EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into as of
April __, 1999, is by and between Lamonts Apparel, Inc., a Delaware corporation
(the "Company"), and ______________ ("Executive").
WHEREAS, the Company considers it essential to the best interests of its
stockholders to xxxxxx the continued employment of key management personnel; and
WHEREAS, the Compensation Committee (the "Compensation Committee") of the
Board of Directors of the Company (the "Board") has determined that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including Executive; and
WHEREAS, the Board, upon the recommendation of the Compensation Committee,
has determined that it is in the best interests of the Company to institute an
employment arrangement for certain of its executives, officers and key
employees, including the Executive, to provide for their continued employment
with the Company.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE; TITLE.
(a) EMPLOYMENT. Executive agrees to be employed by the Company, and
the Company agrees to employ Executive, on the terms and conditions set forth in
this Agreement. Executive agrees during the Term (as defined below) to devote
substantially all of Executive's business time, efforts, skills and abilities to
the performance of Executive's duties as stated in this Agreement and to the
furtherance of the Company's business.
(b) TITLE. Executive's job title will be _____________ and
Executive's duties will be those as are designated by the Board of Directors of
the Company ("Board") from time to time, subject to the supervision of the Chief
Executive Officer of the Company.
2. COMPENSATION.
(a) BASE SALARY. Executive's base salary shall be composed of the
following:
(i) SALARY. During the Term, the Company shall pay to
Executive as compensation for his services an annual salary of as
determined by the Compensation Committee from time to time ("Salary").
Executive's Salary will be payable in arrears in accordance with the
Company's normal payroll procedures and will be reviewed annually and
subject to upward adjustment as provided in paragraph 2(a)(iii) below. If
a Change in Control (as defined below) occurs, then the Salary for the Term
(as defined below) and, if applicable, any extension thereof in accordance
with Section 6(a) hereof shall be the Salary in effect immediately prior to
the occurrence of the Change in Control.
(ii) BONUS. During the Term, Executive shall be eligible for
each fiscal year that ends within the Term to participate in an annual
incentive performance bonus program in accordance with performance targets
and other criteria established by the Board or the Compensation Committee
of the Board from time to time in its sole discretion.
(iii) INCREASES IN SALARY. The Executive's Salary shall be
reviewed by the Board or the Compensation Committee thereof no less
frequently than on each January 31 during the Term.
(b) EXECUTIVE PERQUISITES. Executive shall be entitled to receive
such executive perquisites and fringe benefits as determined by the Compensation
Committee (in its sole and absolute discretion) from time to time for executives
of equivalent seniority.
(c) TAX WITHHOLDING. The Company has the right to deduct from any
compensation payable to Executive under this Agreement social security (FICA)
taxes and all federal, state, municipal or other such taxes or charges as may
now be in effect or that may hereafter be enacted or required.
(d) DIRECTOR'S AND OFFICER'S INSURANCE. During the Term, the
Executive shall be entitled to the same benefits under the Company's directors'
and officers' insurance policies as those to which the Chief Executive Officer
is entitled.
3. DURATION OF EMPLOYMENT.
(a) TERM. Unless otherwise terminated at an earlier date in
accordance with Section 3, 4 or 6 hereof or unless extended in accordance with
Section 6 hereof, the
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term of Executive's employment under this Agreement shall be for a period
commencing on April 1, 1999 (the "Effective Date") and ending on March 31,
2001 (the "Term").
(b) EARLY TERMINATION. Notwithstanding the foregoing, this Agreement
(other than Sections 5 through 14 hereof) and the relationship created hereunder
between the Company and Executive will terminate prior to the expiration of the
Term upon the earliest to occur of: (i) 30 days after delivery to Executive by
the Company of written notice of the Company's voluntary and unilateral
termination of this Agreement, (ii) the date of delivery to the Company by
Executive of written notice of Executive's voluntary and unilateral termination
of this Agreement, (iii) the date of delivery of written notice from the Company
following the disability of Executive that renders him unable to perform his
essential duties under this Agreement, even with reasonable accommodation that
does not cause undue hardship to the Company, for at least 90 days out of any
120 consecutive day period, (iv) immediately after delivery to Executive by the
Company of written notice of termination for "Cause" (as defined in Section 4
below) or (v) the death of Executive.
