EXHIBIT 10.2
XXXX XXXXX XXXXXX CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made effective as of
the 1st day of July, 2001 (the "Effective Date"), by and between XXXX XXXXX
LAUREN CORPORATION, a Delaware corporation (the "Corporation"), and Xxxxxxxx X.
Xxxx (the "Executive").
In consideration of the mutual covenants and premises contained
herein, the parties hereby agree as follows:
Article I
EMPLOYMENT
1.1 Employment Term. The Corporation hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Corporation, on the
terms and conditions set forth herein. The employment of the Executive by the
Corporation shall be effective as of the date hereof and continue until the
close of business of the third anniversary of the date of this Agreement (the
"Term"), unless earlier terminated in accordance with Article II hereof.
1.2 Position and Duties. During the Term the Executive shall
faithfully, and in conformity with the directions of the Board of Directors of
the Corporation (the "Board") or the management of the Corporation
("Management"), perform the duties of [his/her] employment, and shall devote to
the performance of such duties [his/her] full time and attention. During the
Term the Executive shall serve in such position as the Board or Management may
from time to time direct. During the Term, the Executive may engage in outside
activities provided those activities do not conflict with the duties and
responsibilities enumerated hereunder, and provided further that the Executive
gives written notice to the Board of any outside business activity that may
require significant expenditure of the Executive's time in which the Executive
plans to become involved, whether or not such activity is pursued for profit.
The Executive shall be excused from performing any services hereunder during
periods of temporary incapacity and during vacations in accordance with the
Corporation's disability and vacation policies.
1.3 Place of Performance. The Executive shall be employed at the
principal offices of the Corporation located in New York, New York, except for
required travel on the Corporation's business.
1.4 Compensation and Related Matters.
(a) Base Compensation. In consideration of [his/her] services
during the Term, the Corporation shall pay the Executive cash compensation at an
annual rate not less than the base salary as set forth on Exhibit A hereto
("Base Compensation"). Executive's Base Compensation shall be subject to such
increases as may be approved by the Board or Management. The Base Compensation
shall be payable as current salary, in installments not less
frequently than monthly, and at the same rate for any fraction of a month
unexpired at the end of the Term.
(b) Bonus. During the Term, the Executive shall have the
opportunity to earn an annual bonus in accordance with any annual bonus program
the Corporation maintains that would be applicable to the Executive.
(c) Expenses. During the Term, the Executive shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by the
Executive in performing services hereunder, including all reasonable expenses of
travel and living while away from home, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
the Corporation.
(d) Vacations. During the Term, the Executive shall be
entitled to the number of vacation days in each calendar year, and to
compensation in respect of earned but unused vacation days, determined in
accordance with the Corporation's vacation program. The Executive shall also be
entitled to all paid holidays given by the Corporation to its employees.
(e) Other Benefits. The Executive shall be entitled to
participate in all of the Corporation's employee benefit plans and programs in
effect during the Term as would by their terms be applicable to the Executive,
including, without limitation, any pension and retirement plan, supplemental
pension and retirement plan, deferred compensation plan, incentive plan, stock
option plan, life insurance plan, medical insurance plan, dental care plan,
accidental death and disability plan, and vacation, sick leave or personal leave
program. After the Executive becomes employed, the Corporation shall not make
any changes in such plans or programs that would adversely affect the
Executive's benefits thereunder, unless such change occurs pursuant to a program
applicable to other similarly situated employees of the Corporation and does not
result in a proportionately greater reduction in the rights or benefits of the
Executive as compared with other similarly situated employees of the
Corporation. Except as otherwise specifically provided herein, nothing paid to
the Executive under any plan or program presently in effect or made available in
the future shall be in lieu of the Base Compensation or any bonus payable under
Sections 1.4(a) and 1.4(b) hereof.
Article II
TERMINATION OF EMPLOYMENT
2.1 Termination of Employment. The Executive's employment may
terminate prior to the expiration of the Term under the following circumstances:
(a) Without Cause. The Executive's employment shall terminate
upon the Corporation's notifying the Executive that [his/her] services will no
longer be required.
