Exhibit 10.24
XXXXXX A.S.L., LTD.
00 XXXXX XXX
XXXXXXXX, XXX XXXXXX 00000
August 27, 2001
Xx. Xxx Xxxxx
Dear Xxx:
On behalf of Xxxxxx A.S.L., Ltd. (the "Company"), a Delaware corporation, I am
pleased to confirm your employment with the Company on the terms set forth in
this letter agreement. If you agree with the following terms, please sign a copy
of this letter agreement and return it to me upon our receipt of which it will
become a binding contract.
1. DUTIES. You (the "Executive") shall be employed as Senior Vice President,
General Counsel & Secretary. Executive shall perform such duties and services
commensurate with Executive's position and such other duties and services as are
from time-to-time assigned to Executive by the Chief Executive Officer of the
Company or such other senior officers or executives as the Chief Executive
Officer may Designate. Executive shall devote Executive's full working time and
efforts to the Company's business and to the performance of Executive's duties
under this Agreement. Executive shall be available to travel as the needs of the
business require, which travel shall be in accordance with the Company's travel
policy applicable to similarly situated employees of the Company and its
affiliates.
2. TERM. The Company agrees to employ Executive and Executive agrees to serve,
on the terms and conditions of this Agreement, for a period commencing on
September 17, 2001 (the "Effective Date") and ending on September 16, 2004
unless earlier terminated pursuant to the terms hereof (the "Initial Employment
Term"). The Initial Employment Term shall be extended for successive one year
terms (each, an "Additional Employment Term") unless the Company or the
Executive gives written notice of non-extension at least 90 days prior to the
end of the Initial Employment Term or the then Additional Employment Term,
unless earlier terminated pursuant to the terms hereof. During the term
Executive is employed hereunder, the Initial Employment Term and the Additional
Employment Terms, if applicable, collectively shall be referred to as the
"Employment Term."
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3. COMPENSATION.
(a) Base Salary. For Executive's services under this Agreement, as of
the Effective Date, the Company shall pay Executive an annualized base salary of
$300,000 payable in accordance with the Company's customary payroll practices
from time to time in effect. The Company will review Executive's compensation
annually and may, in its sole discretion, increase Executive's base salary.
(b) Annual Cash Bonuses.
(i) During the Employment Term, Executive shall be entitled to a cash
bonus (the "Bonus") with a target of 30% of Executive's annual base salary, in
accordance with the terms and provisions of the Company's then existing
executive bonus plan (the "Bonus Plan"). The Bonus shall be determined annually
the same time bonuses are determined for similarly situated employees of the
Company, in accordance with the Bonus Plan, and shall be payable at the same
time and in the same manner as bonuses are paid to other similarly situated
employees of the Company. Executive acknowledges that the Bonus Plan is in
development. Executive will receive a bonus for fiscal 2001 in the amount of
$30,000 payable on December 31, 2001. Executive will receive a copy of the Bonus
Plan upon its adoption by the Company.
(ii) During the Employment Term, the targets and performance goals,
including but not limited to the extent to which they will be based on corporate
performance, divisional performance, or other criteria consistent with the terms
and provisions of the Bonus Plan, shall be established annually by the Company
in accordance with the Bonus Plan.
(c) Equity Awards. Upon adoption by the Company of an Equity Award
program, which is expected to occur not later than June 1, 2002, and thereafter
for each fiscal year during the Employment Term hereof, Executive shall be
eligible to receive annual awards of stock options in an amount generally
available to similarly situated employees of the Company, in accordance with the
Company's then current Equity Awards program.
(d) Participation in Benefit Plans and other Benefits. Executive also
shall be entitled to (i) participate in all other Executive benefit plans
generally available to similarly situated employees of the Company, subject to
Executive's eligibility therefor, (ii) four (4) weeks of paid vacation per
annum, and (iii) travel in accordance with the Company's travel policy generally
applicable to similarly situated employees of the Company.
(e) Successor Executive Compensation Programs. The Company hereby
reserves the right from time to time to amend, alter, or rescind the Bonus Plan
and Equity Award programs and the plans referred to in Section 3(d); provided,
however, that the Company agrees that during the Employment Term Executive shall
be entitled to participate in executive compensation programs of a similar type
and at a level generally applicable to similarly situated employees of the
Company, subject to the approval of such programs by the applicable compensation
committee of the Board of Directors and legal limitations.
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4. SEVERANCE PAYMENTS.
