EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This agreement ("Agreement") is made on November 14, 2005, at Commerce,
California, between Antik Denim, LLC (referred to herein as "Employer"), and
Alexandre Caugant (referred to herein as "Employee").
RECITALS
A. The Employer is engaged in the design, development,
manufacturing, marketing and wholesale of apparel and related accessories
bearing the "Antik Denim" trademark, and maintains business premises at 0000 X.
Xxxxxxx Xxxxxx, Xxxxxxxx, XX 000000.
B. The Employee is an experienced fashion designer with expertise
in denim and knit apparel, who resides at 0000 Xxxxxx Xxxxxx, #00X, Xxx Xxxxxxx,
XX 00000. Employee is willing to be employed by the Employer, and the Employer
is willing to employ the Employee, on the following terms, covenants, and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the
parties, Employer and Employee covenant and agree as follows:
1. NATURE AND PLACE OF EMPLOYMENT.
Employer employs, engages, and hires Employee as a Senior Vice
President and Employee accepts and agrees to such hiring, engagement, and
employment. Subject to the supervision and pursuant to the orders, advice, and
directions of Employer, Employee will design and develop denim and knit apparel
and related accessories bearing the "Antik Denim" trademark, and will perform
such other duties as are customarily performed by one holding such position in
similar businesses or enterprises as that engaged in by Employer, and will also
render such other and unrelated services and duties as may be assigned to
Employee from time to time by Employer.
2. MANNER OF PERFORMANCE OF EMPLOYEE'S DUTIES.
The Employee agrees that Employee at all times will perform,
faithfully, industriously, and to the best of the Employee's ability,
experience, and talent, all duties that may be required of the Employee pursuant
to the express and implicit terms of this Agreement, to the reasonable
satisfaction of the Employer. Such duties will be rendered at 0000 X. Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and at such other place or places as the
Employer in good faith may require, or as the interests, needs, business, and
opportunities of the Employer will require or make advisable.
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3. DURATION OF EMPLOYMENT.
The term of this Agreement will be for a period of five (5) years,
commencing on November14, 2005 and terminating on November 13, 2010, subject,
however, to prior termination as provided by this Agreement.
4. COMPENSATION AND EXPENSES.
a. SALARY. Employer will pay to Employee (a) a salary of
Two Hundred Forty Thousand Dollars ($240,000.00) per year, which shall be
payable every two weeks on a prorated basis. Employer shall withhold and deduct
all taxes required by federal and state laws and any other authorized
deductions. For the purposes of this Agreement, "Net Sales" shall mean shall
mean gross sales (the gross invoice amount billed customers), less discounts,
freight charges and allowances actually shown on the invoice and, further, less
any bona fide returns (net of all returns actually made or allowed as supported
by credit memorandum actually issued to the customers), and less any
uncollectible accounts or allowances.
b. BONUS, INCENTIVE, SAVINGS, AND RETIREMENT PLANS. As
Employee becomes eligible, Employee shall be entitled to participate in all
bonus, incentive, stock option, savings, and retirement plans, policies, and
programs made available by the Employer to other peer employees of the Employer.
c. WELFARE BENEFIT PLANS. As Employee becomes eligible,
Employee may participate in and shall receive benefits under welfare benefit
plans, policies, and programs, including medical, dental, disability, and life
insurance plans and programs that the Employer makes available to other
employees of the Employer.
d. VACATION AND SICK LEAVE. As Employee becomes
eligible, Employee shall be entitled to accrue paid days of vacation in
accordance with the vacation accrual schedule that the Employer offers to its
other employees. Employee shall also be entitled to be absent from employment
due to illness for five (5) days per year with full pay. Employee's vacation and
sick leave shall be taken in accordance with and shall be subject to the terms
of the plans and policies in effect generally as to other employees of the
Employer.
e. EXPENSES. The Employer shall reimburse Employee for
all reasonable business-related expenses incurred by Employee in connection with
his employment with the Employer in accordance with the policies, practices, and
procedures in effect generally with respect to other employees of the Employer.
f. CHANGES BY EMPLOYER. The Employer reserves the right
to modify, suspend, or discontinue any and all of the above-mentioned plans,
practices, policies, and programs at any time as long as such action is taken
generally with respect to other similarly situated employees of the Employer.
