EXHIBIT 10.04
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made effective as of September 15,
1997 (the "Employment Date") by and between Xxxxxx X. Xxxxxxx (the "Executive")
and X. Xxxxx, Inc., a Massachusetts corporation (the "Company"). In
consideration of the mutual covenants contained in this Agreement, the Company
and the Executive agree as follows:
1. Employment. Under and subject to the terms and conditions set forth
in this Agreement, the Company agrees to employ the Executive during the Term
(as defined in Section 7 hereof) as an Executive Vice President of the Company
and as President and Chief Executive Officer of the Casual Male Division of the
Company, and the Executive hereby accepts such employment.
2. Duties. The Executive agrees that during the Term (or until earlier
terminated from employment pursuant to Section 13), he shall perform for the
Company, and any subsidiary, parent or other affiliate of the Company
("Affiliate"), to the best of his ability, the duties of an Executive Vice
President of the Company and President and Chief Executive Officer of the Casual
Male Division, and/or such other duties as may be assigned to him from time to
time by the Company. The Executive shall report directly to the Chief Executive
Officer of the Company (the "CEO"). The Executive shall have the authority,
responsibilities and duties commensurate with those of presidents of divisions
of the Company, as well as any other duties appropriate for an executive of the
Executive's level that may be assigned to the Executive from time to time by the
CEO or the Board of Directors of the Company (the "Board"). The Executive
further agrees to devote his entire business time, attention and energies
exclusively to such employment (provided the Executive may make passive
investments in other enterprises if the Executive at not time owns, directly or
indirectly, more than 5% of the outstanding equity ownership of such enterprise)
and to conform to the rules, regulations, instructions, personnel practices and
policies of the Company and its subsidiaries, as existing and amended from time
to time, provided that they do not alter, diminish, restrict, limit or frustrate
the terms and intentions of this Agreement.
3. Compensation.
(a) Base Salary. The Company shall pay the Executive an annual
base salary ("Base Salary") of not less than $9,615.38 weekly (Five Hundred
Thousand Dollars ($500,000) annualized) for the first year of the Term. The Base
Salary will be increased to the rate of Five Hundred Fifty Thousand Dollars
($550,000) annualized on the Executive's first anniversary of employment and to
the rate of Six Hundred Thousand Dollars ($600,000) annualized on the
Executive's second anniversary of employment.
(b) Incentive Compensation Plan.
(i) The Executive is eligible to participate in the Company's
Cash Incentive Compensation Plan (the "Incentive Plan").
Notwithstanding any terms of the Incentive Plan to the contrary, the
Executive's Target Award Size shall be sixty percent (60%) of Base
Salary and the maximum Potential Incentive Award Opportunity shall be
one hundred twenty percent (120%) of Base Salary. "Target Award Size"
and "Potential Incentive Award Opportunity" shall have the same
meanings as are set forth in the Incentive Plan. The Executive shall
have a substantial role in developing the profit goals and targets for
the Casual Male Division under the Incentive Plan.
(ii) The Company shall pay the Executive a bonus of
Two Hundred Fifty Thousand Dollars ($250,000) ("Guaranteed
Bonus") on or about the first anniversary of the Executive's
employment. The Guaranteed Bonus shall consist of two components:
(A) $69,180 of the Guaranteed Bonus shall be treated
as the full bonus due to the Executive under the
Incentive Plan with respect to the 1997-98 fiscal
year, notwithstanding any provision of the
Incentive Plan to the contrary.
(B) $180,820 of the Guaranteed Bonus shall be
credited against the first 264/365ths of any
bonus due to the Executive pursuant to the
Incentive Plan with respect to the 1998-99 fiscal
year, and the remaining 101/365ths of any bonus
due to the Executive for such fiscal year shall
be paid in full in all events.
4. Stock and Stock Options.
(a) Plan Option. Effective on the Employment Date, the Company
shall award the Executive an option to purchase one hundred thousand (100,000)
shares of the Company's common stock ("Stock") under the 1994 Equity Incentive
Plan (the "Equity Plan"), subject to the vesting schedule set forth in this
Section 4(a). Such option is referred to in this Agreement as the Plan Option.