(a) Severance Payments. The Company may terminate Executive's
employment at any time with or without Cause (as defined below). If during the
Employment Term, Executive's employment with the Company is terminated by the
Company without Cause (which right the Company shall have at any time during the
Employment Term) and other than as a result of death, notice of non-extension of
Employment Term as provided in Section 2 of this Agreement or as provided in
Section 5 of this Agreement, upon Executive's execution and effectiveness of a
general release of Claims (as hereinafter defined) which is acceptable in form
and substance to the Company, the Company shall pay to Executive an amount equal
to the aggregate of (1) Executive's then current annual base salary and (2) an
amount equal to the prior year's bonus (the "Severance Amount"). The Severance
Amount shall be paid in equal installments over a 12-month period in accordance
with the Company's customary payroll practices (but not as an employee).
Executive agrees to accept the Severance Amount, as may be reduced below, in
full settlement of Claims. The Severance Amount payable to Executive under this
Section 4(a) shall be reduced by any compensation actually received, whether or
not during the period, by Executive as a result of Executive's employment or
retention by another employer as an employee or in a consulting capacity for
services rendered during the period. Executive shall advise the Company promptly
of any such employment and/or consulting fees received by Executive and rebate
any amount due to the Company. No Severance Amount shall be payable by reason of
termination due to the death or disability of the Executive, termination for
Cause, or non-extension of the Employment Term in accordance with Section 2 of
this Agreement. As used in this paragraph, "Claims" shall mean all claims
arising, prior to the date of the general release, against the Company and its
affiliates and their respective officers, directors, agents, executives and
employees in such capacities, other than claims for vested accrued benefits
(which shall not include any earned but unused vacation) or vested stock options
under the terms of their respective plans and claims for unreimbursed authorized
business expenses.
(b) Termination of Severance Payment. Notwithstanding Section 4(a)
above, if Executive violates the provisions of Section 6 of this Agreement after
Executive's termination of employment by the Company, Executive shall have no
further right to the payment of any Severance Amount payable thereafter under
this Agreement.
(c) "Cause." As used in this Agreement, "Cause" shall mean (i) a
continuous or substantial dereliction of duties which continues after written
notice by the Company, (ii) dishonesty, fraud or breach of fiduciary duty with
respect to the Company or Executive's duties, (iii) gross negligence in the
performance of Executive's duties, (iv) willful misconduct with regard to the
Company, its business, assets or employees which is material, (v) conviction of,
or pleading nolo contendre to, a felony or any other crime involving fraud,
dishonesty or moral turpitude, or (vi) any other material breach of the terms of
this Agreement or the Company's policies as in effect from time to time, which
breach continues more than 30 days after written notice from the Company to the
Executive setting forth the conduct and the provisions of this Agreement or
policies alleged to have been breached. For purposes of this Section 4(c),
"Company" shall include affiliates and licensees of the Company.
(d) Salary and Accrued Benefits. If Executive's employment with the
Company is terminated for any reason, including death, the Company shall pay to
Executive (or his estate) any unpaid base salary and other accrued benefits to
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which Executive is entitled on the date of termination under the terms of the
Company's compensation plans.
5. DISABILITY, ILLNESS, ETC. If by reason of Executive's physical or
mental incapacity Executive is unable to perform Executive's material duties for
a period of more than 90 days, whether or not consecutive, in any 365-day
period, the compensation otherwise payable to Executive during such period shall
be discontinued for any portion of such period in excess of 90 days, and the
Company, at its option, may at any time after such 90-day period while Executive
is incapacitated terminate this Agreement upon written notice to Executive. In
the event of such termination, Executive will not be entitled to any Severance
Amount.
6. ADDITIONAL PROVISIONS.
(a) Confidential Information. All confidential information relating to
the business of the Company or its affiliates or their respective officers,
directors, executives or employees, or of any customer, supplier, or licensee of
the Company or its affiliates ("Confidential Information") which Executive now
or hereafter possesses as a result of his employment by the Company or its
affiliates shall not be furnished, published, disclosed, or made accessible by
Executive to any other person, firm, or corporation either during or after the
termination of Executive's employment or used by Executive except while employed
hereunder in the regular course of business and for the benefit of the Company
and its affiliates, in each case without the prior written permission of the
Company. Executive shall return all tangible evidence of such confidential
information to the Company prior to or on the date of termination of Executive's
employment. As used in this Section 6(a), "Confidential Information" shall
exclude that information which is or comes into the public domain through no
fault of Executive or which Executive obtains after the termination of
Executive's employment by the Company from a third party who to the knowledge of
Executive has the right to disclose such information. The foregoing shall not
prohibit compliance with legal process provided that Executive gives the Company
prompt written notice thereof and cooperates with the Company in its efforts to
obtain a protective order for the Confidential Information.
