EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of this 29th day
of October, 2004, is entered into by Casual Male Retail Group, Inc., a
Delaware corporation with its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Company"), and Xxxxxx X. Xxxxxxxx,
residing at 000 Xxxxxxxxxx Xxxxxx, #0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(the "Employee").
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company. In consideration of the mutual covenants and
promises contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by the parties to this Agreement, the parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Company, upon
the terms set forth in this Agreement, for the period commencing on October
29, 2004 (the "Commencement Date") and ending on January 31, 2008 (such
period, as it may be extended, the "Employment Period"), unless sooner
terminated in accordance with the provisions of Section 4.
2. Title; Capacity. The Employee shall serve as Chief Executive
Officer of the Company's Rochester Division. The Employee shall be based at
the Company's Rochester Division headquarters in San Francisco, California.
The Employee shall be subject to the supervision of, and shall have such
authority as is delegated to the Employee by, the Board or such officer of
the Company as may be designated by the Board of Directors of the Company
(the "Board").
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties
and responsibilities as the Board or its designee shall from time to time
reasonably assign to the Employee. The Employee agrees to devote his entire
business time, attention and energies to the business and interests of the
Company during the Employment Period. The Employee agrees to abide by the
rules, regulations, instructions, personnel practices and policies of the
Company and any changes therein which may be adopted from time to time by the
Company.
3. Compensation and Benefits.
3.1 Salary. The Company shall pay the Employee, in periodic
installments in accordance with the Company's customary payroll practices, an
annual base salary of $250,000 for the one-year period commencing on the
Commencement Date. Such salary shall be subject to increase but not decrease
thereafter as determined by the Board or a committee thereof in its
discretion and shall in any case increase not less than 10% per annum over
the previous year's salary (including for any partial year).
3.2 Fringe Benefits. The Employee shall be entitled to
participate in all bonus and benefit programs, if any, that the Company
establishes and makes available to its senior executives to the extent that
Employee's position, tenure, salary, age, health and other qualifications
make him eligible to participate. The Employee shall be entitled to six
weeks paid vacation per year, to be taken at such times as may be approved by
the Board or its designee.
3.3 Reimbursement of Expenses. The Company shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred
or paid by the Employee in connection with, or related to, the performance of
his duties, responsibilities or services under this Agreement, in accordance
with policies and procedures, and subject to limitations, adopted by the
Company from time to time.
3.4 Automobile Allowance. Employee shall be entitled to a car
allowance of seven hundred dollars ($700) per month.
3.5 Stock Option. On the Commencement Date, the Company shall
grant to the Employee an option to purchase one hundred thousand (100,000)
shares of the Company's common stock, par value $.01 per share ("Common
Stock"), under the Company's 1992 Stock Incentive Plan, as amended (the
"Plan"). Such option shall have an exercise price equal to the lower of the
closing price of the Common Stock on the date of execution of the Asset
Purchase Agreement pursuant to which this Agreement is being executed or the
date of execution hereof, at the Employee's option, and shall vest in three
equal consecutive annual installments commencing on the first anniversary of
the Commencement Date and in accordance with the vesting provisions of the
Plan.
3.6 Withholding. All salary, bonus and other compensation
payable to the Employee shall be subject to applicable withholding taxes.
4. Termination of Employment Period. The employment of the Employee
by the Company pursuant to this Agreement shall terminate upon the occurrence
of any of the following:
4.1 Expiration of the Employment Period;
4.2 At the election of the Company, for Cause (as defined
below), immediately upon written notice by the Company to the Employee, which
notice shall identify the Cause upon which the termination is based. For the
purposes of this Section 4.2, "Cause" shall mean (a) (i) the Employee has
engaged in habitual absenteeism to the point where it amounts to abandonment
of his employment, or (ii) the Employee has engaged in dishonesty involving
the Company or its assets or business, or (b) the conviction of the Employee
of, or the entry of a pleading of guilty or nolo contendere by the Employee
to, any crime involving moral turpitude or any felony;
4.3 Upon the death of the Employee;
4.4 The Company may, upon not less than 30 days' prior written
notice, terminate Employee's employment for any reason other than pursuant to
Sections 4.1, 4.2 or 4.3, provided that in the event that the Company
terminates pursuant to this Section 4.4, the Employee shall be entitled to
receive his full compensation and all benefits hereunder for the then
remaining term of the Employment Period in accordance with Section 3 hereof.
In the event that, following such termination, the Company fails to pay any
installment when due and such failure to pay is not cured within 30 days of
receipt by the Company from the Employee of written notice of such failure to
pay, the entire remaining balance due to Employee hereunder shall become
immediately due and payable; provided, however, that, if the Company fails to
pay any installment when due and receives a written notice thereof three (3)
times in any one calendar year, then upon the fourth failure to pay an
installment in such calendar year, the entire remaining balance due to
Employee hereunder shall become immediately due and payable without a cure
period.