5. TERMINATION OF CONTRACT ON PERMANENT DISABILITY OF EMPLOYEE
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a. Notwithstanding anything to the contrary in this
Agreement, Employer is given the option to terminate this Agreement in the
event, during the term of this Agreement, the Employee becomes permanently
disabled, as the term "permanently disabled" is fixed and defined in this
Agreement. Such option is to be exercised by the Employer giving notice to the
Employee by registered mail, addressed to the Employee in care of the Employee
at Employee's most recent home address or at such other address as the Employee
designates in writing, of the Employer's intention to terminate the Agreement on
the last day of the month during which the notice is mailed. On the giving of
this notice, the term of this Agreement will cease on the last day of the month
in which the notice is mailed, with the same force and effect as if that last
day of the month were originally set forth as the termination date.
b. For the purposes of this Agreement, the Employee will
be deemed to have become permanently disabled if, during any year of the term of
this Agreement, because of ill health, physical or mental disability, or for
other causes beyond the Employee's control, the Employee will have been
continuously unable or unwilling or have failed to perform the Employee's duties
for ninety (90) consecutive days or if, during any year of the term of this
Agreement, the Employee has been unable or unwilling or have failed to perform
the Employee's duties for a total period of ninety (90) days, either consecutive
or not. For the purposes of this Agreement, the term "any year of the term of
this Agreement" is defined to mean any period of 12 calendar months commencing
on the first day of June and terminating on the last day of May of the following
year.
(c) The determination of partial or total disability will
be made at the sole discretion of the Employer, but the decision must not be
unreasonable or arbitrary. The Employee, if requested by the Employer, must
submit to a mental and physical examination to assist the Employer to make its
determination. Failure to comply with this request will prevent the Employee
from challenging the decision of the Employer in this regard.
6. TERMINATION OF CONTRACT ON DISCONTINUANCE OF BUSINESS.
Notwithstanding anything herein to the contrary, in the event Employer
discontinues operating its business at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx, then this Agreement will cease and terminate as of the last day of
the month in which the Employer ceases operations at that location, with the
same force and effect as if that last day of the month were originally set forth
as the termination date of this Agreement.
7. DEVOTION OF FULL TIME TO BUSINESS.
a. The Employee will devote all of the Employee's time,
attention, knowledge, and skill solely and exclusively to the business and
interest of the Employer, and the Employer will be entitled to all benefits,
profits, and other issues arising from or incident to any and all work,
services, and advice of the Employee, and the Employee expressly agrees that,
during the term of this Agreement, the Employee will not be interested, directly
or indirectly, in any form, fashion, or manner, as partner, officer, director,
stockholder, advisor, Employee, or in any other form or capacity, in any
business similar to Employer's business or any allied trade.
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b. However, nothing in this Agreement may be deemed to
prevent or limit the right of the Employee to invest any of the Employee's
surplus funds in the capital stock or other securities of any corporation whose
stock or securities are publicly owned or are regularly traded on any public
exchange, nor may anything in this Agreement be deemed to prevent Employee from
investing, or limit the Employee's right to invest its surplus funds, in real
estate.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
a. The Employee specifically agrees that the Employee
will not at any time, in any fashion, form, or manner, either directly or
indirectly, divulge, disclose, or communicate to any person, firm, or
corporation in any manner whatsoever any information of any kind, nature, or
description concerning any matters affecting or relating to the business of the
Employer, including, but not limited to, the names of any of the Employer's
customers, the prices it obtains or has obtained or at which the Employer sells
or has sold its products, or any other information concerning the business of
Employer, its manner of operation, its plans, processes, or other data of any
kind, nature, or description without regard to whether any or all of the
foregoing matters would be deemed confidential, material, or important.
b. The parties stipulate that, as between them, the
above mentioned matters are important, material, and confidential and gravely
affect the effective and successful conduct of the business of Employer and its
goodwill, and that any breach of the terms of this section is a material breach
of this Agreement.