(b) Death. The Executive's employment shall terminate upon the
Executive's death.
(c) Disability. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent and
unable to perform the duties
2
hereunder on a full-time basis for an entire period of six consecutive months,
the Executive's employment may be terminated by the Corporation following such
six-month period.
(d) Cause. The Corporation may terminate the Executive's
employment for Cause. For purposes hereof, "Cause" shall mean:
(i) deliberate or intentional failure by the
Executive to substantially perform the material duties of the Executive
hereunder (other than due to Disability);
(ii) an intentional act of fraud, embezzlement,
theft or any other material violation of law;
(iii) intentional wrongful damage to material assets
of the Corporation;
(iv) intentional wrongful disclosure of material
confidential information of the Corporation;
(v) intentional wrongful engagement in any
competitive activity which would constitute a breach of this Agreement and/or of
the Executive's duty of loyalty; or
(vi) intentional breach of any material employment
policy of the Corporation.
No act, or failure to act, on the part of the Executive shall be deemed
"intentional" if it was due primarily to an error in judgment or negligence, but
shall be deemed "intentional" only if done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that [his/her] action
or omission was in, or not opposed to, the best interest of the Corporation.
Failure to meet performance standards or objectives of the Corporation shall not
constitute Cause for purposes hereof.
(e) Voluntary Termination. The Executive may voluntarily
terminate the Executive's employment with the Corporation at any time.
2.2 Date of Termination. The date of termination shall be:
(a) if the Executive's employment is terminated by the
Executive's death, the date of the Executive's death;
(b) if the Executive's employment is terminated by reason of
Executive's Disability or by the Corporation pursuant to Sections 2.1(a) or
2.1(d), the date specified by the Corporation; and
(c) if the Executive's employment is terminated by the
Executive, the date on which the Executive notifies the Corporation of [his/her]
termination.
3
2.3 Effect of Termination of Employment.
(a) If the Executive's employment is terminated by the
Corporation, pursuant to Section 2.1(a), the Executive shall only be entitled to
the following:
(i) Severance. Subject to Section 4.1(a) hereof, the
Corporation shall: (a) continue to pay the Executive, in accordance with the
Corporation's normal payroll practice, [his/her] Base Compensation, as in effect
immediately prior to such termination of employment, for the longer of the
balance of the Term or the one-year period commencing on the date of such
termination (whichever period is applicable shall be referred to herein as the
"Severance Period"); and (b) pay to the Executive, on the last business day of
the Severance Period, an amount equal to the bonus paid to the Executive for the
calendar year prior to the year in which [his/her] employment is terminated.
(ii) Stock Options. The Executive's rights with
respect to any stock options granted to the Executive by the Corporation shall
be governed by the provisions of the respective award agreements under which
such stock options were granted, except as provided in Section 4.1(a).
(iii) Welfare Plan Coverages. The Executive shall
continue to participate during the Severance Period in any group medical, dental
or life insurance plan [he/she] participated in prior to the date of [his/her]
termination, under substantially similar terms and conditions as an active
employee; provided that participation in such group medical, dental and life
insurance plan shall correspondingly cease at such time as the Executive (a)
becomes eligible for a future employer's medical, dental and/or life insurance
coverage (or would become eligible if the Executive did not waive coverage) or
(b) violates any of the provisions of Article III as determined by the
Corporation. Notwithstanding the foregoing, the Executive may not continue to
participate in such plans on a pre-tax or tax-favored basis.
(iv) Retirement Plans. Without limiting the
generality of the foregoing, it is specifically provided that the Executive
shall not accrue additional benefits under any pension plan of the Corporation
(whether or not qualified under Section 401(a) of the Internal Revenue Code of
1986, as amended) during the Severance Period.
(b) If the Executive's employment is terminated by reason of
the Executive's death or Disability, pursuant to Sections 2.1(b) and 2.1(c), the
Executive (or the Executive's designee or estate) shall only be entitled to
whatever welfare plans benefits are available to the Executive pursuant to the
welfare plans the Executive participated in prior to such termination, and
whatever stock options may have been granted to the Executive by the Corporation
the terms of which shall be governed by the provisions of the respective award
agreements under which such stock options were granted.