(b) Non-Competition and Non-Solicitation.
(i) In view of the unique and valuable services Executive has rendered
and will continue to render to the Company and its affiliates, the relationship
Executive has and will have with the customers of the Company and its
affiliates, Executive's knowledge of the customers, trade secrets, and other
proprietary information relating to the business of the Company and its
affiliates and their customers, suppliers and licensees and similar knowledge
regarding the Company and its affiliates which Executive has obtained and will
continue to obtain, and in consideration of the rights granted to Executive
under this Agreement, Executive agrees that Executive will not during the period
Executive is employed by the Company or any of its affiliates Participate In (as
herein defined) any other business or organization, whether or not such business
or organization now is or shall then be competing with or of a nature similar to
the business of the Company or any of its affiliates or their licensees. Nothing
herein shall prevent Executive from owning publicly traded securities
representing less than 1% of the equity of a publicly traded company.
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(ii) Executive further agrees that while Executive is employed by the
Company or any of its affiliates and thereafter (notwithstanding the reason or
basis for the termination of Executive's employment with the Company or its
affiliates) for a period of 24 months, Executive shall not directly or
indirectly, hire, engage or retain, or aid or assist any other person or entity
to hire, engage, or retain (A)(x) any designers of the Company or its
affiliates, (y) any person who held the position of Director or any equivalent
or more senior position at the Company or any of its affiliates, or (z) any
licensee of Company or any person who acted as one of the Company's or its
affiliates' outside consultants, in each instance at the time of termination of
Executive's employment or within the six-month period thereto, (B) any person
employed by a licensee of the Company or its affiliates who worked on the
Company's brands at the time of termination of Executive's employment or within
the six-month period prior thereto, or (C) any person or entity that supplied
piece goods or designs to, or that manufactured or sold apparel to, the Company
or any of its affiliates during the six-month period prior to such termination.
(c) "Participate In." For purposes of this Section 6, the term
"Participate In" shall mean: directly or indirectly, for Executive's own benefit
or for, with, or through any other person, firm, or corporation, own, manage,
operate, control, loan money to, or participate in the ownership, management,
operation, or control of, or be connected as a director, officer, executive,
partner, consultant, agent, independent contractor, or otherwise with, or
acquiesce in the use of Executive's name in."
(d) Non Disparagement. During thc Employment Term and thereafter, the
Executive agrees that he shall not disparage the Company or its affiliates or
their respective officers, directors, executives or licensees and shall not
publish or make any statement which is reasonably foreseeable to become public
with respect to the Company or its affiliates, or any of their respective
directors, officers, executives or licensees.
(e) Copyrights, Inventions, etc. Any interest in patents, patent
applications, inventions, technological innovations, copyrights, copyrightable
works, developments, discoveries, designs, concepts, ideas and processes ("Such
Inventions") which Executive now or hereafter during the period he is employed
by the Company or any of its affiliates under this Agreement or otherwise may
own or develop either individually or with others relating to the fields in
which any of the Company or its affiliates may then be engaged or contemplates
being engaged shall belong to the Company or any of its affiliates and forthwith
upon request of the Company, Executive shall execute all such assignments and
other documents (including applications for patents, copyrights, trademarks and
assignments thereof) and take all such other action as the Company may
reasonably request in order to assign to and vest in the Company or its
affiliates all of Executive's right, title, and interest (including, but not
limited to, waivers to any moral rights) in and to Such Inventions throughout
the world, free and clear of liens, mortgages, security interests, pledges,
charges and encumbrances. Executive acknowledges that all copyrightable works
created by the Executive as an employee will be "works made for hire" on behalf
of the Company and its affiliates and that the Company and its affiliates shall
have all rights therein in perpetuity throughout the world. The Executive hereby
appoints any officer of the Company as the Executive's duly authorized
attorney-in-fact to execute, file, prosecute and protect Such Inventions before
any government agency, court or authority. If for any reason the Company does
not own any Such Invention, the Company and its affiliates shall have the
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exclusive and royalty free right to use in their businesses, and to make
products therefrom, Such Invention as well as any improvements or know-how
related thereto.
(f) Equitable Remedies; Survival. Executive acknowledges that a breach
or threatened breach of any of the provisions of this Section 6 shall cause
irreparable harm and that any remedy at law may be inadequate and that
accordingly the Company, in addition to its remedies at law, shall be entitled
to an injunction or specific performance or any other mode of equitable relief
without the necessity of showing any actual damage, posting a bond or furnishing
other security. The provisions of this Section 6 shall survive the termination
of this Agreement.