9. EMPLOYEE'S COMMITMENTS AS BINDING ON EMPLOYER.
Notwithstanding anything in this Agreement to the contrary, it is
expressly understood and agreed that the Employee does not have the right to
make any contracts or commitments on behalf of the Employer without the written
consent of the Employer.
10. ENTIRE AGREEMENT.
a. This written Agreement contains the sole and entire
agreement between the parties and supersedes any and all other agreements
between the parties. The parties acknowledge and agree that neither of them has
made any representation with respect to the subject matter of this Agreement or
any representations inducing the execution and delivery of this Agreement,
except such representations as are specifically set forth in this Agreement, and
each of the parties acknowledges that such party has relied on such party's own
judgment in entering into the Agreement.
b. The parties further acknowledge that any statements
or representations that may have previously been made by either of them to the
other are void and of no effect and that neither of them has relied thereon in
connection with such party's dealings with the other.
11. WAIVER OR MODIFICATION OF AGREEMENT.
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a. A waiver or modification of this Agreement or of any
covenant, condition, or limitation in this Agreement will not be valid unless it
is in writing and executed by the party to be charged, and evidence of any
waiver or modification will not be offered or received in evidence in any
proceeding, arbitration, or litigation between the parties arising out of or
affecting this agreement, or the rights or obligations of any party under this
Agreement, unless such waiver or modification is in writing, executed by the
party to be charged.
b. The parties further agree that the provisions of this
section may not be waived except as set forth in this Agreement.
12. GOVERNING LAW.
The parties agree that it is their intention and covenant that this
Agreement, performance under this Agreement, and all suits and special
proceedings under this Agreement, be construed in accordance with, and under and
pursuant to, the laws of the State of California and that, in any action,
special proceeding, or other proceeding that may be brought arising out of, in
connection with, or by reason of, this Agreement, the laws of the State of
California will be applicable and will govern, to the exclusion of the law of
any other forum, without regard to the jurisdiction in which the action or
special proceeding may be instituted.
13. ASSIGNMENT OR SURVIVORSHIP OF BENEFITS.
This Agreement is binding on, and inures to the benefit of, the
respective parties and their executors, administrators, heirs, personal
representatives, successors, and assigns.
14. EMPLOYEE'S INVENTIONS OWNED BY EMPLOYER.
All ideas, inventions, trademarks, and other developments or
improvements conceived by the Employee, alone or with others, during the term of
the employment, whether or not during working hours, that are within the scope
of the Employer's business operations, or that relate to any Employer work or
projects, are the exclusive property of the Employer. The Employee agrees to
assist the Employer, at its expense, to obtain patents on any such patentable
ideas, inventions, trademarks, and other developments, and agrees to execute all
documents necessary to obtain such patents in the name of the Employer.
15. RETURN OF EMPLOYER'S PROPERTY.
On termination of this Agreement, regardless of how termination is
effected, or whenever requested by the Employer, the Employee will immediately
return to the Employer all of the Employer's property, including without
limitation all art, whether in digital or other form, patterns, designs,
finished and unfinished samples, and all other times related to Employee's
duties under this Agreement.
16. TERMINATION FOR CAUSE.
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The Employer may discharge the Employee for incompetence,
insubordination, violation of any rule or regulation that may be established
from time to time for the conduct of the Employer's business, or breach or
neglect of any duty or obligation of the Employee under this Agreement, by
giving the Employee fourteen (14)] days' written notice. The Employer's exercise
of its right to terminate under this provision will be without prejudice to any
other remedy that the same may be entitled to at law, in equity, or under any
other provision of the Agreement.
17. TERMINATION BY EMPLOYEE.
If Employer ceases conducting its business, takes any action looking
toward its dissolution or liquidation, makes an assignment for the benefit of
its creditors, admits in writing its inability to pay its debts as they become
due, files a voluntary, or becomes the subject of an involuntary petition in
bankruptcy, or becomes the subject of any state or federal insolvency proceeding
of any kind, then the Employee, in the Employee's sole discretion, by written
notice to the Employer, may terminate the employment, and the Employer consents
to the Employee's release under such circumstances; if the Employer ceases to
operate or exist as a result of such event, the noncompetition and
confidentiality provisions of this Agreement will terminate.