(c) If the Executive's employment is terminated by the
Corporation for Cause or by the Executive pursuant to Section 2.1(e) hereof, the
Executive shall receive only that portion of the Executive's then current Base
Compensation payable through the Executive's termination date. The Executive's
rights with respect to any stock options granted to the Executive by the
Corporation shall be governed by the provisions of the respective award
4
agreements under which such stock options were granted. The Corporation shall
have no further obligations to the Executive as a result of the termination of
the Executive's employment.
Article III
COVENANTS OF THE EXECUTIVE
3.1 Non-Compete.
(a) The Corporation and the Executive acknowledge that: (i)
the Corporation has a special interest in and derives significant benefit from
the unique skills and experience of the Executive; (ii) the Executive will use
and have access to proprietary and valuable Confidential Information (as defined
in Section 3.2 hereof) during the course of the Executive's employment; and
(iii) the agreements and covenants contained herein are essential to protect the
business and goodwill of the Corporation or any of its subsidiaries, affiliates
or licensees. Accordingly, except as hereinafter noted, the Executive covenants
and agrees that during the Term, and for the remainder of such Term following
the termination of Executive's employment, the Executive shall not provide any
labor, work, services or assistance (whether as an officer, director, employee,
partner, agent, owner, independent contractor, stockholder or otherwise) to a
"Competing Business." For purposes hereof, "Competing Business" shall mean any
business engaged in the designing, marketing or distribution of premium
lifestyle products, including but not limited to apparel, home, accessories and
fragrance products, which competes in any material respects with the Corporation
or any of its subsidiaries, affiliates or licensees, and shall include, without
limitation, those brands and companies that the Corporation and the Executive
have jointly designated in writing on the date hereof, which is incorporated
herein by reference and which is attached as Exhibit B, as being in competition
with the Corporation as of the date hereof. Thus, Executive specifically
acknowledges that Executive understands that, except as provided in Section
3.1(b) [he/she] may not become employed by any Competing Business in any
capacity during the Term.
(b) The non-compete provisions of this Section shall no longer
be applicable to Executive if [he/she] has been notified pursuant to Section
2.1(a) hereof that [his/her] services will no longer be required during the
Term.
(c) It is acknowledged by the Executive that the Corporation
has determined to relieve the Executive from any obligation of non-competition
for periods after the Term, and/or if the Corporation terminates the Executive's
employment under Section 2.1(a). In consideration of that, and in consideration
of all of the compensation provisions in this Agreement (including the potential
for the award of stock options that may be made to the Executive), Executive
agrees to the provisions of Section 3.1 and also agrees that the non-competition
obligations imposed herein, are fair and reasonable under all the circumstances.
3.2 Confidential Information.
(a) The Corporation owns and has developed and compiled, and
will own, develop and compile, certain proprietary techniques and confidential
information as described below which have great value to its business (referred
to in this Agreement, collectively, as "Confidential Information"). Confidential
Information includes not only information disclosed
5
by the Corporation and/or its affiliates and licensees to Executive, but also
information developed or learned by Executive during the course of, or as a
result of, employment hereunder, which information Executive acknowledges is and
shall be the sole and exclusive property of the Corporation. Confidential
Information includes all proprietary information that has or could have
commercial value or other utility in the business in which the Corporation is
engaged or contemplates engaging, and all proprietary information the
unauthorized disclosure of which could be detrimental to the interests of the
Corporation. Whether or not such information is specifically labeled as
Confidential Information by the Corporation is not determinative. By way of
example and without limitation, Confidential Information includes any and all
information developed, obtained or owned by the Corporation and/or its
affiliates and licensees concerning trade secrets, techniques, know-how
(including designs, plans, procedures, processes and research records),
software, computer programs, innovations, discoveries, improvements, research,
development, test results, reports, specifications, data, formats, marketing
data and plans, business plans, strategies, forecasts, unpublished financial
information, orders, agreements and other forms of documents, price and cost
information, merchandising opportunities, expansion plans, designs, store plans,
budgets, projections, customer, supplier and subcontractor identities,
characteristics and agreements, and salary, staffing and employment information.