Shares subject to the Plan Option shall be priced at the Fair Market Value (as
defined in the Equity Plan) on the Employment Date. Subject to the provisions of
Section 13(f) hereunder, the Plan Option shall vest in four (4) equal annual
installments, beginning on the last day of the first year of the Executive's
employment and continuing on the three following
anniversaries thereof. The Plan Option shall be subject to the Equity Plan. The
award of the Plan Option shall further be subject to the Executive's execution
of a Non-Qualified Stock Option Agreement in the form of Exhibit A.
(b) Non-Plan Option. Effective on the Employment Date, the
Company shall award the Executive an option to purchase fifty thousand
(50,000) shares of Stock at a price of $8.625 per share, subject to the
vesting schedule set forth in this Section 4(b), and further subject to
adjustment or other actions consistent with Sections 3(b) and 3(c) of the
Equity Plan. Such option is referred to in this Agreement as the Non-Plan
Option. Subject to the provisions of Section 13(f) hereunder, the Non-Plan
Option shall vest in four (4) equal annual installments on the same vesting
dates as the Plan Option. The award of the Non-Plan Option shall be subject to
the Executive's execution of an agreement in the form of Exhibit B.
(c) Additional Non-Plan Option. Effective on the Employment
Date, the Company shall award the Executive an option to purchase sixty
thousand (60,000) shares of Stock, subject to the vesting schedule set forth
in this Section 4(c), and further subject to adjustment or other actions
consistent with Sections 3(b) and 3(c) of the Equity Plan. Such option is
referred to in this Agreement as the Additional Non-Plan Option. The
Additional Non-Plan Option shall be priced at One Dollar ($1.00) per share.
Subject to the provisions of Section 13(f) hereunder, the Additional Non-Plan
Option shall vest in two (2) equal annual installments on the first two annual
vesting dates of the Plan Option. The award of the Additional Non-Plan Option
shall be subject to the Executive's execution of an agreement in the form of
Exhibit C.
(d) Supplemental Options. In addition to the stock options set
forth above, the Company shall award the Executive further options to purchase
Stock, referred to in this Agreement as Supplemental Options. The award and
vesting of the Supplemental Options shall be subject to the Executive's
continued employment. Subject to adjustment or other actions consistent with
Sections 3(b) and 3(c) of the Equity Plan, the Company shall award the Executive
an option to purchase at least twenty-five thousand (25,000) shares of stock on
the same date as the Board of Directors generally approves the award of stock
options to other senior executives of the Company as a group but in no event
later than the date immediately preceding the second anniversary of the
Employment Date, and shall award the Executive an option to purchase at least an
additional twenty-five thousand (25,000) shares of Stock on the same date as the
Board of Directors generally approves the award of stock options to other senior
executives of the Company as a group but in no event later than the date before
the date immediately preceding the third anniversary of the Employment Date.
Shares subject to a Supplemental Option shall have a price equal to the Fair
Market Value on the date of the award and shall have a vesting schedule of no
longer than four (4) years. The Company may condition the award of a
Supplemental Option on the Executive's execution of an agreement consistent with
this Section 4(d) and including other terms established by the Company. The
award of a Supplemental Option shall further be subject to the availability of
stock in the Equity Plan or in a subsequently established stock option plan of
the Company.
(e) Performance Shares. Subject to the Executive's continued
employment to and including the Determination Date and the other terms of this
Section 4(e), the Company shall award Stock to the Executive as a Performance
Share Award pursuant to Section 8 of the Equity Plan and otherwise subject to
the Equity Plan including, without implication of limitation, that the number of
shares awarded shall be subject to Sections 3(b) and 3(c) of the Equity Plan.
The Determination Date shall be the date immediately preceding the second
anniversary of the Employment Date, provided that the Executive may delay the
Determination Date to the date immediately preceding the third anniversary of
the Employment Date by written notice to the CEO given no later than sixty (60)
days before the second anniversary of the Employment Date. The number of shares
to be awarded shall depend on the average of the Fair Market Value for the
consecutive ten (10) business days immediately preceding the Determination Date
("Average Fair Market Value"). If the Average Fair Market Value is Ten Dollars
($10.00) or less, the Company shall not award any shares to the Executive as a
Performance Share Award. If the Average Fair Market Value is Fifteen Dollars
($15.00) or more, the Company shall award fifty thousand (50,000) shares to the
Executive. If the Average Fair Market Value is greater than Ten Dollars ($10.00)
and less than Fifteen Dollars ($15.00), the Company shall award the Executive a
prorated portion of fifty thousand (50,000) shares.
