of your base salary if you meet specified
targets regarding your and the Company's performance. You will also receive paid
vacation and holidays and fringe benefits (including health and life insurance
and other welfare benefits) comparable to that received by other officer-level
employees of the Company.
The Company may terminate your employment at any time upon written
notice setting out the termination date, as follows:
(a) The Company may terminate your employment with "Cause."
"Cause" shall mean and be limited to:
(1) commission or conviction of, or plea of guilty or nolo
contendere to, any crime or offense involving money or other
property of the Company or others or which constitutes a
felony or a crime involving moral turpitude in the
jurisdiction involved;
(2) fraud on the Company or otherwise relating to the Company or
its business;
(3) theft of any property of the Company;
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(4) use of illegal drugs, misuse of prescription drugs that
affects your performance or repeated abuse of alcohol in
connection with your employment or any Company duty or
function;
(5) any willful material breach of the performance of your duties
which continues after written notice from the Company;
(6) failure or refusal to carry out or abide by a directive of the
President, Chief Executive Officer, or the Board of Directors,
or their designees, within five (5) business days after
receipt of written notice of the alleged failure or refusal;
(7) material misrepresentation to any officer or director of the
Company;
(8) continued poor performance or nonperformance of your duties
for more than thirty (30) days after receipt of written notice
from the Company detailing the poor performance or
nonperformance and demanding cure;
(9) any disclosure to any "Person" other than the Company and its
directors, officers, and employees of any "Confidential
Information" or "Trade Secrets" of the Company which is
detrimental to the interests of the Company or made outside
the scope of the Employee's duties to the Company (terms in
quotation marks are defined below in the definitions relating
to the restrictive covenants); or
(10) engaging by the Employee, without prior consent of the Board
of Directors of the Company, in any other business other than
the business of the Company which interferes in any material
respect with the performance of Employee's duties.
"Cause" does not include substandard performance or nonperformance by you. If
your employment is terminated for cause, you will not be entitled to any
separation benefits from the Company, and your salary, bonus, benefits, and
business expense reimbursements will cease as of the termination date. Any
salary, bonus, benefits, or expense reimbursement not paid on the termination
date will be paid by the Company within forty-five (45) days following
termination.
(b) The Company may terminate your employment without Cause. If
your employment is terminated without cause, you will be entitled to receive
your base salary and a continuation of your health insurance benefits for the
remainder of the term (12 months). Any salary, bonus, benefits, or expense
reimbursement not paid on the termination date will be paid by the Company
within forty-five (45) days following termination. You will not be entitled to
any other separation benefits.
(c) If there is a "Change in Control," the Company or you may
terminate your employment immediately upon written notice at any time during the
365-day period following the Change in Control; however, you may not give such
notice earlier than 275 days following the Change in Control and the termination
will not be effective until 60 days after the date of your notice. If your
employment is terminated by the Company or by you as a result of a Change in
Control, you will be entitled to the same benefits as if your employment were
terminated by the Company without cause.
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The definitions of the terms in quotation marks relating to the Change
in Control are as follows:
"Change of Control" means the occurrence of any of the following events
that occurs after the Effective Date:
(a) any Person becomes an Acquiring Person;
(b) a merger of the Company with or into, or a sale by the
Company of its properties and assets substantially as an entirety to,
another Person occurs and, immediately after that occurrence, any
Person, other than any Exempt Person, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of twenty five
percent (25%), or more of the total voting power of the then
outstanding Voting Shares of the Person surviving that transaction (in
the case of a merger or consolidation) or the Person acquiring those
properties and assets substantially as an entirety.
"Acquiring Person" means any Person who or which, together with all
Affiliates and Associates of such Person, is or are the Beneficial
Owner(s) of a minimum of twenty five (25%) or more of the shares of
Common Stock then outstanding, but does not include any Exempt Person;
provided, however, that a Person shall not be or become an Acquiring
Person if such Person, together with its Affiliates and Associates,
shall become the Beneficial Owner of a minimum of twenty five percent
(25%) or more of the shares of Common Stock then outstanding solely as
a result of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of Common Stock by the Company,
unless and until such time as such Person or any Affiliate or Associate
of such Person shall purchase or otherwise become the Beneficial Owner
of additional shares of Common Stock constituting one percent (1%) or
more of the then outstanding shares of Common Stock or any other Person
(or Persons) who is (or collectively are) the Beneficial Owner of
shares of Common Stock constituting one percent (1%) or more of the
then outstanding shares of Common Stock shall become an Affiliate or
Associate of such Person, unless, in either such case, such Person,
together with all Affiliates and Associates of such Person, is not then
the Beneficial Owner of a minimum of twenty five percent (25%) or more
of the shares of Common Stock then outstanding.