Notwithstanding the foregoing, Confidential Information shall not in any event
include (A) Executive's personal knowledge and know-how relating to
merchandising and business techniques which Executive has developed over
[his/her] career in the apparel business and of which Executive was aware prior
to [his/her] employment, or (B) information which (i) was generally known or
generally available to the public prior to its disclosure to Executive; (ii)
becomes generally known or generally available to the public subsequent to
disclosure to Executive through no wrongful act of any person or (iii) which
Executive is required to disclose by applicable law or regulation (provided that
Executive provides the Corporation with prior notice of the contemplated
disclosure and reasonably cooperates with the Corporation at the Corporation's
expense in seeking a protective order or other appropriate protection of such
information).
(b) Executive acknowledges and agrees that in the performance
of [his/her] duties hereunder the Corporation will from time to time disclose to
Executive and entrust Executive with Confidential Information. Executive also
acknowledges and agrees that the unauthorized disclosure of Confidential
Information, among other things, may be prejudicial to the Corporation's
interests, and an improper disclosure of trade secrets. Executive agrees that
[he/she] shall not, directly or indirectly, use, make available, sell, disclose
or otherwise communicate to any corporation, partnership, individual or other
third party, other than in the course of [his/her] assigned duties and for the
benefit of the Corporation, any Confidential Information, either during
[his/her] term of employment or thereafter.
(c) The Executive agrees that upon leaving the Corporation's
employ, the Executive shall not take with the Executive any software, computer
programs, disks, tapes, research, development, strategies, designs, reports,
study, memoranda, books, papers, plans, information, letters, e-mails, or other
documents or data reflecting any Confidential Information of the Corporation,
its subsidiaries, affiliates or licensees.
(d) During Executive's term of employment, Executive will
disclose to the Corporation all designs, inventions and business strategies or
plans developed for the
6
Corporation, including without limitation any process, operation, product or
improvement. Executive agrees that all of the foregoing are and will be the sole
and exclusive property of the Corporation and that Executive will at the
Corporation's request and cost do whatever is necessary to secure the rights
thereto, by patent, copyright or otherwise, to the Corporation
3.3 Non-Solicitation of Employees. The Executive covenants and
agrees that during the Term, and for the remainder of such Term following the
termination of Executive's employment for any reason whatsoever hereunder, the
Executive shall not directly or indirectly solicit or influence any other
employee of the Corporation, or any of its subsidiaries, affiliates or
licensees, to terminate such employee's employment with the Corporation, or any
of its subsidiaries, affiliates or licensees, as the case may be, or to become
employed by a Competing Business.
3.4 Nondisparagement. The Executive agrees that during the Term and
thereafter whether or not [he/she] is receiving any amounts pursuant to Sections
2.3 and 4.1, the Executive shall not make any statements or comments that
reasonably could be considered to shed an adverse light on the business or
reputation of the Corporation or any of its subsidiaries, affiliates or
licensees, the Board or any officer of the Corporation or any of its
subsidiaries, affiliates or licensees; provided, however, the foregoing
limitation shall not apply to (i) compliance with legal process or subpoena, or
(ii) statements in response to inquiry from a court or regulatory body.
3.5 Remedies.
(a) The Executive acknowledges and agrees that in the event
the Corporation reasonably determines that the Executive has breached any
provision of this Article III, that such conduct will constitute a failure of
the consideration for which stock options had been awarded, and notwithstanding
the terms of any stock option award agreement, plan document, or other provision
of this Agreement to the contrary, the Corporation may notify the Executive that
[he/she] may not exercise any unexercised stock options and the Executive shall
immediately forfeit the right to exercise any stock option of the Corporation
that remains unexercised at the time of such notice and Executive waives any
right to assert that any such conduct by the Corporation violates any federal or
state statute, case law or policy.