18. SOLICITATION AFTER TERMINATION.
The Employee agrees that, in addition to any other limitation, for a
period of two (2) years after the termination of employment, except a
termination caused by the Employer in violation of the terms of this Agreement
(the "Post Termination Period"), and unless otherwise specified in this
Agreement, the Employee will not, on Employee's own behalf or on behalf of any
other person, firm, or corporation, call on any of the customers of the
Employer, or any of its affiliates or subsidiaries, for the purpose of
soliciting or providing to any of the customers any knit or denim apparel, and
the Employee will not, in any way, directly or indirectly, on Employee's own
behalf, or on behalf of any other person, firm, or corporation, solicit, divert,
or take away any customer of the Employer, its affiliates, or its subsidiaries.
In addition, during the Post Termination Period Employee shall not circumvent or
interfere with the contractual relationships between Employer, its affiliates,
or its subsidiaries and any vendor or contractor with whom Employer is doing
business at the time of termination.
19. ARBITRATION.
a. All claims, disputes, controversies, or disagreements
of any kind whatsoever ("claims"), including any claim arising out of or in
connection with Employee's employment or the termination of Employee's
employment, that may arise between Employee and the Employer, including any
claims that may arise between Employee and the Employer's officers, directors,
employees, or agents in their capacity as such, shall be submitted to final and
binding arbitration before Judicial Arbitration and Mediation Services/Endispute
(JAMS) in Los Angeles, California in accordance with the rules and procedures of
JAMS then existing.
b. Claims covered by this arbitration provision include,
but are not limited to the following: (1) alleged violations of federal, state,
or local constitutions, statutes, regulations, or ordinances,
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including, but not limited to antidiscrimination and harassment laws; (2)
allegations of a breach of a contractual obligation; and (3) alleged violations
of public policy.
c. The following are expressly excluded from this
arbitration provision and are not covered by this Agreement: (1) claims related
to workers' compensation or unemployment insurance; (2) administrative claims
filed with government agencies such as the Equal Employment Opportunity
Commission (EEOC), Department of Fair Employment and Housing (DFEH), or the
National Labor Relations Board (NLRB); and (3) claims that are expressly
excluded by statute.
d. In consideration for and as a material condition of
Employee's employment with the Employer, Employee agrees that final and binding
arbitration is the exclusive means for resolving the claims outlined in this
Agreement. However, this Agreement does not in any way alter the at-will status
of Employee's employment. This Agreement is a waiver of all rights Employee may
have to a civil court action on any dispute outlined by this Agreement.
Accordingly, only an arbitrator, not a judge or jury, will decide the dispute,
although the arbitrator has the authority to award any type of relief that could
otherwise be awarded by a judge or jury.
e. The fees and costs of the arbitration shall be borne
equally by Employee and the Employer, except that Employee and the Employer
shall each pay for their own attorney fees or costs of representation for
purposes of the arbitration unless otherwise provided by law.
20. SEVERABILITY.
The provisions hereof are severable, and if any provision
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
then such invalidity or unenforceability shall affect only such provision, or
part thereof in such jurisdiction and shall not in any manner affect such
provision in any other jurisdiction, or any other provision in this Agreement in
any jurisdiction. To the extent legally permissible, an arrangement that
reflects the original intent of the parties shall be substituted for such
invalid or unenforceable provision.
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IN WITNESS WHEREOF, the parties have executed this agreement at Commerce,
California, the day and year first above written.
EMPLOYER: EMPLOYEE:
ANTIK DENIM, LLC, a California
limited liability Employer
By: /S/ XXXX XXXX /S/ ALEXANDRE CAUGANT
--------------------------------- -----------------------------------
XXXX XXXX, MANAGER ALEXANDRE CAUGANT
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