5. Other Benefits. The Executive shall be entitled to participate in
all executive benefit programs that the Company establishes and makes available
generally to Presidents of divisions of the Company and Executive Vice
Presidents of the Company including, without implication of limitation, family
health insurance plans, life insurance plans, retirement plans, disability
insurance plans and vacation programs. Such participation shall be subject to
the terms of the plan documents and/or policies. This Section 5 shall not be
construed to create any obligation on the part of the Company to establish any
executive benefit or to maintain the effectiveness of any executive benefit
program. Notwithstanding the foregoing, the Executive shall be entitled to
receive group family health insurance coverage effective immediately upon the
Employment Date, provided that if such coverage is not available to the
Executive at that time under the terms of the Company's group health insurance
plan for employees, the Company shall pay the premium cost of the continuation
of the Executive's health insurance coverage from his former employer pursuant
to COBRA until health insurance coverage is available to the Executive under the
Company's health insurance plan.
6. Expenses. The Company shall reimburse the Executive for
all reasonable travel, entertainment and other business expenses incurred
or paid by the Executive in performing his duties under this Agreement and
commensurate with those expenses generally incurred by and reimbursed to
presidents of divisions of the Company and Executive Vice Presidents of the
Company upon presentation by the
Executive of expense statements or vouchers and such other supporting
information as the Company may from time to time request, provided that the
amount available for such expenses may be fixed in advance by the Board after
consultation with the Executive.
7. Effective Date and Term. This Agreement shall become effective as of
the Employment Date. The Executive's employment under this Agreement shall
commence on the Employment Date and, unless sooner terminated as provided herein
or extended shall continue for a term (the "Term") to and including the date
immediately preceding the third anniversary of this Agreement.
8. Car Allowance. The Company shall provide the Executive
with a car allowance of Nine Hundred Dollars ($900) per month. Subject to
appropriate verification, the Company shall also reimburse the Executive
for all gasoline and automobile insurance expenses that he incurs with respect
to one automobile.
9. Relocation Costs. The Company shall provide the
following payments to the Executive for the purpose of assisting him with his
relocation from his current residence in New York (the "current residence").
Reimbursement of expenses shall be subject to appropriate verification and
reasonableness of expenses.
(a) Moving Expenses. The Company shall reimburse the Executive
for the costs of packing the Executive's household goods, as well as the
reasonable costs for loading, transporting from his current residence to the new
location, unloading and unpacking such goods in the new location.
(b) Short Term Storage. The Company shall reimburse
the Executive for short term storage costs for up to twelve (12) months, or
for such longer period as may be approved in writing by the CEO.
(c) Closing Costs on Sale of Current Residence. In connection
with the Executive's sale of his current residence, the Company shall reimburse
the Executive for those of the following costs that commonly accrue to the
seller: real estate agency fees charged to the seller, attorney's fees, title
charges, recording and transfer charges, and other similar costs; provided that
taxes and other assessments in connection with the closing are not reimbursable.
(d) Costs of Purchase of New Residence. The Company
acknowledges that, in connection with his relocation from New York to Boston,
the Executive has initially chosen to rent a residence rather than purchase one.
In the event the Executive determines to purchase a residence, the Company shall
reimburse the Executive for the following costs associated with the purchase of
his first Massachusetts residence: attorney's fees, loan application fees, and
other bank fees, title insurance and recording fees; but excluding prepayments
of principal or interest, tax payments, insurance payments, escrow payments for
taxes or insurance, and points; all of which are not reimbursable.
10. Taxation of Payments and Benefits.
(a) Tax Deductions and Reports. The Company shall undertake to
make deductions, withholdings and tax reports with respect to payments and
benefits under this Agreement to the extent that it reasonably determines that
it is required to make such deductions, withholdings and tax reports. Payments
under this Agreement that are subject to deductions and withholdings shall be in
amounts net of such deductions and withholdings.