7. EXPENSES. Executive shall be entitled to reimbursement for all
reasonable out-of-pocket expenses incurred in accordance with the Company's then
existing policies, upon timely submission and approval of written statements and
bills in accordance with the Company's applicable expense reimbursement and
related policies and procedures as in effect from time to time. Notwithstanding
the foregoing, after notice of termination of employment by the Company or
Executive, Executive shall be entitled to reimbursement of such expenses
incurred after the date of such notice of termination only if approved in
advance by the Chief Executive Officer of the Company.
8. ARBITRATION. Any dispute arising out of, or in any manner relating
to, this Agreement or the termination of Executive's employment with the
Company, other than injunctive relief pursuant to Section 6(f), shall be
resolved in arbitration before a panel of three arbitrators before the American
Arbitration Association in the City of New York according to its then existing
commercial rules and regulations. The parties agree that in any such
arbitration, the arbitrators shall not have the power to reform or modify this
Agreement in any way and to that extent their powers are so limited. The parties
also agree that in any such arbitration, the arbitrators may not award punitive
damages to any party, and, in the absence of an arbitrators' award, the costs of
such arbitration shall be borne equally by the parties. The arbitration award
shall state the reasons therefor and the determination of the arbitrators shall
be final and binding on the parties hereto and judgment thereon may be entered
in any court of competent jurisdiction. Except as required by law, neither the
Company nor Executive shall issue any press release or make any statement which
is reasonably foreseeable to become public with respect to any arbitration or
any proceedings in connection therewith without receiving the prior written
consent of the other party to the content of such press release or statement.
9. ENTIRE AGREEMENT. This Agreement represents the entire understanding
among the parties relating to the subject matter hereof; supersedes all prior
oral or written understandings and agreements relating hereto, and may not be
amended, terminated or discharged except in writing signed by all of the parties
hereto.
10. ASSIGNMENT; BINDING EFFECT. Executive shall not assign or otherwise
transfer its rights or obligations hereunder and such rights shall not be
subject to commutation, encumbrance, or the claims of creditors, and any attempt
by Executive to do any of the foregoing shall be void and of no force or effect.
The provisions of this Agreement shall be binding upon and inure to the benefit
of Executive and Executive's heirs and personal representatives, and shall be
binding upon and inure to the benefit of the Company and its successors and
assigns.
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11. NOTICE. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered by courier, by hand or by telecopy
against receipt to the party to whom it is to be given at the address of such
party set forth in this Agreement (or to such other address as the party shall
have furnished in writing in accordance with the provisions of this Section 11)
and with a copy, in the case of the Company, to the General Counsel at the
address set forth in this Agreement. Notice to Executive's estate shall be
sufficient if addressed to Executive as provided in this Section 11. Any notice
or other communication shall be deemed given at the time of receipt thereof.
12. GOVERNING LAW. This Agreement shall be deemed entered into in the
State of New York and shall be governed in all respects by the law of New York
applicable to agreements made and to be performed therein, without giving effect
to conflicts of law principles. For purposes of Section 6(f) and except as
specifically provided in Section 8, the Executive and the Company both consent
to the jurisdiction of the state courts of the State of New York and the Federal
courts whose districts encompass any part of New York in connection with any
dispute arising under this Agreement and hereby waive, to the maximum extent
permitted by law, any objection based on forum non conveniens, to the conducting
of any such proceeding in such jurisdiction. The Executive and the Company each
consents to service of process in any action brought in such courts by
registered or certified mail sent to the address indicated on the first page
hereof. The Executive and the Company both waive trial by jury in connection
with the trial of any action or dispute in connection with this Agreement or
matters of a similar nature.
13. WAIVER. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing,
signed by the party giving the waiver.
14. SEPARABILITY. If any provision of this Agreement shall be deemed to
be invalid, illegal, or unenforceable by reason of the extent, duration, or
geographical scope thereof, or otherwise, then the parties agree that the
arbitration panel making such determination shall reduce such extent, duration,
geographical scope, or other provisions hereof to the extent required to render
them valid, legal, and enforceable, and in its reduced form such restriction
shall then be enforceable in the manner contemplated hereby.
15. REPRESENTATIONS. Executive represents and warrants that the
entering into and performance of this Agreement will not be in violation of any
other agreement to which Executive is a party and no activities of Executive
currently conflict with the non-competition provisions provided herein.
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If the foregoing is correct, please sign and return to us a copy of this letter
agreement, which when signed shall constitute a binding agreement.
By: XXXXXX A.S.L. LTD.
By: /s/ Xxxx X. Idol
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Agreed to:
/s/ Xxx Xxxxx
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Xxx Xxxxx
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