(c) EFFECT OF TERMINATION. Subject to the provisions set forth in
Section 6 hereof pertaining to a Change in Control, if this Agreement is
terminated (A) by the Company for "Cause" or pursuant to Section 3(b)(iii), (B)
voluntarily by Executive or (C) by nonrenewal at the end of the Term, Executive
shall be entitled to receive only (i) Executive's Salary payable pursuant to
Section 2(a)(i), pro-rated through the effective date of such termination, and
(ii) all reasonable and necessary expenses reasonably incurred by Executive on
Company business prior to the effective date of termination shall be reimbursed
in accordance with the Company's reimbursement policy then in effect, which
shall be paid to Executive within ten business days after the date the Executive
submits to the Company reasonable documentation of such expenses.
4. TERMINATION BY THE COMPANY FOR CAUSE; DEFINITION OF CAUSE.
Executive's employment under this Agreement (and Executive's right to receive
the compensation set forth in Section 2 hereof) may be terminated by the Company
at any time for "Cause," or (subject to the rights of Executive pursuant to
Section 5 hereof) without "Cause." As used in this Agreement, "Cause" shall
mean:
(a) Any dishonest or fraudulent act or course of conduct by
Executive, or other act or course of conduct by Executive constituting a
criminal act or that results in improper gain or personal enrichment of
Executive at the expense of the Company, or the commission by Executive of an
act or a course of conduct involving moral turpitude, or Executive's
insubordination to the Board.
(b) Executive's material breach of any of the terms or conditions of
this Agreement or of policies established by the Board, or Executive's material
neglect of
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Executive's duties or of the Company's business, provided, however, that no
such termination pursuant to this clause (b) shall be effective unless the
Company shall have given Executive ten days' prior written notice of any such
conduct which, if not discontinued or corrected, would lead to Executive's
termination for Cause. Executive will have the opportunity to cure such
non-complying conduct or performance within such 10-day period. Termination
pursuant to this clause (b) shall be effective with respect to matters
referred to in this clause (b) ten days after such notice unless such conduct
has been cured in the good faith judgment of the Board.
5. SEVERANCE PAYMENT ON TERMINATION WITHOUT CAUSE.
(a) TERMINATION WITHOUT CAUSE; DUTY TO MITIGATE. Subject to the
provisions set forth below and in Section 6 hereof pertaining to Change in
Control (it being intended that this Section 5 shall apply cumulatively with
Section 6 hereof except to the extent otherwise provided in Section 6 hereof),
if Executive's employment is terminated by the Company without Cause during the
Term, (i) the Company shall be obligated to continue to pay Executive his/her
Salary for the remainder of the Term (the "Severance Period"), and (ii) all
options to purchase shares of stock of the Company shall vest in full upon the
date of such termination. Subject to the provisions relating to a Change in
Control, Executive shall use reasonable efforts to mitigate the amount of any
payment or benefit provided for in this Section 5(a) by seeking employment
commensurate with Executive's skills and experience, or otherwise. The amounts
payable by the Company pursuant to Section 5(a)(i) shall be reduced by any
compensation earned by Executive during the Severance Period as a result of
employment by another employer or otherwise during the Severance Period.
(b) GENERAL RELEASE. Acceptance by Executive of any amounts pursuant
to Sections 3, 5 or 6 shall constitute a full and complete release by Executive
of any and all claims Executive may have against the Company, any of its past,
present or future shareholders or any of their respective officers, directors
and affiliates (past, present or future), including, but not limited to, claims
Executive might have relating to Executive's employment and/or cessation of
employment with the Company, including without limitation, tort, contract and
common law claims and claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Washington Law Against Discrimination, or any
other similar federal, state or local statute, rule or regulation; provided
that, there shall be excluded from the scope of such general release the
following:
(i) claims that Executive may have against the Company for
reimbursement of ordinary and necessary business expenses incurred by
Executive during the course of Executive's employment;
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(ii) claims that may be made by the Executive for payment of
accrued Salary, bonus, fringe benefits, stock, or stock options properly
due to him as provided in this Agreement; and
(iii) claims respecting matters for which the Executive is
entitled to be indemnified under the Company's Certificate of Incorporation
or Bylaws or indemnification agreements, respecting third party claims
asserted or third party litigation pending or threatened against the
Executive.
A condition to Executive's receipt of any amounts pursuant to Sections 3, 5
or 6 shall be Executive's execution and delivery of a general release as
described above with appropriate provisions as necessary to insure the release
is valid and enforceable under applicable laws, including the Older Workers
Benefit Protection Act. Such payment shall be considered independent
consideration made in exchange for such release. In exchange for such release,
the Company shall, if Executive's employment is terminated without Cause,
provide a release to Executive, but only with respect to claims against
Executive that are actually known to the Company as of the time of such
termination.