5. Effect of Termination.
5.1 At-Will Employment. If the Employment Period expires
pursuant to Section 1 hereof, then, unless the Company notifies the Employee
to the contrary, the Employee shall continue his employment on an at-will
basis following the expiration of the Employment Period. Such at-will
employment relationship may be terminated by either party at any time and
shall not be governed by the terms of this Agreement.
5.2 Payments Upon Termination. In the event the Employee's
employment is terminated pursuant to Section 4.1, 4.2 or 4.3 or in the case
of a voluntary termination by the Employee, the Company shall pay to the
Employee the compensation and benefits otherwise payable to him under
Section 3 through the last day of his actual employment by the Company.
5.3 Survival. The provisions of Sections 6 and 7 shall survive
the termination of this Agreement.
6. Non-Competition and Non-Solicitation.
6.1 Restricted Activities. While the Employee is employed by
the Company and for a period of three (3) years after the termination or
cessation of such employment for any reason, the Employee will not directly
or indirectly anywhere in the world:
(a) Engage in any business or enterprise (whether as owner,
partner, officer, director, employee, consultant, investor, lender or
otherwise, except as the holder of not more than 1% of the outstanding stock
of a publicly-held company) that is engaged in the men's retail big and tall
clothing business anywhere in the world; or
(b) Either alone or in association with others (i) solicit, or
permit any organization directly or indirectly controlled by the Employee to
solicit, any employee of the Company to leave the employ of the Company, or
(ii) solicit for employment, hire or engage as an independent contractor, or
permit any organization directly or indirectly controlled by the Employee to
solicit for employment, hire or engage as an independent contractor, any
person who was employed by the Company at any time during the term of the
Employee's employment with the Company; provided, that this clause (ii) shall
not apply to the solicitation, hiring or engagement of any individual whose
employment with the Company has been terminated for a period of 12 months or
longer.
6.2 Extension. If the Employee violates the provisions of
Section 6.1, the Employee shall continue to be bound by the restrictions set
forth in Section 6.1 until a period of seven (7) years has expired without
any violation of such provisions following the termination or cessation of
Employee's employment with the Company.
6.3 Interpretation. If any restriction set forth in
Section 6.1 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
6.4 Equitable Remedies. The restrictions contained in this
Section 6 are necessary for the protection of the business and goodwill of
the Company and are considered by the Employee to be reasonable for such
purpose. The Employee agrees that any breach of this Section 6 is likely to
cause the Company substantial and irrevocable damage which is difficult to
measure. Therefore, in the event of any such breach or threatened breach,
the Employee agrees that the Company, in addition to such other remedies
which may be available, shall have the right to obtain an injunction from a
court restraining such a breach or threatened breach and the right to
specific performance of the provisions of this Section 6 and the Employee
hereby waives the adequacy of a remedy at law as a defense to such relief.
7. Proprietary Information and Developments.
7.1 Proprietary Information.
(a) The Employee agrees that all information, whether or not in
writing, of a private, secret or confidential nature concerning the Company's
business, business relationships or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information
may include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data,
clinical data, financial data, personnel data, computer programs, customer
and supplier lists, and contacts at or knowledge of customers or prospective
customers of the Company. The Employee will not disclose any Proprietary
Information to any person or entity other than employees of the Company or
use the same for any purposes (other than in the performance of his duties as
an employee of the Company) without written approval by an officer of the
Company, either during or after his employment with the Company, unless and
until such Proprietary Information has become public knowledge without fault
by the Employee.
(b) The Employee agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, laboratory notebooks, program
listings, or other written, photographic, or other tangible material
containing Proprietary Information, whether created by the Employee or
others, which shall come into his custody or possession, shall be and are the
exclusive property of the Company to be used by the Employee only in the
performance of his duties for the Company. All such materials or copies
thereof and all tangible property of the Company in the custody or possession
of the Employee shall be delivered to the Company, upon the earlier of (i) a
request by the Company or (ii) termination of his employment. After such
delivery, the Employee shall not retain any such materials or copies thereof
or any such tangible property.
(c) The Employee agrees that his obligation not to disclose or
to use information and materials of the types set forth in paragraphs (a) and
(b) above, and his obligation to return materials and tangible property, set
forth in paragraph (b) above, also extends to such types of information,
materials and tangible property of customers of the Company or suppliers to
the Company or other third parties who may have disclosed or entrusted the
same to the Company or to the Employee.
7.2 Developments.
(a) The Employee will make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods, developments,
software, and works of authorship, whether patentable or not, which are
created, made, conceived or reduced to practice by him or under his direction
or jointly with others during his employment by the Company, whether or not
during normal working hours or on the premises of the Company (all of which
are collectively referred to in this Agreement as "Developments").