(b) If the Corporation reasonably determines that the
Executive has breached any provision contained in this Article III, the
Corporation shall have no further obligation to make any payment or provide any
benefit whatsoever to the Executive pursuant to this Agreement, and may also
recover from the Executive all such damages as it may be entitled to at law or
in equity. In addition, the Executive acknowledges that any such breach is
likely to result in immediate and irreparable harm to the Corporation for which
money damages are likely to be inadequate. Accordingly, the Executive consents
to injunctive and other appropriate equitable relief upon the institution of
proceedings therefor by the Corporation in order to protect the Corporation's
rights hereunder. Such relief may include, without limitation, an injunction to
prevent: (i) the breach or continuation of Executive's breach; (ii) the
Executive from disclosing any trade secrets or Confidential Information (as
defined in Section 3.2); (iii) any Competing Business from receiving from the
Executive or using any such trade secrets or Confidential
7
Information; and/or (iv) any such Competing Business from retaining or seeking
to retain any employees of the Corporation.
3.6 The provisions of this Article III shall survive the termination
of this Agreement and Executive's Term of employment.
Article IV
CHANGE IN CONTROL
4.1 Change in Control.
(a) Effect of a Change in Control. Notwithstanding anything
contained herein to the contrary, if the Executive's employment is terminated
within 12 months following a Change in Control (as defined in Section 4.1(b)
hereof) during the Term by the Corporation for any reason other than Cause,
then:
(i) Severance. The Corporation shall pay to the
Executive, in lieu of any amounts otherwise due [him/her] under Section 2.3(a)
hereof, within 15 days of the Executive's termination of employment, a lump sum
amount equal to two times the sum of: (A) the Executive's Base Compensation, as
in effect immediately prior to such termination of employment; and (B) the bonus
actually paid to the Executive during the year prior to the Executive's
termination.
(ii) Stock Options. The Executive shall immediately
become vested in any unvested stock options granted to the Executive by the
Corporation prior to the Change in Control and Executive will have six (6)
months from the date of termination under this circumstance to exercise all
vested options.
(b) Definition. For purposes hereof, a "Change in Control"
shall mean the occurrence of any of the following: (i) the sale, lease,
transfer, conveyance or other disposition, in one or a series of related
transactions, of all or substantially all of the assets of the Corporation to
any "person" or "group" (as such terms are used in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934 ("Act")) other than Permitted
Holders; (ii) any person or group, other than Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Act,
except that a person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50 percent of the total voting power of the voting
stock of the Corporation, including by way of merger, consolidation or
otherwise; (iii) during any period of two consecutive years, Present and/or New
Directors cease for any reason to constitute a majority of the Board; or (iv)
the Permitted Holders' beneficial ownership of the total voting power of the
voting stock of the Corporation falls below 30 percent and either Xxxxx Xxxxxx
is not nominated for a position on the Board of Directors, or he stands for
election to the Board of Directors and is not elected. For purposes of this
Section 4.1(b), the following terms have the meanings indicated: "Permitted
Holders" shall mean, as of the date of determination: (A) any and all of Xxxxx
Lauren, his spouse, his siblings and their spouses, and descendants of them
(whether natural or adopted) (collectively, the "Lauren Group"); and (B) any
trust established and maintained primarily for the benefit of any
8
member of the Lauren Group and any entity controlled by any member of the Lauren
Group. "Present Directors" shall mean individuals who at the beginning of any
such two consecutive year period were members of the Board. "New Directors"
shall mean any directors whose election by the Board or whose nomination for
election by the shareholders of the Corporation was approved by a vote of a
majority of the directors of the Corporation who, at the time of such vote, were
either Present Directors or New Directors.
