EXHIBIT 10.39
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is dated as of June 12, 1995 by and between David Levin
(the "Employee") and J. BAKER, INC., a Massachusetts corporation (the
"Company").
WHEREAS, the Employee and the Company desire to set forth in writing
the terms and conditions of the Employee's employment agreement with the Company
from the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Employment. Under and subject to the terms and conditions set forth
herein, the Company hereby agrees to employ the Employee during the Term (as
defined in Section 6 hereof) as its Senior Executive Vice President and Director
of Shoe Merchandising and Operations and/or in such other senior executive
management position(s) with the Company, or any parent or subsidiary of the
Company, as the Board of Directors of the Company (the "Board") may determine
from time to time, and the Employee hereby accepts such employment.
2. Duties. The Employee agrees, during the Term and any extension of
the Term, faithfully to perform for the Company, and any subsidiary or parent of
the Company, the duties of the Director of Shoe Merchandising and Operations,
and/or such other duties as may be assigned to him from time to time by the
Company. The Employee further agrees to devote his entire business time,
attention and energies exclusively to such employment and to conform to the
rules, regulations, instructions, personnel practices and policies of the
Company and its subsidiaries, as existing and amended from time to time. The
Employee may be required to relocate his principal residence only to an area in
which the Company or a subsidiary of the Company has or determines to have
significant operations.
3. Compensation.
(a) Base Salary. The Company shall pay the Employee during the
Term an annual base salary ("Base Salary") of not less than $375,000, payable in
equal installments in accordance with the Company's regular pay intervals for
its senior executives.
(b) Cash Incentive Compensation. In addition to his annual
base salary as determined pursuant to Section 3(a), the Company shall pay to the
Employee a one-time guaranteed bonus payment (the "Guaranteed Bonus Payment") of
$100,000 on January 31, 1996; provided, however, that if the Employee shall
voluntarily terminate his employment with the
Company prior to June 12, 1996, the Guaranteed Bonus Payment, if having already
been paid to the Employee, shall be repaid to the Company within five (5)
business days of such voluntary termination. For the fiscal year commencing
February 4, 1996 and thereafter, the Employee shall be paid such amounts, if
any, to which the Employee is entitled, as an officer of the Company, under the
Company's Cash Incentive Compensation Plan (the "Incentive Plan"), as from time
to time such plan may be amended.
4. Other Benefits.
(a) Fringe Benefits. The Employee shall be entitled to
participate in all benefit programs that the Company establishes and makes
available to management generally and in any event shall be entitled to receive
benefits at least substantially comparable to those provided pursuant to the
present practices of the Company and its subsidiaries.
(b) Paid Vacations. The Employee shall be entitled to an
annual paid vacation of four weeks in each calendar year, to be taken at such
time or times as the Employee and the Company shall mutually agree, provided,
however, that no more than two weeks shall be taken during any three month
period unless otherwise agreed upon by the Company's Chief Executive Officer.
5. Expenses. The Company shall reimburse the Employee for all
reasonable travel, entertainment and other business expenses incurred or paid by
the Employee in performing his duties under this Agreement upon presentation by
the Employee of expense statements or vouchers and such other supporting
information as the Company may from time to time request, provided, however,
that the amount available for such expenses may be fixed in advance by the Board
after consultation with the Employee. The Company shall also pay or reimburse
the reasonable relocation expenses of the Employee (consistent with the present
policies of the Company) in connection with a relocation of the Employee's
principal residence to the greater Boston area from his New Jersey residence.
6. Effective Date and Term. This Agreement shall become effective as of
the date hereof and the Employee's employment under this Agreement shall
commence on such date and, unless sooner terminated as provided herein or
extended, shall continue for a term (the "Term") ending on June 12, 1997. The
Employee and the Company have obligations hereunder extending past the Term.
7. Noncompetition.
(a) During the Employee's employment under this Agreement or
otherwise and for a period of two years after the date of termination of such
employment (the "Termination Date"), the Employee will not, without the express
written consent of the Company, anywhere in the United States or any territory
or possession thereof or in any foreign country in which the Company was active
as of the Termination Date: (i) compete with the Company or any other entity
directly or indirectly controlled by the Company (each an "Affiliate"), in the
Company's Business (as defined in Section 7(c) hereof); or (ii) otherwise
interfere with, disrupt or attempt to interfere with or disrupt the relationship
between the Company or an Affiliate and any person or business that was a
customer, supplier, lessor, licensor, manufacturer, contractor, designer or
employee of the Company or such Affiliate on the Termination Date or within two
years prior to the Termination Date.