(b) The Employee agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his right,
title and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this
paragraph (b) shall not apply to Developments which do not relate to the
business or research and development conducted or planned to be conducted by
the Company at the time such Development is created, made, conceived or
reduced to practice and which are made and conceived by the Employee not
during normal working hours, not on the Company's premises and not using the
Company's tools, devices, equipment or Proprietary Information. The Employee
understands that, to the extent this Agreement shall be construed in
accordance with the laws of any state which precludes a requirement in an
employee agreement to assign certain classes of inventions made by an
employee, this paragraph (b) shall be interpreted not to apply to any
invention which a court rules and/or the Company agrees falls within such
classes. The Employee also hereby waives all claims to moral rights in any
Developments.
(c) The Employee agrees to cooperate fully with the Company,
both during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign
countries) relating to Developments. The Employee shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights, and
powers of attorney, which the Company may deem necessary or desirable in
order to protect its rights and interests in any Development. The Employee
further agrees that if the Company is unable, after reasonable effort, to
secure the signature of the Employee on any such papers, any executive
officer of the Company shall be entitled to execute any such papers as the
agent and the attorney-in-fact of the Employee, and the Employee hereby
irrevocably designates and appoints each executive officer of the Company as
his agent and attorney-in-fact to execute any such papers on his behalf, and
to take any and all actions as the Company may deem necessary or desirable in
order to protect its rights and interests in any Development, under the
conditions described in this sentence.
7.3 United States Government Obligations. The Employee
acknowledges that the Company from time to time may have agreements with
other parties or with the United States Government, or agencies thereof,
which impose obligations or restrictions on the Company regarding inventions
made during the course of work under such agreements or regarding the
confidential nature of such work. The Employee agrees to be bound by all
such obligations and restrictions which are made known to the Employee and to
take all appropriate action necessary to discharge the obligations of the
Company under such agreements.
7.4 Equitable Remedies. The restrictions contained in this
Section 7 are necessary for the protection of the business and goodwill of
the Company and are considered by the Employee to be reasonable for such
purpose. The Employee agrees that any breach of this Section 7 is likely to
cause the Company substantial and irrevocable damage which is difficult to
measure. Therefore, in the event of any such breach or threatened breach,
the Employee agrees that the Company, in addition to such other remedies
which may be available, shall have the right to obtain an injunction from a
court restraining such a breach or threatened breach and the right to
specific performance of the provisions of this Section 7 and the Employee
hereby waives the adequacy of a remedy at law as a defense to such relief.
8. Other Agreements. The Employee represents that his performance
of all the terms of this Agreement and the performance of his duties as an
employee of the Company do not and will not breach any agreement with any
prior employer or other party to which the Employee is a party (including
without limitation any nondisclosure or non-competition agreement). Any
agreement to which the Employee is a party relating to nondisclosure, non-
competition or non-solicitation of employees or customers is listed on
Schedule A attached hereto.
9. Miscellaneous.
9.1 Notices. Any notices delivered under this Agreement shall
be deemed duly delivered four business days after it is sent by registered or
certified mail, return receipt requested, postage prepaid, or one business
day after it is sent for next-business day delivery via a reputable
nationwide overnight courier service, in each case to the address of the
recipient set forth in the introductory paragraph hereto. Either party may
change the address to which notices are to be delivered by giving notice of
such change to the other party in the manner set forth in this Section 9.1.
9.2 Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular forms of nouns and pronouns shall include the
plural, and vice versa.
9.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of
this Agreement.
9.4 Amendment. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Employee.
9.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
(without reference to the conflicts of laws provisions thereof). Any action,
suit or other legal proceeding arising under or relating to any provision of
this Agreement shall be commenced only in a court of the State of California
(or, if appropriate, a federal court located within California), and the
Company and the Employee each consents to the jurisdiction of such a court.
The Company and the Employee each hereby irrevocably waive any right to a
trial by jury in any action, suit or other legal proceeding arising under or
relating to any provision of this Agreement.
9.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of both parties and their respective successors
and assigns, including any corporation with which, or into which, the Company
may be merged or which may succeed to the Company's assets or business;
provided, however, that the obligations of the Employee are personal and
shall not be assigned by him. In the event the Company assigns its rights
and obligations hereunder, the Company and its assignee shall have joint and
several liability with respect to the Company's obligations hereunder.
9.7 Waivers. No delay or omission by the Company in exercising
any right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.
9.8 Captions. The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect
the scope or substance of any section of this Agreement.
9.9 Severability. In case any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality
and enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
[Remainder of Page Has Been Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
CASUAL MALE RETAIL GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive
Officer
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
SCHEDULE A
Prior Agreements
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