6. EFFECT OF CHANGE IN CONTROL.
(a) If a Change in Control shall occur on or prior to the expiration
of the Term, or the earlier termination of this Agreement pursuant to
Sections 3, 4 or 5, then (A) if the remaining portion of the Term is scheduled
to end on a date that is on or before the last day of the fifteenth month after
the occurrence of such Change in Control (the "Fifteenth Month"), the Term shall
be automatically extended by such number of months so that the Term shall end on
the date that is the last day of the Fifteenth Month; or (B) if the remaining
portion of the Term is to end on a date that is after the last day of the
Fifteenth Month, then the Term shall remain unaffected and shall not be
extended. If a Change in Control shall occur on or prior to the expiration of
the Term, or the earlier termination of this Agreement pursuant to Sections 3, 4
or 5, then if Executive's options have not fully vested, then upon occurrence of
a Change in Control on or after the Effective Date, all Executive options shall
fully vest immediately upon such event. In the event that a Change in Control
occurs, this Agreement shall continue to apply to Executive's Employment except
that termination of Executive's employment by Executive for "Good Reason" (as
defined below) shall be treated in the same manner as termination of Executive's
employment by the Company without Cause.
(b) As used herein, a "Change in Control" shall be deemed to have
occurred if, subsequent to the date hereof:
(i) any "person" (as such term is defined in Section 13(d) of
the Securities Exchange Act of 1934), other than (i) Apollo Advisors, L.P.,
Lion
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Advisors, L.P., FMR Corp., Fidelity Management & Research Company,
Fidelity Management Trust Company, any other beneficial owner of more than
10% of the Company's common stock as of January 31, 1998, or (ii) any
investment fund managed by, or firm or group affiliated with any of the
persons specified in clause (i) above, or any of their respective
affiliates, becomes the beneficial owner, directly or indirectly, of either
(A) a majority of the Company's outstanding common stock or (B) securities
of the Company representing a majority of the combined voting power of the
Company's then outstanding voting securities;
(ii) a sale is made to any purchaser unaffiliated with the
Company or any of the persons specified in clause (i) above of all or
substantially all of the assets of the Company;
(iii) a merger or consolidation of the Company is made with
another corporation or other legal person unaffiliated with the Company or
any of the persons specified in clause (i) above if, immediately after such
merger or consolidation, less than 70% of the combined voting power of the
then-outstanding securities of such corporation or person are held,
directly or indirectly, in the aggregate by the holders immediately prior
to such transaction of the then-outstanding securities of the Company
entitled to vote generally in the election of the Board; or
(iv) if during any two consecutive years individuals who the
beginning of such period constituted the Board (the "Incumbent Board"),
cease for any reason to constitute at least two-thirds of the members of
the Board; PROVIDED, HOWEVER, that if the election, or nomination for
election by the Company's stockholders, of any new director was approved by
a vote of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member of the
Incumbent Board; PROVIDED, FURTHER, HOWEVER, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest.
In no event shall the term "Change in Control" be construed to include any
change of control of the Company or any affiliate of the Company solely as a
result of any exchange of equity for debt securities of the Company or any such
affiliate upon consummation of a plan of reorganization for the Company in the
Bankruptcy Case.