(b) The term "compete" as used in this Section 7 means
directly or indirectly, or by association with any entity or business, either as
a proprietor, partner, employee, agent, consultant, director, officer,
shareholder (provided that the Employee may make passive investments in
competitive enterprises the shares of which are listed on a national securities
exchange if the Employee at no time owns directly or indirectly more than 2% of
the outstanding equity ownership of such enterprise) or in any other capacity or
manner (i) to solicit, hire, purchase from, sell to, rent from, or otherwise
conduct business related to the Company's Business with any party that is a
customer or supplier of the Company or an Affiliate or (ii) operate any retail
store or leased footwear department ("Leased Department") which sells products
related to the Company's Business (as defined in Section 7(c) hereof).
(c) The term "Company's Business" as used in this Section 7
means the operation of any of the following specialty retail businesses, as a
principal business unit, either alone or in combination: (i) Leased Departments
in discount or mass merchandising department stores; (ii) Leased Departments in
conventional full service department and specialty stores; (iii) retail stores
offering discount or "off price" women's footwear; (iv) retail stores offering
discount or "off price" family footwear; (v) retail stores offering casual
clothing for "Big and Tall" men; or (vi) retail stores offering primarily work
related clothing and uniforms for medical and laboratory purposes or the mail
order catalog sales thereof. The term shall also include any additional
specialty retail businesses which the Company may acquire subsequent to the date
hereof and which are operated as principal business units of the Company on the
Termination Date.
(d) The term "supplier" as used in this Section 7 shall mean
any party or affiliate of a party from which, on the Termination Date or within
two years prior to the Termination Date, the Company or an Affiliate purchased
products sold by the Company or an Affiliate or was in contact or actively
planning to contact in connection with the purchase of products sold by the
Company or an Affiliate on or before the Termination Date or which the Company
or an Affiliate was contemplating the sale of at some time after the Termination
Date.
(e) The term "customer" as used in this Section 7 shall mean
any party or affiliate of a party, that on the Termination Date or within two
years prior to the Termination Date, was a wholesale vendee or prospective
wholesale vendee of the Company or an Affiliate or in connection with whose
business the Company or an Affiliate operated a Leased Department, a retail
store for the sale of discount or "off price" women's footwear, discount or "off
price" family footwear, casual clothing for "Big and Tall" men, work related
clothing and uniforms for medical and laboratory purposes or any other specialty
retail business which the Company operated as a principal business unit on the
Termination Date, had contacted in connection with the potential operation of
such businesses within two years prior to the Termination Date or which the
Company or an Affiliate was actively planning to contact in connection with the
potential operation of any such businesses on the Termination Date.
8. Confidential Information. The Employee will never use for his own
advantage or disclose any proprietary or confidential information relating to
the business operations or properties of the Company, any Affiliate or any of
their respective customers, suppliers, landlords, licensors or licensees. Upon
termination of the Employee's employment, the Employee will surrender and
deliver to the Company all documents and information of every kind relating to
or connected with the Company and Affiliates and their respective businesses,
customers, suppliers, landlords, licensors and licensees.
9. Termination.
(a) Death. In any event of the death of the Employee during
the Term, his employment shall terminate and the Company shall pay to the
Employee's surviving spouse, or to the Employee's estate if their is no
surviving spouse, (i) the Employee's base salary for one year from the date of
death, payable in accordance with the Company's regular pay intervals for its
senior executives and (ii) amounts under the Incentive Plan, if any, payable
with respect to the fiscal year in which his death occurs which otherwise would
have been paid to the Employee on the basis of the results for such fiscal year,
prorated to the date of his death. Upon the death of the Employee, the rights of
the Employee's surviving spouse or estate hereunder, as the case may be, shall
be limited solely to the benefits set forth in this Section 9(a).
(b) Disability. In the event that the Employee shall become
disabled (as hereinafter defined) during the Term, the Company shall have the
right to terminate the Employee's employment upon written notice, provided,
however, that in such event the Company shall (i) continue to pay the Employee's
base salary for one year from the date such termination occurs, payable in
accordance with the Company's regular pay intervals for its senior executives
and (ii) pay to the Employee amounts under the Incentive Plan, if any, which
otherwise would have been paid to the Employee on the basis of the results for
the fiscal year in which such termination occurs, prorated to the date of such
termination. For purposes of this Agreement, the
Employee shall be considered disabled on the date when any physical or mental
illness or other incapacity shall, in the judgment of a majority of the members
(other than the Employee) of the Board, after consulting with or being advised
by one or more physicians (it being understood that one of such physicians may
be the Employee's physician but that the Board shall not be bound by his views),
have prevented the performance in a manner reasonably satisfactory to the
Company of the Employees duties under this Agreement for a period of six
consecutive months.