(b) Gross Up of Certain Payments. Notwithstanding the
foregoing, the Company shall gross up otherwise taxable reimbursements made to
the Executive under Sections 9(a) through 9(d) of this Agreement, provided that
the Company shall use its standard gross up methodology in calculating the
grossed up amounts to be paid to the Executive. Under the Company's standard
gross up methodology, the Company makes a taxable payment equivalent to the
Company's reasonable estimate of the Executive's federal, state and any local
income taxes and the Executive's FICA taxes on the amount to be grossed up. It
is the intent of this Section that, with respect to those reimbursements made to
the Executive under Sections 9(a) through 9(d), no tax cost result to the
Executive.
11. Non-Competition; Non-Solicitation.
(a) During the Executive's employment under
this Agreement and for a period of two (2) years after the date of termination
of such employment (the "Termination Date"), the Executive will not,
without the express written consent of the Company, anywhere in the United
States or any territory or possession thereof:
(i) engage in, either as an agent, consultant,
director, employee, executive, officer, partner, proprietor or
shareholder (provided that the Executive may make passive investments
in competitive enterprises if the Executive at no time owns, directly
or indirectly, more than 5% of the outstanding equity ownership of such
enterprise) any specialty retail business which (i) primarily
distributes, sells or markets so-called "big and tall" apparel of any
kind for men or which utilizes the "big and tall" retail or wholesale
marketing concept as part of its business; or any business which (ii)
primarily distributes, sells or markets work related apparel for men or
women, including uniforms, whether at retail or commercially through
corporate sales to other businesses; or (iii) any other specialty
retail businesses which the Company may acquire or open, develop or
organize subsequent to the date hereof and which are operated as
principal business units of the Company as of the Termination Date; or
(ii)solicit or hire any management level employee of
the Company or any subsidiary or affiliate of the Company or otherwise
interfere with, disrupt or attempt to interfere with the relationship
between the Company or any subsidiary or affiliate of the Company and
any such employee;
provided, however, that the obligations set forth herein
shall be void and of no further force or effect in the event that the Company
shall fail, after receipt of written notice and an opportunity to cure, to honor
any obligation it may have to pay the Executive Basic Severance pursuant to
Section 13(f) hereof.
12. Confidential Information and Cooperation.
(a) Confidential Information. As used in this Agreement,
"Confidential Information" means information belonging to the Company which is
of value to the Company in the course of conducting its business and the
disclosure of which could result in a competitive or other disadvantage to the
Company. Confidential Information includes, without limitation, financial
information, reports, and forecasts; trade secrets; know-how; software; market
or sales information or plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the management of the
Company. Confidential Information includes information developed by the
Executive in the course of the Executive's employment by the Company, as well as
other information to which the Executive may have access in connection with the
Executive's employment. Confidential Information also includes the confidential
information of others with which the Company has a business relationship.
Notwithstanding the foregoing, Confidential Information does not include
information in the public domain (unless due to a breach of the Executive's
duties under Section 12(b)) or information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the Executive,
(ii) was available to the Executive on a non-confidential basis from a source
other than the Company or its agents or representatives, or (iii) becomes
available to the Executive on a non-confidential basis from a source other than
the Company, its agents or representatives, provided that such source is not
bound by a confidentiality agreement with the Company, its agents or
representatives or otherwise prohibited from transmitting the information to the
Executive.
(b) Confidentiality. The Executive understands and agrees that
the Executive's employment creates a relationship of confidence and trust
between the Executive and the Company with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Company and after its termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Company, except as
may be necessary in the ordinary course of performing the Executive's duties to
the Company.
(c) Documents, Records, etc. All documents, records, data,
apparatus, equipment and other physical property, whether or not pertaining to
Confidential Information, that are furnished to the Executive by the Company or
are produced by the Executive in connection with the Executive's employment will
be and remain the sole property of the Company. The Executive shall return to
the Company all such materials and property as and when requested by the
Company. In any event, the Executive shall return all such materials and
property immediately upon termination of the Executive's employment for any
reason. The Executive shall not retain with the Executive any such material or
property or any copies thereof after such termination.