"Affiliate" has the meaning ascribed to that term in Securities
Exchange Act of 1934 Rule 12b-2.
"Associate" means, with reference to any Person,
(a) any corporation, firm, partnership, association,
unincorporated organization or other entity (other than the Company or
a subsidiary of the Company) of which that Person is an officer or
general partner (or officer or general partner of a general partner) or
is, directly or indirectly, the Beneficial Owner of 15% or more of any
class of its equity securities,
(b) any trust or other estate in which that Person has a
substantial beneficial interest or for or of which that Person serves
as trustee or in a similar fiduciary capacity and
(c) any relative or spouse of that Person, or any relative of
that spouse, who has the same home as that Person.
"Beneficial Owner" means a specified Person who is deemed the
"Beneficial Owner" of, and is deemed to "beneficially own," any
securities.
(a) of which that Person or any of that Person's Associates or
controlled Affiliates, directly or indirectly, is the "beneficial
owner" (as determined pursuant to Securities Exchange Act of 1934 Rule
13d-3) or otherwise has the right to vote or dispose of, including
pursuant to any agreement, arrangement or understanding (whether or not
in writing); however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," any security under this
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subparagraph (a) as a result of an agreement, arrangement or
understanding to vote that security if that agreement, arrangement or
understanding: 1) arises solely from a revocable proxy or consent given
in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the Securities
Exchange Act of 1934 (that is, the exclusions in these subparagraphs
(a) and (b) give effect to the exemption for a proxy or consent
solicitation in Securities Exchange Act of 1934 Rule 14a-2(b)(2); and
2) is not then reportable by such Person on Securities Exchange Act of
1934 Schedule 13D (or any comparable or successor report);
(b) which that Person or any of that Person's Affiliates or
Associates, directly or indirectly, has the right or obligation to
acquire (provided that right or obligation is exercisable or effective
immediately or only after the passage of time or the occurrence of an
event) pursuant to any agreement, arrangement or understanding (whether
or not in writing) or on the exercise of conversion rights, exchange
rights, other rights, warrants or options, with an exercise price equal
to or below the public trading price at the time of calculation;
provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," securities tendered pursuant to a
tender or exchange offer made by that Person or any of that Person's
Affiliates or Associates until those tendered securities are accepted
for purchase or exchange; or
(c) which are beneficially owned, directly or indirectly, by (1)
any other Person (or any Affiliate or Associate thereof) with which the
specified Person or any of the specified Person's Affiliates or
Associates has any agreement, arrangement or understanding (whether or
not in writing) for the purpose of acquiring, or holding with the right
to vote or of voting (except pursuant to a revocable proxy or consent
as described in the proviso to subparagraph (a) of this definition) or
disposing of any voting securities of the Company or (2) any group (as
that term is used in Securities Exchange Act of 1934 Rule 13d-5(b)) of
which that specified Person is a member; provided, however, that
nothing in this definition shall cause a Person engaged in business as
an underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such a Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty (40) days after the date of that acquisition and
the security has been placed in an investment account. For purposes of
this Agreement, "voting" a security shall include voting, granting a
proxy, acting by consent, making a request or demand relating to
corporate action (including, without limitation, calling a stockholder
meeting) or otherwise giving an authorization (within the meaning of
Section 14(a) of the Securities Exchange Act of 1934) in respect of
such security.
"Common Stock" means the common stock or any other voting securities of
the Company.
"Exempt Person" means
(a) (1) the Company, any subsidiary of the Company, any employee
benefit plan of the Company or of any subsidiary of the Company, and
(2) any Person organized, appointed or established by the
Company for or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other employee benefits for
employees of the Company or any subsidiary of the Company and
(b) you, any Affiliate or Associate of you or any group (as that
term is used in Securities Exchange Act of 1934 Rule 1 3d-5(b)) of
which you or any Affiliate or Associate is a member.