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(c) As used in this Agreement, "Good Reason" shall mean the
occurrence (without Executive's express written consent) after or in connection
with any Change in Control, of any of the following acts by the Company, or
failures to act by the Company to act, unless, in the case of any act or failure
to act described in clauses (i), (iv), (v) or (vi) below, such act or failure to
act is corrected prior to the effective date of Executive's termination:
(i) the assignment to Executive by the Company of any duties
materially and adversely inconsistent with Executive's status as a senior
executive officer of the Company or a substantial adverse alteration in the
nature or status of Executive's responsibilities from those in effect
immediately prior to the Change in Control;
(ii) a reduction by the Company in Executive's Salary as in
effect on the date hereof or as the same may be increased from time to
time;
(iii) the relocation of Executive's principal place of
employment to a location more than 25 miles from Executive's principal
place of employment immediately prior to the Change in Control or the
Company's requiring Executive to be based anywhere other than such
principal place of employment (or permitted relocation thereof) except for
required travel on the Company's business to an extent substantially
consistent with Executive's business travel obligations prior to the Change
in Control;
(iv) the failure of the Company to pay to Executive any portion
of Executive's current compensation, or to pay to Executive any portion of
an installment of deferred compensation under any deferred compensation
program of the Company, within seven (7) days of the date such compensation
is due;
(v) the failure by the Company to continue in effect any
compensation plan in which Executive participates immediately prior to the
Change in Control that is material to Executive's total compensation (e.g.,
stock option, restricted stock, stock appreciation right, incentive
compensation, bonus or other similar plan), unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made with
respect to such plan, or the failure by the Company to continue Executive's
participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount or timing
of payment of benefits provided and the level of Executive's participation
relative to other participants, as existed immediately prior to the Change
in Control; or
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(vi) the failure by the Company to continue to provide
Executive with benefits substantially similar to those enjoyed by Executive
under any of the Company's pension, savings, life insurance, medical,
health and accident, or disability plans in which Executive was
participating immediately prior to the Change in Control, the taking of
any other action by the Company that would directly or indirectly
materially reduce any of such benefits or deprive Executive of any material
fringe benefit enjoyed by Executive at the time of the Change in Control,
or the failure by the Company to provide Executive with the number of paid
vacation days to which Executive is entitled on the basis of years of
service with the Company in accordance with the Company's normal vacation
policy in effect at the time of the Change in Control.
(d) Executive's right to terminate Executive's employment for Good
Reason shall not be affected by Executive's incapacity due to physical or mental
illness. Executive's continued employment shall not constitute consent to, or a
waiver of rights with respect to, any act or failure to act constituting Good
Reason hereunder.
(e) For purposes of any determination regarding the existence of Good
Reason, any claim by Executive that Good Reason exists shall be presumed to be
correct unless the Company establishes to the Board by clear and convincing
evidence that Good Reason does not exist.
(f) If any payment received or to be received by or for the benefit
of Executive following or in connection with a Change in Control (whether
payable pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any persons whose actions result in a Change in
Control, or any person affiliated with the Company or such person) will be
subject to excise tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), and would not be deductible (in whole or in part)
by the Company as a result of such payments constituting an "excess parachute
payment" (as defined in Section 280G of the Code), payments under this Agreement
(or, at the Executive's Election, such other payments and/or benefits, or a
combination of such other payments and/or benefits) shall be reduced to the
largest amount as will result in no portion of the payments not being fully
deductible by the Company as a result of Section 280G of the Code. All
determinations of excess parachute payments shall be made by the Company's
independent auditors. Any determination required by this paragraph to be made
by the Company's independent auditors shall be binding upon the Company and
Executive, absent manifest error.
(g) If after the occurrence of a Change in Control, Executive's
employment is terminated without cause by the Company or for good reason by
Executive, Executive shall not be required to mitigate the amount of any payment
or benefit provided for in this Agreement by seeking other employment or
otherwise. The
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amounts payable by the Company pursuant to this Section 6 shall be reduced by
any compensation (whether as salary, consulting fees or otherwise) earned by
Executive during the Severance Period as a result of employment by other
employer or otherwise during the Severance Period.
7. VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate this
Agreement for any reason by giving the Company written notice of termination,
which shall be effective as set forth in Section 3(b) above. Except in the case
of a voluntary termination that constitutes Good Reason following a Change in
Control, the Company shall have no obligation to provide any severance
compensation under Section 5 in the event of Executive's voluntary termination
of this Agreement.
8. NONSOLICITATION OF EMPLOYEES. For a period of two years after the
termination or cessation of his employment with the Company for any reason
whatsoever, Executive shall not, on his own behalf or on behalf of any other
person, partnership, association, corporation, or other entity, solicit or in
any manner attempt to influence or induce any employee of the Company or its
subsidiaries or affiliates (known by the Executive to be such) to leave the
employment of the Company or its subsidiaries or affiliates, nor shall he use or
disclose to any person, partnership, association, corporation or other entity
any information obtained while an employee of the Company concerning the names
and addresses of the Company's employees.