(c) Excise Tax Gross-Up. If the Executive becomes entitled to
one or more payments (with a "payment" including the vesting of restricted
stock, a stock option, or other non-cash benefit or property), whether pursuant
to the terms of this Agreement or any other plan or agreement with the
Corporation or any affiliated company (collectively, "Change of Control
Payments"), which are or become subject to the tax ("Excise Tax") imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the
Corporation shall pay to the Executive at the time specified below such amount
(the "Gross-up Payment") as may be necessary to place the Executive in the same
after-tax position as if no portion of the Change of Control Payments and any
amounts paid to the Executive pursuant to this paragraph 4(c) had been subject
to the Excise Tax. The Gross-up Payment shall include, without limitation,
reimbursement for any penalties and interest that may accrue in respect of such
Excise Tax. For purposes of determining the amount of the Gross-up Payment, the
Executive shall be deemed: (A) to pay federal income taxes at the highest
marginal rate of federal income taxation for the year in which the Gross-up
Payment is to be made; and (B) to pay any applicable state and local income
taxes at the highest marginal rate of taxation for the calendar year in which
the Gross-up Payment is to be made, net of the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local
taxes if paid in such year. If the Excise Tax is subsequently determined to be
less than the amount taken into account hereunder at the time the Gross-up
Payment is made, the Executive shall repay to the Corporation at the time that
the amount of such reduction in Excise Tax is finally determined (but, if
previously paid to the taxing authorities, not prior to the time the amount of
such reduction is refunded to the Executive or otherwise realized as a benefit
by the Executive) the portion of the Gross-up Payment that would not have been
paid if such Excise Tax had been used in initially calculating the Gross-up
Payment, plus interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the time the
Gross-up Payment is made, the Corporation shall make an additional Gross-up
Payment in respect of such excess (plus any interest and penalties payable with
respect to such excess) at the time that the amount of such excess is finally
determined.
The Gross-up Payment provided for above shall be paid on the
30th day (or such earlier date as the Excise Tax becomes due and payable to the
taxing authorities) after it has been determined that the Change of Control
Payments (or any portion thereof) are subject to the Excise Tax; provided,
however, that if the amount of such Gross-up Payment or portion thereof cannot
be finally determined on or before such day, the Corporation shall pay to the
Executive on such day an estimate, as determined by counsel or auditors selected
by the Corporation and reasonably acceptable to the Executive, of the minimum
amount of such payments. The Corporation shall pay to the Executive the
remainder of such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be
determined. In the event that the amount of the estimated payments exceeds the
amount
9
subsequently determined to have been due, such excess shall constitute a loan by
the Corporation to the Executive, payable on the fifth day after demand by the
Corporation (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code). The Corporation shall have the right to control all
proceedings with the Internal Revenue Service that may arise in connection with
the determination and assessment of any Excise Tax and, at its sole option, the
Corporation may pursue or forego any and all administrative appeals,
proceedings, hearings, and conferences with any taxing authority in respect of
such Excise Tax (including any interest or penalties thereon); provided,
however, that the Corporation's control over any such proceedings shall be
limited to issues with respect to which a Gross-up Payment would be payable
hereunder, and the Executive shall be entitled to settle or contest any other
issue raised by the Internal Revenue Service or any other taxing authority. The
Executive shall cooperate with the Corporation in any proceedings relating to
the determination and assessment of any Excise Tax and shall not take any
position or action that would materially increase the amount of any Gross-up
Payment hereunder).
Article V
MISCELLANEOUS
5.1 Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or by facsimile
or mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive: Xxxxxxxx X. Xxxx
0 Xxxx Xxxxx Xxxxx
Xxxxxx Xxxxxxxx, XX 00000
If to the Corporation: Xxxx Xxxxx Lauren Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
President & Chief Operating Officer
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
5.2 Modification or Waiver; Entire Agreement. No provision of this
Agreement may be modified or waived except in a document signed by the Executive
and the Corporation. This Agreement, along with any documents incorporated
herein by reference, constitute the entire agreement between the parties
regarding their employment relationship. To the extent that this Agreement is in
any way inconsistent with any prior or contemporaneous stock option agreements
between the parties, this Agreement shall control. No agreements or
representations, oral or otherwise, with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
5.3 Governing Law. The validity, interpretation, construction,
performance, and enforcement of this Agreement shall be governed by the laws of
the State of New York without
10
reference to New York's choice of law rules. In the event of any dispute, the
Executive agrees to submit to the jurisdiction of any court sitting in New York
State.