(c) Xxxxxxx Xxxxx, any Affiliate or Associate of Xxxxxxx Xxxxx or
any group (as that term is used in Exchange Act Rule 1 3d-5(b)) of
which Xxxxxxx Xxxxx or any Affiliate or Associate of Xxxxxxx Xxxxx is a
member.
(d) Accel, S.A. de C.V., any Affiliate or Associate of said Accel
or any group (as that term is used in said rule) of which said Accel or
any Affiliate or Associate of said Accel is a member.
"Person" means any natural person, sole proprietorship, corporation,
partnership of any kind
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having a separate legal status, limited liability company, business
trust, unincorporated organization or association, mutual company,
joint stock company, joint venture, estate, trust, union or employee
organization or governmental authority.
"Publicly Traded" with respect to shares of stock of a company means
traded on a national securities exchange or listed for quotation on
NASDAQ.
"Voting" shall include, in respect of a security, voting, granting a
proxy, acting by consent, making a request or demand relating to
corporate action (including calling a stockholder meeting) or otherwise
giving an authorization (within the meaning of Section 14(a) of the
Securities Exchange Act of 1934) in respect of such security.
"Voting Shares" means:
(a) in the case of any corporation, stock of that corporation of
the class or classes having general voting power under ordinary
circumstances to elect a majority of that corporation's board of
directors; and
(b) in the case of any other entity, equity interests of the
class or classes having general voting power under ordinary
circumstances equivalent to the Voting Shares of a corporation.
During the term of your employment and for the twelve-month period
following the termination of your employment, regardless of the reason for such
termination, you agree to abide by the following restrictive covenants. All
terms in quotation marks are defined below.
(a) You understand and agree that the Company's "Confidential
Information" and "Trade Secrets" constitute valuable assets of the Company and
its affiliated entities and may not be used by you for your own personal use.
Accordingly, you agree that you will not, directly or indirectly, disclose to
any Person any Confidential Information or any Trade Secret or otherwise use any
Confidential Information or Trade Secret in connection with any business
activity outside of the Company. This provision is not intended to prohibit you
from disclosing or using Confidential Information or any Trade Secret to the
extent required by law, court order, or other legal process; however, if any
disclosure is so required, you will provide the Company with written notice of
such requirement prior to making the required disclosure.
(b) You also agree that you will not, directly or indirectly, for
yourself or for the benefit of any other Person or as a "Principal or
Representative" of any "Person", solicit or induce any "Protected Employee" to
terminate his or her employment relationship with the Company or to become
employed by any other Person.
(c) You also agree that you will not, directly or indirectly,
solicit or take away any "Protected Customer for the purpose of selling or
providing "Competitive Services."
(d) You also agree that you will not, directly or indirectly,
solicit or take away any "Protected Supplier" for the purpose of acquiring or
purchasing goods or services in connections with selling or providing
Competitive Services.
(e) You also agree that you will not, directly or indirectly, seek
or obtain a "Competitive Position" in the "Restricted Territory" with a
"Competitor."
Because any violation of these restrictive covenants would cause
irreparable injury to the Company that cannot be compensated for adequately by
monetary damages, you understand and
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agree that in the event you violate any of these restrictive covenants, the
Company has the right to preliminarily and permanently enjoin you from such
violations and to have the restrictive covenants specifically enforced against
you. In addition, the Company may require you to account for and pay over to the
Company any compensation or profits or other benefits that you have improperly
derived as a result of a violation of any of the restrictive covenants.
The definitions of the terms in quotation marks relating to the
restrictive covenants are as follows:
"Competitive Position" means any employment with a Competitor in which
you will use or is likely to use any Confidential Information or Trade
Secrets, or in which you have duties for such Competitor that relate to
Competitive Services and that are the same or similar to those services
actually performed by you for the Company;
"Competitive Services" means the merchandising, manufacturing,
distribution, selling or marketing of apparel products.
"Competitor" means any Person engaged, wholly or in part, in
Competitive Services.
"Confidential Information" means all information regarding the Company,
its activities, business or clients that is the subject of reasonable
efforts by the Company to maintain its confidentiality and that is not
generally disclosed by practice or authority to persons not employed by
the Company, but that does not rise to the level of a Trade Secret.