9. NONDISCLOSURE OF TRADE SECRETS. During the term of this Agreement,
Executive will have access to and become familiar with various trade secrets and
proprietary and confidential information of the Company, its subsidiaries and
affiliates, including, but not limited to, processes, computer programs,
compilations of information, records, sales procedures, customer and supplier
requirements, pricing techniques, customer and supplier lists, methods of doing
business and other confidential information (collectively referred to as "Trade
Secrets") which are owned by the Company, its subsidiaries and/or affiliates and
regularly used in the operation of its business, and as to which the Company,
its subsidiaries and/or affiliates take precautions to prevent dissemination to
persons other than certain directors, officers and employees. Executive
acknowledges and agrees that the Trade Secrets (1) are secret and not known in
the industry; (2) give the Company or its subsidiaries or affiliates an
advantage over competitors who do not know or use the Trade Secrets; (3) are of
such value and nature as to make it reasonable and necessary to protect and
preserve the confidentiality and secrecy of the Trade Secrets; and (4) are
valuable, special and unique assets of the Company or its subsidiaries or
affiliates, the disclosure of which could cause substantial injury and loss of
profits and goodwill to the Company or its subsidiaries or affiliates.
Executive may not use in any way or disclose any of the Trade Secrets, directly
or indirectly, either during the term of this Agreement or at any time
thereafter, except as required in the course of his employment under this
Agreement, if required in connection
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with a judicial or administrative proceeding, or if the information becomes
public knowledge other than as a result of an unauthorized disclosure by the
Executive. All files, records, documents, information, data and similar
items relating to the business of the Company, whether prepared by Executive
or otherwise coming into his possession, will remain the exclusive property
of the Company and may not be removed from the premises of the company under
any circumstances without the prior written consent of the Board (except in
the ordinary course of business during the Executive's period of active
employment under this Agreement), and in any event must be promptly delivered
to the Company upon termination of Executive's employment with the Company.
Executive agrees that upon his receipt of any subpoena, process or other
request to produce or divulge, directly or indirectly, any Trade Secrets to
any entity, agency, tribunal or person, Executive shall timely notify and
promptly hand deliver a copy of the subpoena, process or other request to the
Board. For this purpose, Executive appoints the Company (including any
attorney retained by the Company), as his true and lawful attorney-in-fact,
to act in Executive's name, place and stead to perform any act that Executive
might perform to defend and protect against any disclosure of any Trade
Secrets.
10. EQUITABLE RELIEF. Executive acknowledges that the restrictions
contained in Sections 8 and 9 are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate interests of the
Company, that the company would not have entered into this Agreement in the
absence of such restrictions, and that any violation of any provisions of those
sections will result in irreparable injury to the Company. Executive also
acknowledges that the remedy at law for any violation of these restrictions will
be inadequate and that the Company shall be entitled to temporary and permanent
injunctive relief prohibiting any such violation, without the necessity of
proving actual damages or the posting of a bond, and that the Company shall be
further entitled to an equitable accounting of all earnings, profits and other
benefits arising from any such violation, which rights shall be cumulative of
and in addition to any other rights or remedies to which the Company may be
entitled. In the event of any such violation, the Company shall be entitled to
commence an action for temporary and permanent injunctive relief and other
equitable relief in any court of competent jurisdiction and Executive further
irrevocably submits to the jurisdiction of any federal or state court in the
geographical jurisdiction of Seattle, Washington over any suit, action or
proceeding arising out of or relating to any asserted violation of Sections 8
and/or 9. Executive hereby waives, to the fullest extent permitted by law, any
objection that he may now or hereafter have to the jurisdiction of any federal
or state court in the geographical jurisdiction of Seattle, Washington or to the
venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding has been brought in an inconvenient
forum. Effective service of process may be made upon Executive by mail under
the notice provisions contained in Section 14(a).
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11. SEVERABILITY. The parties hereto intend all provisions of this
Agreement, including Sections 8 and 9 hereof, to be enforced to the fullest
extent permitted by law. Accordingly, should a court of competent jurisdiction
determine that the scope of any provision of this Agreement, including Section 8
or 9 hereof, is too broad to be enforced as written, the parties intend that the
court reform the provision to such narrower scope as it determines to be
reasonable and enforceable. In addition, however, Executive agrees that the
nonsolicitation and nondisclosure agreements set forth above each constitute
separate agreements independently supported by good and adequate consideration
and shall be severable from the other provisions of, and shall survive, this
Agreement. The existence of any claim or cause of action of Executive against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants of
Executive contained in the nonsolicitation and nondisclosure agreements. If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision never constituted a part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added as part
of this Agreement, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
12. EXECUTIVE'S WARRANTY. Executive represents and warrants that
Executive's entering into this Agreement does not, and that his performance
under this Agreement and consummation of the transactions contemplated hereby
will not, violate the provisions of any agreement or instrument to which the
Executive is a party, or any decree, judgment or order to which Executive is
subject, and that this Agreement constitutes a valid and binding obligation of
Executive in accordance with its terms.