(c) For Cause. The Company may by notice terminate the
Employee's employment at any time for cause, which shall mean (i) failure by the
Employee to cure a material breach of this Agreement within 15 days after
written notice thereof by the Company, (ii) the continuation after notice by the
Company of willful misconduct by the Employee in the performance of the
Employee's duties hereunder or (iii) the commission by the Employee of an act
constituting a felony. In such event all obligations of the Company hereunder
shall thereupon terminate, including the obligation to pay any amounts under the
Incentive Plan with respect to the fiscal year in which such termination occurs,
but the Employee shall be entitled to receive any accrued salary and other
amounts under the Incentive Plan accrued with respect to any prior fiscal years.
(d) Without Cause. During the Term hereof and prior to any
Change of Control of the Company, the Company may terminate this Agreement at
any time without cause. In such event, the Company shall pay to the Employee, in
accordance with the Company's regular pay intervals for its senior executives,
an amount equal to the greater of (i) the amount of Base Salary the Employee
would have received through the last day of the Term or (ii) one (1) year of
Base Salary.
(e) Change of Control. In the event the Employee's employment
with the Company is terminated either by the Company or by the Employee within
one (1) year after a Change of Control of the Company occurring during the Term
hereof (regardless of whether such Employee's termination occurs after the
expiration of the Term) then, in such event, the Company shall pay the Employee
at his sole and exclusive option an amount in cash (the "Severance Payment")
equal to either (i) the greater of (a) the amount of Base Salary the Employee
would have received through the last day of the Term or (b) two (2) years Base
Salary, payable to the Employee in a single lump sum cash payment; or (ii) three
(3) years Base Salary payable in accordance with the Company's regular pay
intervals for its senior executives; provided, however, that any amounts payable
to the Employee pursuant to this subparagraph (e)(ii) which exceed one (1) year
of Base Salary shall be reduced by any salary or other compensation earned by
the Employee from subsequent employment. For purposes of this Agreement "Base
Salary" shall mean the Employee's Base Salary as set forth in Paragraph 3 of
this Agreement, as such Base Salary may be increased from time to time. "Change
of Control" of the Company shall have the meaning set forth in the Company's
1994 Equity Incentive Plan as approved by the Stockholders of the Company on
June 7, 1994 (and without regard to any subsequent amendments thereto). If any
of the termination events set forth in this subparagraph (e) shall occur during
the Term hereof or other applicable time periods, the provisions of
paragraph 7 hereof shall be null and void and have no further force or effect.
(f) Severance Payment Limitation Upon Change of Control. If
all or part of the Severance Payment payable to the Employee pursuant to
subparagraph 9(e) hereof, when added to other payments payable to the Employee
as a result of a Change of Control, constitute Parachute Payments, the following
limitation shall apply. If the Parachute Payments, net of the sum of the Excise
Tax, Federal income and employment taxes and state and local income taxes on the
amount of the Parachute Payments in excess of the Threshold Amount, are greater
than the Threshold Amount, the Employee shall be entitled to the full Severance
Payment payable under subparagraph 9(e) of this Agreement. If the Threshold
Amount is greater than the Parachute Payments, net of the sum of the Excise Tax,
Federal income and employment taxes and state and local income taxes on the
amount of the Parachute Payments in excess of the Threshold Amount, then the
Severance Payment payable under subparagraph 9(e) of this Agreement shall be
reduced to the extent necessary so that the maximum Parachute Payments shall not
exceed the Threshold Amount. The Company shall select a firm of independent
certified public accountants to determine which of the foregoing alternative
provisions shall apply. For purposes of determining the amount of the Federal
income and employment taxes, and state and local income taxes on the amount of
the Parachute Payments in excess of the Threshold Amount, the Employee shall be
deemed to pay Federal income taxes at the highest marginal rate of Federal
income taxation applicable to individuals for the calendar year in which the
Severance Payments under subparagraph 9(e) of this Agreement are payable and
state and local income taxes at the highest marginal rates of individual
taxation in the state and locality of the Employee's residence for the calendar
year in which the Severance Payments under Subparagraph 9(e) of this Agreement
are payable, net of the maximum reduction in Federal income taxes which could be
obtained from deduction of such state and local taxes.