(d) Litigation and Regulatory Cooperation. During and after
the Executive's employment, the Executive shall cooperate fully, and in all
reasonable respects, respectively, with the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought in
the future against or on behalf of the Company which relate to events or
occurrences that transpired while the Executive was employed by the Company. The
Executive's cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually
convenient times. During and after the Executive's employment, the Executive
also shall cooperate fully, and in all reasonable respects, respectively, with
the Company in connection with any investigation or review of any federal, state
or local regulatory authority as any such investigation or review relates to
events or occurrences that transpired while the Executive was employed by the
Company. The Company shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the Executive's performance
of obligations pursuant to this Section 12(d) and provided such obligations are
performed after the Executive's employment, he shall be reimbursed, on a per
diem basis, at such rate as is calculated by dividing his last Base Salary with
the Company by three hundred sixty-five (365) days.
(e) Injunction. The Executive agrees that it would be
difficult to measure any damages caused to the Company which might result from
any breach by the Executive of the promises set forth in Section 11 or in
Section 12, and that in any event money damages would be an inadequate remedy
for any such breach. Accordingly, subject to Section 17 of this Agreement, the
Executive agrees that if the Executive breaches any portion of this Agreement,
which breach is not cured within thirty (30) days of the Executive's receipt of
notice thereof by the Company, the Company shall be entitled, in addition to all
other remedies that it may have, to an injunction or other appropriate equitable
relief to restrain any such breach without showing or proving any actual damage
to the Company.
13. Termination. The Executive's employment pursuant to this
Agreement shall continue to and including the end of the Term (or any
extension of the Term), except that it may be terminated before the end of
the Term or any extension of the Term in any of the following circumstances:
(a) Resignation for Good Reason. In the event that the
Executive resigns for good reason, he shall give the Company at least ninety
(90) days notice of his resignation, which shall state the nature of the good
reason. In the event that the Executive resigns for good reason with at least
ninety (90) days notice, the Company shall pay to the Executive Basic Severance,
as defined below. In the event that the Executive resigns for good reason with
less than ninety (90) days notice, the Executive's compensation and benefits
pursuant to Sections 3 through 9 of this Agreement ("Compensation") shall end
effective upon the Termination Date. For purposes of this Agreement, "good
reason" shall mean either: (i) a significant reduction of the Executive's level
of authority or scope of duties below those commensurate with those exercised by
presidents of divisions of the Company as of the Employment Date or other
material breach by the Company of its obligations under this Agreement, provided
that such reduction or other material breach is not cured by the Company within
thirty (30) days after notice; or (ii) a relocation by the Company of its
corporate offices beyond three hundred (300) miles.
(b) Death. In the event of the death of the Executive during
the Term, his employment shall terminate and the Company shall pay the
Executive's surviving spouse, or to the Executive's estate if there is no
surviving spouse, (i) the Executive's Base Salary for one year from the date of
death, payable in accordance with the Company's regular pay intervals for its
senior executives and (ii) amounts under the Incentive Plan, if any, payable
with respect to the fiscal year in which his death occurs which otherwise would
have been paid to the Executive on the basis of the results for such fiscal
year, prorated to the date of his death. Upon the death of the Executive, the
rights of the Executive's surviving spouse or estate hereunder, as the case may
be, shall be limited solely to the benefits set forth in this Section 13(b).
(c) For Cause. The Company may upon notice terminate the
Executive's employment for "cause", which shall mean the occurrence of one or
more of the following events: (i) the Executive is convicted of, pleads guilty
to, or confesses to any felony or any act of fraud, misappropriation or
embezzlement which has an immediate and materially adverse effect on the Company
or any Subsidiary (as defined in the Equity Plan), as determined by the Board in
good faith in its sole discretion, (ii) the Executive engages in a fraudulent
act to the material damage or prejudice of the Company or any Subsidiary or in
conduct or activities materially damaging to the property, business or
reputation of the Company or any Subsidiary, all as determined by the Board in
good faith in its sole discretion, (iii) any material act or omission by the
Executive involving malfeasance or negligence in the performance of the
Executive's duties to the Company or any Subsidiary to the material detriment of
the Company or any Subsidiary, as determined by the Board in good faith in its
sole discretion which has not been corrected by Executive within thirty (30)
days after written notice from the Company of any such act or omission, or (iv)
failure by the Executive to comply in any material respect with the terms of
this Agreement or any written policies or directives
of the Board as determined by the Board in good faith in its sole discretion,
which has not been corrected by Executive within thirty (30) days after written
notice from the Company of such failure. In the event that the Executive's
employment is terminated for cause, the Executive's Compensation shall end
effective upon the Termination Date.