5.4 No Mitigation or Offset. In the event the Executive's employment
with the Corporation terminates for any reason, the Executive shall not be
obligated to seek other employment following such termination and there shall be
no offset of the payments or benefits set forth herein.
5.5 Withholding. All payments required to be made by the Corporation
hereunder to the Executive or the Executive's estate or beneficiaries shall be
subject to the withholding of such amounts as the Corporation may reasonably
determine it should withhold pursuant to any applicable law.
5.6 Attorney's Fees. Each party shall bear its own attorney's fees
and costs incurred in any action or dispute arising out of this Agreement and/or
the employment relationship.
5.7 No Conflict. Executive represents and warrants that [he/she] is
not party to any agreement, contract, understanding, covenant, judgment or
decree or under any obligation, contractual or otherwise, in any way restricting
or adversely affecting [his/her] ability to act for the Corporation in all of
the respects contemplated hereby.
5.8 Enforceability. Each of the covenants and agreements set forth
in this Agreement are separate and independent covenants, each of which has been
separately bargained for and the parties hereto intend that the provisions of
each such covenant shall be enforced to the fullest extent permissible. Should
the whole or any part or provision of any such separate covenant be held or
declared invalid, such invalidity shall not in any way affect the validity of
any other such covenant or of any part or provision of the same covenant not
also held or declared invalid. If any covenant shall be found to be invalid but
would be valid if some part thereof were deleted or the period or area of
application reduced, then such covenant shall apply with such minimum
modification as may be necessary to make it valid and effective. The failure of
either party at any time to require performance by the other party of any
provision hereunder will in no way affect the right of that party thereafter to
enforce the same, nor will it affect any other party's right to enforce the
same, or to enforce any of the other provisions in this Agreement; nor will the
waiver by either party of the breach of any provision hereof be taken or held to
be a waiver of any prior or subsequent breach of such provision or as a waiver
of the provision itself.
5.9 Miscellaneous. No right or interest to, or in, any payments
shall be assignable by the Executive; provided, however, that this provision
shall not preclude the Executive from designating in writing one or more
beneficiaries to receive any amount that may be payable after the Executive's
death and shall not preclude the legal representative of the Executive's estate
from assigning any right hereunder to the person or persons entitled thereto. If
the Executive should die while any amounts would still be payable to the
Executive hereunder, all such amounts shall be paid in accordance with the terms
of this Agreement to the Executive's written designee or, if there be no such
designee, to the Executive's estate. This Agreement shall be binding upon and
shall inure to the benefit of, and shall be enforceable by, the Executive, the
11
Executive's heirs and legal representatives and the Corporation and its
successors. The section headings shall not be taken into account for purposes of
the construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date and year first above written.
XXXX XXXXX LAUREN CORPORATION
/s/ Xxxxx Xxxxx /s/ Xxxxxxxx X. Xxxx
----------------------------- -----------------------------
By: Xxxxx Xxxxx Xxxxxxxx X. Xxxx
Title: President & Chief
Operating Officer
12
EXHIBIT A
Xxxxxxxx X. Xxxx
Effective July 1, 2001, annual base compensation is $375,000.
EXHIBIT B
Abercrombie & Xxxxx
Xxx Xxxxxx Xxxxxx
Brothers
Burberry
Xxxxxx Xxxxx
Chanel
Crate & Barrel Gap Corp.
GFT
Xxxxxx Xxxxxxx
Giorgio Armani
Gucci Group
Xxxxxx
Xxxx Boss
Xxxxx Apparel Group
Xxxxxx Xxxxx
Liz Clairborne
LVMH
Xxxxxx Xxxxxxx Living Omni Media
Nautica
Prada Group
Richemont Group
Xxxxxxxxx Ferragamo Italia S.P.A.
Xxxxx Xxxxxxxxx
Xxxxxxx Sonoma Group