13. ARBITRATION - EXCLUSIVE REMEDY.
(a) Except as otherwise provided herein, the parties agree that the
exclusive remedy or method of resolving all disputes or questions arising out of
or relating to this Agreement shall be arbitration. Arbitration shall be held
in Seattle, Washington, presided over by one arbitrator. Any arbitration may be
initiated by either party by written notice ("Arbitration Notice") to the other
party specifying the subject of the requested arbitration.
(b) If the parties are unable to mutually select an arbitrator to
hear the matter, then the American Arbitration Association, upon application of
the initiating
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party, shall provide a panel of arbitrators from which the parties shall
select one to hear the matter.
(c) The arbitration proceeding shall be conducted in accordance with
the Rules for Resolution of Employment Disputes of the American Arbitration
Association. The administrative costs of arbitration (including the expense of
a party in preparing for and presenting the party's case at the arbitration and
of the fees and expenses of legal counsel to a party, all of which shall be
borne by that party), shall be borne by the Company only if Executive receives
substantially the relief sought by him in the arbitration; otherwise, the costs
shall be borne equally between the parties. The arbitration determination or
award shall be final and conclusive on the parties, and judgment upon such award
may be entered and enforced in any court of competent jurisdiction.
14. MISCELLANEOUS.
(a) NOTICES. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other must be in writing and must be either (i) personally delivered, (ii)
mailed by registered or certified mail, postage prepaid with return receipt
requested, (iii) delivered by overnight express delivery service or same-day
local courier service, or (iv) delivered by telex or facsimile transmission, to
the address set forth below, or to such other address as may be designated by
the parties from time to time in accordance with this Section 14(a):
If to the Company: Lamonts Apparel, Inc.
00000 Xxxxxxx Xxxx X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy Xxxxxx Xxxxxx White & XxXxxxxxx
(which shall not 000 Xxxxxxxxxx Xxxxxx
constitute notice) Xxxx Xxxx, Xxxxxxxxxx 00000
to: Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
If to Executive:
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Notices delivered personally or by overnight express delivery service or by
local courier service are deemed given as of actual receipt. Mailed notices are
deemed given three business days after mailing. Notices delivered by telex or
facsimile transmission are deemed given upon receipt by the sender of the answer
back (in the case of a telex) or transmission confirmation (in the case of a
facsimile transmission).
(b) ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or written, between the parties with respect to the
subject matter of this Agreement and contains all of the covenants and
agreements between the parties with respect to the subject matter of this
Agreement.
(c) MODIFICATION. No change or modification of this Agreement is
valid or binding upon the parties, nor will any waiver of any term or condition
in the future be so binding, unless the change or modification or waiver is in
writing and signed by the parties to this Agreement.
(d) GOVERNING LAW. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS
AGREEMENT AND THE OBLIGATIONS AND UNDERTAKINGS OF THE PARTIES UNDER THIS
AGREEMENT WILL BE PERFORMED IN SEATTLE, WASHINGTON. THIS AGREEMENT IS GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, AND,
WHERE APPLICABLE, THE LAWS OF THE UNITED STATES.
(e) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which constitutes an original, but all of which constitute one document.
(f) ESTATE. If Executive dies prior to the expiration of the term of
employment or during a period when monies are owing to Executive, any monies
that may be due Executive from the Company under this Agreement as of the date
of his death shall be paid to Executive's estate when and as otherwise payable.
(g) ASSIGNMENT. The Company shall have the right to assign this
Agreement to its successors or assigns. The terms "successors" and "assigns"
shall include any person, corporation, partnership or other entity that buys all
or substantially all of the Company's assets or a control block of stock of the
Company, or with which the Company merges or consolidates. The rights, duties
and benefits to Executive hereunder are personal to him, and no such right or
benefit may be assigned by him. The provisions of this clause (g) are all
subject to the provisions of Section 6.
(h) BINDING EFFECT. This Agreement is binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and permitted assigns.
13
WAIVER OF BREACH. The waiver by the Company or Executive of a breach of
any provision of this Agreement by Executive or the Company may not operate or
be construed as a waiver of any subsequent breach.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth in the first paragraph.
LAMONTS APPAREL, INC.
By:
-----------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: President and Chief Executive Officer
---------------------------------------------
[Executive]
15