(d) Without Cause. The Company may upon thirty (30)
days notice terminate the Executive's employment at any time without cause.
In such event, the Company shall pay to the Executive Basic Severance, as
defined below.
(e) Disability. In the event that there exists "cause" to
terminate the Executive's employment and such cause is the result of a
"disability" of the Executive, the Company shall (i) continue to pay the
Executive's Base Salary from the date such disability commences, payable in
accordance with the Company's regular pay intervals for its senior executives
and (ii) pay to the Executive amounts under the Incentive Plan, if any, which
otherwise would have been paid to the Executive on the basis of the results for
the fiscal year in which such termination occurs, prorated to the date of such
disability. The foregoing shall not affect the Executive's rights to long term
disability benefits under any group long term disability plan offered by the
Company, except that the Base Salary shall be reduced by any such benefits paid
effective during the period of payment of Base Salary. In all other respects,
Compensation shall end effective on the Termination Date. For purposes of this
Agreement, a "disability" shall mean the inability of the Executive to perform
his job responsibilities and duties that has lasted or is expected to last for
at least three (3) months and that is due to a physical or mental illness or
other physical or mental impairment. Such three month period shall be in
addition to any period of a leave of absence to which the Executive may be
entitled pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. ss.2601
et seq. Nothing in this Agreement shall be construed to waive or otherwise limit
the Executive's rights, if any, under existing law, including, without
limitation, the Americans With Disabilities Act, 42 U.S.C. ss.12101 et seq.
(f) Basic Severance.
(i) "Basic Severance" means (A) payment of
Severance Pay from the date immediately following the Termination Date to
and including the date immediately preceding the fourth anniversary of
the Employment Date, and (B) immediate vesting of all unvested Stock
Options previously granted to the Executive pursuant to Section 4
of this Agreement. Any Stock Options with respect to which vesting is
accelerated pursuant to this Section 13(f)(i) shall be exercisable within ninety
(90) days of the date of acceleration.
(ii) "Severance Pay" means (A)
continuation of Base Salary less a setoff equal to base salary as an
employee or cash compensation as a consultant earned during
the period of Basic Severance, and (B) amounts under the Incentive Plan, if any,
payable with respect to the fiscal year in which the Termination Date occurs
which otherwise would have been paid to the Executive on the basis of the
results for such fiscal year, prorated to the Termination Date.
(g) Change of Control. If the Company reassigns the Executive
such that the Executive ceases reporting to the current CEO, the Executive may
resign within six (6) months of such reassignment and shall thereupon be
entitled to Basic Severance, provided that (A) the Executive's notice of such
resignation occurs after a Change of Control, and (B) the Executive gives at
least ninety (90) days notice of such resignation in which case the resignation
shall become effective as of such notice date rather than the expiration of such
ninety (90) days. A "Change of Control" shall have the same meaning as set forth
in Section 13(c) of the Equity Plan.
14. Non-Extension of the Term. If the Executive's employment continues
to and including the end of the Term and the Company does not accept a written
request by the Executive to extend the end of the Term to and including the date
immediately preceding the fourth anniversary of the Employment Date pursuant to
this Section 14, the Executive shall be entitled to resign from employment
effective as of the end of the Term and receive Basic Severance. The Executive
shall submit any written request for an extension pursuant to this Section 14 no
later than three (3) months before the end of the Term. The Company may accept
any such request by notice to the Executive no later than thirty (30) days after
the Executive's request. The request shall be treated as a notice subject to
Section 19. Any extension pursuant to this Section 14 shall provide for
continuation of this Agreement on the same terms as in effect at the originally
scheduled end of the Term.