"Confidential Information" shall include, but is not limited to, sales
and marketing techniques and plans, lists of contact data, technical
data relating to the Company's products or production techniques,
purchase and supply information, details of client or consultant
contracts, current and anticipated customer requirements, pricing
policies, client billing information, price lists, market studies,
business plans, operational methods, marketing plans or strategies,
product development techniques or plans, financial plans and data
concerning the Company, and management planning information.
"Confidential Information" shall not include information that has
become generally available to the public by the act of one who has the
right to disclose such information without violating any right or
privilege of the Company. This definition shall not limit any
definition of "confidential information" or any equivalent term under
state or federal law.
"Person" means any individual or any corporation, partnership, joint
venture, limited liability company, association or other entity or
enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venture partner, investor, member, trustee,
director, officer, manager, employee, agent, representative or
consultant.
"Protected Customers" means any Person to whom the Company has sold its
products or services or solicited to sell its products or services
during the twelve (12) months prior to the termination Date. However, a
Person is a Protected Customer only if: (a) you had business dealings
with the Protected Customer on the Company's behalf; or (b) you were
responsible for supervising or coordinating the dealings between the
Company and the Protected Customer or (c) you obtained Trade Secrets or
Confidential Information about the Protected Customer as a result of
his association with the Company.
"Protected Employees" means employees of the Company who were employed
by the Company at any time within six (6) months prior to the date of
the termination of your employment with the Company.
"Protected Suppliers" means any person from whom the Company has
purchased products or services or solicited to purchase products or
services during the twelve (12) months prior to the
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termination Date. However, a Person is a Protected Supplier only if:
(a) you had business dealings with the Protected Supplier on the
Company's behalf; or (b) you were responsible for supervising or
coordinating the dealings between the Company and the Protected
Supplier or (c) you obtained Trade Secrets or Confidential Information
about the Protected Supplier as a result of his association with the
Company.
"Restricted Territory" means the United States and North, Central, and
South America, the United Kingdom, Western Europe, Australia, New
Zealand, and Fiji. The Company and you acknowledge and agree that the
Company and its subsidiaries do business and sell men's, women's, boys'
and girls' sportswear (tops and bottoms) in all 50 states of the United
States and in each other country in the Restricted Territory.
"Trade Secret" means all information regarding the Company, without
regard to form, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial data,
financial plans, product plans, distribution lists or a list of actual
or potential customers, advertisers or suppliers which is not commonly
known by or available to the public and which information: (a) derives
economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and (b) is
the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Without limiting the foregoing, Trade Secret
means any item of Confidential Information that constitutes a "trade
secret(s)" under the common law or statutory law of the State of
Florida.
After your employment is terminated by the Company, you agree to return
to the Company any of the Company's property in your possession, which would
include manuals, pamphlets, instructional materials, computer programs,
software, art work, financial information, or any copyrightable material.
This Memorandum relating to your employment arrangement with the
Company is intended to be a contract binding on you and the Company, and each of
our respective heirs, successors, and assigns. The terms of this Memorandum are
governed by the laws of the State of Florida, and you agree that personal
jurisdiction for any proceeding brought pursuant to this Memorandum shall be in
the appropriate county or circuit court of the Thirteenth Judicial Circuit for
Hillsborough County, Florida or the Federal District Court of the Middle
District of Florida, Hillsborough County Division. Venue for any legal action
arising under this Memorandum will be in Hillsborough County, Florida.
The terms of this Memorandum may only be changed or amended in a
written document signed by the Company and you.
Any notice that is given under this Memorandum will be given to the
Company at the address set forth above and to you at your home address as it
appears on the records of the Company at such time.
This Memorandum is intended to take the place of any other employment
agreement or arrangement that you may have with the Company, and any such other
agreement or arrangement is terminated as of the Effective Date; however, you
agree that any payments or benefits to you or to the Company or otherwise that
may be required under such other agreements or arrangements in the event of
termination do not apply.
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If you are in agreement with the terms and conditions of your
employment by the Company as described in this Memorandum, please sign below.
TROPICAL SPORTSWEAR
INT'L CORPORATION
By: /s/ Xxxxxxx Xxxxx
Print Name: /s/ Xxxxxxx Xxxxx
Title: Chief Executive Officer
Dated: January 9, 2004,
but effective for all purposes as of the
Effective Date
APPROVED AND AGREED TO:
/s/ Xxxxx X. Xxxxx
XXXXX X. XXXXX
Dated: January 9, 2004
but effective for all purposes as of the Effective Date
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