For purposes of this Agreement:
"Parachute Payments" shall mean any payment or provision by the Company
of any amount or benefit to and for the benefit of the Employee, whether paid or
payable or provided or to be provided under the terms of this Agreement or
otherwise, that would be considered "parachute payments" within the meaning of
Section 280G(B)(2)(A) of the Internal Revenue Code and the regulations
promulgated thereunder.
"Threshold Amount" shall mean three times the Employee's "base amount"
within the meaning of Section 280(G)(b)(3) of the Internal Revenue Code and the
regulations promulgated thereunder, less one dollar.
"Excise Tax" shall mean the excise tax imposed by Section 4999 of the
Internal Revenue Code.
10. Approval of Board. The Company represents that this Agreement
has been duly approved by the Board and is in all respects valid and binding
upon the Company.
11. Key Person Insurance. The Employee agrees to take such actions as
may be reasonably required to permit the Company to maintain key person life
insurance on the Employee's life in such amounts and for such periods of time,
if any, as the Company deems appropriate, with all benefits being payable to the
Company. Upon payment by the Employee of the cash surrender value, if any, of
any such policy and any paid but unearned premiums for such policy, the Company
will assign such policy to the Employee upon termination (other than because of
the Employee's death) of the Employee's employment with the Company, provided,
however, that, in the event the Employee's employment is terminated by reason of
the disability of the Employee and the death of the Employee may reasonably be
expected within one year after such termination as a result of such disability,
the Company shall not be required to assign any such policy.
12. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been given
and received when actually delivered, one business day after dispatch by
telegraphic means, two business days after dispatch by recognized overnight
delivery service, or five days after mailing by certified or registered mail
with proper postage affixed, return receipt requested and addressed as follows
(or to such other address as a party entitled to receive notice hereunder may
have designated by notice pursuant to this Section 12):
(a) If to the Company:
J. Baker, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
Attention: Chief Executive Officer
(b) If to the Employee:
David Levin
11 Phillips Pond Road
Natick, Massachusetts 01760
13. Severability. If any provision of this Agreement or its application
to any person or circumstances is invalid or unenforceable, then the remainder
of this Agreement or the application of such provision to other persons or
circumstances shall not be affected thereby. Further, if any provision or
application hereof is invalid or unenforceable, then a suitable and equitable
provision shall be substituted therefor in order to carry out so far as may be
valid or enforceable the intent and purposes of the invalid and unenforceable
provision.
14. Applicable Law. This Agreement shall be interpreted and
construed in accordance with, and shall be governed by, the laws of the
Commonwealth of Massachusetts without giving effect to the conflict of law
provisions thereof.
15. Assignment. Neither of the parties hereto shall, without the
written consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, provided, however, that in the event that the Company
sells all or substantially all of its assets the Company may assign its rights
and transfer its obligations hereunder to the purchaser of such assets. A merger
of the Company with or into another corporation shall be deemed not to be an
assignment of this Agreement, and, in any such event, this Agreement shall inure
to the benefit of and be binding upon the surviving corporation and the
Employee. Subject to the foregoing, this Agreement shall be binding upon, and
shall inure to the benefit of, the parties and their respective successors,
heirs, administrators, executors, personal representatives and assigns.
16. Headings. This section and paragraph headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
17. Remedies. It is specifically understood and agreed that any breach
of the provisions of Section 7 or 8 of this Agreement is likely to result in
irreparable injury to the Company, that damages at law will be inadequate remedy
for such breach, and that in addition to any other remedy it may have, the
Company shall be entitled to enforce the specific performance of said Sections
and to seek both temporary and permanent injunctive relief therefor without the
necessity of proving actual damages.
18. Waiver of Breach. Any waiver by either the Company or the Employee
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach.
19. Amendment of Agreement. This Agreement may be altered, amended or
modified, in whole or in part, only by a writing signed by both the Employee and
the Company.
20. Integration. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof and supersedes
all prior agreements whether oral or written with respect to such subject matter
between the parties.
Intending to be legally bound, the Company and the Employee have signed
this Agreement as if under seal as of the date set forth at the head of the
first page.
J. BAKER, INC.
/s/ Jerry M. Socol
Jerry M. Socol
President and Chief Executive Officer
/s/ David A. Levin
David Levin