15. Compliance with Bloomingdale's Agreement. Each of the
Company and the Executive shall comply with his or its respective
obligations to Bloomingdale's, Inc. pursuant to the Agreement and Release
between Bloomingdale's, Inc. and each of the Company and the Executive
(the "Bloomingdale's Agreement").
16. Attorney's Fees. The company shall reimburse the
Executive for all reasonable attorney's fees that the Executive occurs
in connection with the negotiation of this Agreement and the Bloomingdale's
Agreement.
17. Arbitration of Disputes. Any controversy or 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 Boston, Massachusetts 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 the Executive or the Company may be a party with
regard to any such controversy or claim, 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 17 shall be specifically enforceable.
Notwithstanding the foregoing, this Section 17 shall not preclude either party
from pursuing a court action for the sole purpose of obtaining a temporary
restraining order or a preliminary injunction in circumstances in which such
relief is appropriate, provided that any other relief shall be pursued through
an arbitration proceeding pursuant to this Section 17.
18. Consent to Jurisdiction. To the extent that any court action is
permitted consistent with or to enforce Section 17 of this Agreement, the
parties hereby consent to the jurisdiction of the Superior Court of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts. 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.
19. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been given
and received when actually delivered, one business day after dispatch by
telegraphic means, two business days after dispatch by recognized overnight
delivery service, or five days after mailing by certified or registered mail
with proper postage affixed, return receipt requested and addressed as follows
(or to such other address as a party entitled to receive notice hereunder may
have designated by notice pursuant to this Section 19):
(a) If to the Company:
X. Xxxxx, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
X. Xxxxx, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
(b) If to the Executive:
Xx. Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx, P.C.
0000 Xxxxxxxx - Xxxxx 0000
Xxx Xxxx, XX 00000
20. Severability. If any provision of this Agreement or its application
to any person or circumstances is invalid or unenforceable, then the remainder
of this Agreement or the application of such provision to the other persons or
circumstances shall not be affected thereby. Further, if any provision or
application hereof is invalid or unenforceable, then a suitable and equitable
provision shall be substituted therefor in order to carry out so far as may be
valid or enforceable the intent and purposes of the invalid and unenforceable
provision.
21. Applicable Law. This Agreement shall be interpreted
and construed in accordance with, and shall be governed by, the laws of the
Commonwealth of Massachusetts without giving effect to the conflict of law
provisions thereof.
22. Assignment. Neither of the parties hereto shall, without the
written consent of the other, assign, or transfer this Agreement or any rights
or obligations hereunder, provided that in the event that the Company sells all
or substantially all of its assets, the Company may assign its rights and
transfer its obligations hereunder to the purchaser of such assets. A merger of
the Company with or into another corporation shall be deemed not to be an
assignment of this Agreement, and, in any such event, this Agreement shall inure
to the benefit of and to be binding upon the surviving corporation and the
Executive. Subject to the foregoing, this Agreement shall to be binding upon,
and shall inure to the benefit of, the parties and their respective successors,
heirs, administrators, executors, personal representatives and assigns.
23. Headings. The section and paragraph headings contained
in this Agreement are for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
24. Waiver of Breach. Any waiver by either the Company
or the Executive of a breach of any provision of this Agreement shall not
operate or to be construed as a waiver of any subsequent breach.
25. Amendment of this Agreement. This Agreement may to be
altered, amended or modified, in whole or in part, only by a writing
signed by both the Executive and the Company.
26. Integration. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof and supersedes
all prior agreements whether oral or written with respect to such subject matter
between the parties, with the exception of a certain letter dated August 4, 1997
from Xxxx Xxxxxxxxx to Xxxxxx Xxxxxxx with respect to indemnification.
Intending to be legally bound, the Company and the Executive have
signed this Agreement as if under seal as of the date set forth at the head of
the first page.
X. XXXXX, INC.
By: /s/Xxxx X. Xxxxxxxxx September 15, 1997
------------------------------- ------------------
Xxxx X. Xxxxxxxxx Date
Chief Executive Officer
/s/Xxxxxx X. Xxxxxxx September 15, 1997
------------------------------------- ------------------
Xxxxxx X. Xxxxxxx Date
GLASSER7.DOC
